Free democratic basic order

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The free democratic basic order (often also free-democratic basic order, informally abbreviated as fdGO or FDGO ) is a term of the German constitution that describes the unchangeable core structure of the community , regardless of its current form by the constitutional and simple legislators . It describes the core substance of the applicable constitutional law as well as the basic principles of the political order and values on which the liberal and constitutional democracy in Germany is based. According to the latest case law of the Federal Constitutional Court (BVerfG), these are human dignity , the principle of democracy and the rule of law .

The term is essentially based on a judgment of the Federal Constitutional Court on the prohibition of the right-wing extremist Socialist Reich Party (SRP) from 1952. The definition of the court established therein was largely adopted in constitutional law . Groups and ideas that are directed against the free democratic basic order are often described as anti- constitutional .

term

The term is used in Art. 10 Paragraph 2 Sentence 2, Art. 11 Paragraph 2, Art. 18 Sentence 1, Art. 21 Paragraph 2 and Paragraph 3 Sentence 1, Art. 73 Paragraph 1 No. 10 Letter b, Art. 87a Paragraph 4 Sentence 1 and Art. 91 Paragraph 1 of the Basic Law.

Specification in the BVerfG ruling on the SRP ban 1952

It was specified by the Federal Constitutional Court in 1952 as follows:

"A free democratic basic order within the meaning of Art. 21 II GG is an order which, excluding any form of violence or arbitrary rule, represents a rule of law based on the self-determination of the people according to the will of the respective majority and freedom and equality. The basic principles of this order are at least to be counted: respect for the human rights specified in the Basic Law, above all the right of the individual to life and free development, popular sovereignty , the separation of powers , the responsibility of the government, the legality of the administration, the Independence of the courts, the multi-party principle and equal opportunities for all political parties with the right to constitutional formation and exercise of an opposition. "

- BVerfGE 2, 1 (Ls. 2, 12 f.)

Restriction by the 2017 NPD ruling

In the judgment on the NPD ban in 2017 , the BVerfG defined the term FDGO more narrowly. The court established the dignity of the human being, the principle of democracy and the rule of law as three basic principles.

“The concept of a free democratic basic order within the meaning of Article 21, Paragraph 2 of the Basic Law only encompasses those central basic principles that are absolutely essential for the free constitutional state .

a) The free democratic basic order finds its starting point in human dignity (Article 1, Paragraph 1 of the Basic Law). The guarantee of human dignity includes in particular the preservation of personal individuality, identity and integrity as well as elementary equality of rights.

b) Furthermore, the principle of democracy is a constitutive part of the free democratic basic order. Indispensable for a democratic system is the possibility of equal participation of all citizens in the process of political decision-making and the linking of the exercise of state power to the people (Article 20, Paragraphs 1 and 2 of the Basic Law).

c) For the concept of a free democratic basic order, the legal binding of public authorities rooted in the rule of law (Article 20.3 of the Basic Law) and the control of this binding by independent courts are decisive. At the same time, the constitutionally guaranteed freedom of the individual requires that the use of physical force is reserved for the bound state organs subject to judicial control. "

- BVerfGE 144, 20-367 (Ls. 3)

The regulatory content of the FDGO cannot be determined by recourse to Article 79, Paragraph 3 of the Basic Law, the core of the constitution that is not subject to change, but is limited to the principles that are absolutely indispensable for the free, democratic constitutional state. Article 79.3 of the Basic Law goes beyond the minimum salary that is indispensable for a free, democratic constitutional state. Constitutional monarchies or central states can also conform to the model of a free democracy. The regulatory content of the FDGO is to be determined independently and independently of the amendment-proof core of the constitution. A distinction must be made between a free democratic basic order and a constitutional order . The concept of the FDGO requires a concentration on a few, central basic principles that are absolutely indispensable for the free constitutional state. It must be possible to critically question individual elements of the constitution without triggering a party ban. The rejection of parliamentarism, if it is connected with the demand for its replacement by a plebiscitary system, does not justify the charge of disregarding the free democratic basic order. The state's monopoly of force is also part of the FDGO.

The legal definitions within the meaning of the federal and state constitutional protection laws

The federal legislature adopted the definition of the Federal Constitutional Court from 1952 as a legal definition in Section 4  (2) BVerfSchG . The Federal Constitutional Protection Act was passed in 1990. At this point in time, the legislature was not only able to take into account the relevant case law of the Federal Constitutional Court, but also the extensive contributions of the relevant legal literature :

The free democratic basic order includes in detail:

  1. the right of the people to exercise state power in elections and votes and through special legislative, executive and judicial organs and to elect the people's representatives in general, direct, free, equal and secret elections,
  2. the binding of legislation to the constitutional order and the binding of the executive and the judiciary to law and order,
  3. the right to form and exercise a parliamentary opposition ,
  4. the detachability of the government and its responsibility to the parliament ,
  5. the independence of the courts,
  6. the exclusion of all violence and arbitrary rule and
  7. the human rights specified in the Basic Law .

