German Basic Law Research Articles

The Right to Subsistence Minimum and Its Role in the Protection of People Living in Extreme Poverty – the Polish Experience

Subsistence minimum guaranteed to each individual by the public authorities may be perceived as a human right under the constitutional law. That right becomes even more important when the ability to question social and economic rights is limited. That was the case in the Polish constitutional system, among others. Because of the restrictions on the ability to question ESC-rights, the Polish Constitutional Tribunal found “subsistence minimum” as a special type of constitutional value inferred from human dignity which is guaranteed to every person under the Constitution. While giving its judgment, the Polish Constitutional Tribunal made reference to the case law of the Federal Constitutional Court of Germany which inferred “The fundamental right to guarantee a subsistence minimum that is in line with human dignity” from the German Basic Law. That right is of special importance for individuals who live in extreme poverty.

The protection of marriage and family: a constitutional responsibility to enable all-embracing interaction as a means without an (objective) end

The constitutional duty to protect marriage and family is a rather recent task for public authorities. While these particularly personal forms of social interaction have always been of political interest to some extent, the attempt to provide them with basic rights protection against and by the state is a development from the last 100 years. Nowadays, such obligations are anchored not only in the constitutions or in the constitutional practice of virtually all European nation states, but also within the European fundamental rights protection systems as well as on the global level of public international law. Apart from this success story, however, the social phenomena that are being addressed as well as their context have changed considerably in European societies. The historically controversial questions of why and how marriage and family are to be protected by basic rights, therefore have still not been solved completely. This article addresses the history of this young fundamental right as well as different approaches to its interpretation in using the example of the protection clause of the German Basic Law.

ADOPTION OF THE RIGHT TO HUMAN DIGNITY IN THE BASIC LAW OF GERMANY

Human dignity is a legislative value. The norm that adopts the right to respect for human dignity can be considered both as a right directly and as a guarantee mediating the functioning of all branches of state power. The authors analyze the specific features of the interpretation and legislative implementation of this right in the German Basic Law.

MIGRATIONSSTEUERUNG IM RAHMEN DES FAMILIENNACHZUGS

Family reunification is one of the purposes of stay within the Residence Act. The granting of the residence permit is fundamentally designed as a claim and must be granted if the requirements are met. In the course of ongoing forced migration, family reunification has become the focus of debates for ways to limit refugee migration. Since Article 6, Paragraphs 1 and 2 of the German Basic Law on the protection of marriage and family do not give rise to a right to entry, although its scope of protection must be taken into account when designing regulations on family reunification, the legislative scope for action is limited. The German legislature has decided that family reunification should be limited for persons with subsidiary protection status. Subsidiary protection is an element of protection that is shaped by EU law, which occurs alongside national asylum law and refugee protection, which is also shaped by EU law. Different requirements apply to these protective elements. Upon recognition, a humanitarian residence permit is issued, which differs in length depending on the protection status. While in the case of recognition as a person entitled to asylum or refugee status, the residence permit is initially issued for a period of one year, the duration in the case of subsidiary protection is only one year. In all cases there is the possibility of an extension. This different length of stay and the lower prospect of staying are the starting point for the restriction of family reunification for persons entitled to subsidiary protection in Section 36a of the Residence Act. As specified in the regulation as an example, family members of a person with subsidiary protection status can be granted a residence permit for the humanitarian reasons. The family reunification is now made dependent on the existence of further prerequisites in addition to family ties and is also designed not as a right but as a discretionary clause. In addition, the number of visas is limited to 1000 per month. Concerns about this restriction of family reunification were raised, in terms of possible violation of Article 6 Paragraphs 1 and 2 and Article 3 Paragraph 1 (Equality before the law) of the German Basic Law. Based on this, the following article carries out a constitutional analysis.

