Federal Law (German Confederation)

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Constitutional diagram for the German Confederation from 1815 to 1866: the only federal organ was the Bundestag, representing the member states .

The federal law of the German Confederation applied both to itself and to its member states . It consisted of the federal basic laws (the federal constitution) as well as federal laws and federal decrees. Although the German Confederation (1815–1866) is generally regarded as a confederation of states , its federal law took precedence over the state law of the member states. This is already to be regarded as a federal element of the German Confederation.

Federal law was limited primarily by the narrowly defined federal purpose : the federal government was supposed to guarantee Germany's internal and external security. Any other standardization in Germany could at best be prepared by the federal government; the actual legislation then took place via the national law of the states.

As a rule, federal law only came into being if at least one of the two great powers in the federal government was behind it, i.e. Austria or Prussia . If they resisted, the handling of federal law was also questionable. For a long time, both great powers refused to enact state constitutions, even though the federal constitution required this .

In the years 1848–1850 attempts were made to convert the German Confederation into a German federal state or to replace it with one. In 1851 the Bundestag declared the imperial law that had arisen during this period to be invalid. Federal law itself expired in 1866 with the dissolution of the German Confederation . The federal law then had an intellectual effect in the North German Confederation and in the Empire.

Character of the covenant

Map with the states of the German Confederation

In the literature, the German Confederation is sometimes viewed as a mixture of state union and federal state , as a hybrid. From a legal point of view, however, according to Michael Kotulla , the character of a confederation cannot be controversial, because the German states expressly retained their sovereignty: the federation had no state authority, but “only an association competence mediated by international law”. Despite the preamble to the German Federal Act of 1815, according to which “the princes” “unite” to form a federation, the German federation was not a prince federation either. Rather, the princes are to be seen here as representatives of their states.

Real alliances, whether state union or federal state, go beyond the pure alliance or a personal union, says Ernst Rudolf Huber . They are held together by an internal homogeneity; the constituent states have an original and distinct character which distinguishes them from mere administrative units. Real covenants are formed for eternity and cannot be dissolved. Member states do not have the right to withdraw. The constituent states combine to better maintain their security and independence together. The federal treaty is at the same time a constitutional treaty , it creates a subject under international law as well as relationships under international law, but also relationships under constitutional law between the member states.

However, confederations of states can take different forms. The contrast between the confederation of states and the federal state is also less sharp than presented in textbooks: The confederation of states exists through an international treaty and is a legal relationship, the federal state is based on constitutional law and is a legal subject. But the German Confederation was also a constitutional unit across the member states. The federal government was a legal subject. Wilhelm von Humboldt already aptly described it as a federation of states with federal elements.

The sovereignty of the member states persisted, as the two federal constitution established. Sovereignty means the highest decision-making power, it requires the effectiveness and legitimacy of the use of power. In the case of the German Confederation, there is no clear answer that the member states have always been sovereign: they were subject to federal law and experienced means of power such as federal intervention and federal execution . The federal government could also declare federal war . And yet the sovereignty of the German Confederation was limited: in the constitutional reality it could not prevail against the overwhelming power of Austria and Prussia. Federal war, federal intervention and federal execution were only conceivable if at least one of the two German great powers supported the means in the specific case. Therefore it did not help that the two great powers by no means jointly had a majority in the Bundestag: without or even against both the means of power were ineffective. Despite the federal elements, the German Confederation was not sovereign over all member states and therefore a confederation of states.

Legislation

In the German Confederation as a confederation of states, it was assumed that the federal members were basically responsible for state life. The competence of the federal government had to be explicitly stated in the federal constitution. The federation was founded only for the internal and external security of Germany and the members of the Confederation. Because of this narrowly defined federal purpose , the federal government could not develop into a federal state. Many attempts at federal reform therefore endeavored to expand the federal purpose, namely to standardize legal, economic and traffic conditions.

Further “non-profit orders of any other kind” (Art. VI DBA) could at best be prepared in the German Confederation, the implementation had to be done through state laws. In this sense, Huber distinguishes so-called German laws from federal law . Sometimes an all-German regulation of a matter was seen as sensible, but it was outside the federal purpose. A federal law was not possible. Instead, the member states passed a resolution in the plenary session of the Bundestag and then left the legislation to the states. There were resolutions of this kind on the General German Exchange Order of 1847 and the General German Commercial Code of 1861. They were treaty laws secured under international law, but state law. Apart from that, the legal standardization and economic unification of Germany came about “bypassing the German Confederation” (Kotulla), for example with the German Customs Union .

