display
In a constitutional state, the legislature must also obey the law.
The rules for whoever sets the rules are laid down in the Basic Law in Germany.
Since one cannot rely on the fact that the legislature will always voluntarily and comprehensively follow the Basic Law, as with anyone who has to observe regulations, there is a supervisory authority in Germany for this: the Federal Constitutional Court.
When trying to answer the question of whether this facility actually works well and is doing its job, one must first consider that the Basic Law actually consists of two parts that have little to do with each other. The second, more extensive part is an organizational manual for the state. The structure and responsibilities of the Bundestag, Bundesrat and Federal President are regulated in detail, and it is determined what the federal government and what the federal states are responsible for.
You can well imagine that now and then one person violates the rights of the other, that there are misunderstandings or disputes over competencies.
There is no question that it is good that there is a court to which one party can turn if it thinks that another has done something wrong.
And if you ask yourself what kind of people are suitable for deciding on such questions, then hardly anyone will contradict the view that it should be lawyers who are familiar with laws, paragraphs and the whole variety of regulatory procedures.
display
However, it is seldom the differences of opinion between the federal government and the federal states or the executive and legislative branches about their competences that heat up the minds when it comes to decisions by the Federal Constitutional Court. In the public discussion, it is above all the procedures and decisions that concern the first part of the Basic Law, those first originally 19 articles, which are headed "The Basic Rights".
In the original version from 1949 they are of simple and at the same time sublime simplicity, and in the current version the clarity, which has everything fundamental, can still be felt, even if the articles have become complicated and complicated at various points in the course of time have been made incomprehensible when, for example, the simple sentence “Politically persecuted people enjoy asylum”, which originally formed the end of Article 16, has been moved to a lengthy Article 16a, which weakens and relativizes the right of asylum. It is the same with the right to inviolability of the home in Article 13 and with the subject of compulsory military service for men, which is extensively regulated in Article 12a.
At its core, however, this first part of the Basic Law still consists of the definition of elementary fundamental rights, which in their simplicity and clarity hardly require any interpretation or explanation.
This does not mean that in the everyday life of a society it is impossible for problems to arise.
Situations can arise in which the granting of fundamental rights appears problematic, in which fundamental rights even collide with one another or in which the view arises that a fundamental right should be suspended in order to avert danger.
display
Of course, a society then needs an institution that can clarify how to deal with such a problem.
However, the question arises as to why a small group of lawyers should be specifically called upon to clarify these questions.
Are there any legal issues at all?
What judges can clarify
What is a legal question?
The question is whether a specific act of people in society belongs to a certain category that is regulated in a law.
If a person is killed by the act of another, then one can legally investigate whether it was murder, manslaughter or negligent homicide.
A number of facts must be established for this purpose, there are investigative authorities for this, and the lawyers then assess these facts on the one hand to determine whether they are sufficiently certain as facts, and on the other hand, whether they allow the classification of the event under one of the three legal definitions.
display
In contrast, what about the decisions on the observance of fundamental rights that are listed in the first section of the Constitution?
If you read these articles of the Basic Law in comparison to paragraphs of the Criminal Code or the Civil Code, you quickly notice that the Basic Law leaves the content of the terms indefinite, while the law books try to determine very precisely what is a fraud and what is a murder what a contract or a sham deal is.
One reason for this is that the terms and statements of the Basic Law are immediately familiar to everyone who lives here: For example, if it says in Article 8 “(1) All Germans have the right to be peaceful and without weapons without registration or permission to assemble ”, then one no longer has to clarify what“ without weapons ”or“ assemble ”means, the matter is clear.
From a legal point of view, there is nothing to do with the basic rights, the fact that the corona measures have massively and comprehensively violated the basic rights as laid down in the Basic Law is evident.
It would of course have served the Federal Constitutional Court to expressly state this.
There is no exception rule for the freedom of assembly in the Basic Law, especially when it comes to assemblies in the open air, a law can impose restrictions.
Violation of fundamental rights is out of the question
The violation of fundamental rights through contact restrictions and curfews is therefore out of the question.
It is the same with undisturbed freedom of religion.
A Federal Constitutional Court, which sees itself as the guardian of fundamental rights, should have unequivocally pronounced the obvious.
The situation is somewhat different with the right to free movement, which is guaranteed in Article 11, because this can, as the same article says, be restricted in order to combat epidemics, for example.
However, this shows that the question of whether the corona pandemic is an epidemic that justifies restricting a fundamental right is not a legal question.
Avoiding an epidemic can be seen in the context of the right to life and physical integrity, which is named as a fundamental right in Article 2.
So here we come to the question of whether fundamental rights can be offset against one another, whether one should give priority to one fundamental right over others when rights collide with one another.
This discussion needs to be conducted, these questions need to be answered, but they are not legal questions that a small group of legal scholars could decide for society as a whole.
In fact, the Federal Constitutional Court has repeatedly taken on the role of such a decision-making body over the past few decades and has rarely been openly criticized for it.