The Effects of Fundamental Rights in Private Disputes

INTRODUCTION Are fundamental rights, the sort of rights entrenched in written constitutions and human rights instruments, binding on individuals or other private actors? With few exceptions, most legal systems of the constitutional democratic type answer this question in the negative. The German Basic Law, for example, provides in Article 1(3) that ‘constitutional rights bind the legislature, the executive, and the judiciary’, which means that they bind all the three standard state powers but not private actors such as individuals, corporations, labor unions and the like. Similarly, the Fourteenth Amendment to the United States Constitution provides that ‘no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States’. The US Supreme Court developed a notoriously large and obscure body of case law on the basis of this seemingly harmless provision – the so-called'state action doctrine’– the gist of it being that constitutional rights do not bind private actors unless they are acting as surrogates of the state or are endowed with public prerogatives. What it all comes down to is rejection of the view that fundamental rights normally bind private as well as public actors or that such rights produce not only ‘vertical’ but ‘horizontal’ effect as well. But this is hardly the end of the story. Even if fundamental rights cannot be invoked in private relations – meaning, for instance, that the plaintiffcannot base her complaint on the defendant's violation of a constitutional entitlement or that the defendant cannot invoke a constitutional liberty to evade liability – they are fully operative against the state in its capacity as legislator, executive or judge. Imagine the standard hypothetical of a landlord that sues the tenant for breach of a term in the lease that placed the latter under an obligation to attend mass every Sunday and to decorate the premises with religious paraphernalia. While the doctrine of vertical effect bars the tenant from invoking freedom of religion against the landlord, he may do so against the court itself qua enforcer of the lease and against the legislature qua author of the laws which empower private parties to create legal obligations inconsistent with freedom of religion.

The Development of the School Trial Islamic Religious Instruction at Bavarian Public Schools

This paper analyses the formation and development of the school trial Islamic religious instruction at public schools in Bavaria. The Bavarian trial was a pioneer project and was described as the nearest to the guidelines of the German Basic Law 7,3 compared to others. Meanwhile the Bavarian Islamic religious instruction has been tried for nearly 15 years. It has been evaluated positively for years, nevertheless its status of a school trial is ongoing. The school trial Islamic religious instruction in Bavaria fell far short of the expectations. It has neither been introduced nationwide in Bavaria nor received the status of a regular religious instruction according to the Basic Law 7,3 analog to the Jewish or Christian religious instruction. It seems that there’s no political will in Bavaria to accept the existing Islamic associations as a religious community according to the Basic Law 7,3. The unconstitutional status of the Islamic religious instruction will intensify the distrust of the Muslims into the Bavarian state.

The German Bundesrat and Executive Federalism

Abstract The German Basic Law constitutes federalism as a unique political system which is characterised by intertwined decision-making of the Federation (Bund) and the component units (Länder). The executives of the two federal tiers and the Länder executives within the Bundesrat play a major role in making joint decisions. They are forced to make decisions in the ‘joint-decision mode’ (Politikverflechtung) which is detrimental to accountability. Reform efforts were made to unbundle competences and to reduce the number of bills which require the Bundesrat’s consent. Due to the dominance of the executives and the distribution of powers between the federal tiers (legislation is dominated by the Bund, execution is dominated by the Länder), German federalism is rightly called ‘executive federalism’. German federalism can even be regarded as an embodiment of that concept since it covers all possible aspects of ‘executive federalism’. The Bundesrat has an important share in that classification.

Resisting democratic backsliding: An essay on Weimar, self-enforcing constitutions, and the Frankfurt School

Abstract:What, if anything, can constitutions do to resist democratic backsliding? The collapse of the Weimar Republic has led scholars of comparative politics to conclude that constitutional forms and institutions can do little to resist the breakdown of democracy and the rise of autocracy. This paper offers a constitutionalist response. The outlines of that answer can be found in decades-old policy documents produced by a set of German émigré scholars during and in the immediate aftermath of the Second World War: Franz Neumann, Herbert Marcuse, and Otto Kirchheimer. The secret reports root constitutional stability in the creation of a framework for bounded partisan pluralist contestation among political parties that track the principal social and economic cleavages, and that is rooted within, and does not seek to overthrow, the underlying political economy. Second, the secret reports highlight the importance of constitutional design in creating a constitutional infrastructure for bounded pluralistic political contestation, especially with respect to the role of political parties. Third, the secret reports suggest a counter-narrative of the German Basic Law as creating a framework for political contestation that reinforces constitutional stability instead of undermining it.

