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German Law - A reflection of German history or the demands of the allied powers?

Extracts from this essay...

Introduction

German Law - A reflection of German history or the demands of the allied powers? On 1st September 1948, the Parliamentary Assembly met for the first time, called by the German Landtage, but ultimately demanded by the occupying allied powers, Britain, France and America. They were charged with the creation of a stable constitutional system for the three west German zones that later became the Federal Republic of Germany. Some restrictions were placed on this assembly by the allies, but in this essay hope to show the extent of the freedom of the Assembly, and the fact that the Basic Law which emerged from it was largely the product of German history and not allied coercion. The first area to examine is the historical sequence of events which led to the drafting of the Basic Law. One important thing to notice is that the three governments involved in the occupation of western Germany after the Second World War - the French, British and Americans - were far from agreed about the way to proceed with the rebuilding of a German government. Aside from the fact that they had been forced to accept the inevitability of the division of Germany following the Soviet withdrawal from the Control Council responsible for Germany, there were disagreements between the democratic allies as to what sort of government would be suitable for the three occupied zones over which they still had control. The French were of the opinion that the governments of the individual Länder should be the central element of German government and should retain almost all power. Rather than a true federal system, the French envisaged something of a confederation of Länder. The British, on the other hand, wanted to give Germany a relatively strong central government, drawing on the British tradition of strong central government. The Americans took up a position somewhere between the two.

Middle

It was decided that the President would be elected by an electoral college made up of members of the Bundestag and delegates of the Länder. A popularly elected Presidency, it was felt, would be open to the demagogue, and Germany had experience of what such a person could do once elected. Further, a directly elected President might be felt to have the legitimacy to act against the Bundestag. This clearly had to be avoided if a repeat of the Hindenburg crisis was not to be suffered. In conclusion, then, the Basic Law of Germany has its origins primarily in the history of Germany, albeit in a negative way. The Basic Law was a reaction to that history, and an attempt to avoid a repetition of it. The role of the allied powers was very limited, and they allowed themselves to a great extent to be guided by the parliamentary assembly which they had requested be called. [1]Decision in Germany, Lucius D. Clay p 399 [2]The Founding of the Federal Republic of Germany, John Golay, p 36 On 1st September 1948, the Parliamentary Assembly met for the first time, called by the German Landtage, but ultimately demanded by the occupying allied powers, Britain, France and America. They were charged with the creation of a stable constitutional system for the three west German zones that later became the Federal Republic of Germany. Some restrictions were placed on this assembly by the allies, but in this essay hope to show the extent of the freedom of the Assembly, and the fact that the Basic Law which emerged from it was largely the product of German history and not allied coercion. The first area to examine is the historical sequence of events which led to the drafting of the Basic Law. One important thing to notice is that the three governments involved in the occupation of western Germany after the Second World War - the French, British and Americans - were far from agreed about the way to proceed with the rebuilding of a German government.

Conclusion

As well as federalism, other aspects of Basic Law point clearly to German history as the source of their inspiration. Article 67, which restricts the ability of the Bundestag to overthrow the government, is a clear reaction against the chaotic days of the Weimar Republic and the characteristic high government turnover of that period. However, the fact that it is possible to overthrow the government in the Bundestag shows that the framers of the Basic Law were well aware of the need to avoid both the extreme of totalitarianism on the one hand and the weakness of the Weimar Republic on the other. Article 68 also shows an acute awareness of the need for stability, as it makes it very difficult to dissolve the Bundesrat. The role of the President in the Weimar Republic had been instrumental in the breakdown of democracy in that system. Determined to avoid a repeat of this mistake, the framers of the Basic Law were very careful to outline the powers of the President in Articles 54 to 56. It was decided that the President would be elected by an electoral college made up of members of the Bundestag and delegates of the Länder. A popularly elected Presidency, it was felt, would be open to the demagogue, and Germany had experience of what such a person could do once elected. Further, a directly elected President might be felt to have the legitimacy to act against the Bundestag. This clearly had to be avoided if a repeat of the Hindenburg crisis was not to be suffered. In conclusion, then, the Basic Law of Germany has its origins primarily in the history of Germany, albeit in a negative way. The Basic Law was a reaction to that history, and an attempt to avoid a repetition of it. The role of the allied powers was very limited, and they allowed themselves to a great extent to be guided by the parliamentary assembly which they had requested be called. [1]Decision in Germany, Lucius D. Clay p 399 [2]The Founding of the Federal Republic of Germany, John Golay, p 36

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