Paper by Hans-Jürgen 22nd of October 2008, 03:32

Freedom is not the only fundamental value of the Constitution, but it is its starting point. The increasing legislation covering all areas of life often acts as an instrument that makes us forget that idea.
The purpose of the state is truly freedom. This idea was present in the work "A Theologico-Political Treatise" of the biggest philosopher from the Netherlands', Baruch de Spinoza, for over 300 years. I would like to pursue the question of to what extent, also in present days, is freedom set to be a fundamental value of state conduct to be able to serve as legitimization principle and how it is able to base personal freedom of the individual, collective affiliation and "inner security".

I. Freedom and other fundamental values

"Unity and justice and freedom" – these three first words of the National Anthem are of a melodious poetry type; they can as well be understood as a programmatic statement about the relation of the individual to the State. In this case, freedom is only one from three sides of a values model. The law stands in the middle between freedom of the individual and the unity of the people. But what does this unity have ... to offer today and above all: are unity, law and freedom already constitutive of the basic values model, is it imperative to consider other values dimensions?
The constitution does not place the commitment to the inviolability of the dignity of every human being and its fundamental rights' catalogue with its freedom and human rights in the top position of all provisions for no reason. It does it because human freedom should be the basis of both one's development as well as of one's interpersonal and social relationships. For this reason, fundamental rights are also generally interpreted not only as defensive rights against the state, but also as objective legal aids for the interpretation of an order of values for all areas of human and social life.
The image of the man given by the basic law is not that of an isolated, sovereign individual; but rather the constitution's stress of the sense of individual / community is related to the individual's decision of obtainment of and connection to a community, without compromising its intrinsic value.

Human existence is therefore not detached from society and state thought. Against the background of these corresponding aspects, freedom and the obtainment of a sense of community become so evident that the often misused phrase "common good comes before self-interest" can only be understood in the constitutional context in a differentiated way. The only common good that comes before the self is the one obtained through a community that acknowledges on its part the value and the dignity of the individual and its collective creation power to shape these quasi "returns". The promotion of the freedom of the individual and of the respect for his dignity, even when the interest of other people and of the community are in question, has actually to be the meaning and the legitimate aim of the State. Only in this sense can the common good justify the State's gradual interference with fundamental rights, and that is the revelation that is intended in the text of the National Anthem – "right" to be safeguarded. Now one might remember to reduce the outstanding aspect of the "unity" in the agreement reached concerning the first sentences of the Constitution because the connection to the community and the connection of the community back to the aims of the individual must exist – the rest would then surrender to this. However, with this – rather formal – minimal understanding of the term "unity", its significance for the constitutional images of man and of society would hardly be completely described. Because it is obvious that what lacks "unity" and what, therefore, is not introduced by the people in terms of conviction and commitment to the society, must be absorbed by the legal values triangle. This can, in extreme cases, lead to an excessive demand for the "rights", and above all to an excessively regulated restriction of "freedom" and therefore put the entire system at risk.
It may be clear that there is an obvious connection between "unity" and the aspects of "obtainment of and connection to a community" of people. A State in which the citizens restrict themselves not to harm others and remain not feeling responsible for each other is condemned to collapse. Rather, a society will only be able to adapt to the constantly changing world when its members build up a civil society and also feel minimally responsible for each other.
The text of our National Anthem appears to be very wise with this background in mind, concerning the respect for "unity", when it requests to fight against the demise of the "brotherly with heart and hand". Because the State loses its unity and solidarity when the people themselves – and only themselves - do not introduce this "heart and hand". ...

