Compare and contrast the constitutions of France and Germany

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 constitutional order, should no other remedy be possible’ (Art.20(4)), are clearly aimed at reinforcing the democratic political order and can be linked with the concept of wehrhafte Demokratie -i.e. a sustainable form of democracy able to defend itself (Gordeeva 2006). The German and French constitutions consequently do not attach the same importance, in terms of quantity of text allocated, to the proclamation of rights. This is mainly due to the fact that the drafting of the Basic Law had been severely influenced by the authoritarian Nazi regime, which outlawed some fundamental liberties.

In the German text, only 45 Articles out of 146 relate specifically to the executive, the legislature and the relationships between them, while more than half of the 89 Articles of the French Constitution do so. Both the Président and the Bundespräsident share a number of ceremonial functions. In addition to being guarantors of the constitution and of the republic, they represent their country abroad, appoint several top civil servants, and can grant pardon. The powers of the French President are however much wider. He possesses indeed an arbitration role and ‘presides over the Council of Ministers’ (Art.9), in which he determines the agenda and can refuse to sign ordinances and decrees (Ardant 2003: 287). Very significantly, the French Head of State can dissolve the lower house simply ‘after consulting the Prime Minister and the Speakers of the houses’ (Art.12) but cannot by any constitutional mean be compelled to forfeit his office prematurely.

Likewise, in case of state of emergency, he is allowed to ‘take the measures required by these circumstances’ (Art.16) by temporarily ruling by decree. In France, the directly elected President is consequently granted much more marked decisional powers, which can even be momentarily quasi unlimited; the French Constitution hence reflecting de Gaulle’s ‘imperious nature’ (Finer 1979: 28). As for the Bundespräsident, all of his powers, apart from agreeing to the lower house dissolution, are said to be bound, which means that he cannot exert them unilaterally.

According to the French and German constitutions, the two governments, headed by the Prime Minister, are granted a similar objective. They shall respectively ‘determine and conduct the policy of the Nation’ and ‘determine and [be] responsible for the general policy guidelines’ (Art.20; Art.65). Both PMs are besides accountable to their lower house, in the sense that the latter can dismiss them from office through a vote of no confidence. Despite these similarities, the French two-headed government system, with a powerful and directly elected President, differs widely from the German classical parliamentarism. It is a hybrid system that has been referred as ‘semi-presidential’ (Duverger 1980: 165-187).

During ‘cohabitation’ periods -when the French President and the PM are drawn from different political camps-, the President loses, however, most of his domestic influence to the benefit of the PM, who then tends to be almost as powerful as his German colleague. Given the strategic powers granted to the German PM, the latter is in many respects also the actual Head of State and the guarantor of the federal functioning of the country: in which governmental responsibility is distributed between the regional and national levels. The German PM and the government have consequently more constant powers over the conduct of the country whilst also being very accountable to the parliament.

With two chambers of parliament each, France and Germany possess, by definition, bicameral legislatures. The lower houses, known respectively as the National Assembly and the Bundestag, are composed of directly elected deputies – the only German federal officials to be elected this way (Art.38). The upper houses, the Senate and the Bundesrat, are, on the other hand, the institutional bodies where local authorities, for France, or Land governments, for Germany, are directly represented. In its relations with the executive, the legislature has seen, in both countries, constitutional limitations on its powers; a trend theorised as ‘rationalised’ parliamentarism (Grewe & Ruiz 1995: 126).

If the Bundestag wishes for instance to dismiss the Chancellor, then the constructive vote of no confidence (Art.67) requires that the assembly elects a new Chancellor before being able to dispose of the incumbent. Whilst Germany is more concerned with government stability, France pays greater attention to the dynamism and responsiveness of its executive. Therefore the French Constitution restricts the powers of the Assembly notably by defining very clearly in the Article34 what falls within the ambit of statute; all the rest coming within the province of the executive (Art.37). By inciting two new regimes to strengthen and stabilise their executive, these two constitutions had already in 1949 and 1958 well understood the need for more decisional flexibility.

In terms of amendment procedures, the French and German constitutions are however much more rigid, or entrenched, compared to ordinary statutes (Camy 2005). Modifying the content of the Basic Law requires the support of at least a two third majority in both houses of parliament (Art.79), which practically means that the Bundesrat, the government and its opposition in the Bundestag must come to an agreement (Gallaggher&Mair 2006: 91). As for the French Constitution, it can be amended either, after separate consultation of both chambers, by the two houses convened in Congress if a three-fifths majority is reached -and by referendum if not- (Art.89) or directly by a referendum submitted by the President on a government proposal (Art.11).

For both constitutions, some provisions are nonetheless declared unamendable; the essential structures of federalism for Germany and the republican form of government for France being notably inviolable. In order to strike down legislation violating the constitution, the German Federal Constitutional Court and the French Constitutional Council, two watchdog bodies, were instituted as the two constitutions came into effect. Yet, contrary to its German counterpart, the Constitutional Council can only rule on the conformity of bills, it cannot repeal laws, were they infringing the constitution. Such divergence, though potentially weakening for the French constitution, can be explained by the primacy, in France, of the nation and of its representatives over non-democratically elected bodies.

To conclude, the constitutions of France and Germany share a fundamental set of features, notably in terms of rights and accountability. Yet, their respective historical context and, more generally, their two contrasting political cultures have markedly shaped the form and substance of these texts. With a comprehensive system of checks and balances regulating all the institutional relationships, the German constitution appears very concerned to propose a stable, efficient but secure set of rules. Its French counterpart is more committed to strengthening the executive and especially the president, since the previous constitution mainly collapsed of weaknesses in this field. The inheritance of the French Revolution, in that it partly forged the idea of a sovereign nation, may also help to explain some rather idiosyncratic constitutional aspects such as the limited scope of the Constitutional Council. Beyond the differences, both constitutions have however turned out to be efficient and sustainable tools in the governing of their country

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Duverger, M. (1980). ‘A New Political System Model: Semi-Presidential Government’. European Journal of European Research, vol. 8, pp 165-187

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