A corresponding list can also be found, with the exception of the last number, in Section 92 (2) StGB for political criminal law .

Identical or at least congruent definitions to Section 4 (2) BVerfSchG can also be found in the state constitutional protection laws of the states. In the Thuringian Constitutional Protection Act, human rights are not only specified in the Basic Law, but also in the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights .

meaning

Their basic recognition is a necessary condition for maintaining internal security and participating in political life. This especially applies in the case of political parties , which could otherwise be banned as unconstitutional . In principle, it is legitimate to work towards an amendment to the Basic Law in parliament - which is also possible with a two-thirds majority - but the core principles of the free democratic basic order must be preserved ( eternity clause ).

The Federal Republic of Germany sees itself as a controversial democracy that has both the right and the duty to defend its existence and the free democratic basic order in the federal government and in the states. The means used for this are, for example, the prohibition of parties , loyalty to the constitution as a prerequisite for the establishment and maintenance of a civil service relationship ( Section 33 BeamtStG ) or naturalization ( Section 10 (1) No. 1 StAG ), security and criminal prosecution if the democratic constitutional state is at risk ( Sections 84 et seq. StGB) in cooperation with the protection of the constitution and with special investigative powers, for example according to Section 100a, Paragraph 2, No. 1a of the Code of Criminal Procedure and the Article 10 Act or the forfeiture of certain fundamental rights in the event of improper exercise to fight against the free democratic basic order . As a last resort in defense of the constitutional order, every German has the right of resistance according to Article 20, Paragraph 4 of the Basic Law .

Public sector employees

In a civil servant relationship with the federal government and with federal corporations , institutions and foundations under public law ( Section 7 (1) No. 2 BBG ) as well as with the states , municipalities , municipal associations and other corporations, institutions and foundations under public law that are subject to the supervision of a state ( § 7 Abs. 1 Nr. 2 BeamtStG ) may only be appointed who offers the guarantee to stand up for the free democratic basic order within the meaning of the Basic Law at any time. This does not apply to an appointment as a church official at a religious society under public law .

A basic duty of civil servants , with the exception of church officials, is to admit to the free democratic basic order within the meaning of the Basic Law through their entire behavior and to advocate its preservation. ( § 60 Abs. 1 S. 2 BBG ; § 33 Abs. 1 S. 2 BeamtStG ) Also for retired civil servants as well as former civil servants with pension payments , if they act against the free democratic basic order within the meaning of the Basic Law. ( Section 77 Paragraph 2 Sentence 1 No. 1 BBG ; Section 47 Paragraph 2 Sentence 1 BeamtStG )

A professional or temporary soldier may only be appointed to the service of someone who can guarantee that he or she will stand up for the free, democratic basic order within the meaning of the Basic Law at all times. ( Section 37, Paragraph 1, No. 2 SG ) A soldier must recognize the free democratic basic order within the meaning of the Basic Law and advocate its preservation through his entire behavior. ( § 8 SG) It is considered an official offense if an officer or non-commissioned officer acts against the free democratic basic order within the meaning of the Basic Law after leaving the military service . ( Section 23, Paragraph 2, No. 2 SG) Conversely, this is not a service offense for teams , i.e. all former basic military service.

Only those who can guarantee that they will stand up for the free democratic basic order within the meaning of the Basic Law at all times may be appointed to a judicial position at the federal or state level. ( § 9 No. 2 DRiG )

According to § 3 sentence 2 TV-L or the equivalent § 3 sentence 2 TV-H, employees of the federal states must commit themselves through their entire behavior to the free democratic basic order within the meaning of the Basic Law. Federal and municipal employees only have to do so according to § 41 sentence 2 TVöD-BT-V if they are employed in the administration division and sovereign activities are also performed in their areas of responsibility .

criticism

From a legal perspective, the free democratic basic order is criticized as too indefinite, since its individual principles are removed from their historical context. The relativity of the individual principles was already pointed out by the Federal Council in the legislative process for the 1st Criminal Law Amendment Act . The constitutional lawyer Ulrich K. Preuss called the fdGO a "super legality". In the alternative commentary on the Basic Law, the constitutional lawyer Helmut Ridder warned against the function of the fdGO as a “break-in point for state intervention to protect the population”. The political scientist Ingeborg Maus worked out that the detachment of individual constitutional elements from the Basic Law as over-positive value decisions had prevented democratic transformation processes and was in the tradition of national-conservative constitutional law teaching in the history of ideas.

In terms of method, the recourse to the fdGO is criticized as an argumentative shortening that does not satisfy the judicial obligation to justify reasons. The justification of the Federal Constitutional Court for the definition is criticized as "religious natural law", since it only refers to the "order of creation" in the judgment.

The criticism was particularly popular at the time of the radical resolution in the 1970s and when the extremism clause was introduced in 2011. The MP Volker Beck also made political references to scientific criticism in a speech in the Bundestag when he proposed the “formula of the liberal-democratic basic order as a fighting term for the exclusion of unpopular critics ”. The political scientist Claus Leggewie and the legal scholar Horst Meier also adopted the criticism of the formula as a “battle concept”, which made it possible “to reinterpret the completely legal use of fundamental rights in their abuse”.

