German traditions

The early developments of German constitutional law appear, in the eyes of a foreigner, rather complicated, due to the existence of small principalities, cities and villages that were loosely associated for centuries until this association was institutionalised at the end of the 15^th century, the impact of the Roman empire, the Reformation which divided Germany into Catholics and Protestants, and finally the Thirty Years’ War that resulted in the Peace Treaty of Westphalia which could be said to constitute a predecessor of German constitutions.¹⁹⁴ According to Heun, the constitutional developments followed closely the revolutionary developments in France¹⁹⁵, which can be said to be largely a result of the influence of Roman law on the legal system in general. In the view of Jyränki, insofar as the German constitutional law is concerned, the most interesting developments from a European perspective started in 1815 as the German empire split into several sovereign duchies, constituting the German Confederation (Deutscher Bund) which replaced the Empire. As mentioned above, the South German states had been under considerable influence of France, and although a relatively modern Constitution was adopted for Bavaria in 1808, its form and contents resembled those of the French

194 Heun 2011, p. 13.

195 Heun 2011, p. 15.

Constitution.¹⁹⁶ The German history is characterised by variation between the existence of several German States and a united Germany, and the individual German States also had their own constitutions. The Constitution of Prussia (1850) was the first one in which the provisions on fundamental rights were more numerous and more detailed than in the earlier constitutions of South German States The possibility of restricting the fundamental rights by means of law was also included in the Constitution of Prussia, for example concerning the protection of property, although the constitution protected property rather against interference by other individuals than by the state¹⁹⁷ which has been a rather disputed aspect of the protection of human rights in modern times.

In essence, it is considered that human rights instruments provide protection against interference by the state, but the state may be under an obligation to take legislative measures to ensure the enjoyment of rights even vis-à-vis individuals. Nevertheless, the protection of property and the possibility of derogating from the afforded rights has also been included in the European Convention on Human Rights, although in a modernised form.

Although the fact that the Constitution of Prussia contained fundamental rights provisions should perhaps not be overemphasised, the new Constitution of the German Empire meant a weaker protection of the rights of citizens as no list of fundamental rights was included in the text¹⁹⁸. Furthermore, in the same way as the Constitution of Prussia, the Constitution of the German Federation provided for the possibility to derogate from the provisions of the constitution to protect national security or to intervene in a situation of emergency by means of an emergency decree (Notverord-nung).¹⁹⁹ As mentioned in the foregoing section concerning France, such a possibility also existed in the French constitution of 1848, i.e. in the same period of time. It is possible that the early German provisions allowing for derogations have played a role in the drafting of the limiting clauses in the European Convention on Human Rights, although the concept of margin of appreciation is based on French law as explained in section 3.3 below.

After World War I, the Constitution of Weimar of 1919 derived elements from the French and US constitutions as well as from the constitution of Belgium of 1831 and, in the view of Heun, it was the first really democratic and liberal constitution²⁰⁰. The provisions on fundamental rights and obligations of citizens included in the Constitu-tion of the Republic of Weimar (1919) were already close to their modern counterparts.

The protection of fundamental rights was now seen as an element providing for the

196 Jyränki 1989, p. 196. See also Wesel 2010, p. 441, and Heun 2011, p. 14. On earlier developments in more detail, see Wesel 2010, p. 318, and Heun 2011, p. 13.

197 Jyränki 1989, p. 236 and 237. See also Wesel 2010, p. 448.

198 Wesel 2010, p. 448.

199 See Jyränki 1989, p. 239 and 240.

200 Heun 2011, p. 17.

economic and social security of citizens, and also the cultural rights of citizens were considered to be of importance. A separate chapter providing for fundamental rights was thus included in the Constitution, and particularly the provisions on economic, social and cultural rights and property rights can be considered advanced ones, although as mentioned in the foregoing, there were rather extensive property rights in the French Constitution already in 1793.²⁰¹ This strong protection against interference with prop-erty rights is one of the elements existing also in modern human rights instruments.

Thus, it seems that the strongest element of the early German constitutions that is visible in the European Convention is that of the protection of property – in Protocol No. 1 to the Convention – although the nature of protection differed in the German constitutions. This is also something that the German constitutional traditions share in common with those of the other legal systems covered by the present study.

