Natural rights are legal rights
Natural law and the pre-constitutional concepts of dignity of German state constitutions
The central question of the work is: Is there a natural law system of thought behind the concepts of dignity in the pre-constitutional state constitutions and the Basic Law? It is proven that the forgotten state philosophy of the social democrat Carlo Schmid, composed of various philosophies and theories, as well as his legal idea not only form the background for the state constitution of Württemberg-Baden, but also for the GG. The legal philosopher and former SPD member of the Reichstag, Gustav Radbruch, criticized the positivist legal thinking in the immediate post-war period. Its law-positivist principle 'law is law' made the abuse of law and justice possible in the time of National Socialism in Germany. In future, a fixed set of legal principles of law must be stronger than any positive statement. For them it does not matter how they were founded philosophically or theologically in the past. It is important that they have been adopted from many sides in the course of world history. These legal principles are human and civil rights. One could also say natural or rational law to them. By professing natural or rational law for the principles of law, Gustav Radbruch deliberately ensured that positivist legal thinking was discredited and unintentionally that all the philosophical or theological doctrines behind natural and rational law were brought into the focus of scientific discussion. In addition, the National Socialists were not positivists or right-wing positivists. They let the openly justifiable, National Socialist legal idea about the German völkisch essence influence the positive laws of the Weimar Republic that they had adopted. Some of their authors justified the correctness of their new meaning of the positive laws philosophically on the basis of Hegelianism, with the theory of values, the method of dialectical synthesis or adopted the method of the phenomenology of perception. In terms of legal philosophy, the National Socialist worldview was expressed through the legal neo-Hegelianism or through institutional legal thinking, among other things. The common goal was to put the legal principles of National Socialist law leader, people, race and anti-Semitism into a priori reality. Some strikingly called this area above law and order New Natural Law. The former SPD member of the Reichstag and later Prime Minister of Bavaria, Wilhelm Hoegner, also spent his time in exile in Switzerland with the Austro-Marxist Rudolf Hilferding. He was of the opinion that historical materialism should be supplemented by a natural law based on Western cultural values. Wilhelm Hoegner followed up on his thoughts on November 26, 1945 at a rally of the SPD Bavaria in Munich. In future, contrary to the decisions of the Erfurt party congress, people must become the measure of all things; i.e. man must be raised again to his community value and his personal dignity, his end in itself. On February 10th, 1946 Carlo Schmid developed the approach further during a speech he gave in South Württemberg-Hohenzollern to party friends. He called for a new scientific method for the political will of social democracy. Wilhelm Hoegner declared that the last great theoretician of Marxism, Rudolf Hilferding, bequeathed to him that historical materialism had to be supplemented by the recognition of idealistic and ethical wills. During the 3rd meeting of the Constitutional Committee of the Provisional People's Representation for Württemberg-Baden on April 5th, 1946, Carlo Schmid declared that as a volonté générale, a contemporary common will had to be expressed through the constitution in order to legitimize it. The living common will depicts an order of values which has manifested itself in the people and to which the people would profess. As a foundation of values, the values of the value order would have to flow into the constitution. The task of the representatives of the people is to determine the value of the people, their self-image in a certain epoch, in order to be able to set up a value system for the future. With the order of values and the constitution, man can be brought into relation to the state as a free-willing being. This could be achieved methodically by directing the highest support for reflection of practical reason, freedom a priori, on the new order of values of the people and through this on the future constitution. If the fundamental rights and the other constitutional rules withstand such a review, they could be used as a yardstick to enable people to live in the dignity of free choice. Then man could develop his gifts in freedom and in compliance with the moral law. Carlo Schmid assumed that nothing of the Christian moral law would be repealed if the constitutional legislators agreed on the categorical imperative. Kant would have shown that the categorical imperative and the