Constitutional Law (Germany)

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The state law is a branch of the German State and Law . It falls under public law and, on the one hand, deals with the structure of the state and its organs , their relationships with one another and with legislation ( state organization law ). On the other hand, it deals with the fundamental legal relationships between the state and the persons subject to its sphere of influence ( fundamental rights ).

The demarcation of state law and constitutional law

The terms state law and constitutional law are largely congruent and are often used synonymously. According to the prevailing opinion , constitutional law is a subset of constitutional law: all constitutional law is constitutional law, but not all constitutional law is constitutional law. In general, it can be said: "In constitutional law, the political itself is directly standardized: State power is distributed and limited among the top executives and the basic decision is made as to which ultimately decisive value aspects and principles of order should be used to shape community life." Legal norms that are not constitutional but are attributed to constitutional law, such as the Political Parties Act , the Federal Election Act , the Election Examination Act , the Representatives Act ; that is, laws that were passed on the basis of a constitutional mandate, or simple legal regulations that supplement the constitution. Such laws are also referred to as constitutional law in the broader sense, in contrast to the constitutional document, which is constitutional law in the narrower sense. The main difference is that the constitution can regularly be changed with difficulty. In the Basic Law for the Federal Republic of Germany which is constitutional amendment in Art. 79 GG set.

According to another opinion, however, the concept of constitutional law sometimes extends further than that of constitutional law, since the constitution also contains provisions that cover the fundamentals of the order of non-governmental life, for example the guarantee of marriage and family , property or the Freedom from art and science . According to this view, state and constitutional law behave like two distinguishable circles with an intersection.

Constitutional law

According to another view, constitutional law encompasses all public law , in particular administrative law . Thus, § 1 of the statutes of the Association of German Constitutional Law Teachers provides for dealing with questions "from the field of public law", in training and examination questions "working towards adequate consideration of public law [...]" and "on questions of Public law […] to comment ”. Membership requirement according to § 3 Paragraph 1 is a "in the field of constitutional law and at least one other public law subject [...] proven through excellent academic achievement" as a relevant "researcher and teacher" or instead of the latter professional qualification in addition to other requirements, a corresponding legal qualification Professorship (§ 4 Paragraph 1 lit. a)). This shows that the statute regards constitutional law as a sub-area of ​​public law without delimiting it more precisely.


Within the framework of the principle of legality, constitutions are regularly to be viewed as laws that have come into being in a special way - through the pouvoir constituant ( constitutional power ) - (for the Basic Law, the Parliamentary Council ) and usually have the highest level in the hierarchy of norms .

State organization

First and foremost, the constitution governs state authority ( pouvoir constitué ). From this follows the importance and distribution of tasks between the individual state organs . Purely monarchical-despotic states have only one state organ, while pluralistic - not necessarily democratic - states have several state organs. In Germany, based on the principles of parliamentary democracy, the separation of powers is brought to the fore and is secured by Article 20 of the Basic Law.

Therefore, the organs of the Bundestag and the Bundesrat should be mentioned in the legislative area . The legislative power rests with Parliament. Parliament is therefore the leading power in democracy.

In the area of ​​the executive , the Federal Government with the Federal Chancellor at the top should be mentioned. The Federal President as the highest representative of the state ( head of state ) is also a state organ.

The judiciary , on the other hand, is only regulated in the area of ​​the federal courts . Otherwise, the Basic Law leaves it to the legislature to enact provisions on the constitution of the individual jurisdictions , which was done for the ordinary courts with the Courts Constitution Act (GVG).

An important part of constitutional law is the distribution of competences and the legislative process , regulated in Art. 70 to Art. 82 GG. Particularly in the case of federal states that have constitutionally anchored both the horizontal and the vertical separation of powers, clear regulations are required in the relationship between the federal level and the individual member states .

Fundamental rights

The fundamental rights are mentioned in numerous constitutions. The rights mentioned in the Weimar Constitution were not binding on the legislature. The Basic Law, on the other hand, compels all public powers through Article 1, Paragraph 3 of the Basic Law to observe the constitutional fundamental rights. The basic rights mentioned in the Basic Law are not exhaustive. In this respect, the rights from the European Convention on Human Rights , which does not have constitutional status, but is a simple law, also have an impact on the basic legal system.

Transitional regulations and perpetual clauses

The Basic Law (GG) contains regulations that do not belong to the constitution in the material sense, but have a merely transitional character (cf. Art. 116 ff. GG). The eternity of a constitution is limited by social development. Nevertheless, the German constitution has incorporated elements to prevent a legal overturning of the democratic and constitutional foundations. Article 79.3 of the Basic Law guarantees the stability of human dignity ( Article 1 of the Basic Law) and of the democratic, federal and social constitutional state ( Article 20 of the Basic Law). According to Article 146 of the Basic Law, the Basic Law can be replaced by a new constitution simply by adopting a new constitution by a simple majority of all Germans .

Constitutional jurisdiction

The German constitution has submitted the judicial review of constitutional issues to an independent jurisdiction. It was also decided against a uniform supreme federal court. In particular, the Austrian Constitutional Court of the Federal Constitutional Law of 1920 was the godfather.

At the federal level , the special constitutional case law is entrusted to the Federal Constitutional Court (BVerfG) as a constitutional body . Even if the decisions of the Federal Constitutional Court can develop into the force of law, the BVerfG is still an organ of the judiciary (judiciary). The establishment and the responsibilities result from the Basic Law itself and the Federal Constitutional Court Act (BVerfGG).

The federal states have established corresponding state constitutional courts in their state constitutions , which are sometimes also called the state court or constitutional court (shof) .


Web links

Individual evidence

  1. Jörn Ipsen , Staatsorganisationsrecht , 18th edition, Neuwied 2006, Rn 21; Christoph Möllers, State as Argument , Munich 2000, p. 173 ff.
  2. Wintrich, J .: Tasks, Nature and Limits of Constitutional Jurisdiction , 1956, cited above. according to Joachim Jens Hesse / Thomas Ellwein: The government system of the Federal Republic of Germany , 8th edition, volume 1: text; Westdeutscher Verlag, 1997, p. 412.
  3. Maurer, Staatsrecht I , 3rd edition, Munich 2004, Rn 39.
  4. Klaus Stern, The State Law of the Federal Republic of Germany , 2nd ed. 1984, Vol. 1 III 2.
  5. So Konrad Hesse , Fundamentals of Constitutional Law of the Federal Republic of Germany , 20th edition, Heidelberg 1995, Rn 18.
  6. Böckenförde uses a state term that does not designate the entire community, but only the state organization. Ernst Wolfgang Böckenförde , The peculiarity of constitutional law in constitutional law. In: Festschrift for Hans Ulrich Scupin (1983), p. 317 ff.
  7. Peter Badura , Staatsrecht , 3rd edition, Munich 2003.
  8. ^ Statutes of the Association of German Constitutional Law Teachers V., § 1, accessed on December 8, 2010 ( Memento of May 6, 2010 in the Internet Archive ).
  9. ^ Statutes of the Association of German Constitutional Law Teachers V., §§ 3 and 4, accessed on December 8, 2010 ( Memento of May 6, 2010 in the Internet Archive ).
  10. Dreier, in: Dreier, GGII, Art. 20 Rn 76 ff., 88 ff., 109 ff.