2.—FUNDAMENTAL RIGHTS AND DUTIES OF THE INDIVIDUAL.
The Constitution commences by enumerating as completely as possible individual liberties such as traditionally figure in most declarations of rights. Not a single one of them is left out, and there have been even others added: equality, at least in theory, of men and women; protection of minorities; the right to secrecy in telegraphic and telephonic communication; liberty of opinion extended to manifestations of thought by means of motion picture films, etc.
One may, therefore, apply for the Germans the classic table of individual liberties.
First, the civil equality. The suppression of privileges of birth or of class. Titles of nobility have no other value except as a part of a name. Titles may not be conferred except as they designate an employment or a function. The state may no longer confer orders or honorary insignia and no German may accept a title or order from a foreign government.
Then come the individual liberties properly so-called; not only the right to come and go, but also the right to settle in any part of the Reich, to emigrate to any non-German country, to be protected from surrender to a foreign government for prosecution or punishment; guarantee against arbitrary arrests, imprisonment, and other penalties; the inviolability of domicile and correspondence.
In a third place, the right to freedom of activity; liberty to engage in work, commerce and industry; liberty of creed and conscience; liberty to practise religion; liberty of instruction; liberty to express publicly one’s thoughts by words, speeches, printed matter, figures, films and in any other manner; liberty of assembly and association.
In the fourth place the liberty of individual property. This cannot be expropriated except for the common good, by virtue of a legislative provision and must be indemnified.
The enumeration of rights and duties is complete, but the idea that prevailed at its adoption is different from that which inspired the authors of preceding Declarations of Rights. In recognizing the liberties of the individual, the object is no longer to protect him against the State, but to permit him to co-operate in the most effective fashion in the well-being of all.
This leads naturally to the imposition on the liberty of the individual of a certain number of restrictions hitherto unknown. On the other hand, it imposes on the state a certain number of new duties, the discharge of which affords, as corollaries, new rights to the individual.
I.—Individual rights are subject to certain new restrictions in the interests of the collectivity.—The individual is no longer merely entitled to work. It is his duty. This obligation is provided for by Article 1, par. 1, of the socialization law of March 23, 1919, which has become [Article 163], par. 1, of the Constitution. “Every German has, without prejudice to his personal liberty, the moral duty so to use his intellectual and physical powers as is demanded by the welfare of the community.”[49]
It is true, therefore, that personal liberty is conditioned. The draft of the socialization law submitted by the Cabinet did not contain these conditions, and the Social Democratic Minister, Wissel, in open session of the National Assembly, expressly rejected the principle of the liberty of the individual. In the same manner the Social Democrats and the Independents proposed amendments according to which the sole liberty guaranteed to the individual was that of choosing his profession; this one right availed of, the liberty of the individual was thereupon used up, and he must thereafter conduct himself exclusively according to the needs of community. But a coalition of all the representatives of the bourgeois parties organizing against the conceptions behind the Socialist proposal, the provision concerning the principle of the liberty of employment was introduced into the law of March 23, 1919, and into the Constitution.
Saving his personal liberty, therefore, every German also has work as his moral duty; that is to say, he should contribute all the economic work that he is capable of according to his physical and intellectual abilities. In addition, this work must correspond to a definite condition; it must be such as is “demanded by the welfare of the community.”
In Germany many see in this provision a central point of the law and hold that it constitutes as a real transition from the old world to the new. Formerly every German could, under the protection of the law, so dispose of his work that it served only his selfish ends. Without regard to the interests of his fellow citizens or those of the community, he could, provided that he observed the outer forms of the law, so to speak, “walk over dead bodies” without violating a single legal provision. In a general way and aside from insignificant exceptions, there reigned in the century of economic liberalism an unlimited egoism of the individual, protected by the adage qui jure suo utitur, nemine lædit. The socialization law radically changed this state of affairs. Hereafter every German is obliged, for the well-being of the whole German people, to furnish all the productive labor of which he is capable, and must abstain from all action liable to hinder this well-being. It is only within these limits that economic egoism may hereafter move.
However, this novel duty to work is as yet only a “moral duty.” These words, which were not found in the original draft by the Cabinet, were added by the Constitutional Committee; and the Independents tried, but in vain, to have them omitted. It does not seem, however, that the majority which has adopted them, has ever given them a clear, unequivocal meaning. One thing is clear, however; the law wished to distinguish between a moral duty and a positive legal obligation, whose execution can be expressly compelled. But it is perhaps possible to interpret this provision in such a way that the violation of the duty to work may involve legal consequences, which can have as a result the right on the part of the state to exercise indirect constraint on the individual who does not carry out his duty. The German who does not work, or who lets himself be dominated in his work by purely selfish ends, has no longer the right to demand protection of the laws; he cannot demand that his work shall be protected by the Reich. Perhaps one may even go so far as to appeal to the article of the Civil Code, according to which all legal procedure that violates good morals is null;[50] and hold it applicable to acts and contracts that do not correspond to the moral duty imposed by the socialization law and by the Constitution. In the same way perhaps also Article 826 of the Civil Code may be applied, according to which any one who in a manner contrary to good morals deliberately causes damage to others is obliged to repair this damage; and it may be argued that an act or contract inspired by a selfish end falls under the provision of this law and brings about in such a case an obligation to compensate the community.