II. Fundamental rights as defense rights and as protection duties

First and foremost, fundamental rights are negative rights of the individual against the state and secure concretely that the constitutional State orders everyone to comply with the concession and respect for one's area of freedom. At the same time the fundamental rights are also governmental functions, namely the so-called state protection obligations regarding the prevention against violations of one's fundamental right to freedom by third parties.
The idea of the State protecting its citizens from fearing for their lives and for their physical integrity in exchange for the renunciation to the use of individual and collective violence was the starting point of the modern state, according to Thomas Hobbes' ideas. John Lock, Baruch de Spinoza and others, extended this idea further in order to avoid the arbitrariness of the "Leviathan" State, which must be subordinate to a rule of reasonability, and to ensure that the rights of the people against the State must always correspond. The claims and the purpose of the modern State are both there – the protection against violations of the fundamental rights by third parties as well as the protection against unlawful limitations of the fundamental freedoms by the State – closely related.
However the types of limitations to freedom produce an impact on everyday behavior of the State and of the individual – not least due to the new technical possibilities. The historical comparisons are, certainly, limitative. Therefore, the constitutional State expanded its job of protecting the concentric circles, at the center of which is the human being. It incorporates not only the protection against any threat made to the life or the physical integrity of human beings, but also the protection of the natural resources, which companies and consumer freedom depend on. In addition, the modern state has also become, in other areas, a social and service providing State, be it to ensure equal opportunities, equity or a subsistence level. And finally, the State concerns itself with drawing up the laws for the coexistence of private persons in legal civil relations.

III. Impairment of freedom through over-regulation

"Legalization" is nothing to be, per se, criticized or condemned. Rather it comes down to the question of the right measures. What is to lament today is the profusion of laws and bureaucracy. So, for example, the companies see themselves limited by the exorbitant exigencies made by the legislation to make the necessary adaptation of their performance to the changing economic situation... Over-regulation is also made responsible for the problems in the labor market. But even on a small scale, many feel restrained and overstrained with normative density and bureaucracy.
As I believe, it is necessary to strive for a successful reduction of over-regulation and bureaucracy, and above all to strive for a shift in the consciousness of the society and of the individual; shift in consciousness that involves the return of the freedom securitization of Law.
Almost every State intervention also represents a restriction of freedom. Legal norms and regulations can, not only limit the individual's responsibility, but also paralyze the individual in their own initiative. Therefore, the legal system ought to ... encourage personal responsibility and initiative. Our community lives on the basis of this freedom background.
The assumption of duties by the State shall not constitute a "one way street". Once acquired, state tasks require constant supervision, at least thereon after, on whether their perception by the public authority is still appropriate, in particular if the current political priorities and financial room for maneuver still equate to the duties and whether the quality of the State's fulfilment of governmental tasks is still satisfactory or whether those tasks can be better accomplished by private institutions. In support, such constant supervision over the particular limitations of such laws should be presently and appropriately changeable as a reaction to actual circumstances and situations.
Properly understood, the deregulation is not aimed at abolishing or flattening or creating a partial legal system, but instead at reducing the excess of regulation. At the same time, the remaining suitable body of laws should constitute "good" law, not only in the material sense but also in the legal sense.
Despite the fact that the goals of debureaucratization and deregulation provoke largely positive reactions, there is also a quick and frequent demand in the media and in the public spectrum for the creation of new regulations or prohibitions and for more intervention from the "father state". ... I do not mean that we would be well advised to always demand to have more regulations and to blindly follow more State.
Freedom is not the only basic value of the Constitution – but it is its starting-point and it has a pivotal meaning for the content and structure of all other constitutional values. As a fundamental principle, freedom regards not only to the direct relationship of the individual to the State, but instead to the multipolar relationship of the State with the plurality of private persons and organizations with different interests, particularly in what regards to the protection of the State against threats of freedom that come from non-State actors. Finally, it can constitute a criterion for the extraction of necessity or dispensability of provisions of freedom

The author is the President of the Federal Constitutional Court. The text is an excerpt from him "Speech to Freedom", which was held at the invitation of the Friedrich Neumann Foundation for Freedom on 08.09.2008.

From: Die Welt of the 22nd of October 2008, page 7

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