categorical reason would stand above man and the people. Based on the phenomenological ethics of values according to Max Scheler, Carlo Schmid saw the value of the people; 7 values can be identified: human dignity and human rights, social justice, democracy, rejection of the omnipotence of the state, international law and the renunciation of war. He saw human dignity as the highest rule of values. Today's man no longer wants to have to live a life as an object, as an object of purpose, as a state. Rather, the human being is characterized by the dignity of the person and its end in itself. The second value of the order of values and culture encompasses human rights, with human dignity being reflected in human rights. Human rights are not given to people by the state, but because of their own existence. As a closed system of human or civil rights, they must stand at the beginning of the constitution as applicable law. At the same time, the human right to freedom must not find unrestricted application to the economic order, because otherwise an economic liberalism would emerge. After the values of democracy and the rejection of omnipotence, Carlo Schmid added international law as the last value in the value system. He justified this with a reference to the Kantschrift on Eternal Peace, according to which an individual can only develop his moral freedom in a constitutional state if this is also embedded in international law. During the 2nd session of the Advisory State Assembly of the People's State of Württemberg-Hohenzollern on December 2nd, 1946, Carlo Schmid pointed out that the constitutional legislature theoretically had to put himself in a zoon politikon if he was looking for the constitution's principles of legitimation. When feeling the basic values, the constitutional legislature must imagine that it will be determined by the state as a future being. The constitutional legislature must be aware that a constitution is not legitimized by a people if it bears theocratic or theological principles, if it is legitimized by divine grace, Christian natural law, Lutheran state theology or the state metaphysics of Calvin. The constitutional legislature only achieves legitimation by the people if it finds the consensus of all to whom the constitution is addressed. Carlo Schmid saw this achieved when the future state no longer nationalized people, rather their task would have to be the humanization of citizens. This could be achieved if one were to find their way back to an old conception, namely that the attributes of dignity and freedom are attached to human beings because of their being human and not because of the state. The legal idea formulated by Carlo Schmid undoubtedly flowed into the wording of the preamble and Art. 1 WBV. This explains to the future legislature which model the people of Württemberg-Baden are based on. According to this, it applies that man has to develop his gifts in freedom and in the fulfillment of the eternal moral law for his and the other good in the community around him. The future state has to serve this image of man in all its decisions out of duty, since man, as expressed by the preamble of the constitution, has dignity. Carlo Schmid's state philosophy, which is expressed in Art. 1 WBV, was adopted by the constitution of Hesse, but not its legal idea. In accordance with the constitution of Württemberg-Baden, the basic rights in the constitution of Hesse are at the beginning of the constitutional text. The preamble, however, has been redrafted and Art. 1 WBV has been deleted without replacement. With its wording from Art. 1 HV, the Hessian constitution adopts the wording from Art. 2 WBV, which in turn is reminiscent of Art. 109 WV. Although the concept of dignity already appears in Art. 3 HV, it is subordinate to the goods life, health and honor. The state philosophy and the legal idea of Carlo Schmid comes to some extent in the state constitution of the Free Hanseatic City of Bremen in Art. 1 BremV. The constitutional text begins with the basic rights, however, as in the Bavarian constitution and the Weimar constitution, they are supplemented by basic obligations. In addition, Art. 1 BremV only states that Bremen is bound by the commandments of morality and humanity. The model for Art. 5 BremV, whereby the dignity of the human personality is recognized, is Art. 100 BV a. F. An influence of the state philosophy according to Carlo Schmid on the constitution of Bavaria can be excluded from the outset, because this takes over the structure of the constitution of the Weimar Republic. In addition, in the first article of the fundamental rights part, only morality and not humanity is mentioned. In addition, Art. 100 BV, old version, does not protect human dignity, but the dignity of the human personality. Following the moderate legal positivism of its author, the concept of the dignity of the human personality has been freed from all founding philosophies by