Arguable democracy

The political system of the Federal Republic of Germany is the Federal Constitutional Court as a militant, well-fortified democracy referred. In it the free democratic basic order (fdGO) is protected. It cannot be lifted legally or by majority vote. Preventive action can be taken against unconstitutional individuals and groups of persons ( parties , associations and organizations ) before they commit acts directed against the fdGO.

History of ideas background

The basic ideas for a political concept of "militant democracy" originate from the scholars Karl Loewenstein and Karl Mannheim, who lived in exile during National Socialism . In 1937 Loewenstein drafted the model of “militant democracy” against the background of his experiences with National Socialism. Karl Mannheim's considerations for a “planned democracy” were based primarily on his work that was critical of ideology and his analyzes of the crises of modern mass democracy .

Definition based on the decisions of the Federal Constitutional Court

The political concept of “defensive democracy” is legitimized by decisions of the Federal Constitutional Court regarding its definition of unconstitutionality . According to Gero Neugebauer , the court judges acts as unconstitutional, "which aim to aggressively and systematically render the free democratic basic order inoperable [sic] in order to ultimately eliminate it". The rejection of the free democratic basic order, on the other hand, is not unconstitutional in itself: “A party is not unconstitutional even if it does not recognize these highest principles of a free democratic basic order, rejects them, opposes them by others. Rather, there must be an active, combative, aggressive attitude towards the existing order, it must systematically impair the functioning of this order, and want to eliminate this order itself in the further course. "

In the 1952 ban on the Socialist Reich Party (SRP), the Federal Constitutional Court laid down the basic criteria for “the free democratic basic order”. It was based on the constitutional principles for the criminal offense of endangering the state from § 88 of the 1st Criminal Law Amendment Act (F. v. 1951, today § 92 StGB), but did not refer to this source in the judgment. The court presents the fdGO as an order that excludes "any arbitrary rule " and "forms 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 court defines minimum standards for this regulation. These include "respect for the human rights specified in the Basic Law (GG) , especially the right of the personality to life and free development, popular sovereignty , the separation of powers , government responsibility , the legality of administration, the independence of the courts , the multi-party principle and the equal opportunities for all political parties with the right to constitutional formation and exercise of opposition ".

Historical causes for militant democracy

The Weimar Republic was on the date of adoption of its constitution, 31 July 1919 by Interior Minister Eduard David ( SPD ) as the "most democratic democracy in the world" called. The President of the National Assembly , Constantin Fehrenbach ( Center Party ), described the Germans as the “freest people on earth” . With the transfer of power in 1933, the National Socialists developed the liberal Weimar democracy into a Nazi regime. According to the Weimar Constitution, decisions were subject to the will of the majority and not tied to values . As Otto Kirchheimer put it in 1929, four years before Adolf Hitler came to power , it was a “constitution without a decision” . There was only changeable, positive law . Adolf Hitler also invoked the freedom of expression set out in the Weimar Constitution , which was abolished in 1933 by the Reichstag Fire Ordinance. However, the Reichstag Fire Ordinance and the National Socialist Enabling Act cannot be described as legal under Weimar constitutional law. The Reichstag Fire Ordinance broke the prohibition of retroactive effects and the Enabling Act transferred legislative power to the executive , which did not correspond to Article 76 of the Weimar Constitution . The assignment of blame to legal positivism remains a "tenacious post-war legend". It goes back to the Weimar method controversy over constitutional law and the monarchist and conservative position against the liberal republic. The assignment of blame to legal positivism made it possible for former Nazi lawyers to evade their personal responsibility for crimes committed by National Socialism.

In a well-fortified democracy, democracy and its most important elements are no longer up for discussion; no matter how large a majority, they cannot be abolished. One reason for restricting the majority principle is to prevent, in certain cases, a current majority from deciding for subsequent generations .

Means of militant democracy

The handling of defensive democracy can result in a restriction of basic rights . It should be prevented that a majority can establish a legalized dictatorship . The Basic Law provides the following means to defend the FDGO and the human rights it guarantees:

• According to Art. 1 GG, human dignity is inviolable and fundamental rights are directly applicable law.
• According to Art. 2 GG, the free development of personality is restricted by the FDGO.
• According to Art. 5 GG the freedom of teaching and research does not release from loyalty to the constitution.
• Associations that fight against the constitution are forbidden according to Article 9, Paragraph 2 of the Basic Law. Contrary to the ambiguous wording, for reasons of legal certainty, however, a prohibition order is required under Section 3 (1) of the Association Act , so that the association is not prohibited by the constitution.
• A forfeiture of certain basic rights ( Art. 18 GG) can be pronounced by the Federal Constitutional Court if these basic rights are abused in the fight against the FDGO.
  In particular:
  • Freedom of the press
  • Freedom of assembly
  • Freedom of teaching
  • Freedom of association
  • Correspondence , postal and telecommunications secrecy
  • Right to property
  • Right of asylum
• Fundamental rights can no longer be revoked, but some can be restricted by a law to protect the FDGO, but not in their essential content ( Art. 19 GG):
  • Postal and telecommunications secrecy
  • Freedom of movement
  • Right to the inviolability of the home
• With the emergency laws , Art. 20 GG was added a right of resistance to protect the FDGO.
• A party ban ( Article 21, Paragraph 2 of the Basic Law) can only be pronounced by the Federal Constitutional Court (party privilege) if it can be proven to a party that its aim is to eliminate or impair the FDGO.
• An amendment to the Basic Law requires a two-thirds majority in the Bundesrat and Bundestag , with the majority not referring to those present but to the entirety of the MPs. Changing the Basic Law is therefore no longer as easy as it was in the Weimar Republic and requires broad approval.
• The provisions associated with the so-called " eternity clause ", stipulated by Article 79, Paragraph 3 of the Basic Law:
  • Inviolability of human dignity ( Art. 1 GG).
  • The five state structure principles listed in Art. 20 GG - democracy , rule of law , welfare state , republic and federal state - cannot be changed .
• According to Article 87a (4) of the Basic Law, the Bundeswehr may be used to support the police in protecting the FDGO.
• According to Art. 91 GG, a federal state may request police officers from other federal states to protect the FDGO.
• Regulations for the protection of the state can also be found in the Criminal Code . According to him, attempting to abolish the constitutional order is high treason and punishable by at least 10 years in prison. The denigration of the Federal President , the state, its symbols and its constitutional organs is also punishable.
• According to the radical decree , only people loyal to the state can be employed as civil servants . This regulation is based on Article 33 (4) of the Basic Law, according to which civil servants are in a public service and loyalty relationship .

Quotes

“For my part, I am of the opinion that it is not part of the concept of democracy that it itself creates the conditions for its elimination. (...) You also have to have the courage to intolerance those who want to use democracy to kill them. ”
From Carlo Schmid's speech on September 8, 1948 in the Parliamentary Council .

See also

• defense of Constitution
• Political system of Germany
• Right of resistance
• free democratic basic order
• extremism

literature

• Erhard Denninger: Free democratic basic order. Materials on the understanding of the state and constitutional reality in the Federal Republic . Suhrkamp (Suhrkamp pocket book science), Frankfurt a. M. 1977.
• Stephan Eisel : Minimal consensus and free democracy: a study on the acceptance of the foundations of the democratic order in the Federal Republic of Germany , Paderborn 1986.
• Gereon Flümann: Arguable Democracy in Germany and the United States. The state's handling of non-violent political extremism in comparison . (Springer VS) Wiesbaden 2015.
• Claus Leggewie / Horst Meier: Republic protection. Standards for the defense of democracy , Reinbek 1995. ISBN 978-3-498-03882-3 .
• Armin Scherb: Preventive protection of democracy as a problem of the constitution after 1945, Frankfurt a. M. 1986.
• Sarah Schulz: The free democratic basic order. Result and consequences of a historical-political process. Velbrück, Weilerswist 2019, ISBN 3-9583-2165-8 . ( Introduction )
• Markus Thiel (Ed.): Defensive Democracy. Contributions on the regulations for the protection of the free democratic basic order . Mohr Siebeck Verlag Tübingen, 2003, ISBN 978-3-161-47967-0 ( limited preview )
• Christoph Weckenbrock: The militant democracy put to the test. The new NPD as a challenge . (Bouvier-Verlag) Bonn 2009.

Web links

• Andreas Klump: Freedom to the enemies of freedom? The conception of militant democracy as a democratic theoretical foundation for dealing with political extremism
• Federal Office for the Protection of the Constitution : Website
• Felix Ginthum: Forfeiture of fundamental rights according to Article 18 of the Basic Law
• Federal Agency for Civic Education : Arguable democracy in the right-wing extremism dossier

Individual evidence

1. ↑ See Karl Mannheim: Diagnosis of Our Time. Wartime Essays of a Sociologist , London 1943.
2. ^ Karl Loewenstein: “Militant Democracy and Fundamental Rights”, in: American Political Science Review 31/1937, pp. 417-433 and pp. 638-658.
3. ↑ See Wilhelm Hofmann: Karl Mannheim for an introduction. Junius Verlag, Hamburg 1996.
4. ↑ Extremism - right-wing extremism - left-wing extremism: Some comments on terms, research concepts, research questions and research results. (PDF file; 24 kB) ( Memento from March 20, 2009 in the Internet Archive )
5. ↑ BVerfG, judgment of August 17, 1956, Az. 1 BvB 2/51, BVerfGE 5, 85 , 141 - Ban of the KPD .
6. ↑ Sarah Schulz: The free democratic basic order. Result and consequences of a historical-political process. Velbrück, Weilerswist 2019, p. 197ff.
7. ↑ BVerfG, judgment of October 23, 1952, Az. 1 BvB 1/51, BVerfGE 2, 1 , 12 - SRP ban.
8. ↑ See also: Gero Neugebauer: Extremism - Right-Wing Extremism - Left-Wing Extremism: Some remarks on terms, research concepts, research questions and research results.
9. ^ Ingeborg Maus: Legal theory and political theory in industrial capitalism. Munich 1986, p. 43f.
10. ↑ Wolfgang Abenroth: The Basic Law. An introduction to his political problems. 5th ed. Pfullingen 1975, p. 37f.
11. ^ Carlo Schmid: Speech on September 8, 1948 in the Parliamentary Council .

Please note the information on legal issues!