The only organ of the German Confederation was the Bundestag . This body was not only the representation of the member states, but took over all other functions, which in modern states are distributed over several organs. So there were no federal organs that could have been assigned separately to the executive or legislative or judicial branches. There was no separation of powers and no actual distinction between federal laws on the one hand (to be passed by a parliament) and federal resolutions or decrees (to be passed by a government). The terms Federal Law and Federal Decree were sometimes used synonymously. However, the term law was mostly reserved for resolutions that set general law and did not deal with mere individual cases.

federal Constitution

German Federal Act in the Rastatt memorial

Two federal laws are undisputedly considered to be federal constitutional laws , which have also been referred to as federal or basic federal laws :

  • the German Federal Act (DBA) of June 8, 1815, which founded the federation in the first place and was also part of the former Vienna Peace Work
  • the Vienna Final Act (WSA) of May 15, 1820, named after the Vienna Ministerial Conferences at which it was discussed

The DBA of 1815 did not refer to itself directly as the Basic Law, but already mentioned the "drafting and amendment of Basic Laws" and the associated procedure (Art. VI). In Art. X the drafting of basic laws is mentioned as the closest constitutional task. The WSA of 1820 becomes clearer. It deals with the constitutional task of 1815 and expressly mentions the DBA in Art. III as “the first basic law of this association”. Finally, the WSA speaks of the fact that it will itself be elevated to the Basic Law by a formal federal resolution.

However, this does not conclusively answer the question of the federal constitution. Substantive constitutional law can also stand outside a formal constitutional document; in the empire these were, for example, the provisions on Alsace-Lorraine and still today in the Federal Republic of the federal electoral law . In the German Confederation, says Michael Kotulla, the basic federal laws have never been officially defined. According to a Bundestag commission in 1819, “those contractual provisions are to be considered as basic laws which the establishment of the federation, the association of its members, the determination of its purpose, as well as the rights of the whole, the participation of the individual federal members in their exercise, the obligation of the same against the Confederation and the obligations this towards them, finally the right to take care of federal affairs, concern ". However, this assessment was not formally adopted by the Bundestag.

Nor can the basic federal laws be formally separated from other laws or resolutions by asking how they come about. According to the DTA (Art. VI, VII) a unanimous decision of the Bundestag plenum was required not only for constitutional amendments, but also for the “organic institutions” of the federal government. This means the facilities that the federal government needed to fulfill the federal purpose.

In the years between 1815 and 1820, the states failed to agree on the federal military organization . The WSA made it the task of the Bundestag to decide on the organic institutions governing the military system (Art. 51). That happened in 1821 and 1822 with two federal decrees. The provisions are commonly referred to as the Federal War Constitution .

Imperial law 1848/1849 and dissolution of the Confederation

From the Bundestag to the National Assembly and Central Authority, 1848

In 1848 the March Revolution took place in many German states . The Frankfurt National Assembly was elected on the basis of federal law (the “Federal Election Act” of 1848 ) . It passed a provisional constitutional order ( Zentralgewaltgesetz ), regarded itself as an imperial parliament and set up a provisional imperial government ( provisional central authority ). The Bundestag ceased its activities on July 12 , in favor of the Reich government.

This development undoubtedly had a revolutionary component: without the uproar in the population, the states and thus the federal government would not have agreed to it. However, in the emerging German Empire of 1848/1849 you could also see the renamed and changed German Confederation. Through their actions and the aforementioned federal resolution of July 12, the states recognized the development.

The imperial law established at that time is therefore to be equated with federal law. When the states completely restored the German Confederation in the summer of 1851, they felt it necessary to expressly declare that imperial law was repealed. In the Federal Reaction Decision, they also instructed states to repeal state law if it contradicted the two basic federal laws. With a separate resolution, the Bundestag turned against the basic rights of the German people of November 27, 1848.

In 1866 the German Confederation was dissolved . With this his federal law expired. The North German Confederation of 1867 - not a confederation of states, but a federal state - created its own federal law. In doing so, he adopted many laws or prepared legal standardizations from the time of the German Confederation. Examples are the General German Exchange Order, the North German Order of Measure and Weight, and the Federal Election Act of 1869 , which was based on the Frankfurt Reich Election Act of 1849.

Important federal laws and federal decrees

supporting documents

  1. ^ Michael Kotulla: German constitutional history. From the Old Reich to Weimar (1495–1934) . Springer, Berlin 2008, p. 329.
  2. ^ Ernst Rudolf Huber: German Constitutional History since 1789. Volume I: Reform and Restoration 1789 to 1830 . 2nd edition, W. Kohlhammer, Stuttgart [u. a.] 1967, pp. 658-661.
  3. ^ Ernst Rudolf Huber: German Constitutional History since 1789. Volume I: Reform and Restoration 1789 to 1830. 2nd edition, W. Kohlhammer, Stuttgart [u. a.] 1967, pp. 661-665.
  4. ^ Ernst Rudolf Huber: German Constitutional History since 1789. Volume I: Reform and Restoration 1789 to 1830 . 2nd edition, W. Kohlhammer, Stuttgart [u. a.] 1967, pp. 666-668.
  5. ^ Ernst Rudolf Huber: German Constitutional History since 1789. Volume I: Reform and Restoration 1789 to 1830. 2nd edition, Verlag W. Kohlhammer, Stuttgart [u. a.] 1967, pp. 602/603.
  6. ^ Michael Kotulla: German constitutional history. From the Old Reich to Weimar (1495–1934). Springer, Berlin 2008, p. 397.
  7. After Michael Kotulla: Deutsche Verfassungsgeschichte. From the Old Reich to Weimar (1495–1934). Springer, Berlin 2008, p. 335.
  8. ^ Ernst Rudolf Huber: German Constitutional History since 1789. Volume I: Reform and Restoration 1789 to 1830. 2nd edition, W. Kohlhammer, Stuttgart [u. a.] 1967, p. 610.