FUNDAMENTAL RIGHTS AND DUTIES OF GERMANS
The second part of the Constitution of Weimar is devoted entirely to the
fundamental rights and duties of Germans. It is the Declaration of Rights
of the new Germany. Aside from several articles relating exclusively to
the economic organization of the Reich, the five sections of this part
contain a long enumeration of the rights and duties granted to or imposed
on the Germans. To enter into details of this enumeration would be to
undertake a study of all of German public and private law. Nevertheless
an attempt must be made to outline the principal ideas.
1.--LEGAL AND POLITICAL ASPECTS OF FUNDAMENTAL RIGHTS AND DUTIES.
The articles relative to fundamental rights and duties, during the
discussion of the draft of the Constitution, were the subjects of lively
differences of opinion. It was questioned whether it was necessary and
useful to insert such provisions into the Constitution; moreover, every
one of these provisions one after another was debated. The Bismarckian
Constitution of 1871 contains no declaration of rights. On the other
hand, the drafters of the Constitution of 1849 proposed such a great
number of fundamental rights and applied themselves with such complacence
to the elaboration of these rights that the Constituent Assembly of
that time was unable to make itself heeded, and this defeat contributed
largely to the defeat of the whole of the project of such rights.
The first proposal of the Cabinet following the tradition of the proposal
of 1849 and also the Declaration of Rights of the French Revolution, as
well as of the American, Belgian and Prussian Constitutions, enumerated
in a few paragraphs several essential legal principles and enunciated
some fundamental dogmas which have been considered for a century and in
all civilized countries as self-evident truths. But in the Constitutional
Committee the discussion went far beyond these generalities. Desirous of
creating an intellectual background in which justice and administration
would have to operate, desiring also to furnish in the form of some
suggestive maxims a guide for the conduct of some of the most important
matters in the legal domain, and to furnish a solid foundation for the
juridical culture of the German people, the members of the Constitutional
Committee nominated a sub-committee, which prepared a new draft whose
provisions were embodied in the draft of the Cabinet, in different bills
prepared on private initiative, as well as in the new Constitutions of
Baden and Wurtemberg. In the drawing up of this new draft the principal
rôle was played by Beyerle, member of the Centre.
In the course of the discussions in sub-committee, in Committee, as
well as in plenary session, three currents appeared. Some wanted to
suppress drastically all declarations of rights in the Constitution of
the Reich; for they saw in these principles no stable system, but only
a collection of “declarations and declamations,” to which were joined
some legal maxims figuring already in other laws. Others wanted to
retain the system embodied in the cabinet draft, adding to it, however,
several provisions to assure the protection of the rights acquired for
religious denominations. A third group, among whom principally was
Frederick Naumann, held that the cabinet draft, even thus extended, was
retrogression and did not correspond to the actual development of German
culture. They demanded that there be substituted for it a declaration of
fundamental rights which would constitute a recognition of the principal
ideas that characterize the most recent development of this culture.
The Constitutional Committee, and after it the National Assembly itself,
adopted a middle course. The propositions by Naumann as a whole were
rejected; and it was decided not to inscribe in the Constitution, in
political sentences and aphorisms without any legal content, a complete
and solemn recognition of the directing ideas of the present and of
the future. Nevertheless there would be inserted in the Constitution a
certain number of political maxims and of “programme thoughts.” This
done, the Constituent Assembly wished, in the words of Düringer, to give
a foundation to the existing legal culture, and to furnish a mirror
to German juridical life, and at the same time afford a programme for
future juridical development. In addition the principles voted, since
they would figure in the text of the Constitution, would have to be
placed under the express guarantee of the Constitution and thus become
part of the fundamental law of the Reich. The Assembly hoped, finally,
that these articles would exercise a certain educational function. They
would constitute the basis of the civic and political education of the
people. The fundamental rights would have to be not only “the keystone of
the edifice, but must also become the substance whereby the Constitution
would live.”
This was a magnificent programme; unfortunately it was difficult to
carry it out and the most severe criticisms were rightly, it seems, made
against the manner in which it was carried out.
