Right to work
French Constitution of 1793
The first general, statutory right to work was in the French Constitution of 1793 :
«Article 21. - Les secours publics sont une dette sacrée. La société doit la subsistance aux citoyens malheureux, soit en leur procurant du travail, soit en assurant les moyens d'exister à ceux qui sont hors d'état de travailler. »
“Article 21. Public welfare is a sacred duty. Society owes a livelihood to unhappy citizens, either by getting them work or by giving them the means to exist who are unable to work. "
The Weimar constitution of August 11, 1919 contains a “right to work”. Article 163 WRV reads:
“Without prejudice to his personal freedom, every German has the moral duty to exercise his mental and physical powers as required for the good of the community. Every German should be given the opportunity to earn a living through economic work. If it cannot be proven that he has adequate work opportunities, his necessary maintenance will be provided. "
However, this regulation could not prevent the rise in mass unemployment in Germany as a result of the global economic crisis . Art. 163 WRV thus turned out to be a mere moral appeal (cf. also the formulation: “moral duty”) without legally binding or effectiveness.
German Democratic Republic
In the GDR , the constitution of the GDR granted every citizen the right to work until 1989. This basic right was implemented almost completely, so that almost every GDR resident of working age had a job, apart from high school graduates and students. In addition, it was relatively easy to find a job in the GDR, since in the GDR many companies were looking for workers due to the largely lacking automation of the GDR industry. The GDR had also signed the UN human rights declaration that grants everyone the right to work.
“Every citizen of the German Democratic Republic has the right to work. He has the right to a job and its free choice according to social requirements and personal qualifications. He has the right to wages according to the quality and quantity of the work. Men and women, adults and young people have the right to equal wages for the same work performance. "
“Socially useful activity is an honorable duty for every able-bodied citizen. The right to work and the duty to work form a unit. "
On the basis of a constitutional obligation to do "socially useful" work, the criminal law of the GDR criminalized "anti-social behavior":
"(1) Whoever endangers the social coexistence of citizens or public order by stubbornly withdrawing from regular work out of work reluctance, although he is able to work, or who engages in prostitution or who obtains means of subsistence in another unfair way, is punished with conviction on probation or with imprisonment, work education or with imprisonment of up to two years. In addition, residence restrictions and state control and educational supervision can be recognized.
(2) In minor cases, measures of criminal liability can be dispensed with and state control and educational supervision can be recognized.
(3) If the perpetrator has already been punished according to paragraph 1 or because of a crime against the personality, youth and family, socialist, personal or private property, general security or the state order, a labor education or imprisonment of up to five years can be recognized become."
Declaration of Human Rights by the United Nations
According to Article 23 of the Universal Declaration of Human Rights of 1948, it is considered a fundamental human right ; However, this declaration is not a binding source of law, unlike Article 6 of the International Covenant on Economic, Social and Cultural Rights and Article 1 of the European Social Charter .
Federal Republic of Germany
The Federal Republic of Germany has signed the UN Human Rights Declaration, which establishes the right to social security , work and housing. These were also included in the state constitutions of Bavaria , Brandenburg , Hesse , North Rhine-Westphalia and Bremen . However, there is no civil right to work in the Basic Law . The main reason for not doing this is to be seen in the fact that the basic rights part of the Basic Law only contains rights that can be enforced in ordinary courts. When the Basic Law was formulated in 1948, as a lesson from the failure of the Weimar Republic, it was decided not to include norms in it that contained only moral appeals without legally binding force.
The lack of an express obligation on the part of the state to create jobs is seen by some as a lack of implementation of the social law pact also signed by the Federal Republic of Germany (Art. 6), although the Stability Act has obliged the federal and state governments to strive for a high level of employment since 1967.
The legal system of the Federal Republic of Germany does not provide for an enforceable right to a desired job or work in the learned profession.
A duty to work as provided for in the Weimar Imperial Constitution would not be compatible with the Basic Law: Anyone who can live on income from interest or from a lottery winnings, for example, may under Art. 2 ("Free development of personality") in conjunction with Art. 12 para. 2 of the Basic Law (see below) does not lead to employment are forced. The state only exerts pressure to take up gainful employment on those who wish to receive transfer payments due to unemployment. State transfer payments can be withheld (in part or in full) from the applicant if he refuses to take up legal and reasonable employment. Pressure for employment practices, the state also to those which are certified (including courts) that they have no claims on private transfers in the form of maintenance against alleged debtor who, if they are deemed capable of working.
Right to free choice of profession
“(1) All Germans have the right to freely choose their profession, workplace and training facility. The practice of the profession can be regulated by law or on the basis of a law.
(2) Nobody may be compelled to perform a specific work, except within the framework of a conventional general public service obligation that is the same for all.
(3) Forced labor is only permitted in the event of a court-ordered detention. "
In contrast to the right to work, which is supposed to enable social participation , the right to free choice of occupation represents a right of defense . It is intended to protect individuals, for example, from being banned from the profession .
In the political debate in the United States in the 1990s , “the right to work” was redefined as “the right to work without union membership”. In a number of states, economically liberal governments have invalidated collective bargaining agreements that make union membership mandatory for all employees in a company. Thus the influence of the trade unions was reduced.
In addition, every person has the same right to receive the same reasonable wage with reasonable and satisfactory working conditions for the same performance. A remuneration is appropriate and satisfactory if it is sufficient for a decent existence for the person and their family. The right to form professional associations and to join them serves to protect and enforce these rights.
This is justified by the fact that a minimum of financial freedom is the material basis for numerous other rights and freedoms that require money or some kind of payment or remuneration, for example freedom of travel or information , the right to health care and housing.
Reception in literature
Charles Fourier dealt with this in 1835 in his criticism of the abstract rights of the French Revolution and the early capitalism of the time:
“How great is the inability of our society to provide the poor with a decent maintenance commensurate with their upbringing, to guarantee them the first of natural rights, the right to work ! By 'natural rights' I do not mean the chimeras known as freedom and equality. The poor man doesn't want to go that high! He doesn't want to be like the rich man; he would be satisfied if he could eat his fill at her servants' table. The people are much more sensible than one would ask. Submission, inequality and slavery are accepted as long as you think of the means to come to its aid when political turmoil deprives it of its work, condemns it to famine, and shames it into despair. Only then does it feel let down by politics. "
- Singer, Rudolf : The right to work in a historical representation. Jena, G. Fischer 1895
- Hubert Heinhold : International human rights agreements and their application in Germany . Munich, 1997
- Jakob Schneider: The justiciability of economic, social and cultural human rights (PDF; 435 kB)
- Ferdinand Tönnies , "Das Recht auf Arbeit", in: Zeitschrift für Sozialforschung , Jg. 4, 1935, H. 1, S. 66–80 (critically edited in: Ferdinand Tönnies Gesamtausgabe , Vol. 22, Berlin / New York: Walter de Gruyter 1998, pp. 428–442)