3.—FUNDAMENTAL RIGHTS AND DUTIES OF COMMUNITIES.
The Constituent Assembly did not limit itself to the establishment of a list of rights and duties of the individual. The social conceptions by which it was dominated led it to proclaim, after the rights and duties of the individuals, the rights and duties of certain groups and communities that seemed to it to play a particularly important rôle in society—the family, associations, municipalities, civil service.
I.—The family.—For the first time the family, the natural foundation of all ordered national life, finds itself mentioned in the Declaration of Rights of a modern state. The Constitution of Weimar formulates the general principles which should dominate legislation relating to marriage, to the education and the protection of children and to the duties of education devolved upon parents.
[Article 119] places marriage under the special protection of the Constitution. Marriage, which forms the basis of family life and on which depends the increase of the population of the nation, is based on the equal rights of both sexes. Marriage and the family are recognized as the basis on which social life reposes and as the primary source from which develop German customs and culture. In consequence [Article 119] enunciates a legislative course of considerable social and political importance. It prescribes the care of the purity, the health and the social advancement of the family as a duty of the state and of the municipalities. Families with numerous children have a claim to equalizing assistance. Motherhood has the right to the protection and care of the State.
Proposals were made, during the discussion of the draft of the Constitution, to lighten the lot of illegitimate children. They were aimed to assimilate, from the point of view of family rights, illegitimate and legitimate children. The majority of the National Assembly decided, because of the difficulties of regulating in a constitutional text questions of private rights, to leave this matter to legislation and to later development. The Assembly limited itself to forming guiding principles only. Legislation must assure to illegitimate children the same conditions for physical, moral and social development that legitimate children have. But convinced of the need of legislative reform on this matter, the Assembly passed a resolution that there should be taken, as soon as possible and by legislative means, a new ordering of the legal and social status of illegitimate children.
Concerning education, [Article 120] declares only that parents have the right and the duty to educate their children; “The physical, mental, and moral education of their offspring is the highest duty and natural right of parents.” But the State must not leave it entirely to parents and intervenes as an organ of surveillance. The political community watches over the execution by the parents of these duties imposed upon them.
In addition the State assumes as an obligation in a general way the protection of youth; the care of children and youth comes under the legislative authority of the Reich. As a guide for the accomplishment of this obligation, [Article 122] specifies that youth shall be protected against exploitation as well as against physical and mental neglect.
II.—Association.—The right of assembly and association was already regulated by the law of April 19, 1908; in addition to this the Civil Code contained some provisions on the acquisition of civic rights. The Constitution contents itself with taking as its own the principles that inspired these laws, but it makes certain changes in the existing laws.
As to the liberty of assemblage, [Article 123] holds to rules previously adopted, “All Germans have the right of meeting peaceably and unarmed without notice or special permission.” The obligation that public meetings be reported in advance to the authorities, which formerly existed, is abolished. Furthermore, while the law of 1908 demanded that public meetings in the open air and manifestations on public ways and squares receive in advance authorization by the police—authorization which must be applied for at least twenty-four hours in advance—the Constitution, on the other hand, declares that in theory these meetings are free and do not need to be authorized. It adds, however, that in the interest of security and public order, liberty of assembly may be limited by law, this limitation consisting furthermore not in the need of authorization, but only in the obligation to give the police notice in advance.
As to liberty of association the Constitution still holds to the principle of the regulations of 1908. “All Germans have the right to form associations or societies for purposes not contrary to the criminal law. This right cannot be limited by preventive measures.” ([Article 124].) Associations may acquire a legal status according to the regulations provided by the Civil Code. Hitherto these regulations gave administrative authorities the right to oppose the acquisition of legal status by associations of a political, social or religious character. This opposition resulted in the associations in question being kept from the register of associations, and thereby prevented them from acquiring legal standing. This restriction is abolished by the Constitution as contrary to the modern principle according to which liberty of association must be kept intact. To this effect it is expressly provided, “Every association has the right of incorporation in accordance with the civil law. No association may be denied this right on the ground that it pursues a political, social-political, or religious object.”
III.—Municipalities.—[Article 127] provides, “Municipalities and unions of municipalities have the right of self-government.…” Thus the principle of decentralization is found introduced in the list of fundamental rights.
The Constitution declares that this autonomy must be exercised “within the limits of the laws.”
IV.—Civil servants.—Finally, the Constitution reaches the question of civil servants, to which it devotes no less than six articles.