When the articles relating to the fundamental rights and duties were
being drawn up, the members of the National Assembly of necessity
remained party men, and were guided, even when they voted on
philosophico-legal questions, by party considerations. Also some of these
“fundamental rights” had the appearance of being simply extracts from
programmes or brochures of political parties. On the other hand, the
members who drew them up naturally put in the foreground the problems
which, at the time of the discussions, were the burning questions in both
Parliament and in public opinion. The result is that the second part
of the Constitution regulates questions of the day rather than of the
future, and issues prescriptions for circumstances more than it proclaims
fundamental rights.
However, all this would have been admissible, if there had been one
big party that could have without constraint and without difficulty
incorporated its own principles in the Constitution; or even if there
had been two or more parties with fairly similar conceptions, which were
able to agree on fundamental rights. There would have been at least a
Declaration of Rights that might have corresponded to the conceptions of
the majority. But there was no such majority in the National Assembly.
To be sure, there was an impressive majority that agreed on a democratic
Constitution. But on questions of schools, church, the family, and of
economic and agrarian reforms--questions that had to be dealt with in
the statement of fundamental rights--there was in the National Assembly
and in the parties of the majority such divergence of opinion that it
was impossible to construct of it any logical or coherent edifice. Also,
in reading each provision of the fundamental rights, one can guess which
party has furnished the first part of a phrase and which the second.
When, for example, referring to property one reads, “The right of
property is guaranteed by the Constitution. Its nature and limits are
defined by law”; or, when in Article 152 a phrase declares, “There is
an economic liberty in the measure indicated by the law,” every one, no
matter what may be his personal conceptions, may find himself entirely
satisfied, according to whether the first or the last words of each
provision are emphasized. This evident compromise between the political
parties on political conceptions so widely divergent was emphatically
pointed out by Member of the Assembly Koch, who characterized the
fundamental rights as “an interfractional political programme.”[48]
From the legal point of view, the defects of this programme are no less
serious. It is extremely difficult, if not impossible, to know what
authority and what meaning should be attached to the fundamental rights.
What precisely does such a phrase as one in Article 109 mean? “Privileges
or discriminations due to birth or rank and recognized by law are
abolished.” Does, again, the provision in Article 115, according to which
“The house of every German is his sanctuary and is inviolable,” prevent
a commissioner of buildings from dividing spacious lodgings in order to
combat a housing crisis?
What is still more regrettable is that the Constitution never specifies
to what extent the fundamental rights have or have not legal force. Do
all previously enacted laws that are irreconcilable with fundamental
rights in the Constitution cease to operate the moment the Constitution
comes into force? Should not this solution be applicable only to laws
enacted after the adoption of the Constitution and for such of their
provisions as are contrary to the Constitution? Or must it be interpreted
that the fundamental rights have no importance other than to constrain
legislatures to subject existing legislation to the principles these
rights proclaim, and to vote only for laws that conform to these
principles? Finally, are not these fundamental rights merely general
indications which may be expected to have such moral force as they can
impose on the legislature?
It was attempted to bring some clarity into the chaos of the discussions
on this head. At first a proposal was made according to which any one had
the right to complain before a tribunal of all injurious violations of
fundamental rights. This was rejected; for otherwise any one belonging
to the middle classes could complain on the basis of the provision of
Article 164, according to which “The independent … middle-class shall
be fostered,” and claim that the provision was a dead letter. There was
voted, however, on the first reading a provision according to which
the fundamental rights would constitute “a course and a limitation for
legislation, administration, and jurisprudence in the Reich and in
the States.” This phrase would have increased, without any possible
ambiguity, the immediate legal efficacy of the fundamental rights. It
was, however, done away with at the second reading, for it would not have
been applicable except to provisions which have a positive content, and
it would have had, aside from this, only the character of an abstract
maxim for scholastic manuals. It was decided, therefore, not to specify
in any way whatever the legal significance of the articles of the
Constitution relating to fundamental rights and duties. It would fall
to legislators, judges and public officers to interpret in the future
each of these articles separately, and to be guided according to the
results of this interpretation. If, however, one may attempt such an
interpretation, it would appear that these articles, from the point of
view of their legal efficacy, may be divided into three categories.