Being obliged to work, is the individual at least master of the product of his toil? May he dispose of his property as he wishes? No longer. As with his work, the individual must place his property at the service of the community. And the same idea that has resulted in the restriction of his liberty to work now leads to a corresponding restriction of his right over property; “Property rights imply property duties.” ([Article 153].) These restrictions are several kinds.
First, that of expropriation. It is true that this was already admitted in individualist doctrine. But this doctrine hemmed the right of expropriation on the part of the state within narrow limits, inasmuch as it prescribed strictly the cases in which the state could use this right, and provided always the payment of a just and, usually, a previously ascertained indemnity. These two guarantees given to property owners are strikingly diminished in the new German constitutional law. On the one hand, it is true the principle is retained that expropriation must not be resorted to except for the welfare of the community. But this notion of general welfare has been particularly elastic. Thus in [Article 155] the State is permitted to expropriate in cases of housing crises, in the interests of settlement and reclamation of land, or in the improvement of agriculture. Thus the Socialization Law and after it the Constitution in [Article 156] permit the state to transfer to public ownership private business enterprises adapted for socialization. On the other hand, the principle of a just indemnity seems to have been retained. However, there is but one case in which indemnity is imposed and guaranteed by the Constitution; it is that where the Reich expropriates “the property of the States, municipalities, and associations of public utility.” In all other cases the restriction provided in [Article 153] applies; expropriation takes place with indemnity “in so far as is not otherwise provided by national law.”
In addition to expropriation, the Constitution provides other restrictions on the right of property:
Land owners are under the obligation to cultivate it and utilize it. However, there is no provision made in case this duty is not carried out.
The right of inheritance is guaranteed, but the State has the right to take part of the inheritance according to provisions determined by the laws of the Reich, in particular fiscal laws.
An increase in the value of land arising without the application of labour or capital to the property accrues to the benefit of the community as a whole.
Entailments are dissolved. This provision is an obligatory prescription imposed on the legislatures of the States, which obliges them to put an end to entailments, for this matter is given over by the Civil Code to the rights of States. By entailments is understood the legal institution by which a patrimony, particularly holdings of land, because of the limitation of the right to sell and the establishment of a certain succession provided by a testament, creates for the owning family in the person of the holder of the entail an economic position of security and thereby of increased advantage. These entails often go back considerably in time, but they are very frequent in Germany, to such an extent that land holdings subject to this legislation comprise, for example, in Prussia about seven per cent of all the landed properties, with about two and a half million hectares. In certain sections entailed property represents about twenty-two per cent of the whole agricultural service. For a long time now it has been questioned whether this institution, which tends to the concentration of more and more land into fewer and fewer hands, should not be abrogated. It is argued in particular against the entails that the community cannot allow a mere decision taken by the private will of a proprietor to be perpetuated; that entails have an unfavourable effect on the distribution of land and that they finally tend to wipe out the small and the average property. It follows of itself that with the victory of the democratic idea and in an epoch in which the tendency is to divide each piece of land as far as possible, entailments must be dissolved. In leaving to the States the legislation on this dissolution, the Constitution has only applied logically the democratic principles on which it rests.[51]
II.—In turn the state is obliged to fulfil a certain number of duties to the benefit of individuals.—The classic individualist doctrine limits the rights of the State but does not impose upon it any positive service, no obligation to the benefit of its citizens. The State must abstain from certain interferences, but the individual may claim no more than that of it. German constitutional law, however, adopts another conception, and while it restrains individual rights for the benefit of a community, it also imposes upon the latter obligations to the profit of the individual. From this there arise to the profit of the latter new rights corresponding to the restrictions to which he is subject.
The individual owes the duty of working, but the State owes him the chance to work, must protect his work and according to circumstances must furnish him with the necessities of life. From this is derived for the individual the right to work, the right to the protection of his work and the right of subsistence.