State duties of protection and fundamental rights

Duties of protection are duties of the state to protect certain legal interests of its citizens. They cover the interests of life, health, freedom and property and also protect some other interests and certain constitutionally recognised institutions. State duties of protection must be considered in connection with fundamental rights. The foundations of modern constitutionalism and attendant procedures are essential to develop guidelines for a constructive critique of the jurisprudence of the Constitutional Court. This is done with reference to the recent history of France, Germany and England. The historical excursus reveals that a single theory underlies the variety of constitutional states. The development of the constitutional state gave rise to the significance of the preservation of freedom through the maintenance of law and the separation of powers. This has given rise to various legal devices, based also in part on experience with moderate rule and earlier theories of the imperium limitatum.
 A textual analysis of the German Basic Law is undertaken to determine whether and how the duties of protection are expressly created. Furthermore, the duties that have been discovered in the Basic Law by the Federal Constitutional Court are considered. These duties include the protection of human life and health, personal freedom, the right to autonomous development of one's personality, freedom of science, research and teaching, marriage and the family, children, mothers, professional freedom, property and the protection of German nationals against foreign states. Finally the justification of such duties and the constitutional control of the manner of protection are considered.
 In a final section a critique of relevant constitutional jurisprudence is undertaken. It is argued that claims to protection cannot be directly binding law. They presuppose legislation. If statutory protection is connected with infringements of third-party fundamental rights, the principle of proportionality can be adopted to test whether the protection is effective. Insofar as protection can be achieved without infringements of rights, one must attempt to test the effectiveness of protection by some other means. Where the legislature omits to protect at all, the court should limit itself to establishing the existence of a duty and to querying its non-fulfilment. The Court may not pass protective regulations or impose a duty to pass specific regulations. Where general statutory norms apply, protective duties can be realised through the socalled indirect third-party effect of fundamental rights. In its reaching its decision, the German Federal Constitutional Court is responsible for preserving the political discretion of the legislature in protecting interests and remembering the structural distinction between "hard" defensive rights and "soft" protective duties in order to prevent the erosion of the directly binding nature of defensive rights.

The Core Meaning of Human Dignity

The concept of human dignity is relatively new in international and domestic constitutional law. Dignity is protected as a value or a right, or both, in international law and many domestic jurisdictions. It is difficult to define human dignity in a legal context, as the concept is not defined in the first international document which recognizes inherent human dignity and the protection thereof, the Universal Declaration of Human Rights (1946) and many international (and national) documents enacted thereafter. Despite dissensus regarding the widespread use of the concept, dignity has come to display three elements in constitutional adjudication post World War Two: the ontological element which entails that human beings have equal inherent human dignity that cannot be waived or diminished; the second element being the claim that inherent human dignity has to be recognised and respected; and the limited-state claim as the third element which entails that states have a positive obligation to progressively realise human dignity through the mechanism of socio-economic rights. It is widely accepted that these elements root in Kantian moral ethics which holds that man's autonomy is based upon universal dignity, as a result of which man should never be used as a means to an end, but only as a means in himself. Kant expressed this idea through formulation of a categorical imperative, namely that everyone's inherent human dignity has to be respected and protected universally. The preamble of the Universal Declaration of Human Rights (1946), article 1(1) of the German Basic Law and section 10 of the Constitution of the Republic of South Africa, 1996 embody the elements of Kant's categorical imperative. As a result, the three elements are applied as a definitional term of human dignity in German and South African constitutional adjudication. Based on these elements, it can be argued that the current idea of universal inherent dignity, at least in German and South African law, comports with Kant's ideal that man should never be used as a means to an end.
 

Brexit and the Future of European Criminal Law: A German Perspective

German Chancellor Angela Merkel favours, as a matter of principle, a hard and clean Brexit. This does not mean, however, that it is not in Germany’s interest to maintain a close relationship with the UK in the field of criminal justice cooperation. Thus, from a German perspective it would certainly be desirable if the UK continues to participate in European institutions like Europol and Eurojust. As to mutual assistance it seems, in contrast, questionable how the European Criminal Justice System based on mutual recognition and trust can reach out to a State who is in the course of leaving the Union. In this respect, the extradition of own nationals, prohibited by the German Basic Law in principle, is a crucial issue.