(1) Those having the force of law. These create actually and immediately
some new law, and consequently abrogate contradictory provisions of
antecedent laws. Such, for example, is Article 109, par. 6: “No German
may accept a title or order from a foreign Government.”
(2) Others limit themselves to _indicating_ to legislators of the Reich
and of the States the _course which they must in the future follow_
and prescribe the laws they must enact. But these provisions do not in
themselves constitute laws, and, therefore, cannot abrogate _ipso facto_,
contradictory provisions in antecedent laws. Such is the principle in
Article 145, according to which “Instruction and school supplies … are
free.” This cannot have for its effect the immediate doing away with
payments by pupils in the schools for supplies furnished them. There
is no doubt that the principle of gratuity cannot enter into operation
except through a special law expressly prescribed.
(3) Other provisions express _general truths_, which are most often
_ordinary philosophico-legal commonplaces_, whose exact meaning and
bearing in a text such as the Constitution is difficult to grasp. For
example, it is hard to see the special significance which a phrase can
have in a constitutional document such as the one which declares that
marriage is placed under the special protection of the Constitution.
* * * * *
However diverse may be the conceptions that prevailed at the drawing up
of the fundamental rights, and whatever uncertainty they may present from
the legal point of view, it is possible, nevertheless, when the whole of
the second part of the Constitution of Weimar is surveyed, to discover in
these articles some common characteristics and to unfold the fundamental
ideas that have inspired the majority of the Constituent Assembly.
It is evident that the Assembly conceived the fundamental rights and
duties in a manner quite different from that of the authors of preceding
Declarations of Rights in America, France, or even in Germany. These
declarations were inspired by purely individualistic doctrine. Man is by
nature free and independent; he holds rights that are limited only by
such other rights as will assure to other men the enjoyment of the same
rights as his. From this ensues a twofold consequence. First, he may act
in his own right provided that he confines himself within the limits of
the right in question. Within these rights he is truly sovereign, and the
state may not encroach on them to impose any obligation whatsoever. On
the other hand, conversely, the state does not owe any positive service
or pledge to the profit of the individual. It must abstain from all
interference and allow him free individual activities. The State owes
nothing to the individual, who in turn can claim nothing from it.
This doctrine does not appear in the new German Constitution. The
Assembly at Weimar has substituted for it a conception by virtue of
which man, while still, it is true, enjoying a certain number of
individual prerogatives, nevertheless _must place them at the service
of the collectivity_. In whatever concerns liberty properly so-called,
property, the means of production, the intellectual development of man,
there is found everywhere this dominant idea of the social function of
man. Individual liberties are no longer an end in themselves, nor do
they constitute any longer an independent good. _They are limited and
conditioned by the duty of the individual to co-operate in the well-being
and the development of the collectivity._ They have no value and are not
protected except in the measure that they serve for the accomplishment of
this social duty.
2.--FUNDAMENTAL RIGHTS AND DUTIES OF THE INDIVIDUAL.
The Constitution commences by enumerating as completely as possible
individual liberties such as traditionally figure in most declarations of
rights. Not a single one of them is left out, and there have been even
others added: equality, at least in theory, of men and women; protection
of minorities; the right to secrecy in telegraphic and telephonic
communication; liberty of opinion extended to manifestations of thought
by means of motion picture films, etc.
One may, therefore, apply for the Germans the classic table of individual
liberties.
First, the civil equality. The suppression of privileges of birth or of
class. Titles of nobility have no other value except as a part of a name.
Titles may not be conferred except as they designate an employment or a
function. The state may no longer confer orders or honorary insignia and
no German may accept a title or order from a foreign government.
Then come the individual liberties properly so-called; not only the right
to come and go, but also the right to settle in any part of the Reich,
to emigrate to any non-German country, to be protected from surrender to
a foreign government for prosecution or punishment; guarantee against
arbitrary arrests, imprisonment, and other penalties; the inviolability
of domicile and correspondence.
