Article 20 of the Basic Law for the Federal Republic of Germany
The Article 20 of the Basic Law for the Federal Republic of Germany standardises the basic legal order in Germany . Contents are constitutional principles and the right of resistance . This article may not be changed in its original content (paragraphs 1 to 3) and meaning. Paragraph 4 was introduced by the Emergency Acts; According to the general opinion of today in the doctrine of constitutional law, immutability does not apply to him.
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(1) The Federal Republic of Germany is a democratic and social federal state .
(2) All state authority emanates from the people . It is exercised by the people in elections and referendums and through special legislative , executive and judicial organs .
(3) Legislation is bound by the constitutional order , the executive and the judiciary are bound by law and justice.
(4) All Germans have the right to resist anyone who undertakes to remove this order if no other remedy is possible .
Explanation of the individual paragraphs
Paragraph 1
Paragraph 1 contains state structure principles of the Federal Republic of Germany. These are democracy , the welfare state principle , federal statehood and the republican principle .
Paragraph 2
The people are understood as sovereign, which is created by "special organs of legislation" ( legislative ), i.e. the Bundestag and Bundesrat , "the executive" ( executive ), governments and administration, and "the judiciary" ( judiciary ), i.e. all courts, is represented. These organs exercise state authority representative of the people . In any case, the people have the right to govern the three powers by means of elections and votes. The German Federal Constitution thus largely follows the principle of indirect democracy , but is open to referendums . The state constitutions , which often go further with regard to direct democracy, are therefore in conformity with the Basic Law. At the federal level, however, according to the prevailing opinion, votes are only permitted if they are expressly provided for in the Basic Law, i.e. only for reorganizations of the federal territory without a constitutional amendment.
Paragraph 2 defines the people as the constitutive founder of state authority . The phrase “all” stipulates that there must be no more violence that is not justified by the people.
Paragraph 3
This paragraph contains - in addition to a reaffirmation of the principle of separation of powers by separately naming the three partial powers - the principles of legal binding, which exist in the primacy of the constitution and primacy of the law : the legislature must comply with the constitution, administration and courts must also comply with laws , Legal ordinances , autonomous statutes and customary law . The principle of the reservation of the law is often located here, but this is controversial.
Article 20.3 of the Basic Law thus forms the most important normative basis for the rule of law , even if it is not expressly mentioned here.
Paragraph 4
The right of resistance as a means of militant democracy was incorporated into the Basic Law in 1968 with the emergency legislation . In 1949, the Parliamentary Council rejected a corresponding regulation by a large majority, as it was viewed as an “invitation to breach the peace ” ( Carlo Schmid ). Resistance against anyone who undertakes to destroy the constitutional order within the meaning of Article 20 Paragraph 1 to Paragraph 3 of the Basic Law is legalized.
The right of resistance is a right of the citizen to defend himself against unlawful state power with the aim of preserving or restoring the legal order. In the narrower sense, the right of resistance is also directed against individuals or groups if they endanger the constitution; it then serves to support the state authority, for example when it is too weak to maintain the constitutional order (constitutional aid).
It is disputed when this right applies. According to one opinion, it takes effect even before order has been threatened; even the preparations for such an overthrow can be fought. According to another opinion, this right only applies if the constitutional order has already been overturned - so even in the case of obvious violations of the state organs against the constitution, only the path via elections and votes and the legal path, as long as the latter is still feasible.
Germans according to Art. 116 GG , thus clearly excluding foreigners, are only allowed to use this right as a last resort ; all other means, in particular a possible legal recourse, must be exhausted beforehand . In the opinion of some constitutional lawyers , the resistance activists also have the right to commit attacks and killings (e.g. " tyrannicide "), since otherwise the right of resistance would be useless.
With regard to the aim of protecting the constitutional order, however, the actions must be proportionate , i.e. suitable, necessary and appropriate in addition to the pursuit of a legitimate purpose.
Web links
- Wording of Art. 20 GG - Federal Ministry of Justice
Individual evidence
- ↑ Art. 79 para. 3 GG, eternity clause
- ↑ Hesse, Fundamentals of the Constitutional Law of the Federal Republic of Germany , margin no. 761.
- ^ Josef Isensee : Democracy without a referendum , in: Christian Hillgruber , Christian Waldhoff (ed.): 60 Years of the Bonn Basic Law - a successful constitution? , P. 120 ( limited preview in Google Book search).
- ↑ Peter Unruh: The constitutional concept of the Basic Law , p. 455 ( limited preview in the Google book search).
- ^ Heinrich Wilms : Staatsrecht I , p. 45 ( limited preview in the Google book search).
- ↑ 17. Law to supplement the Basic Law of June 24, 1968, Federal Law Gazette I p. 709
- ↑ Christoph Böckenförde: The codification of the right of resistance in the Basic Law. JZ 1970, 168, 169
- ↑ The Right to Resist to Protect the Constitution Website of the German Bundestag, accessed on February 19, 2019
- ↑ Josef Isensee : Right of Resistance in the Basic Law , in: Birgit Enzmann (Ed.), Handbook Political Violence. Forms - causes - legitimation - limitation. Springer Fachmedien , Wiesbaden 2013, pp. 143–162
- ↑ BVerfG 5, 85 on the KPD ban
- ^ Right of Resistance Website of the Federal Agency for Civic Education , accessed on February 19, 2019
- ↑ for example BeckOK / Huster / Rux, Art. 20 para. 192
