Welfare state principle

The constitutional mandate in Article 20 (1) of the Basic Law , according to which the " Federal Republic of Germany [...] is a [...] social federal state ", is referred to as the welfare state principle (sometimes also: welfare state requirement or welfare state postulate ) . According to Article 28, Paragraph 1, Sentence 1 of the Basic Law, the federal states are bound by the principles of the social constitutional state . But outside of Article 20 of the Basic Law, there are also provisions in the Basic Law that form the normative basis of the welfare state principle, for example the social obligation of property according to Article 14 of the Basic Law or the mother's claim to protection and care against the community according to Article 6, Paragraph 4 of the Basic Law . The welfare state is secured against constitutional changes by the so-called eternity clause ( Art. 79 Para. 3 GG).

The social state activity of the state witnessed through a catalog of legislative powers in Art. 74 GG, public welfare is in Art. 74, para. 1, no. Securitized 7 GG and takes the absence of specific defined special responsibilities in a variety of cases, the provision of a general clause a . For the purpose of creating equal living conditions in the federal territory, on the one hand, Art. 72 GG anchors the unitarization and consequently equal social treatment of citizens; on the other hand, the financial sector is obliged by the Basic Law to promote macroeconomic equilibrium and balance different economic forces.

Following the principle of a formal liberal constitutional state, citizens are guaranteed legally guaranteed freedom. In order to make freedom real, it needs to be supplemented by the welfare state principle. The principle of the welfare state therefore obliges the public authorities, i.e. the legislature, the judiciary and the administration, to act according to social criteria and to shape the legal order accordingly.

The economic system of the Federal Republic of Germany is therefore referred to as the social market economy , since the state provides the economy with a regulatory framework that is supposed to ensure social equilibrium, while the economy is oriented towards the market; The market orientation represents the opposite of the centrally planned economy , while the social aspect is intended to mitigate or completely prevent the negative consequences of a pure market economy.

history

The concept of the welfare state can be traced back to several reasons. From the very beginning of Christianity , a social togetherness developed that also included charitable activities. Values such as love for one's neighbor or the commandments of humanity were fundamentally the result of Christian tradition, but were increasingly expressed in secularized target formulations. These permeated the tasks that society set itself. A liberal state saw itself primarily as a pioneer of social concerns; the target company should, if possible, reserve the right to implement a welfare state itself.

The labor and revolutionary movements of the 19th century provided an important point of view for the emergence of the welfare state , when it was necessary to find answers to the keyword of the social question . The social relevance was closely linked to the required fundamental rights and freedoms. The social concerns of promoting the common good and the right to work and education were already formulated in the American Virginia Declaration of Rights and the French Declaration of Human and Civil Rights . They were included in the Paulskirche constitution of 1849 and in the preamble to the Reich constitution of 1871 , according to which the Reich is obliged to “care for the welfare of the German people”. At the same time, Bismarck introduced large parts of today's social insurance . In the Weimar Imperial Constitution there was no constitutional guarantee of the welfare state, but only the programmatic goal that the order of economic life must correspond to “the principles of justice with the goal of guaranteeing a humane existence for all” (Art. 151 I WRV).

When the Basic Law was drawn up, the Herrenchiemsee draft did not contain any statements on the welfare state. At the request of Hermann von Mangoldt, the principle of the welfare state was accepted by the policy committee of the Parliamentary Council , but was not discussed in detail there. The proposal was probably based on similar contents of the constitutions of the federal states. Several proposed changes were brought to the table, and finally an agreement was reached on the initiative of the later Federal President Theodor Heuss , which dealt with the content of today's Article 20 (1) of the Basic Law. The welfare state principle subsequently developed into one of the state's goals .

In the 1960s, the welfare state principle was viewed by a group around Wolfgang Abendroth as an invitation to the state to create a socialist society .

Content of the welfare state principle

The welfare state principle contains no enforceable law and is therefore only a postulate. In terms of the state objectives, it only stipulates that Germany is a social state. On the development of the welfare state has the policy to be decided. In contrast to the previous Weimar Constitution , the Basic Law also contains no clear basic social rights .

In the introduction to the highest constitutional principles it was pointed out that a final definition of the welfare state principle is not possible. At the same time, at the normative level, the enabling of freedom is of great importance , understood in such a way that the socially weaker is included in terms of both legal and actual terms.

The aspect of security emphasized by the Federal Constitutional Court in order to fulfill the state tasks indicated by the fundamental rights (state protection obligations) makes regulations necessary for their fulfillment, such as occupational safety regulations and specific subjective claims of the citizen. For the Federal Constitutional Court, according to its very first decision, the welfare state principle is an aid in the interpretation of the Basic Law and other laws. Since the formula can be interpreted very differently, the content is controversial. However, two points are largely accepted: The state can intervene in the economy through an active and socially just social policy in order to achieve the desired goals. Furthermore, the type and scope of interventions should be determined by politicians.

Elements of the welfare state principle can be specified as follows:

Securing the socio-cultural subsistence level in the case of need through enforceable rights to help from the state, in Germany through social assistance , unemployment benefit II and basic security
Enabling membership in statutory or private health insurance , long-term care insurance , pension insurance , unemployment insurance and accident insurance regardless of income.
Services of general interest
Protection of the family
Creation of equal opportunities for vocational access requirements (social justice)
State interventions if it becomes apparent that adverse side effects undermine the market economy-oriented economic system, ultimately with the aim of guaranteeing economic prosperity .

In addition to the welfare state principle, the state's task as defined in Art. 1 GG also includes the protection of human dignity , or the statement in Art. 14 GG, according to which property obliges Germany to be a welfare state.

Limits of the welfare state principle

Ensuring the welfare state principle is an expensive undertaking that ultimately has to be financed by taxpayers and other contributors . The welfare state therefore presupposes appropriate performance and strength. If these components are not available, there is a risk of excessive economic demands. The main focus in this regard is on the financial viability of the German pension system and on coping with the cost increases in health insurance . But also in the area of the relationship between wage policy and social assistance ( wage gap requirement , minimum wage ) there are always financial and intervention disputes, since measures in this sector result in fundamental economic rights ( Art. 2, Paragraph 1 and Art. 14 GG) and collective bargaining autonomy ( Art. 9 Para. 3 GG) are affected.

In order not to nip individual responsibility in the bud, the state contribution has to be dosed so that a balance can exist between collective provision and individual self-responsibility, true to the guiding principle: "The welfare state means more than [...] welfare state, but less than total Welfare state [...] “In political philosophy voices are again and again loud, which exhort citizens to again exercise greater commitment and social responsibility.

Relationship to the rule of law

The welfare state principle is in tension with another principle of the Basic Law, the rule of law . The reason is that the rule of law primarily serves the freedom of the individual and his rights, while the welfare state intervenes in the lives of citizens. In applying the two principles, neither of the two has priority, but rather a balance must be found between them.

criticism

Since the welfare state principle is constitutionally determined in Art. 20 , but can only be given insufficient concrete form, it is inevitably subject to the zeitgeist of society. In the sense of Adam Smith , a state could also fulfill the state goal by providing indispensable public goods such as internal and external security, education and infrastructure and without things like social assistance. With the help of state goals, a restriction of basic rights is sometimes justified; even if this is not explicitly stated in the constitution - so the criticism - the welfare state principle can also be used for this purpose. To prevent this, the explicit quotation requirement of Article 19.1 of the Basic Law is important.

A criticism from a Marxist point of view that describes the welfare state as an illusion was provided by Rudolf Wolfgang Müller and Christel Neusüß in 1970 in the context of the debate on the derivation of the state .