The concept of the free democratic basic order is criticized in some cases , especially by representatives of the political left , even though the persons concerned are actually positive about the content of the constitutional order protected by it. In their opinion, the term is too vague and, depending on one's own point of view, can be redefined in such a way that unpopular political opinions can be wrongly described as "unconstitutional". In many cases, the background to this was the controversy surrounding the radical decree in the early 1970s. In a speech in the Bundestag, MP Volker Beck criticized the “formula of the free-democratic basic order as a fighting term for the exclusion of unpopular critics”.

Extremist political positions, such as many right-wing extremists and left-wing extremist sections of the anti-fascist and anti-capitalists , on the other hand, want to replace the current constitutional order with a different social and political system . In this sense, a consistent anti-fascism intends "the abolition of the economic order of capitalism and thus also of parliamentary democracy , which is considered bourgeois ".

literature

Web links

  • Eckart Thurich: Freedom, democratic basic order , in: pocket politik. Democracy in Germany , revised. New edition Bonn: Federal Agency for Civic Education, 2011

Remarks

  1. ↑ Knut Ipsen : Freedom-Democratic Basic Order , website of the Federal Agency for Civic Education / bpb . Retrieved January 12, 2017.
  2. ↑ a b Judgment of the BVerfG of January 17, 2017 on the NPD prohibition procedure , BVerfGE 144, 20–367 (guiding principle 3).
  3. ↑ Freedom-democratic basic order. Federal Agency for Civic Education, accessed on December 9, 2018 .
  4. ↑ BVerfGE 2, 1 (principle 2) - SRP prohibition .
  5. ↑ BVerfGE 144, 20–367 Rn. 529
  6. ↑ BVerfGE 144, 20–367 Rn. 537.
  7. ↑ BVerfGE 144, 20–367 Rn. 531.
  8. ↑ BVerfGE 144, 20–367 Rn. 535.
  9. ↑ BVerfGE 144, 20–367 Rn. 543.
  10. ↑ BVerfGE 144, 20–367 Rn. 547.
  11. ↑ § 6 Thuringian law for the protection of the liberal democratic basic order and for the prevention of dangers to the free democratic basic order (Thuringian constitution protection law - ThürVerfSchG -) of August 8, 2014 in the version of June 6, 2018
  12. ↑ Employment in the public service , instruction on basic duties (sample)
  13. ↑ See Erhard Denninger (Ed.): Freedom, democratic basic order. Materials on the understanding of the state and constitutional reality in the Federal Republic. 2 volumes, 1st edition, Frankfurt am Main 1977, ISBN 3-518-07750-3 .
  14. ↑ See Sarah Schulz: Criminal law applicability instead of democratic minimum consensus , in: Kritische Justiz , Vol. 48, No. 3 (2015), pp. 288–303.
  15. ^ Ulrich K. Preuß: Legality and Pluralism. Contributions to the constitutional law of the Federal Republic of Germany. Frankfurt am Main 1973, p. 17.
  16. ↑ Helmut Ridder: Protection of the constitutional order. In: Axel Azzola / Richard Bäumlin (ed.): Commentary on the Basic Law for the Federal Republic of Germany. Neuwied 1984, p. 1425.
  17. ↑ Ingeborg Maus: Bourgeois legal theory and fascism. On the social function and current effect of Carl Schmitt's theory. Munich 1976, p. 47.
  18. ↑ See Helmut Goerlich: Wertordnung und Grundgesetz. Criticism of an argumentation figure of the Federal Constitutional Court. Baden-Baden 1973; Michael Ruland: The concept of the free democratic basic order in the Basic Law for the Federal Republic of Germany. Inaugural dissertation. Free University of Berlin, 1971.
  19. ↑ Christoph Gusy: The "free democratic basic order" in the case law of the Federal Constitutional Court. In: AöR 105 (1980), p. 285.
  20. ↑ BVerfGE 2, 1 (12)
  21. ↑ Plenary minutes 14/50 of July 1, 1999, p. 4343 .
  22. ↑ Claus Leggewie / Horst Meier, in: Blätter für deutsche und internationale Politik 10/2012, pp. 63–74 (68 ff.).
  23. ↑ Plenary minutes 14/50 of July 1, 1999, p. 4343 .
  24. ↑ See conformity of anti-fascism and anti-capitalism with the free democratic basic order , answer of the federal government to the small question of the MPs Ulla Jelpke, Dr. André Hahn, Niema Movassat and the Die Linke parliamentary group - printed matter 19/129 - ( PDF ), BT-Drs. 19/351 of December 29, 2017, pp. 2, 4, 6 f.
  25. ↑ Armin Pfahl-Traughber : Antifascism as a topic of left-wing extremist agitation, alliance politics and ideology , bpb, March 6, 2008.