Constitutions are codes of rules which aspire to regulate the allocation of functions, powers and duties among the carious agencies and officers of government, and define the relationships between these and the public (Finer 1979: 15). The German Constitution known as the Basic Law was adopted on 23 May, 1949 by the West German State and became the constitution of the entire Federal Republic of Germany with the 1990 reunification. Its French counterpart came into effect on October 4, 1958 leading to the proclamation of the Fifth Republic with Charles de Gaulle as first President. Both the French and German constitutions are formally codified and possess respectively 89 and 146 articles in their current form. In comparing and contrasting them, I will first focus on the impact of the historical context, on the importance given to rights, on the duties, powers and functions of the political executive and of the legislature, and finally on the amendment and judicial review procedures.
In order to understand the drafting of the two constitutions, it is essential to take their historical context into account. The two texts were adopted as part of a political fresh start with a clear will to avoid repeating the mistakes of the past. The previous French Republic, as well as the Weimar Republic (1918-33), had notably been paralysed by unstable governments, for the use of proportional representation in the lower house elections had led to an overly fragmented system. A series of safeguards were therefore created in the two new texts so as to ensure durable and effective governments.
Many differences have also stemmed from their respective historical backgrounds however. Contrary to the 1958 French Constitution, the Basic Law involved a radical change of regime from the Third Reich dictatorship (1933-1945) to the Federal Republic of Germany. By naming it Basic Law-Grundgesetz- and not Constitution -Verfassung-, the Länder also stressed the provisional character of a paper pending reunification. In addition, the way the two countries constitutionally regulate the use of referenda reveals the antagonistic nature of their political past. As for Germany, the Basic Law only makes provision for referenda on changing the borders of the Länder (Article29) so as to prevent the kind of populism that favoured Hitler's rise. At Charles de Gaulle's request, the French Constitution on the other hand was adopted by referendum and, as we shall see later, can be amended through direct consultation of the citizenry (Lambin 1998: 304). De Gaulle, the founding father of the 1958 French Constitution, considered indeed that establishing strong bonds directly with the citizens was a way to reinforce his accountability to them and therefore the governing of the country. The historical context therefore played a major role in the shaping of these two constitutions; the will to correct or improve the past system being omnipresent in both texts.
The French Constitution and the German Basic Law assert the preeminence of liberal democratic values and stress the inviolable character of rights. They notably affirm that both fundamental human rights and duties are to be respected in line with the equality of all citizens before the law (Carcassonne 2002: 2; Touret 2006). However the way that the two constitutions express this commitment differs noticeably. The French text merely refers, in its Preamble, to the rights laid down in the 1789 Declaration of the Rights of Man and the Citizen, in the Preamble to the 1946 Constitution, and -quite idiosyncratically- in the 2004 Charter of the Environment, without even comprising a detailed and specific Bill of Rights -contrary to what one could expect from a constitution (Hague & Harrop 2004: 210). In the Basic Law, the Bill of Rights constitutes the first chapter and comprehensively describes the people's human and civil rights. Some of them, such as the right to 'resist any person seeking to abolish this...
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