„Drei Schritte vor, einer zurück“ – Islamischer Religionsunter-richt. Ein Unterrichtsfach mit Hindernissen

Seemingly imitating the recurrent sequence of steps of the Echternacher dancing procession, the author takes stock of the development and current situation of Islamic Education as a school subject, while placing his emphasis on the chal-lenges the subject has been encountering and is continuing to encounter during its establishment, implementation and its further development. To obtain the right to give and to receive faith-specific Religious Education in terms of Article 7, Paragraph 3 of the German Basic Law, Muslim communities must first qualify as a (unified) “religious body”. On part of the society, sentiments expressing critical attitudes towards Islam and concerns or fears of rising Islamic extremism add to further impeding and obstructing the advancement of Islamic Education. Casting a light on the current state of realisation of Islamic Religious Teaching in the different Länder, Kiefer identifies five different models of practice, which have, in most cases, evolved from former pilot projects or, in one case, continue as such. To ensure the quality of the subject, of those teaching it and its teaching materials as well as in answer to calls to establish and pursue Islamic religious education at institutions of higher education, the courses of study “Islamic Reli-gion” and “Islamic Theology” were successfully established. Tracing its devel-opment to the current situation, Kiefer concludes that the subject has clearly left its infancy behind.

Constitutions as Chains? − On the Intergenerational Challenges of Constitution-Making

In this paper, I explore the ambiguity of the metaphor ‘Constitutions as Chains’, and distinguish between two intergenerational challenges in constitution-making: the challenge of inter-generationally just constitutional provisions, and the challenge of creating a stable institution which is accepted by successive generations. I prioritize the latter. After contrasting classic ideas of Edmund Burke and Thomas Paine, I discuss different ways of addressing the challenge, such as the amendability of a constitution, eternity clauses, or recurring constitutional assemblies. In light of Article 146 Grundgesetz, the contested last provision of the German Basic Law, which allows for the Basic Law’s replacement with a new constitution, I argue for a flexible and rational approach towards existing constitutional provisions. However, a need for empirical research remains. The paper concludes with remarks on possible avenues.

Il sottoprefetto costituente. Sulla legittimità democratica della «Legge fondamentale» tedesca

The article discusses the origin of article 21 of the German Basic Law. It is argued that a significant role in this context was played by the ‘instructions’ given by the French government. From this starting point a brief inquiry on the democratic legitimacy of the German Basic Law is also carried out.

The Flow of Arguments and the Changes of Norm surrounding Human Dignity as an Absolutely Non-aggression Value under the German Basic Law

The Flow of Arguments and the Changes of Norm surrounding Human Dignity as an Absolutely Non-aggression Value under the German Basic Law

The Constitution as an Objective Order of Values

This article examines the interpretation of constitutions in terms of underlying values, focusing on the theory of the German Federal Constitutional Court that the German Basic Law incorporates an ‘objective order of values’. The article describes the Court’s theory as well as its reception by constitutional scholarship. It also provides a critical evaluation. The article argues that the theory – although understandable in light of Germany’s particular historical and political circumstances – is both unnecessary and undesirable. The theory is unnecessary because the most salient implications of the Court’s assumption of the existence of an objective value order – positive state obligations, third party effect of basic rights and entrenchment of the core of the constitution – can also be based on provisions of the written constitution. The theory is undesirable because it has the potential to undermine the democratic nature of the constitution and could lead to the moralisation of constitutional law and constitutional discourse. It is not advisable, therefore, to transplant the Court’s theory to other jurisdictions.

