The New German Constitution

by René Brunet

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.