Streitbare Demokratie
The political system of the Federal Republic of Germany is referred to by the Federal Constitutional Court as a militant, defensive democracy. In it, the free democratic basic order ( FDGO ) is protected and can not be canceled by legal means or majority decisions. Against unconstitutional individuals and associations of persons ( parties, clubs and organizations ) can be taken preventively, before they commit directed against the FDGO deeds.
Idea Historical Background
The basic considerations for a political concept of " militant democracy " was coined by the exiled during the Nazi German sociologist Karl Loewenstein and Karl Mannheim ( 1943). So Loewenstein 1937 designed in the light of experience with National Socialism, the model of Militant Democracy. Karl Mannheim considerations for a " planned democracy " were mainly based on his ideology-critical work and his analysis of the crisis of modern mass democracy.
Definition based on the decisions of the Federal Constitutional Court
The political concept of " military democracy Stick " legitimized through decisions of the Federal Constitutional Court in terms of their definition of unconstitutionality. Gero Neugebauer, according to the court judged actions as unconstitutional, " that aim to make the free democratic basic order and aggressive plan fully inoperable [sic ], to eliminate them eventually ." The rejection of the free democratic basic order, however, is not only unconstitutional: " A party is not just unconstitutional, if it does not recognize these first principles of a free democratic basic order, she refuses, opposes them others. It must rather an active competitive, aggressive attitude towards the existing order are added, they must plan fully impair the functioning of this order, in the further course want to abolish this constitutional order itself. "
In one of his decisions in 1952, the Federal Constitutional Court defined the basic criteria for " the free democratic basic order ". After that it represents an order that " any arbitrary rule " precludes and " a constitutional rule of procedure on the basis of self- determination of the people according to the will of the majority and of the freedom and equality " forms. For these scales, the Court defined minimum standards. These include " respect for in the Basic Law (GG) concretized human rights, especially over the law of personal rights to life and free development, popular sovereignty, separation of powers, government responsibility, the legality of the administration, the independence of the courts, the multi-party principle and equal opportunities for all political parties with the right to education and constitutional exercise of an opposition. "
Historical causes of the militant democracy
The Weimar Republic was called " democratic democracy in the world " on the date of adoption of its constitution, July 31, 1919 by Interior Minister Eduard David (SPD). The President of the National Assembly, Konstantin Fehrenbach ( Centre Party ), the Germans referred to as the " freest nation on earth ." After the seizure of power in 1933, Germany became a totalitarian state. Decisions were subject by the Weimar Constitution to the will of the majority, and not tied to values. It was, as Otto Kirchheimer 1929, four years before the rise of Hitler, put it, a " constitution with no decision ." There was only changeable, positive law. Adolf Hitler also referred to the speech of the Weimar Constitution, which he removed afterwards.
In the militant democracy democracy and its key elements are no longer even up for discussion, they can not be canceled by even such a large majority. One reason for the restriction of the majority principle is that a momentary majority can not decide for future generations.
Means of militant democracy
The handling of the militant democracy, a restriction of fundamental rights require, as well as a majority may not establish a legal dictatorship. In defense of the FDGO and guaranteed by human rights they are given by the Basic Law among others the following means:
- Under Article 1 of the Basic Law, the dignity of man is inviolable and fundamental rights are directly applicable law.
- Under Article 2 of the Basic Law the free development of personality is limited by the FDGO.
- Under Article 5 of the Basic Law, the freedom of teaching and research does not absolve from loyalty to the constitution.
- Associations that fight against the Constitution, under Article 9, paragraph 2 of the Basic Law are prohibited. Contrary to the misleading wording is needed for reasons of legal certainty, a prohibition order pursuant to § 3 para 1 Law on Associations, so that the association is not prohibited by force of the Constitution.
- A forfeiture of certain fundamental rights (Article 18 GG) can be pronounced by the Federal Constitutional Court, when these basic rights are abused in the fight against FDGO. Mentioned in particular are: freedom of the Press
- Freedom of assembly
- Freedom of teaching
- Freedom of Association
- Correspondence, posts and telecommunications
- Right to property
- Right of asylum
- Post and telecommunications
- Permissiveness
- Right to inviolability of the home
- Inviolability of human dignity (Art. 1 GG).
- Immutability also listed in Article 20 of the Basic Law five state structural principles - democracy, rule of law, welfare state, republic and state.