Without going into details about the more or less complete disruption of the pro-tection of fundamental rights during the national socialist era, suffice it to say that the development of national socialism and the atrocities of World War II meant a disaster for respect for the equality of citizens before the law. However, the defeat of Germany as a result of World War II and the resulting war crimes proceedings might at least partly explain the strong protection of fundamental rights in the present Constitution of Germany. The Constitution of the Federal Republic of Germany or as it is called in German, “the Basic Law” (Grundgesetz für die Bundesrepublik Deutschland)²⁰² was initi-ated and influenced by the Allied Powers, although it was drafted by a parliamentary council. The draft Constitution passed by the parliamentary council was adopted by the parliaments of all German Länder in 1949, subject to approval by the Allied Powers, and provided for the federal and regional levels of government²⁰³. Thus, although the Basic Law was drafted largely as a result of pressure by the Allied Powers, its contents are essentially based on old constitutional traditions and the contents have been decided by the Germans themselves. Furthermore, as explained in the foregoing, the provisions of the Weimar Constitution and thus those of the Basic Law have drawn elements from the Western constitutional traditions, particularly the French and American ones, in general. The Constitution was adopted with a view to preventing future disasters comparable to that of the dictatorship, and to ensuring the control of constitutionality and the protection of fundamental rights²⁰⁴ and thus the reasons for its adoption were largely the same as those for the adoption of the European Convention on Human Rights. Chapter I of the Basic Law provides for the protection of fundamental rights and contains a list of rights, including not only individual liberties but also certain

201 Jyränki 1989, p. 339, and Heun 2011, p. 17 and 18.

202 Bundesgesetzblatt Teil III, 100-1, 23.5.1949.

203 Wesel 2010, p. 556 and 557, and Heun 2011, p. 9-11. East Germany had its own constitution also adopted in 1949 (Heun 2011, p. 12).

204 Wesel 2010, p. 566.

collective rights. According to Kommers, these are known as institutional guarantees some of which are in fact outside the list of rights.²⁰⁵ According to Heun, the list of fundamental rights was placed at the beginning of the Constitution so as to underline the liberal and free character of the new political system²⁰⁶, which is also visible in the contents of certain rights of the Basic Law²⁰⁷. According to Kommers, many of the basic rights provisions of the present Basic Law are based on those of the old Weimar Constitution²⁰⁸, the difference being that in the Weimar Constitution, the basic rights were considered goals, whereas in those in the Basic Law are enforceable²⁰⁹. This view is supported by Heun, according to whom also the enforceability of fundamental rights introduced a new era of protection of fundamental rights²¹⁰.

Although Germans appear to have played a rather modest role in the discussions on the contents of the European Convention on Human Rights, which is largely a product of the victors of war, the German constitutional traditions are part of the common European traditions and values that are visible in the text of the Convention. When looking into the fundamental rights provisions of the Basic Law, one may note that they have more similarities with those of the European Convention on Human Rights than the French constitutional texts, which is due to that it was drafted at the same time and largely for the same reason. Despite that, the provisions of the Basic Law clearly indicate the need to provide even further going provisions in some respects, caused by the aggravated violations of the rights of protection of private life and home and lack of equality of parts of the population during the National Socialist era. That is demonstrated by both strong protection of home and property and strong emphasis on the protection of equality of all citizens. Those do exist in the European Convention on Human Rights, but in less detail. It is interesting to note that despite the German

205 Kommers 2006, p. 170.

206 Heun 2011, p. 1.

207 Kommers explains that the core principles in the Basic Law are rooted in three major legal tradi-tions that have shaped contemporary German constitutionalism, namely those of classical-liberal, socialist and Christian-natural law of thought (Kommers 1989, p. 36). The liberal tradition is behind the classical freedoms listed in several articles of the list of fundamental rights. According to Kommers, the substantive values represented by all those traditions are, however, enormously important in the intepretation of the Basic Law (Ibid. p. 37).

208 Apart from the basic rights provisions of the German Constitution, there are such provisions also in the new constitutions of Länder. In those cases, the latter remain in force insofar as they are in conformity with the provisions of the federal Constitution (see Fisher 1997, p. 23).

209 Kommers, 1989, p. 38. In the view of Kommers, the Basic Law as a twentieth-century consti-tution is interesting in that it subjects positive law to a higher moral order. (Ibid. p. 39) Further, Germans commonly agree that the Basic Law is a constitution of substantive values, embracing both rights and duties. (Ibid. p. 37) Thus, basic rights provisions as constitutional values are given a higher hierarchical status than the provisions of law.

210 Heun 2011, p. 191 and 192. The increased importance given to fundamental rights has meant a fundamental change practically in all fields of law (Ibid. p. 191).

influence on the legal system of Finland, particularly through the common legal history with Sweden, the constitutional traditions of protecting fundamental rights appear to have had less influence. Nor has Sweden had as detailed provisions as Germany on fundamental rights until rather recently. The longer constitutional traditions with lists of fundamental rights may have introduced a stronger culture of protecting those rights earlier than in Finland. That together with the Basic Law which has considerable similarities with the Convention may partly explain the fact that the German legal system has not appeared to have problems with the Convention system to the same extent as the Finnish one. The fundamental rights thinking appears to be a more recent product in Finland, which may still be visible in the development of national case law despite that the Finnish constitutional provisions on fundamental rights were revised entirely to align them with the Convention rights.