In a third place, the right to freedom of activity; liberty to engage in
work, commerce and industry; liberty of creed and conscience; liberty to
practise religion; liberty of instruction; liberty to express publicly
one’s thoughts by words, speeches, printed matter, figures, films and in
any other manner; liberty of assembly and association.
In the fourth place the liberty of individual property. This cannot be
expropriated except for the common good, by virtue of a legislative
provision and must be indemnified.
The enumeration of rights and duties is complete, but the idea that
prevailed at its adoption is different from that which inspired the
authors of preceding Declarations of Rights. In recognizing the liberties
of the individual, the object is no longer to protect him against the
State, but to permit him to co-operate in the most effective fashion in
the well-being of all.
This leads naturally to the imposition on the liberty of the individual
of a certain number of restrictions hitherto unknown. On the other hand,
it imposes on the state a certain number of new duties, the discharge of
which affords, as corollaries, new rights to the individual.
I.--INDIVIDUAL RIGHTS ARE SUBJECT TO CERTAIN NEW RESTRICTIONS IN THE
INTERESTS OF THE COLLECTIVITY.--The individual is no longer merely
entitled to work. _It is his duty._ This obligation is provided for by
Article 1, par. 1, of the socialization law of March 23, 1919, which
has become Article 163, par. 1, of the Constitution. “Every German has,
without prejudice to his personal liberty, the moral duty so to use his
intellectual and physical powers as is demanded by the welfare of the
community.”[49]
It is true, therefore, that personal liberty is conditioned. The draft
of the socialization law submitted by the Cabinet did not contain these
conditions, and the Social Democratic Minister, Wissel, in open session
of the National Assembly, expressly rejected the principle of the liberty
of the individual. In the same manner the Social Democrats and the
Independents proposed amendments according to which the sole liberty
guaranteed to the individual was that of choosing his profession; this
one right availed of, the liberty of the individual was thereupon used
up, and he must thereafter conduct himself exclusively according to the
needs of community. But a coalition of all the representatives of the
bourgeois parties organizing against the conceptions behind the Socialist
proposal, the provision concerning the principle of the liberty of
employment was introduced into the law of March 23, 1919, and into the
Constitution.
Saving his personal liberty, therefore, every German also has work as
his moral duty; that is to say, he should contribute all the economic
work that he is capable of according to his physical and intellectual
abilities. In addition, this work must correspond to a definite
condition; it must be such as is “demanded by the welfare of the
community.”
In Germany many see in this provision a central point of the law and
hold that it constitutes as a real transition from the old world to the
new. Formerly every German could, under the protection of the law, so
dispose of his work that it served only his selfish ends. Without regard
to the interests of his fellow citizens or those of the community,
he could, provided that he observed the outer forms of the law, so
to speak, “walk over dead bodies” without violating a single legal
provision. In a general way and aside from insignificant exceptions,
there reigned in the century of economic liberalism an unlimited egoism
of the individual, protected by the adage _qui jure suo utitur, nemine
lædit_. The socialization law radically changed this state of affairs.
Hereafter every German is obliged, for the well-being of the whole German
people, to furnish all the productive labor of which he is capable, and
must abstain from all action liable to hinder this well-being. It is only
within these limits that economic egoism may hereafter move.
However, this novel duty to work is as yet only a “moral duty.” These
words, which were not found in the original draft by the Cabinet, were
added by the Constitutional Committee; and the Independents tried, but
in vain, to have them omitted. It does not seem, however, that the
majority which has adopted them, has ever given them a clear, unequivocal
meaning. One thing is clear, however; the law wished to distinguish
between a moral duty and a positive legal obligation, whose execution
can be expressly compelled. But it is perhaps possible to interpret
this provision in such a way that the violation of the duty to work may
involve legal consequences, which can have as a result the right on the
part of the state to exercise indirect constraint on the individual who
does not carry out his duty. The German who does not work, or who lets
himself be dominated in his work by purely selfish ends, has no longer
the right to demand protection of the laws; he cannot demand that his
work shall be protected by the Reich. Perhaps one may even go so far as
to appeal to the article of the Civil Code, according to which all legal
procedure that violates good morals is null;[50] and hold it applicable
to acts and contracts that do not correspond to the moral duty imposed
by the socialization law and by the Constitution. In the same way perhaps
also Article 826 of the Civil Code may be applied, according to which any
one who in a manner contrary to good morals deliberately causes damage
to others is obliged to repair this damage; and it may be argued that an
act or contract inspired by a selfish end falls under the provision of
this law and brings about in such a case an obligation to compensate the
community.
