Constitutions in transition
Constitutions in transition

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Constitutions in transition

3.3.2 Constitutional rights and values

The German constitution protects individuals in relation to various aspects of their personal or professional life.

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Figure 10 Article 1 Human dignity

The first and most general fundamental right is human dignity, which is protected under Art. 1 GG. Human dignity is protected in various constitutions around the world, but it does have an even more important standing in relation to Germany, taking into account its history. It is an absolute right, which it needs to be in order for it to protect human dignity to its full extent. The protection goes so far that no individual can by him or herself decide to ignore this article and to renounce human dignity. Every individual will always be protected, even against their own will.

Other articles regulate more specific rights. One example is Art. 12 which covers occupational freedom. This is a fundamental right which forms part of the fundamental rights of many constitutions, including those of France and Switzerland. As with most of those nations, the protection afforded by the constitution in Germany operates on two levels. Its actual wording reads as follows:

Article 12

  1. All Germans shall have the right freely to choose their occupation or profession, their place of work and their place of training. The practice of an occupation or profession may be regulated by or pursuant to a law.
  2. No person may be required to perform work of a particular kind except within the framework of a traditional duty of community service that applies generally and equally to all.
  3. Forced labour may be imposed only on persons deprived of their liberty by the judgment of a court.

Although the regulation may seem relatively clear, it leaves room for interpretation. What exactly is to be viewed as an occupation? This is where statutory interpretation is needed and where the Federal Constitutional Court (Bundesverfassungsgericht) plays an important part.

However, as Germany does not apply a common law approach and therefore does not rely on the principle of precedent, the Court has a big impact on the interpretation of those constitutional provisions.

The definition of occupation as it pertains to this article is a rather broad one. It includes any permanent legal activity which is meant to create earnings. This definition, again, leaves room for interpretation. How do we define the legality of the occupation? When is the occupation to be seen as permanent? How much income needs to be generated by the activity in order for it to be seen as ‘creating earnings’? These questions are more or less clearly answered by a mix of academic sources and also judgments passed by the Federal Constitutional Court.

This shows one thing: that, although legislation is in place and a codified constitution is in existence, this one code is not enough to completely assess the constitutional framework.

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