Before the Constitution went into effect, the status of civil servants of the Empire was regulated by the law on civil servants, March 31, 1873, as amended by the law of May 18, 1907. The new Constitution left this law intact, but it superimposed a series of general rules, some of which were borrowed from the preceding laws applying to the civil servants of the Empire, and which are destined hereafter to hold good for all German civil servants, as well as those of the states and of public corporations.
The principles that serve as a point of departure are: that civil servants are in the service not at all of the party in power, but of the community; that, therefore, civil servants who remain faithful to the community all their lives have the right to be kept in office for life and to have guaranteed them a financially adequate situation; finally that outside of his office every civil servant is neither more nor less than any other citizen. These principles the Constitution applies in the provisions relative to the free access of all citizens to public functions, to the political liberty of civil servants and finally to their financial responsibility.
(1) “All citizens without distinction are eligible for public office in accordance with the laws and according to their ability and services.” ([Article 128].) In the future, citizenship in a particular state may no longer be demanded by the laws of the States as a condition for public employment; for the Constitution expressly provides that citizens must be admitted to public employment “without distinction.” In addition, [Article 110], par. 2, formally declares, “Every German has the same rights and duties in each State of the Commonwealth as the citizens of that State.” On the other hand, [Article 16] provides that as a rule officers directly charged with the administration of services that depend directly on the Reich, and who are assigned to a State, shall be citizens of that State. From this it must be concluded that the civil servants of a State may as a rule be recruited from among the citizens of that State without violating the spirit of the Constitution.
Already in preceding laws one finds no legal obstacle to the admission of women to civil service. The Constitution declares, meanwhile: “All discriminations against women in the civil service are abolished.” By this—a logical consequence of the provision of [Article 109], by which men and women have in principle the same civil rights and duties—all obstacles to the admission of women to the service of the State on the same conditions as men are abolished.
(2) Civil servants are in principle appointed for life. However, exceptions are provided for, either in case future legislation on civil servants contains contrary provisions, or if, up to then, the law on civil servants of the Empire and the laws of the states have provided a different rule. A proposal by the Independents, according to which civil servants would have to be chosen by election and therewith lose all guarantees the Constitution and the laws accord them, was rejected by a great majority. The rights acquired by civil servants must be inviolable. Claims in money matters must be heard by tribunals. Civil servants may not be temporarily deprived of their function, retired for a time or permanently, or be given new work of a lower nature except under conditions and according to forms provided by law and not by simple arbitrary administrative measures.
Against any disciplinary measure, civil servants may enter protests and commence procedure for damages. Furthermore, the system of secret reports on persons employed is abolished. Every civil servant has the right to consult his record, and no disparaging entry may be introduced in it without the opportunity being given to the employé to explain himself on this matter.
(3) Civil servants are in the service of the State, of the community and not at all the servants of a party or the party in power. In consequence of this they retain the liberty of political conviction and of association. A later law of the Reich was provided for organizations in which civil servants are represented and which are supposed to co-operate in the regulation of all questions concerning them. The same idea that led to the recognition of the right of workers and clerks to co-operate in the form of Factory Workers Councils applies to civil servants and gives them the right to co-operate in all matters concerning them.
(4) Finally the Constitution prescribes in a uniform manner for the whole Reich, for the public servants of the states as well as those employed by public corporations, the limits of the financial responsibility of public servants.
The responsibility of civil servants is regulated by Section 838 of the Civil Code. “Every employé, who through premeditation or negligence, violates the duty imposed upon him by his function, to the damage of a third party, must recompense this party for the damage thus caused.” As to the manner in which this compensation is to be awarded, the Civil Code leaves it to the legislatures of the individual states to determine. Making use of this authorization, most of the States individually have decided that the State shall be responsible instead of the civil servants, and that the public treasury assume the indemnity to the limit for which the civil servant is responsible, the treasury retaining, however, the right to proceed against the civil servant. Prussia adopted this system in the law of April 1, 1909, and the Empire followed it, for the employés of the Empire, in the law of May 22, 1910. However, there are still member states, Saxony for example, in which this solution has not yet been adopted and where the civil servants are still directly responsible to any individual who suffers damage through them.
The Constitution confirms in [Article 131] a state of affairs that exists in most of the States and in the Reich, and declares that if a civil officer in the exercise of the authority conferred on him by the law fails to perform his official duty toward any third person, the responsibility is assumed by the state or public corporation in whose service the officer is. The right of redress against the officer is reserved.