But that doesn't change the fact that these questions cannot be decided legally.
More from Jörg Phil Friedrich
display
What the court does when it comes to judgments on such questions is to view a problem of societal value decisions as a legal one, because it seems to become something that is accessible to the judiciary. It's like when a carpenter tries to stir a soup with his hammer, in the best case he misuses his hammer for something it is not suitable for, in the worst case he hits the soup because he thinks it is a nail , and the hot liquid splatters in the kitchen. In any case, it would have been better to use a mixing spoon or leave it to a cook.
What that looks like in current events has been observed in two cases in the past few weeks. On March 24th the court ruled that the Climate Protection Act would partially violate the Basic Law. In the press release it is said that it would follow from the Basic Law that the emission of greenhouse gases must be reduced, and that the "climate protection goal of Art. 20a GG" is specified to increase the global average temperature according to the so-called "Paris target" significantly below 2 ° C and if possible to 1.5 ° C compared to the pre-industrial level. "
Now Article 20a, which is not one of the fundamental rights articles, says nothing explicitly about climate protection, but it says that the state must also protect the natural foundations of life for future generations.
Undoubtedly, one of the natural foundations of life for future generations is that there are climatic conditions that enable people, animals and plants to live, and therefore there is no question that the issue of climate protection is one that must be addressed as a consequence of Article 20a, albeit just as unquestionably under Observance of all other conditions for people's lives.
Protect future generations
Whether the goal of protecting the natural foundations of life for future generations can be concretized as “the increase in the global average temperature must be kept below 2 ° C” is a question that should be addressed to an interdisciplinary team of scientists made up of climate researchers, biologists, economists and nutritionists than to lawyers. However, the judges can be credited for having obtained scientific expertise to answer a legal question, just as the expertise of ballistic experts, forensic scientists and medical professionals is required to clarify the question of the cause of death in a murder trial.
Let us assume that such a team of experts would actually come to the conclusion that the natural foundations of life for future generations can only be protected if the global average temperature is kept within the specified range. The question then still remains whether the Climate Protection Act, which initially sets targets for reducing CO2 emissions for the next 10 years, does not meet the requirements of Article 20a. At this point, at the latest, the court has completely left its competence, because this question cannot be clarified legally.
The question of what effort a country, which in any case cannot achieve the 2-degree target on its own, invests in CO2 reduction in the short term and how far it relies on future technologies, opportunities and global developments cannot be answered by legal arguments . To this end, there must be a social discourse that does not ignore the fundamental rights of the first articles of the Basic Law, in which society agrees on what is feasible and necessary.
It is undisputed that climate change has to be mitigated and that the greenhouse gas problem has to be overcome.
It should also be undisputed that the foundations of life in a society also include an economic basis and, above all, peaceful coexistence between the various parts of this society.
How these conditions can be balanced cannot be decided by any court.
The overstepping of competences by the Federal Constitutional Court on the subject of fighting pandemics can be seen even more drastically, even if the court acts here more by inaction and rejecting applications.
A court that sees itself as the guardian of the constitutional fundamental rights would have had the task of clearly naming the violations of these fundamental rights, the violation of the limits of what is permitted, clearly defined in the Basic Law.
display
Instead, the judges have declared themselves to be an authority that would be allowed to introduce gradations and hierarchies between the basic rights and to play off one right against another.
However, such activity is not the task of the court.
Even if it has become so common in recent decades that a small group of lawyers in red robes authorize themselves to set priorities between the basic rights, this is by no means in the interests of the parents of the Basic Law.
Boundaries of the court
Of course, climate change and the pandemic also show that defending, observing and enforcing fundamental rights is by no means a straightforward matter in which it would be unproblematic to decide in a specific situation how politics and society should behave. And it may well be that crises like this put us in situations that could not be considered when formulating fundamental rights and in which it is conceivable, necessary or advisable to temporarily postpone fundamental rights. It can also be that over time, new fundamental rights are established and others become subordinate.
But no court can decide all of this; a society needs other mechanisms for this. The time after the pandemic is the right time to find and establish these mechanisms. First of all, Parliament is asked, but for a fundamental and long-term further development of the fundamental rights system, an organ in which only the political class is represented in the narrower sense is not sufficient. A new constitutional convention would have to be established which would critically examine the experiences of the past decades, develop guidelines and put the constitutional court in its place.
But what could the institution look like that recognizes and resolves fundamental rights conflicts in the short term? Who, if not lawyers, would be able to assess the social, moral, economic and political dimensions of such conflicts and to make decisions that can be accepted in society? The organization of some of the state constitutional courts could be a reference and submission here: What we need is an organ that is only partly made up of lawyers, but a decisive part of representatives of civil society, recognized personalities with the ability to balance and with connections to all parts of society consists.
Even in a crisis situation such as a pandemic, such a committee could bindingly determine how far the tension between various fundamental rights is tolerable. A search for such mechanisms should begin now; we will need them if society is not to tear apart under such tensions.