The State must furnish work to the individual. This obligation explains itself very easily. When the individual is left free to use his labour as he pleases, that is to say, when he is free to work exclusively in the interests of purely selfish ends, he must also be left the right to look for such work and to dispose of his labour where and how he pleases. The community disassociates itself from a work in which it is not directly a beneficiary or from which it may even suffer. But if it demands of the individual that he devote himself only to such labour as will benefit the whole of the nation, and if it forbids him, therefore, a certain number of occupations which benefit only the individual, it is indispensable that it take measures to guarantee him sufficient remunerative work. [Article 163], par. 2, provides therefore: “Every German shall have the opportunity to earn his living by economic labour.”
Of what exactly consists this duty on the part of the State? It is certainly not a legal obligation that gives the individual the right to demand before a tribunal the execution of this promise. It is a promise that the Constitution makes and which it sufficiently fulfils if the Reich institutes a general system to make known all the available possibilities for work. An individual may ask only what kind of work is available and what opportunity there is of securing it. The proposal of the Socialization Law provided that every German shall receive work corresponding to his powers. The final text of this law, like that of the text of the Constitution, limits itself to prescribing that every German must be given the opportunity to earn his living by economic labour, that is to say, by labour that produces goods, utilizing to the utmost the available conditions of work. In addition, the compensation to the individual must be sufficient for a livelihood.
The State in addition protects labour. The Socialization Law declares that the power of labour is the most precious economic good and it imposes on the Reich the legal obligation to protect it. The Constitution of Weimar applies in [Article 157] the terms of the law of March 23, with the exception of the words, “the most precious economic good.” But the Constitution also extends and organizes in outline the duty of the State in this respect. It amplifies this duty in expressly specifying in its [Article 158] that intellectual labour also is under the special protection of the Reich. As to the measures for the protection of labour, some of them come under domestic law, others under international law. Within the Reich itself the Constitution prescribes the creation of uniform labour legislation. In addition it guarantees to every individual and to every vocation the liberty of organization for the defence and the development of the conditions of labour and of economic life, and it accords to each employé and laborer the free time necessary for the exercise of the civil duties and free public functions that may be given to him. Finally, it promises a complete system of social insurance to be established for the maintenance of health and standards in labour. In international relation, the Constitution imposes on the Reich the obligation to protect abroad the products of German science, art and technique, and to strive for the establishment of an international regulation of the legal status of workers.
Finally the State must provide for the needs of individuals out of work; and this obligation logically results from the principle that inspires all of this part of the Constitution. Since the Reich imposes on every German the obligation to work only for the good of the community, it must see to it—apart from any humanitarian or financial considerations—that every German’s capacity for labour shall be maintained as long and at as high a standard as possible. That is why, not content with merely protecting this capacity of labour, the Socialization Law and the Constitution provide that every German must receive what is necessary for his livelihood, to the extent that a possibility of adequate employment cannot be assured to him ([Article 163]).
The draft of the Socialization Law provided as a condition to this duty on the part of the State that the individual shall not have been able to find employment. The final text of the law which the Constitution also uses provides only that such opportunity for employment shall not have been offered.
The burden of the proof is thus reversed from the general rule and an attitude purely passive on the part of the individual in this respect is sufficient to entitle him to public succour. On the other hand, it is not sufficient for the discharge of all such obligations on the part of the State if it merely offers the individual any employment whatsoever. For it does not serve the community in any way, as the most interested party, when an individual is employed in work for which he is not fitted. The community, therefore, must procure work corresponding to the mental and physical powers of the individual and to his capacity. If the State does not succeed in doing so, it is obliged to furnish him a livelihood.
To put into operation the principles thus enunciated by the Constitution, different laws are necessary—a law on the offer of employment, a law protecting labour, a law on the help to be given to the unemployed. Such laws have not yet been enacted. However, a certain number of ordinances have been passed that constitute on the part of the Reich the beginning of the execution of the new obligations imposed upon it.
First, measures have been taken to procure employment for individuals. To this end, aside from the ordinance of December 9, 1918, which imposes on municipalities the obligation of organizing employment bureaus, public and impartial, there is also an ordinance of May 5, 1920,[52] creating for the Reich a bureau devoted to finding employment. This agency has for its principal function a survey of the labour market and the editing of periodical bulletins on the situation in this market for the purpose of establishing an equilibrium between supply and demand in the different regions and in the different vocations.
Measures have been taken also to protect labour. The first step toward the creation of uniform labour legislation was made by the provisional ordinance of January 24, 1919, which, supplementing the divisions of the Civil Code, regulates labour in agricultural and forestry exploitations.[53] Social insurance legislation, such as is found codified in the law of the Empire of July, 1911, i. e., as sickness, accident, disability and death insurance, has been supplemented by different provisions, particularly by a law of December 29, 1919, relative to the protection of pregnant women.