Being obliged to work, is the individual at least master of the product
of his toil? May he dispose of his property as he wishes? No longer. As
with his work, the _individual must place his property at the service of
the community_. And the same idea that has resulted in the restriction of
his liberty to work now leads to a corresponding restriction of his right
over property; “Property rights imply property duties.” (Article 153.)
These restrictions are several kinds.
First, that of _expropriation_. It is true that this was already admitted
in individualist doctrine. But this doctrine hemmed the right of
expropriation on the part of the state within narrow limits, inasmuch as
it prescribed strictly the cases in which the state could use this right,
and provided always the payment of a just and, usually, a previously
ascertained indemnity. These two guarantees given to property owners are
strikingly diminished in the new German constitutional law. On the one
hand, it is true the principle is retained that expropriation must not
be resorted to except for the welfare of the community. But this notion
of general welfare has been particularly elastic. Thus in Article 155
the State is permitted to expropriate in cases of housing crises, in the
interests of settlement and reclamation of land, or in the improvement
of agriculture. Thus the Socialization Law and after it the Constitution
in Article 156 permit the state to transfer to public ownership private
business enterprises adapted for socialization. On the other hand, the
principle of a just indemnity seems to have been retained. However,
there is but one case in which indemnity is imposed and guaranteed by
the Constitution; it is that where the Reich expropriates “the property
of the States, municipalities, and associations of public utility.”
In all other cases the restriction provided in Article 153 applies;
expropriation takes place with indemnity “in so far as is not otherwise
provided by national law.”
In addition to expropriation, the Constitution provides other
restrictions on the right of property:
Land owners are under the _obligation to cultivate it and utilize it_.
However, there is no provision made in case this duty is not carried out.
_The right of inheritance is guaranteed_, but the State has the right to
take part of the inheritance according to provisions determined by the
laws of the Reich, in particular fiscal laws.
_An increase in the value of land_ arising without the application of
labour or capital to the property accrues to the benefit of the community
as a whole.
_Entailments_ are dissolved. This provision is an obligatory prescription
imposed on the legislatures of the States, which obliges them to put an
end to entailments, for this matter is given over by the Civil Code to
the rights of States. By entailments is understood the legal institution
by which a patrimony, particularly holdings of land, because of the
limitation of the right to sell and the establishment of a certain
succession provided by a testament, creates for the owning family in the
person of the holder of the entail an economic position of security and
thereby of increased advantage. These entails often go back considerably
in time, but they are very frequent in Germany, to such an extent that
land holdings subject to this legislation comprise, for example, in
Prussia about seven per cent of all the landed properties, with about
two and a half million hectares. In certain sections entailed property
represents about twenty-two per cent of the whole agricultural service.
For a long time now it has been questioned whether this institution,
which tends to the concentration of more and more land into fewer and
fewer hands, should not be abrogated. It is argued in particular against
the entails that the community cannot allow a mere decision taken by the
private will of a proprietor to be perpetuated; that entails have an
unfavourable effect on the distribution of land and that they finally
tend to wipe out the small and the average property. It follows of itself
that with the victory of the democratic idea and in an epoch in which the
tendency is to divide each piece of land as far as possible, entailments
must be dissolved. In leaving to the States the legislation on this
dissolution, the Constitution has only applied logically the democratic
principles on which it rests.[51]
II.--IN TURN THE STATE IS OBLIGED TO FULFIL A CERTAIN NUMBER OF DUTIES TO
THE BENEFIT OF INDIVIDUALS.--The classic individualist doctrine limits
the rights of the State but does not impose upon it any positive service,
no obligation to the benefit of its citizens. The State must abstain from
certain interferences, but the individual may claim no more than that
of it. German constitutional law, however, adopts another conception,
and while it restrains individual rights for the benefit of a community,
it also imposes upon the latter obligations to the profit of the
individual. From this there arise to the profit of the latter new rights
corresponding to the restrictions to which he is subject.