헌법국가에 착근된 민주주의 - 독일 기본법의 형성과 체계를 중심으로 -

1980년대 이후 전 세계적으로 선거를 통한 경쟁을 핵심으로 하는 민주주의 정치체제가 증가해왔지만, 시민적 자유와 기본권, 수평적․수직적 책임성을 결여한 민주주의-권위주의 혼합체제가 새로운 문제로 부상하고 있다. 또한 민주주의가 발전된 유럽에서도 보편주의적 가치와 기본권을 위협하는 우익포퓰리즘 정당들이 선거정치를 통해 성장하는 현상이 늘고 있다. 이런 현상들은 선거민주주의가 헌법국가에 착근되어야 할 필요성을 주목하게 만든다. 이 연구는 독일연방공화국의 헌법민주주의 체제가 바이마르 민주주의의 실패로부터 교훈을 도출하여 정당민주주의와 헌법국가의 원리를 결합시킨 과정과 그 제도적 특질을 분석한다. 독일 헌법민주주의는 바이마르 민주주의의 취약성을 극복하기 위해 첫째, 정당을 통한 대의정치를 중심 원리로 채택하고, 둘째, 인권과 민주질서를 방어하기 위해 정당민주주의를 넘어서는 헌법적 장치들을 구축했으며, 셋째, 집권당의 권력남용을 막기 위해 다양한 권력의 원천을 수평․수직적으로 엮은 다층적 권력구조를 설계했다. 이 체제는 선거민주주의를 시민적 기본권과 권력분립 제도에 목적의식적으로 착근시킨 사례로서, 오늘날 선거 경쟁만이 만개한 결손민주주의 국가들의 정치개혁을 위한 하나의 참조점이 된다.

Access to Justice and Judicial Independence: Is There a Role for the EU?

THE MODERN CONCEPT of ‘access to justice’ has undergone a number of fundamental transformations during recent decades to include sometimes quite diverging political principles, social objectives and organisational considerations. One must not forget, however, that the roots of the notion can be traced back to a fundamentally identical constitutional guarantee even though the formulation of the guarantee has been quite different in a number of legal systems. In common law countries, access to justice has grown out of the rule of law concept with the central idea of courts and judges being established by law. The German Basic Law of 1949 provides for the ‘right to a natural judge’ which is very close in meaning to a court and judge established by law with the tacit understanding that being established by law they also must be independent and impartial. Even the laconic wording of Article 66 of the French Constitution of 1958 on the obligation of civil and criminal courts to protect individual liberty has been interpreted in a way to favour access to justice.

Revolutionary Constitutional Lawmaking in Germany—Rediscovering the German 1989 Revolution

AbstractToday, the 1989 Revolution in East Germany is recognized and celebrated as the event that abolished the German Democratic Republic (GDR) and brought about German unification. What is mostly overlooked, however, is that these are not the Revolution's only and, from the perspective of constitutional law, not even its most important achievements. More important with respect to understanding constitutional lawmaking in Germany is that the 1989 Revolution did not lead to an unconditional adoption of West German constitutional law in the new East German states. Instead, the Revolution had its own constitutional agenda, which went beyond the West German Basic Law and was transferred to unified Germany where it then needed to be integrated into the existing West German constitutional order. The Article reinterprets the 1989 Revolution and shows how a revolutionary popular movement in the GDR developed its own constitutional agenda, which first found legal manifestation in GDR legislation, and then was transferred to unified Germany through the Unification Treaty and the new state constitutions.

Klimaschutzgesetzgebung auf Landesebene: Placebo oder effektives Instrument des Klimaschutzes durch Recht?

<bold>Climate Control Legislation on State Level: Placebo or Effective Instrument for Climate Protection by Law ?</bold> Against the background of climate change several German states (Länder) have enacted laws on climate protection. Further states are expected to introduce similar legislation shortly. Since the competences of the states for legislation in this field are limited according to the German Basic Law (Grundgesetz), those laws cannot cover comprehensive measures for climate protection. A comparison of the existing legislation of the states on climate protection reveals similarities as well as differences. Some of the laws qualify climate protection as an independent field of law whereas others understand it as a part of energy law. All laws provide specific (and varying) aims for the reduction of greenhouse gas – in no case more (but often less) ambitious than those formulated on the federal level. The main addressees of the laws are the states themselves. Only some of the state climate protection laws additionally impose obligations for citizens and industrial undertakings. The existing measures vary; most important is the obligation to draw up a climate protection plan which has to be reviewed regularly. The state laws on climate protection interact with many other fields of (mostly federal) law. Energy law, especially the law of renewable energies and energy efficiency, and environmental law at the same time limit the scope of the state climate protection laws and also approve a complementary legislation. Most state climate protection laws refrain from filling the existing regulatory gaps. Modern planning and building law has a focus on climate protection and is therefore open for complementary rules. Public procurement law allows a climate friendly award of contracts. In spite of this, for financial reasons, such obligation exists only in very few states. The question whether states should pass climate protection laws needs to be answered politically. Still, from a legal point of view, such legislation may contribute to climate protection on a regional level, provided that its rules are not only of symbolic nature.