positively positing it. The reinterpretation of Art. 100 BV, old version, later gave rise to dignity rather than human personalities; since 2003 the wording of Art. 100 BV has been identical to that of Art. 1, Paragraph 1 of the Basic Law. Effects of Carlo Schmid's state philosophy on the constitution of the state of Baden and the constitution of Rhineland-Palatinate can only be identified on the basis of the structure. Both constitutions begin with the basic legal system, the constitution of the state of Baden even only with the basic rights, while the constitution of Rhineland-Palatinate, like the Weimar constitution, still recognizes basic rights and basic duties. Like the WBV, the BadV puts an image of man before the constitutional text, but it is that of a Christian. The constitution of Rhineland-Palatinate goes one step further, for which the Catholic natural law is authoritative. In the constitution of the Saarland, which, like the Weimar constitution, begins with basic rights and basic duties, no image of man with precise outlines has preceded the constitutional text; rather, the human being is recognized as an individual. Which system of thought is behind Article 1, Paragraph 1, Sentence 1 of the Basic Law cannot be answered unequivocally. What the intellectual originator, namely the editorial committee at the time, originally understood by the thesis that human dignity is inviolable has not been handed down. Only a literal and systematic interpretation of the entire Art. 1 GG provides indications to be able to determine the exemplary construction in question. The structure of the Basic Law undoubtedly points to Carlo Schmid's philosophy of the state. In addition, the legal idea written down in the German Basic Law, in my opinion, adopts specifications from the presentations given by Carlo Schmid at the beginning of 1946 in southern Wuerttemberg-Hohenzollern and in Wuerttemberg-Baden, 'Basic ideas for the creation of a new constitution for North Württemberg-North Baden' and 'The basics for organizational part of the new constitution for North Württemberg-Baden '. Both were handed over to the participants in writing in April 1946 at a country conference of the American zone, at which the future country constitutions were discussed. Following this, the order of values of the Basic Law and with it the dignity of the human being according to Article 1, Paragraph 1, Sentence 1 of the Basic Law is to be understood in the light of a priori freedom. Although human dignity is the top rule of values, it is based on freedom. Recourse to natural law and the uncritical law of reason, thus also to theology, with it to the image of God or to metaphysics, is excluded. This also applies to the critical law of reason, unless it is applied in the neo-Kantian way. Since neither the starting point of Carlo Schmid's (SPD) composite neo-Kantian concept, namely freedom a priori, nor socialist values were included as objectives in Article 1 of the Basic Law, only parts of Schmid's original concept were adopted as a result. As a result, the human dignity, which had been stripped of its clothes, especially around freedom, became an isolated, contentless supernorm of the German constitution, which, according to Manfred Baldus, remained a "norm of all norms and at the same time a great unknown". Since the neo-Kantian Gustav Radbruch (SPD) also called for natural or rational law and then a natural law renaissance set in in the fight against legal postivism, the fight for the authority to interpret the principle of inviolable human dignity broke out on the constitutional battlefield of Art . 1 para. 1 GG. This also answers the question of whether human dignity originally embodied a fundamental right. Since the Neo-Kantian Carlo Schmid belongs to the Marburg legal school and separates this form and content from one another, the entire theoretical legal idea according to Carlo Schmid in Article 1, Paragraph 1 and Paragraph 2 of the Basic Law has only a formal character. It serves as a model for the German state legislature, so that by looking at the Basic Law, reflecting on freedom, it can recognize which image of man is expressed by the basic rights announced in Art. 1, Para. From the point of view of the legal idea, the values are consequently not eternal values, but adaptable, objectively correct values. Accordingly, human dignity is not a fundamental right of real human beings, but the highest value of the order of values. Incidentally, their content can never be defined with the claim of universal correctness; As Carlo Schmid correctly recognized, only intuition can really help. This is the sacred secret of human dignity in Article 1, Paragraph 1 of the Basic Law, because through this feeling the constitution is legitimized not only by the representatives of the German people and the German people themselves, but through them by every person on German soil .
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