The individual owes the duty of working, but the State owes him the
chance to work, must protect his work and according to circumstances must
furnish him with the necessities of life. From this is derived for the
individual the right to work, the right to the protection of his work and
the right of subsistence.
* * * * *
_The State must furnish work to the individual._ This obligation explains
itself very easily. When the individual is left free to use his labour as
he pleases, that is to say, when he is free to work exclusively in the
interests of purely selfish ends, he must also be left the right to look
for such work and to dispose of his labour where and how he pleases. The
community disassociates itself from a work in which it is not directly a
beneficiary or from which it may even suffer. But if it demands of the
individual that he devote himself only to such labour as will benefit the
whole of the nation, and if it forbids him, therefore, a certain number
of occupations which benefit only the individual, it is indispensable
that it take measures to guarantee him sufficient remunerative work.
Article 163, par. 2, provides therefore: “Every German shall have the
opportunity to earn his living by economic labour.”
Of what exactly consists this duty on the part of the State? It is
certainly not a legal obligation that gives the individual the right
to demand before a tribunal the execution of this promise. It is a
promise that the Constitution makes and which it sufficiently fulfils if
the Reich institutes a general system to make known all the available
possibilities for work. An individual may ask only what kind of work is
available and what opportunity there is of securing it. The proposal
of the Socialization Law provided that every German shall receive work
corresponding to his powers. The final text of this law, like that of the
text of the Constitution, limits itself to prescribing that every German
must be given the opportunity to earn his living by economic labour,
that is to say, by labour that produces goods, utilizing to the utmost
the available conditions of work. In addition, the compensation to the
individual must be sufficient for a livelihood.
* * * * *
_The State in addition protects labour._ The Socialization Law
declares that the power of labour is the most precious economic good
and it imposes on the Reich the legal obligation to protect it. The
Constitution of Weimar applies in Article 157 the terms of the law of
March 23, with the exception of the words, “the most precious economic
good.” But the Constitution also extends and organizes in outline the
duty of the State in this respect. It amplifies this duty in expressly
specifying in its Article 158 that intellectual labour also is under the
special protection of the Reich. As to the measures for the protection of
labour, some of them come under domestic law, others under international
law. Within the Reich itself the Constitution prescribes the creation of
uniform labour legislation. In addition it guarantees to every individual
and to every vocation the liberty of organization for the defence and
the development of the conditions of labour and of economic life, and
it accords to each employé and laborer the free time necessary for the
exercise of the civil duties and free public functions that may be given
to him. Finally, it promises a complete system of social insurance to
be established for the maintenance of health and standards in labour.
In international relation, the Constitution imposes on the Reich the
obligation to protect abroad the products of German science, art and
technique, and to strive for the establishment of an international
regulation of the legal status of workers.
* * * * *
_Finally the State must provide for the needs of individuals out
of work_; and this obligation logically results from the principle
that inspires all of this part of the Constitution. Since the Reich
imposes on every German the obligation to work only for the good of
the community, it must see to it--apart from any humanitarian or
financial considerations--that every German’s capacity for labour shall
be maintained as long and at as high a standard as possible. That is
why, not content with merely protecting this capacity of labour, the
Socialization Law and the Constitution provide that every German must
receive what is necessary for his livelihood, to the extent that a
possibility of adequate employment cannot be assured to him (Article 163).
The draft of the Socialization Law provided as a condition to this duty
on the part of the State that the individual shall not have been able to
find employment. The final text of the law which the Constitution also
uses provides only that such opportunity for employment shall not have
been offered.
