КОНСТИТУЦИОННО-ПРАВОВЫЕ ДИСКУССИИ ПРИ ПРИНЯТИИ ОСНОВНОГО ЗАКОНА ФРГ 1949 года

Abstract

With the split of Germany in the Western Länder, the constitutional process of framing the new political and legal reality in the Basic Law of the Federal Republic of Germany of 1949 begins. In considering and discussing the draft Basic Law of the FRG, the Parliamentary Council chose the term "basic law" instead of "constitution". The choice of this expression was intended to emphasise that the task of the Parliamentary Council was not to create a legal regime for the whole of the united German state, but only for a particular part of it, which consisted of the eleven Western states. In line with this, the German statesman G. Peters pointed out that it was the title "Basic Law" which was intended to express the will of the German Länder not to create any new "Western German State", but "to construct only something temporary and territorially limited until such time as the Federal Republic of Germany". Thus, the notion of the Basic Law was intended to denote not a part, but a general arrangement of state life; not a permanent and durable, but a temporary order in the western part of Germany. This attribute also explains the differences with the concept of the constitution. The preamble to the Basic Law contains the fundamental ideas of German unity and is the basis for its interpretation in the spirit of its founders. As the main aim of the Basic Law of the Federal Republic of Germany the preamble indicates the need to safeguard the national and state unity of the German people. It seeks to establish a new free democratic state order. The legal basis for the unification of Germany was laid down in Article 23 of the Basic Law. This article, which listed the states of the FRG, stipulated that "in the remaining parts of Germany, the Basic Law shall take effect upon their accession". Consequently, according to this article, other parts of Germany could join the Federal Republic of Germany. The Basic Law of the FRG enshrined the idea of the formal constitutionality of German unification. Article 146 stipulated that a new constitution, adopted by "the free decision of the German people," was to be drawn up. The option of unification of Germany under Article 23 was envisaged by the Basic Law of the Federal Republic of Germany equally with the possibility of unification under Article 146 of the Basic Law. This is confirmed by the position taken by the Federal Constitutional Court in its judgment of 31 July 1973: "A provision of Article 23 of the Basic Law of the Federal Republic of Germany has a constitutional legal value of its own and is one of the essential precepts of the Basic Law. Therefore, the FRG is obliged, as soon as the legal possi-bility for the accession of the 'remaining parts' of Germany arises, to do everything necessary to bring about the unity of Germany. Thus, the constitutional and legal basis for the unification of Germany was laid down in the Basic Law of the FRG of 1949. Democracy and freedom in a Western-oriented environ-ment became the priority in the Federal Republic of Germany. The idea of the unity of the country, however, was not discarded and remained one of the leading objectives of the state in the Basic Law. The main guarantor of unification was the preamble, which stated the aim of achieving unity of the country, while Art 16, Art 23, Art 116, Art 146 set out the legal mecha-nisms for the future unification of Germany.