The New German Constitution

by René Brunet

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.