{ subscribe_url: '/share/sites/library-of-congress-blogs/law.php' }

Anniversary of the German Basic Law

Every year on May 23, Germany celebrates the “Day of the Basic Law.” The Basic Law, Germany’s constitution, lays down fundamental rights, establishes the structure and administration of the Federal Republic of Germany, and sets out the legal framework of the three branches of government. Furthermore, it establishes the Federal Republic of Germany as a democratic, federal, and social constitutional state. In this blog post, I will briefly describe the history of the Basic Law and share a few interesting facts, including why the German constitution is not called a “constitution”.

Reichstag building in Berlin, Germany, where the German parliament is located. Photo by Jenny Gesley.

General History

After the total and unconditional surrender of Germany at the end of the Second World War, German borders were returned to their status as of December 31, 1937 and the country was divided into three occupation zones, each assigned to one of the three Allied Forces as had been agreed to by the United States (US), United Kingdom (UK), and the former Soviet Union (USSR) in the London Protocol of 1944. Berlin was given a special status under joint occupation of the three forces. On April 8, 1949, the western zones were merged.

On July 25, 1948, the eleven prime ministers of the German states in the western zones of occupation created a “Council of Experts on Constitutional Matters.” The Council met in Herrenchiemsee, Bavaria, from August 10 to August 23, 1948, and was charged by the Allied Forces with drawing up a draft constitution for West Germany. In September, the draft was forwarded to the newly convened Parliamentarian Council in Bonn for further consideration by the Council’s 65 representatives of the Western German states. On May 8, 1949, the Parliamentarian Council adopted the Basic Law (Grundgesetz) by a vote of 53–12. The Basic Law entered into force on May 23, 1949. Although at the time it was only applicable in West Germany, it was proclaimed in the name of the entire German people, East and West, and the original version of article 23 of the Basic Law explicitly codified German reunification as a goal.

Even after the Basic Law entered into force, the Allied Forces retained occupation powers, which were codified in the Occupation Statute of Germany. The Occupation Statute made every amendment of the Basic Law and adoption of new laws dependent on approval by the Occupation Forces. (Occupation Statute, arts. 4, 5). This situation remained in place until the repeal of the Occupation Statute in 1955.

In 1990, after the fall of the Berlin Wall, the government of the German Democratic Republic (East Germany) decided to join the Federal Republic of Germany and adopt the Basic Law according to the procedure set forth in the former article 23 of the Basic Law. On August 29, 1990, the German Bundestag (parliament) adopted a law agreeing to the accession. Five weeks after the accession, the first all-German elections took place and the first all-German Bundestag had its inaugural meeting on December 20, 1990.


Original edition of Germany’s “Basic Law” displayed inside the parliament. Photo by Flickr user ptwo, Aug. 17, 2014. Used under Creative Commons License, https://creativecommons.org/licenses/by-nc/2.0/.

The original edition of the German Basic Law is stored in a safe in the German Bundestag and is used to administer the oath of office to the German federal chancellor and the federal president.

In 2016 it was decided that a microfilm of the original edition should be moved to a secure underground storage facility (Barbarastollen) where other historical documents of cultural significance to Germany are kept. The underground archive has been used by the Federal Republic of Germany since 1975 to preserve movable cultural property from natural disasters or armed conflicts. It holds around 31.2 million meters of microfilm and it is estimated that the contents should survive for at least 500 years.

The Name “Basic Law”

People often wonder why the German constitution is called the “Basic Law” instead of the “constitution”. The drafters of the Basic Law did not intend for it to become a permanent constitution; it was created as a provisional document which would cease to exist once a constitution was “freely adopted by the German people“. The Basic Law itself was never ratified by the German people in a referendum.

One of the concerns about adopting a permanent constitution was that it would endanger the goal of German reunification. The Basic Law was only supposed to facilitate the administration of the Western zones of occupation and not establish a permanent nation “West Germany”. The provisional character was also noted in the original wording of the preamble which stated that the German people enacted the Basic Law desiring “to give a new order to political life for a transitional period.” Nonetheless, “c’est le provisoire qui dure” [the temporary will endure], as the French saying goes. The provisional “Basic Law” has proven its worth over the years and become a constitution. Instead of convening a constitutional assembly when Germany was reunited in 1989/1990, East Germany adopted the Basic Law. Minor revisions were enacted, but no complete revision took place.

Apart from the name “Basic Law”, the German constitution in its content, structure, and application has always been a full-fledged constitution. It formed the basis for the establishment of a free and stable democracy with a strong emphasis on respecting and protecting human dignity and other fundamental rights. The German people have formed a political attachment to its norms and values (“constitutional patriotism“). Other countries that transitioned from a totalitarian regime to a democracy have been inspired by the German Basic Law and by the jurisprudence of the German Federal Constitutional Court.

That just leaves me to say: “Happy birthday Basic Law!”

The Tale of a Presidential Term in France

This is a guest post by Nicolas Boring who has previously written for In Custodia Legis on a variety of topics including The Protection of Champagne Wine, FALQs: Freedom of Speech in France, How Sunday Came to be a Day of Rest in France, Napoleon Bonaparte and Mining Rights in France, French Law – Global Legal Collection Highlights, and co-collaborated […]

FALQs: Demonetization in India

The following is a guest post by Supreetha Sampath Kumar, a foreign law intern at the Law Library of Congress. On November 8, 2016, the Prime Minister of India, Narendra Modi, announced the “notebandi” initiative, declaring that the use of all Rupees (Rs.) 500 and Rs. 1,000 banknotes (equal to about US$7.60 and US$15.30) of […]

Changes to the Law on Sexual Offenses in Japan

This following is a guest post by Sayuri Umeda, a foreign law specialist who covers Japan and various other countries in East and Southeast Asia. She has previously written posts for In Custodia Legis on various topics, including testing of older drivers in Japan, English translations of post-World War II South Korean laws, laws and regulations passed […]

60-Year Anniversary of the Rome Treaties

On March 25, 1957 – 60 years ago tomorrow – the governments of France, Germany, Italy, Belgium, Netherlands, and Luxembourg signed the “Treaties of Rome”, thereby establishing what would later become the European Union (EU). The “Treaties of Rome” consist of two different treaties: the Treaty establishing the European Economic Community (EEC Treaty) and the Treaty establishing the European […]

Elor Azaria and Alexander Blackman: Adjudication of Unlawful Military Shootings

What impact do prolonged periods of stress and fear have on a soldier’s behavior? Do the horrors of war and terrorist acts justify conduct that would otherwise be unlawful? While such circumstances do not seem to amount to justification for violating the law, it is notable that “exceptional stressors” and constant threats faced by soldiers were recently considered […]

Australia’s National Day

Today, January 26, is Australia Day, a national public holiday in Australia that commemorates the arrival of the “First Fleet” of convict ships that resulted in the establishment of the first British penal colony on the continent. It is considered Australia’s national day. On January 26, 1788, Captain Arthur Phillip raised the British flag at Sydney Cove, a […]