Political Parties and the German Basic Law of 1949

• Author: Carl J. Schneider
• Published date: 01 September 1957
• Date: 01 September 1957
• DOI: 10.1177/106591295701000303
• Subject Matter: Articles

POLITICAL PARTIES AND THE GERMAN
BASIC LAW OF 1949*
CARL J. SCHNEIDER
University of Nebraska
I~TE
OF THE UNIQUE features of the constitutional order estab-
~
~ lished by the Basic Law of 1949 is the attention given to political
0
parties -
their status, rights, duties, and functions. With but few
exceptions the provisions relating to political parties are concentrated in
Article 21 of the Basic Law; this article is given here in full.
(1) The political parties participate in the forming of the political will of the people.
They may be freely formed. Their internal organization must conform to democratic prin-
ciples. They must publicly account for the sources of their funds.
(2) Parties which, by reason of their aims or the behavior of their adherents, seek to
impair or destroy the free democratic basic order or to endanger the existence of the
Federal Republic of Germany are unconstitutional. The Federal Constitutional Court
decides on the question of unconstitutionality.
(3) Details will be regulated by federal laws.
The interest of the foreign observer is likely to be captured by the
second paragraph, which reflects the obvious resolve of the Parliamentary
Council to give to the new German state the means to combat subversive
parties. No doubt this provision is interesting and highly significant for
the future of German democracy. However, it is also interesting and
significant that Article 21 marks a break with the traditions of German
Staatswissenschaf
t - a break that has been described as &dquo;fundamental, al-
most revolutionary.&dquo; 1 In effect, Article 21 constitutionalizes political parties
and their activities, and formally acknowledges that political parties have
a genuine and legitimate function to perform in modern democratic
government.
Before 1949 political parties were completely ignored in all German
constitutions, and were given only the most cursory attention in the
standard commentaries.2
2
The corollary of the Prussian-German state
theory, which glorified rule by an elite nominally above all partisan loyalty,
was the concept of the Obrigkeitsstaat: &dquo;Above parties is the Fatherland.&dquo;
A
widespread lack of understanding of the role of parties in the operation
of parliamentary democracy led frequently to a denunciation of parties as
A
Fulbright research grant and leave of absence from the University of Nebraska on a
Woods Professorship (endowed by the Woods Foundation of Lincoln, Nebraska) made
it possible for me to gather the material for this article in Germany during the aca,
demic year, 1955-56.
1
Gerhard Leibholz, "Der Parteienstaat des Bonner Grundgesetzes," Recht-Staat-Wirtschaft
(Düsseldorf: Verlag L. Schwann, 1951), III, 109.
2
Georg Jellinek, for example, commented that "the concept of party as such has no place
in the state order." Allgemeine Staatslehre (3d ed.; Berlin: Häring, 1914), p. 114.
527

