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Germany's Basic Law and the Use of Force

Indian Journal of Global Legal Studies, Vol. 17, No. 197, 2010

Washington & Lee Legal Studies Paper No. 2011-33

12 Pages Posted: 11 Jan 2012 Last revised: 12 Jan 2012

Russell Miller

Washington and Lee University - School of Law

Date Written: January 10, 2012

Abstract

Among the German Basic Law's (Grundgesetz or constitution) distinguishing features, and in light of its considerable success, there is one thread in its remarkable tapestry that particularly merits further attention. It is a matter of constitutional law with singular significance for transatlantic affairs and is therefore especially worthy of recognition in a "German-American Dialogue on NATO's 60th Anniversary."

Six decades after the founding of NATO, scholars are still debating the roles that the United States and Germany should play in securing the two nations' shared interests. On this issue there has been disagreement and disappointment on both sides of the Atlantic, with the United States generally pressing for the projection of force, and Germany balking. These roles were popularly caricatured by Robert Kagan in his essay Of Paradise and Power, which he published in an earlier and more strained part of this decade. Back then Kagan invoked a tired cliche' from pop-psychology and declared that, "on major strategic and international questions today, Americans are from Mars and Europeans are from Venus." More recently, the headlines that followed President Barack Obama's visit to Baden-Baden as part of the state conference marking the sixtieth anniversary of NATO suggested that, on the question of security, the United States and Germany are playing to type. "Europeans offer few new troops for Afghanistan," the New York Times trumpeted. Mr. Obama has been greeted warmly on a personal level," the report said, "but his calls for a more lasting European troop increase for Afghanistan were politely brushed aside." President Obama should not take this as a personal slight. After all, one of the more entertaining moments in Oliver Stone's otherwise unremarkable movie, W., depicted the forty-third President railing against "that kraut Schröder" because Chancellor Schröder had refused to lead Germany into the "coalition of the willing" that was being formed to execute Operation Iraqi Freedom.

From a perspective informed by German constitutional jurisprudence, this essay addresses this confounding facet of German- American relations, which is central to the viability and efficacy of NATO today. It argues that modern Germany's deeply embedded reticence toward the use of force, which consistently places it in conflict with America's more muscular vision of trans-Atlanticism, has both roots and expression in the Basic Law. It concludes by suggesting that Germany's constitutional use-of-force regime does more than provide insight into U.S. and German differences on matters of security, but that the German constitution might have achieved something more grand with its challenge to the persistent realist argument that force cannot be constrained by law.

Keywords: International Law, German constitutional law, Jurisprudence, Basic Law, National Security

JEL Classification: K10, K33

Suggested Citation

Miller, Russell, Germany's Basic Law and the Use of Force (January 10, 2012). Indian Journal of Global Legal Studies, Vol. 17, No. 197, 2010; Washington & Lee Legal Studies Paper No. 2011-33. Available at SSRN: https://ssrn.com/abstract=1982599

Russell Miller (Contact Author)

Washington and Lee University - School of Law ( email )

Lexington, VA 24450
United States

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