The New German Constitution

by René Brunet

It was attempted to bring some clarity into the chaos of the discussions on this head. At first a proposal was made according to which any one had the right to complain before a tribunal of all injurious violations of fundamental rights. This was rejected; for otherwise any one belonging to the middle classes could complain on the basis of the provision of Article 164, according to which “The independent … middle-class shall be fostered,” and claim that the provision was a dead letter. There was voted, however, on the first reading a provision according to which the fundamental rights would constitute “a course and a limitation for legislation, administration, and jurisprudence in the Reich and in the States.” This phrase would have increased, without any possible ambiguity, the immediate legal efficacy of the fundamental rights. It was, however, done away with at the second reading, for it would not have been applicable except to provisions which have a positive content, and it would have had, aside from this, only the character of an abstract maxim for scholastic manuals. It was decided, therefore, not to specify in any way whatever the legal significance of the articles of the Constitution relating to fundamental rights and duties. It would fall to legislators, judges and public officers to interpret in the future each of these articles separately, and to be guided according to the results of this interpretation. If, however, one may attempt such an interpretation, it would appear that these articles, from the point of view of their legal efficacy, may be divided into three categories.

(1) Those having the force of law. These create actually and immediately some new law, and consequently abrogate contradictory provisions of antecedent laws. Such, for example, is [Article 109], par. 6: “No German may accept a title or order from a foreign Government.”

(2) Others limit themselves to indicating to legislators of the Reich and of the States the course which they must in the future follow and prescribe the laws they must enact. But these provisions do not in themselves constitute laws, and, therefore, cannot abrogate ipso facto, contradictory provisions in antecedent laws. Such is the principle in [Article 145], according to which “Instruction and school supplies … are free.” This cannot have for its effect the immediate doing away with payments by pupils in the schools for supplies furnished them. There is no doubt that the principle of gratuity cannot enter into operation except through a special law expressly prescribed.

(3) Other provisions express general truths, which are most often ordinary philosophico-legal commonplaces, whose exact meaning and bearing in a text such as the Constitution is difficult to grasp. For example, it is hard to see the special significance which a phrase can have in a constitutional document such as the one which declares that marriage is placed under the special protection of the Constitution.

However diverse may be the conceptions that prevailed at the drawing up of the fundamental rights, and whatever uncertainty they may present from the legal point of view, it is possible, nevertheless, when the whole of the second part of the Constitution of Weimar is surveyed, to discover in these articles some common characteristics and to unfold the fundamental ideas that have inspired the majority of the Constituent Assembly.

It is evident that the Assembly conceived the fundamental rights and duties in a manner quite different from that of the authors of preceding Declarations of Rights in America, France, or even in Germany. These declarations were inspired by purely individualistic doctrine. Man is by nature free and independent; he holds rights that are limited only by such other rights as will assure to other men the enjoyment of the same rights as his. From this ensues a twofold consequence. First, he may act in his own right provided that he confines himself within the limits of the right in question. Within these rights he is truly sovereign, and the state may not encroach on them to impose any obligation whatsoever. On the other hand, conversely, the state does not owe any positive service or pledge to the profit of the individual. It must abstain from all interference and allow him free individual activities. The State owes nothing to the individual, who in turn can claim nothing from it.

This doctrine does not appear in the new German Constitution. The Assembly at Weimar has substituted for it a conception by virtue of which man, while still, it is true, enjoying a certain number of individual prerogatives, nevertheless must place them at the service of the collectivity. In whatever concerns liberty properly so-called, property, the means of production, the intellectual development of man, there is found everywhere this dominant idea of the social function of man. Individual liberties are no longer an end in themselves, nor do they constitute any longer an independent good. They are limited and conditioned by the duty of the individual to co-operate in the well-being and the development of the collectivity. They have no value and are not protected except in the measure that they serve for the accomplishment of this social duty.

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.