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Opinion

Opinion: The significance of Germany's Basic Law

Most Germans greatly value their Basic Law, which is also a result of Germany's dark Nazi past. But even so, Germany must work hard to preserve its democracy, argues former constitutional judge Udo Di Fabio.

Germans are fond of their constitution and value it as a document setting out the nation's key values. While written constitutions in many European states are gradually losing significance, great importance is still afforded to Germany's Constitutional Court, which is based in Karlsruhe. Its rulings not only carry great weight, but also provide a sense of national reassurance while also strengthening Germany's sense of national identity.

Read moreThe German constitution: Putting people first

After the end of WWII, many had believed humanity was now on its way into an era characterized by universal values. Just like the states of Europe had come together to create the European Union, some thought the world would soon peacefully unite as one under the umbrella of the United Nations. But today, such an optimistic outlook has become a rare thing. Instead, people everywhere are in search of their true identity, and falling back on bygone cultural, religious and national patterns of co-existence. But societies can get torn apart when some yearn for the past, while others strive for a more diverse future.

National pride is out

The horrors of the German past mean national pride no longer feels appropriate as the basis of a shared German identity. So unlike other, older democracies, Germany instead relies on its Basic Law to foster such an identity. This key document, and the Constitutional Court it established, allowed for an acceptable — even desirable — form of "Verfassungspatriotismus" (constitutional patriotism) to arise, which ensured national cohesion. Similarly, German economic prowess also served as a welcome substitute for national pride.

Until this very day, Germans greatly value their Basic Law. And unlike the constitution of the Weimar Republic before it, this new Basic Law created the legal framework for a stable parliamentary democracy on German soil. The historical imbalance of pitting a strong president against a weak parliament, as was the case during the Weimar era, was rectified. Today, Germany's head of state — the president — only has symbolic power. And only the chancellor wields political clout, provided she or he commands a parliamentary majority.

Read more: What is Germany's constitution, the 'Basic Law'?

Will Germany's representative democracy falter?

Former Federal Constitutional Court judge Udo Di Fabio

Udo Di Fabio was a judge at the Federal Constitutional Court between 1999-2011

The political parties of the Weimar era, which were deeply ideological and hostile towards each other, morphed into large catch-all parties. The Christian Democratic Union of Germany (CDU) and Christian Social Union in Bavaria (CSU), as well as Germany's Social Democrats (SPD), were regularly able to take 40% of the vote. And smaller, special-issue parties emerged that helped form coalitions when needed.  

Today, however, a different picture presents itself: While those on the political left used to be represented by the SPD alone, today they have three different parties to chose from. And the conservative CDU/CSU now has a populist rival on the far-right of the political spectrum. Today, no single party looks likely to ever take more than 30% of the vote. And, for the first time, there are doubts whether its representative democracy and party system will prove sufficiently stable in the face of the major social changes underway at this moment.

Germany's Basic Law now shields the country's political system. The values enshrined in it, and its emphasis on human dignity, can be marshalled against far-right populists. While on the far-left, some are debating whether the Basic Law legitimatizes the nationalization of the economy.

Read moreOpinion: Human rights come first

Updating the constitution?

Some advocate including newer political issues, as this also puts pressure on political adversaries. After all, who would object to a constitutional amendment to include the necessity to protect the climate, or uphold children's rights, or establish gender parity?

Though sometimes, such disputes are just political theatrics. At the end of the day, the Basic Law is a valuable, yet abstract catalog of values, establishing a set of tried-and-tested rules.

The real decision-making occurs elsewhere. How will the EU evolve? Can the bloc assert itself without losing its economic and technological clout? Will the economy remain stable, and will the bloc remain peaceful? Voters must be cautious, and politicians must seek genuine solutions, and explain them well. Germany's Basic Law was written to create a tolerant, European and peaceful country. This is where we must now invest our energy.

Udo Di Fabio teaches public law at Bonn University. He served as a judge at the Federal Constitutional Court from 1999 until 2011.

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