The name “Federal Republic of Germany“ itself denotes the country’s federal structure. The Federal Republic consists of 16 Länder (states). The Länder are not mere provinces but states endowed with their own powers. Each has a constitution which must be consistent with the republican, democratic and social principles embodied in the Basic Law. Subject to these conditions they can shape their constitutions as they see fit.
Federalism is one of the constitutional principles that may not be tampered with. But this is not to say that the constituent states may not be altered. Provision for boundary adjustments has been made in the Basic Law.
The federal system has a long tradition in Germany and was interrupted only by the National Socialist unitary state of 1933-1945. Germany is one of the classical federal states. Federalism has proved its worth: It is much easier for a country with a federal structure than a centralized state to take account of regional characteristics and problems.
Benefits of a federal system.
German federalism, much as in the United States and Switzerland, binds the country’s external unity with its internal diversity. Preserving that regional diversity is the traditional task of the federal system. This function today acquires new substance in the form of regional responsibilities such as the protection of monuments and historical sites, the preservation of architectural traditions, and the promotion of regional culture.
But the main purpose of federalism is to safeguard the nation’s freedom. The distribution of responsibilities between the Federation and the states is an essential element of the power-sharing arrangement, the checks and balances, as provided for in the Basic Law. This also embraces the participation of the states in the legislative process at the federal level through the Bundesrat.
The federal structure also enhances the democratic principle. It enables the citizen to engage in the political process, i.e. in elections and referendums, in his own region. This gives democracy greater vitality. There are other benefits as well. The federal system leaves room for experiments on a smaller scale and for competition among the states. A single state may, for instance, try out innovative methods in education which may later serve as a model for nationwide reform.
Furthermore, a federal structure can best cope with different regional majorities. Opposition parties at the national level may hold a majority in some of the states and thus form the government there.
The powers of the states.
The Basic Law determined the powers of the Federation in terms of whether laws should be the same for all the states or whether the states should be allowed to make their own laws. This is illustrated by the fact that the Federation’s lawmaking powers fall into three different categories, namely exclusive, concurrent or framework legislation.
Areas of legislation which fall within the exclusive purview of the Federation are foreign affairs, defense, monetary matters, air transport and some elements of taxation.
In the case of concurrent legislation, the states may only pass laws on matters not covered by federal law. The Federation may only legislate in such cases where it is necessary to have a uniform law for the whole country. The areas which fall into this category are civil and criminal law, commercial law, nuclear energy, labor and land law, the law concerning aliens, housing, shipping, road transport, refuse disposal, air pollution and noise abatement. Since it has proved necessary to have standard laws for these matters, the states have more or less ceased to have any jurisdiction in these areas.
Where the Federation has the power to enact framework legislation, the states have a certain amount of legislative latitude. This applies, for instance, in the fields of higher education, nature conservation, landscape management, regional planning and water management.
There are also a number of other supraregional tasks which, though not mentioned in the Basic Law, are today jointly planned, regulated and financed by the Federation and the states. They were incorporated in the Basic Law in 1969 as “joint responsibilities“ and cover university building as well as the improvement of regional economic structures, agrarian structure and coastal protection.
Direct federal administration is more or less limited to the Foreign Service, labor placement, customs, the Federal Border Guard and the Federal Armed Forces. Most administrative responsibilities are carried out by the states independently.
The Federation’s jurisdiction is confined to the Federal Constitutional Court and the supreme courts, which ensure the uniform interpretation of the law. All other courts fall within the ambit of state jurisdiction.
As mentioned above, the states can fill in any gaps left by federal legislation or in areas not specified in the Basic Law. Thus they are responsible for education and culture almost in their entirety as a manifestation of their “cultural sovereignty“. They are also responsible for local government law and the police.
The real strength of the states lies in their participation in the legislative process at the federal level through the Bundesrat. All internal administration lies in their hands, and their bureaucracy implements most federal laws and regulations. Thus state administration is threefold: It handles matters that fall exclusively within its jurisdiction (schools, police and regional planning, for example); it implements federal law in its own right and on its own responsibility (such as the law on planning of building projects, trade and industry, and environmental protection); and it implements federal law on behalf of the Federation (construction of national highways and promotion of training, for instance).
Thus in the course of its development the Federal Republic has become a country in which most laws are enacted centrally while the bulk of legislation is administered by the federal states.