by Thorsten Koch, MA, PgDip
Positive freedom is the right of an individual to do whatever is not forbidden nor discouraged. Negative freedom, in defiance of the connotation, is, in fact, a freedom in its own right: the freedom of an individual to seek defense against arbitrary acts, ensuring not only that his or her rights are upheld. Rather, both concepts guarantee the functioning of any given State of Law within the framework of legal rights.
But the German Legal System is more complex than that. This article will thus explain a range of legal concepts relevant to Germany, derived from legal theory, many of which can be directly, others indirectly, attributed to the German constitution, the Basic Law.
Positive Duties, which Peter Häberle (as cited by Danzer, 2016) interpreted in his concept known as ‘status activus processualis,’ are the Duty of the State to guarantee participatory rights and, according to Grabenwarter and Pabel (ibid), also comprise
1) the duty to organizationally and procedurally secure the Basic Rights and
2) the duties of the state to protect persons from a) attacks by private parties as well as infringements by state bodies; or else the a) protection of the Basic Rights between citizens, in horizontal direction, and b) impairment of Basic Rights, in horizontal direction.
Holoubek differentiates between participatory rights, procedural standards, protective rights, and guaranteed duties. Neither of these can at all times be clearly attributed to a state or to third parties (ibid).
The Basic Law and the Importance of Principles
Legal existentialism, as laid out by Winfried Brugger, helps understand that bottom-top impulses (basic needs), top impulses (ideals), impulses from the rear (biography) and impulses in front (functional and means to an end) can subjectify legal persons (Wikipedia entry on Brugger).
Brugger refers to Ronald Dworkin in explaining that his understanding of Dworkin’s texts is that even in ‘difficult cases,’ legal decisions should be based in principles rather than discretional considerations, in order not to confuse judicial and legislative powers. In practice, the legal standards can be further interpreted and specified by policies (i.e. decrees and implementing provisions).
The preservation of constitutional rights is crucial for the preservation of the Rule of Law as such. The very spirit of a legally-based society as well as of the institution of the citizen, at the foundation of national states, would not be were it not for national constitutions and the rights derived from national constitutions — in the case of Germany, the Basic Law.
The status activus processualis, on the other hand, entails Procedural Rights which are to be guaranteed and which are enforceable, via legal mechanisms of securing these rights. In Germany, these are, not least, the fundamental personality rights based on the informational self-determination by the individual reinforced by the objective-legal dimension, as set by the Basic Law. There are obbjective-legal institutions such as, for instance, the safeguarding of the free press, family protection, and the guarantee of ownership, which forms part of the so-called institute guarantee.
Basic Rights also bring about the ability of a citizen to fulfil the status activus, another term coined by Jellinek. It denotes that a person exercising his or her state rights, in the process of doing so, is, per se, a state organ. This goes for voters as it goes for the holders of a public office.
The Principle of Proportionality
All administrative organs and legal institutions in Germany are to ensure that there be a balance of interests, based on the principle of proportionality, in light of the Basic Law. This goes for executive resp. legal proceedings, which define not only legal regulations resp. administrative directions, but also discretionary provisions of any state servant. Any action contrary to the Basic Law is unconstitutional, which goes for the application, by citizens and legal entities, of simple-legal norms (indirect third-party effect), in Private Law; as well as for legally functional state institutions, which are to guarantee, via protective rights, individual freedom but also promote and support the said individual freedom and to ensure that the Basic Rights are not violated by either state organs nor individuals.
In final years of the era of mercantilism, in the 19th Century, it became clear that Freedom Rights could not be used as a bargain or in political negotiations favoring and privileging a few some and excluding others, which, in our times, would be “absurd,” as T.H. Marshall comments, despite the fact that “legally justified administrative acts [exist and are necessary, giving] a person additional freedom that others do not have,” for instance police rights (Wikipedia entry on Status Theory).
Equality Before the Law
The need to uphold the monopoly of power, albeit, does not entail favoring regular citizens to others, an exception being Reflex Law, as legal theorist Georg Jellinek calls it — i.e. decisions and actions in the public interest. These should not call into question the fundamental validity of constitutional, Civil Rights. Reflex Law, in fact, most often refers to social accomplishments such as social security which, due to the complexity of allocation, cannot be distributed absolutely evenly. Such social accomplishments, undoubtedly, do account for societal prosperity.
International People’s Rights have come, in part, to overlay the different nationally enshrined, constitutional protective rights. Oftentimes, People’s Rights reinforce legal protection, all the more so.
29 June 2021
- Danzer, Andreas (2016), „Schutzpflichten des Staates im Rahmen der Europäischen Menschenrechtskonvention“ (Master Thesis), Universität Wien
- Gärditz, Klaus Ferdinand (2019-20), “§ 1 Grundrechtsfunktionen und Grundrechtstypen” (Vorlesung Staatsrecht II – Grundrechte), Universität Bonn
- Marshall, T.H. (2007), “Staatsbürgerrechte und soziale Klassen,” In: Mackert, Jürgen & Müller, Hans-Peter, Moderne (Staats)Bürgerschaft: Nationale Staatsbürgerschaft und die Debatten der Citizenship Studies, VS Verlag für Sozialwissenschaften
- Wikipedia entry on Status Theory
- Wikipedia entry on Winfried Brugger