Finally, the fourth principle in federalism is the “rule-of-law” principle. This means the state is “bound” by the constitution and the law. The restriction of a centre power or authority is essential to the many principles of the federal state. (many tragedies were witnessed under the central authoritarian of Hitler and the Nazis).
The “rule-of-law” principles are all contained in the constitution- “Basic Law” in which citizens’ personal basic rights are all listed in articles 1-19.The Bundestag and the Bundesrat must always obey and follow the constitution when making legislation and laws; laws will not get passed if they are unconstitutional. The divisions and allocations of power amongst the many levels of government are listed in articles 70-82. 17 How Germany became a federal state, also involves the constitution transferring and allocating powers to both the Federation and the Lander to exercise their individual powers and responsibilities to the German citizens. The 16 Lander in their territory and in their own ways are “sovereign”.
The “quality of statehood” in Germany ensures each and every Land keeps their own identity, policies and laws. Thus the Basic Law prohibits any Lands from merging together (Article 79(3)), this upholds federalism and the federal state. It is near impossible to change or alter the constitution or the federal state in Germany; amendments are strictly prohibited. (similar to the US Federal State and Constitution).
No amendments are allowed that detract the Landers’ quality of statehood. The federal system means that Germany favours diversity and individuality over uniformity.The creation of the constitution- “Basic Law” is how Germany became a federal state; it contains and lists the principles of a federal state. Article 28 guarantees the “right of self-government” to all Lander, meaning they are free to deal with the affairs and problems of the local community at “grass-roots” level. Without the 16 Lander, Germany’s population is the largest in Europe and would be too immense to govern as one. 19 Article 33 of the constitution also guarantees that all German citizens are equal and have the same civil rights and duties.
Article 3 ensures that the law is equal and all Germans are equal before the law. 20 Germany also became a federal state through the division of power between the Federation and the Lander. Unlike the US model, Germany is based on a strict division of power (stated in the Basic Law) between the Bundestag and the 16 individual Lander, with power being fully and evenly shared and divided between the 16 Lander.
This is achieved through the concept and principle that Bundestag legislation is unitary, for the whole of Germany; and that Land legislation is federal, applying only to one specific Land and not governed from the centre.The principle of “Land responsibility” is contained in Article 30 of the Basic Law and states that each Land has power for the method of administering and executing laws. 21 Article 70 of the constitution (aka. Basic Law) gives the Lander the right to make laws on matters not listed or catalogued to the Federation. Each Land makes laws and governs by “cultural sovereignty” mainly on education and law and order. The constitution gives exclusive power to the Bundestag to legislate for uniform national legislation, laws which need to be made at national level for the benefit of the country as a whole (e.
g. defence/army, immigration/asylum, currency, etc).The Federation and the Lander work together for consensus in making legislation and laws, this is known as “joint responsibilities or tasks” (Article 91 a + b).
22 Justice and the judicial power (articles 92-104) in the federal state lies with the judges and courts; the Federal Constitutional Court, federal courts and Land courts. The Federal Constitutional Court is an independent body within the German federal state that gives rulings on conflicts and ensures of consensus between the Lander and the Federation (Article 93).The Constitutional Court is also the “guarantor of the federal state and federal harmony”, it interprets legislation and ensures the legislation does not violate the constitution thus making the legislation unconstitutional, if so the Court will grant it invalid and the legislation will not be passed. The Court also deals with any infringements on the Basic Law and ensures that the constitution is observed and obeyed by all of German society, including the Bundestag, the Bundesrat and the Lander.The federal state principle of “equalisation of standards of living” in each Lander is secured through “concurrent” legislation, legislation coming from both the Bundestag and the Lander in the Bundesrat. The Lander participates in the EU through the Bundesrat and the administering and execution (implementation) of EU Law-(article 50 of the constitution aka Basic Law) 24. The Bundesrat is the link between each Land and the Bundestag.
The Bundesrat represents the 16 Lander and represents and expresses each of the Lands; problems, interests, ideas, needs and desires.The number of representatives and votes each Land has in the Bundesrat depends on the size of their population; a Land with a large population will have more representatives and more votes. (Article 52.
) 25 In the stages of a Bill in Germany, the Bill must first go through the Bundesrat for consent and agreement. The Bundesrat exercises control over the Bundestag through these first stages of a Bill, both must find consensus and agreement to pass laws and legislation. The financial, tax and revenue system in the federal state is extremely complex and runs on two main principles.
“Horizontal financial equalisation among the Lander”; and the ” vertical financial equalisation between the Federation and the Lander”. 26 This essay has described and explained why and how Germany became a federal state. Why; because of the many German tragedies in history and because of the attractiveness of federalist principles of democracy to the German people after the Second World War. How; through the constitution and the electoral system therefore ensuring democracy to Germany.Germany has done its utmost and could not have done any more to put its past to rest and in ensuring peace and democracy in Europe and the World through their revolutionary changes after 1945. While Germany’s speedy transition from murderous dictatorships to one of the strongest democracies in the world is phenomenal and unparalleled by any country in any time, Germany today now faces new troubles in high unemployment, which means their successful and leading economy has started to slump a little.
It will be interesting to see how the federal state can deal with these new problems in the modern German society.