---

528
dangerous to the unity of the country and essentially unpatriotic. The
apparent failure of the Weimar republic to solve the critical problems of
the interwar years strengthened the attitude that to permit parties to share
in the governing process was to render the state incapable of ruling
effectively.
It was only gradually that political parties were recognized as being
essentially different from ordinary associations and simple election organiza-
tions. A
few voices were raised to insist upon the indispensability of parties
for responsible parliamentary government, but with little effect as far
as the legal status of parties was concerred.3 Official admission that parties
existed and had to be recognized was first made in the rules of procedure
of the Reichstag and Land diets; later, with the adoption of proportional
representation, which presupposes the existence of political parties, they
found their way into the election laws of the Weimar republic. Yet the
Weimar constitution itself has been criticized as being essentially antiparty.
The only reference to parties in it was a negative one: members of the
Reichstag and civil servants were expressly declared to be independent of
political parties. Despite the desire of the Weimar constituent assembly
to provide Germany with a democratic system of government, its members
could not completely free themselves of the Bismarckian tradition.’ The
incorporation into the Basic Law of 1949 of the party article is, therefore,
without precedent in German history.
Parties have been recognized for the first time in Germany as a whole ... as politically
and sociologically necessary instruments for the activizing of the people. They appear as
constitutionally legitimate organizations which have to &dquo;participate&dquo; in the forming of the
political will of the people.5
The records of the Parliamentary Council reveal the intention of the
delegates to extend constitutional recognition to the interrelationship of
party life and parliamentary government. Equally marked is their reluc-
tance to leave the organization and activity of parties completely unregu-
lated. Inspired by the memory of party life during the Weimar period
and the experiences of the Nazi state, the Parliamentary Council deter,
3
"The party is an extraconstitutional phenomenon. Its resolutions are, from a legal point
of view, merely the utterances of a social body unknown to the state organism and
without binding force or authority. The assertion that the modern state is built around
political parties is legally untenable." H. Triepel, Staatsverfassung und Politische
Parteien (2d ed.; Berlin: Verlag von Otto Liebmann, 1930), pp. 29 f.
4
Gustav Radbruch, "Die politischen Parteien im System des deutschen Verfassungsrechts,"
Handbuch des deutschen Staatsrechts, I, 288 ff.; Triepel, op. cit., pp. 20 ff.; Gerhard
Anschütz, Die Verfassung des deutschen Reichs (12th ed.; Berlin: Verlag von Georg
Stilke, 1930), p. 165; Richard Thoma, "Das Reich als Demokratie," Handbuch des
deutschen Staatsrechts, I, 190 ff. For contemporary German comment on this point
see: Gerhard Leibholz, Der Strukturwandel der Modernen Demokratie (Karlsruhe,
1952), and C. F. Menger, "Zur verfassungsrechtlichen Stellung der deutschen poli-
tischen Parteien," Archiv des öffentlichen Rechts, LXXVIII (1952), 149 ff.
5
Leibholz, "Der Parteienstaat des Bonner Grundgesetzes," loc. cit.

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529
mined to balance rights by duties, privileges by obligations.’ As a result,
Article 21 goes to the very heart of parliamentary government and, directly
and indirectly, involves the structure and organization of parties, the elec-
tion process, parliamentary mandates and party discipline.
Article 21 &dquo;constitutionalizes&dquo; political parties by extending formal
recognition to them as a vital element in the actual process of government.
The first sentence of Article 21, &dquo;The political parties participate in the
forming of the political will of the people,&dquo; is both a statement of the
parties’ functions and a guarantee of the necessary freedom to fulfill these
functions. The provisions that follow, including both guarantees of
freedom and restrictions on aims and activities, are subsidiary to and
justified by this central idea. The unifying element in Article 21 is the
recognition that parliamentary democracy cannot function without an
active and free party system.
Rights and Privileges
As an association, a political party would logically be protected by the
right guaranteed to every German to form associations and societies under
Article 9 of the Basic Law. But political parties, by virtue of Article 21,
are considered to be associations of a special kind. The rights of the
German people to form political parties and through parties to engage in
political activity extend beyond the general right of association contained
in Article 9. The effect of Article 21 is to distinguish political parties
from ordinary associations and endow them with rights and privileges
which give them a unique position as a functioning part of the machinery
of government.
The privileged position of parties becomes clear when we contrast
parties and ordinary associations in terms of their immunity to executive
ban and prohibition. Ordinary associations, under the provisions of
Article 9 (2) may be prohibited if their objects or activities &dquo;conflict with
the criminal laws,&dquo; or are &dquo;directed against the constitutional order or the
concept of international understanding.&dquo; Article 21 (2), applicable only
to political parties, is much broader in scope, giving parties considerably
more leeway. The most important difference between the two articles is
that Article 9 protects &dquo;constitutional order,&dquo; while Article 21 protects
&dquo;democratic principles.&dquo; The term &dquo;constitutional order&dquo; refers to the
specific institutional arrangements established by the Basic Law. Unlike
ordinary associations, political parties are not prevented from agitating
6
Werner Matz, "Die Vorschriften des Grundgesetzes über die Parteien in den Verhand-
lungen des Parliamentarischen Rates," Deutsche Rechtszeitschrift, V (June 30, 1950),
273 ff. The entire first volume of the Jahrbuch des öffentlichen Rechts der Gegenwart
(new series, 1951) is devoted to the evolution of each article of the Basic Law. Docu-
mentary material on the development...