Special law
The doctrine of special law is a legal doctrine that deals with the question of the conditions under which freedom of expression may be restricted, in particular what is to be understood under the general laws in the sense of today's Article 5 (2) of the Basic Law.
This question was already controversial at the time of the Weimar Constitution , which stipulated in Article 118, Paragraph 1, Clause 1 that every German has the right to freely express his or her opinion within the limits of general laws .
The doctrine of special law aims at formal criteria. After that, the neutrality of opinion of the law is decisive. Only those regulations are general laws that are not directed against a specific opinion as such, that is, do not forbid an opinion as such because of its content. General laws are therefore not allowed to standardize “special rights against freedom of expression”.
In contrast, the doctrine of weighing aims at material criteria. According to this theory, all laws are general laws that take precedence over Article 5, Paragraph 1, Sentence 1 of the Basic Law because the social good they protect outweighs freedom of expression. So it is crucial to weigh up the various legal interests.
In the Lüth judgment of January 15, 1958, the Federal Constitutional Court relativized the theory of special law and combined it with the doctrine of balancing. The BVerfG understands “general laws” in the sense of Art. 5 (2) GG to be those laws which do not prohibit an opinion as such, which are not directed against the expression of the opinion as such, but rather the protection of one thing as such, without consideration on a certain opinion, serve to be protected legal interest, namely the protection of a community value, which has priority over the exercise of freedom of expression.
This applies, for example, to Section 86a of the Criminal Code, which forbids the use of symbols of unconstitutional organizations . The free-democratic basic order and political peace take precedence in this area of freedom of expression.
Individual evidence
- ^ Constitution of the German Reich ("Weimarer Reichsverfassungs") of August 11, 1919
- ↑ Bodo Pieroth , Bernhard Schlink , Grundrechte, 29th ed. 2013, Rn. 588 ff.
- ↑ Rudolf Smend , VVDStRL 4 (1928), 44 ff.
- ↑ BVerfG, judgment of the First Senate of January 15, 1958, Az. 1 BvR 400/51, BVerfGE 7, 198 - Lüth.
- ↑ BVerfGE 111, 147, 155
