The New German Constitution

by René Brunet

(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.

4.—RELIGION AND THE CHURCHES.

Declarations of Rights generally contain, justly so, principles relative to religious liberty and the free exercise of creeds. But the Constitution of Weimar could not limit itself on this point to traditional general maxims. The question of the relations of church and state forms an essential article of the programme of the Centre, and also of the programme of the Social Democrats. Their solutions would seem to be self-contradictory. The Centre wanted to guarantee to the Church a privileged and preponderant situation within the State. The programme of Erfurt, on the other hand, declared religion to be a purely private matter, and refused all subsidies levied on public resources in behalf of ecclesiastical or religious needs. But these two parties entered at that moment into a coalition which, together with the Democrats, governed the Reich. As neither of these two opposed conceptions was able to prevail, the conflict of the two theories was finally settled by a compromise—which before consummation required laborious negotiations.

The Constitution first proclaims the principle of liberty of belief and conscience and the free exercise of religion. These liberties are expressly placed by the Constitution under the protection of the State. They are guaranteed against every invasion no matter from what side it comes. But the general laws of the State remain intact and religious liberty finds itself limited by the general regulations for the maintenance of order and public security. Every abuse in the exercise of religious liberty is punished by ordinary law. Civil rights and duties must not be restrained or conditioned by the exercise of religious liberty. The enjoyment of civil and civic rights as well as the admission to public employ are independent of the religion professed. No one is obliged to divulge his or her religious convictions before any authority whatsoever, and the right of an authority to inquire into the sect to which one belongs may not be exercised except as one’s rights and duties depend upon this, as, for example, in the matter of church tithes or in the matter of guardianship or instruction; or where it is necessary for the gathering of statistics ordered by law. No one may be forced to attend any Church ceremony or to take part in any religious exercise. No one may be forced to make use of any religious oath as was formerly prescribed in civil and penal procedure. It is sufficient, in taking an oath, that the one swearing shall declare without a religious formula, “I swear!”

On the other hand, the Constitution contains several provisions regarding the exercise of religion. Sundays and legal holidays remain protected by law as days of rest and spiritual edification.

These principles being admitted, there still remained the difficult problem of the relations of State and Church. The following solution was adopted: There is neither complete separation nor any close union of the Churches and the State. The Churches are emancipated from the State, but they enjoy certain privileges.

The Churches are free. “There is no State Church.” The union that formerly existed between the Church and the State, in Prussia, for example, and in the majority of the German States between them and the evangelical church, has disappeared, and the principle according to which religious affairs depend upon the state is abolished.