The burden of the proof is thus reversed from the general rule and an
attitude purely passive on the part of the individual in this respect is
sufficient to entitle him to public succour. On the other hand, it is not
sufficient for the discharge of all such obligations on the part of the
State if it merely offers the individual any employment whatsoever. For
it does not serve the community in any way, as the most interested party,
when an individual is employed in work for which he is not fitted. The
community, therefore, must procure work corresponding to the mental and
physical powers of the individual and to his capacity. If the State does
not succeed in doing so, it is obliged to furnish him a livelihood.
* * * * *
To put into operation the principles thus enunciated by the Constitution,
different laws are necessary--a law on the offer of employment, a law
protecting labour, a law on the help to be given to the unemployed. Such
laws have not yet been enacted. However, a certain number of ordinances
have been passed that constitute on the part of the Reich the beginning
of the execution of the new obligations imposed upon it.
First, measures have been taken to procure employment for individuals. To
this end, aside from the ordinance of December 9, 1918, which imposes on
municipalities the obligation of organizing employment bureaus, public
and impartial, there is also an ordinance of May 5, 1920,[52] creating
for the Reich a bureau devoted to finding employment. This agency has
for its principal function a survey of the labour market and the editing
of periodical bulletins on the situation in this market for the purpose
of establishing an equilibrium between supply and demand in the different
regions and in the different vocations.
Measures have been taken also to protect labour. The first step toward
the creation of uniform labour legislation was made by the provisional
ordinance of January 24, 1919, which, supplementing the divisions
of the Civil Code, regulates labour in agricultural and forestry
exploitations.[53] Social insurance legislation, such as is found
codified in the law of the Empire of July, 1911, _i. e._, as sickness,
accident, disability and death insurance, has been supplemented by
different provisions, particularly by a law of December 29, 1919,
relative to the protection of pregnant women.
Finally, regarding the obligation to provide livelihood for unemployed,
different ordinances have been issued which were codified by an ordinance
of January 26, 1920.[54] According to these ordinances, the duty of
organizing a service for the supplying of the needs of unemployed--a
service which must not take on the character of charity--falls upon the
municipalities, which are assisted financially by the Reich to the extent
of six-twelfths of the total expense and by the State with four-twelfths
of this expense. The municipalities must refuse this help to those who
do not accept the work offered them, even if this work does not fit the
vocation of the one refusing and even if it must be done away from home,
provided always that this work be adapted to the physical capacity of
the unemployed. The only ground on which one may refuse such work is
that the pay is not sufficient, given local conditions, to support the
individual and, if married, his family.[55]
In the same way that restrictions on the liberty of labour have
created for the State a number of duties relating to the employment of
individuals, so the restrictions on the rights of private property have,
as a consequence, engendered a number of obligations on the part of the
State to assure to every one, if not a minimum of property, at least a
minimum of well-being.
The Constitution guarantees individual property, but on the condition
that the distribution and the utilization of land do not present abuses.
The aim of this is to, “_to insure to every German a healthful dwelling
and … homestead corresponding to his needs_” (Article 155). To this end
colonization must be favoured, the development of agriculture and the
utilization of the soil must be promoted; a survey must be made of all
the mineral resources and all economically useful forces of nature.
In accordance with their conception of the duties of the State, the
Constituent Assembly outlined a vast programme of agrarian and social
policy. In addition they themselves passed several laws which form the
commencement of the execution of this programme and which are intended to
guide future legislation.
In order to insure every German a habitation and a homestead, the
Reich first promulgated a decree, July 31, 1919, “On small gardens
and little farms,” according to which tracts of land, which cannot be
used profitably, must be rented out at rates fixed by administrative
authorities after expert appraisal, or may be leased, and later
sub-leased, for gardens, by the authorities.
Later the law of April 11, 1919, was passed “on colonization.” This law
obliges the State to create interior colonies and small undertakings.
To this end territory belonging to the State must be put on sale
to “collective colonization enterprises”; these enterprises may be
subsidized by means of expropriations of swamps and uncultivated tracts.