Finally, regarding the obligation to provide livelihood for unemployed, different ordinances have been issued which were codified by an ordinance of January 26, 1920.[54] According to these ordinances, the duty of organizing a service for the supplying of the needs of unemployed—a service which must not take on the character of charity—falls upon the municipalities, which are assisted financially by the Reich to the extent of six-twelfths of the total expense and by the State with four-twelfths of this expense. The municipalities must refuse this help to those who do not accept the work offered them, even if this work does not fit the vocation of the one refusing and even if it must be done away from home, provided always that this work be adapted to the physical capacity of the unemployed. The only ground on which one may refuse such work is that the pay is not sufficient, given local conditions, to support the individual and, if married, his family.[55]
In the same way that restrictions on the liberty of labour have created for the State a number of duties relating to the employment of individuals, so the restrictions on the rights of private property have, as a consequence, engendered a number of obligations on the part of the State to assure to every one, if not a minimum of property, at least a minimum of well-being.
The Constitution guarantees individual property, but on the condition that the distribution and the utilization of land do not present abuses. The aim of this is to, “to insure to every German a healthful dwelling and … homestead corresponding to his needs” ([Article 155]). To this end colonization must be favoured, the development of agriculture and the utilization of the soil must be promoted; a survey must be made of all the mineral resources and all economically useful forces of nature.
In accordance with their conception of the duties of the State, the Constituent Assembly outlined a vast programme of agrarian and social policy. In addition they themselves passed several laws which form the commencement of the execution of this programme and which are intended to guide future legislation.
In order to insure every German a habitation and a homestead, the Reich first promulgated a decree, July 31, 1919, “On small gardens and little farms,” according to which tracts of land, which cannot be used profitably, must be rented out at rates fixed by administrative authorities after expert appraisal, or may be leased, and later sub-leased, for gardens, by the authorities.
Later the law of April 11, 1919, was passed “on colonization.” This law obliges the State to create interior colonies and small undertakings. To this end territory belonging to the State must be put on sale to “collective colonization enterprises”; these enterprises may be subsidized by means of expropriations of swamps and uncultivated tracts. They have the right of pre-emption in the sale of tracts of land of less than twenty-five hectares. On the other hand, to develop colonization tracts, there must be organized “associations for the furnishing of tracts” in all districts where more than ten per cent of the cultivatable soil is in the hands of big holders, that is, of more than one hundred hectares per holder. These associations, formed by a union of big landholders, must, on the demand of collective colonization enterprises, put at the disposal of the latter at reasonable prices tracts of land taken from the big properties. Their obligations in this respect cease when they have thus given over to colonization a third of the utilizable surface of the large properties, or when the total area of these properties is not more than ten per cent of the area of the district. The right of pre-emption by the colonization enterprises in respect to large properties is exercised through the associations for the furnishing of tracts. In urgent cases these associations may proceed by means of expropriation.
The Reich, finally, in order to assure a habitation to individuals, must take a whole series of measures in the case of housing crises. Already before the Revolution a decree of September 23, 1918, gave to municipalities the right to make regulations for the prevention of the demolition of buildings or their use for other purposes than dwelling. The municipalities had the right to draw up leases, even against the wish of the owners, through the intermediacy of “offices for the distribution of lodgings,” and to appropriate all unused buildings for the purpose of converting them to dwellings. A later decree of November 7, 1918, provided that associations of municipalities and groups of municipalities could be created to fight against housing crises. After the Revolution, a new decree of January 15, 1919, contained more important provisions for meeting the most urgent needs created by such crises. The State Cabinets were obliged to appoint “housing commissioners,” charged with the care of homeless families and the creation of small and average appropriate lodgings. To this end, they received considerable powers. They could expropriate by a summary procedure unoccupied buildings they deemed necessary, or have such buildings erected on grounds which they had authority to lease for terms as long as thirty years. They could dispense with the requirements of legislative provisions, expropriate tile and other building materials necessary for the rapid construction of buildings; they could seize building lumber and forbid unnecessary construction. The service of these Housing Commissioners was under the Minister of Labour for the Reich.
Finally, in order to protect tenants, the ordinances of September 23, 1918, and of June 22, 1919, sanctioned and supplemented by the law of May 11, 1920, limit considerably the rights of owners to dispose of habitable quarters and entrust to the “offices for distribution of lodgings,” extensive rights relative to the renting out of apartments and the terms of lodgings. In particular, according to the law of 1920, if grave inconveniences result from the lack of lodgings, the states may, with the consent of the Minister of the Reich, authorize or constrain the municipalities to take, or themselves take, measures that constitute encroachments on the liberty of settlement and the inviolability of domicile, on condition that these measures be expressly necessary to meet a housing crisis or to combat it. This law specifies, in addition, that decisions taken in the fight against the shortage of houses may be executed by administrative constraint.