They have the right of pre-emption in the sale of tracts of land of less
than twenty-five hectares. On the other hand, to develop colonization
tracts, there must be organized “associations for the furnishing of
tracts” in all districts where more than ten per cent of the cultivatable
soil is in the hands of big holders, that is, of more than one hundred
hectares per holder. These associations, formed by a union of big
landholders, must, on the demand of collective colonization enterprises,
put at the disposal of the latter at reasonable prices tracts of land
taken from the big properties. Their obligations in this respect cease
when they have thus given over to colonization a third of the utilizable
surface of the large properties, or when the total area of these
properties is not more than ten per cent of the area of the district.
The right of pre-emption by the colonization enterprises in respect to
large properties is exercised through the associations for the furnishing
of tracts. In urgent cases these associations may proceed by means of
expropriation.
The Reich, finally, in order to assure a habitation to individuals,
must take a whole series of measures in the case of housing crises.
Already before the Revolution a decree of September 23, 1918, gave to
municipalities the right to make regulations for the prevention of the
demolition of buildings or their use for other purposes than dwelling.
The municipalities had the right to draw up leases, even against the wish
of the owners, through the intermediacy of “offices for the distribution
of lodgings,” and to appropriate all unused buildings for the purpose
of converting them to dwellings. A later decree of November 7, 1918,
provided that associations of municipalities and groups of municipalities
could be created to fight against housing crises. After the Revolution,
a new decree of January 15, 1919, contained more important provisions
for meeting the most urgent needs created by such crises. The State
Cabinets were obliged to appoint “housing commissioners,” charged with
the care of homeless families and the creation of small and average
appropriate lodgings. To this end, they received considerable powers.
They could expropriate by a summary procedure unoccupied buildings they
deemed necessary, or have such buildings erected on grounds which they
had authority to lease for terms as long as thirty years. They could
dispense with the requirements of legislative provisions, expropriate
tile and other building materials necessary for the rapid construction
of buildings; they could seize building lumber and forbid unnecessary
construction. The service of these Housing Commissioners was under the
Minister of Labour for the Reich.
Finally, in order to protect tenants, the ordinances of September 23,
1918, and of June 22, 1919, sanctioned and supplemented by the law of
May 11, 1920, _limit considerably the rights of owners to dispose of
habitable quarters_ and entrust to the “offices for distribution of
lodgings,” extensive rights relative to the renting out of apartments and
the terms of lodgings. In particular, according to the law of 1920, if
grave inconveniences result from the lack of lodgings, the states may,
with the consent of the Minister of the Reich, authorize or constrain
the municipalities to take, or themselves take, measures that constitute
encroachments on the liberty of settlement and the inviolability of
domicile, on condition that these measures be expressly necessary to
meet a housing crisis or to combat it. This law specifies, in addition,
that decisions taken in the fight against the shortage of houses may be
executed by administrative constraint.
3.--FUNDAMENTAL RIGHTS AND DUTIES OF COMMUNITIES.
The Constituent Assembly did not limit itself to the establishment of a
list of rights and duties of the individual. The social conceptions by
which it was dominated led it to proclaim, after the rights and duties of
the individuals, the rights and duties of certain groups and communities
that seemed to it to play a particularly important rôle in society--the
family, associations, municipalities, civil service.
* * * * *
I.--THE FAMILY.--For the first time the family, the natural foundation
of all ordered national life, finds itself mentioned in the Declaration
of Rights of a modern state. The Constitution of Weimar formulates
the general principles which should dominate legislation relating to
marriage, to the education and the protection of children and to the
duties of education devolved upon parents.
Article 119 places marriage under the special protection of the
Constitution. Marriage, which forms the basis of family life and on which
depends the increase of the population of the nation, is based on the
equal rights of both sexes. Marriage and the family are recognized as the
basis on which social life reposes and as the primary source from which
develop German customs and culture. In consequence Article 119 enunciates
a legislative course of considerable social and political importance. It
prescribes the care of the purity, the health and the social advancement
of the family as a duty of the state and of the municipalities. Families
with numerous children have a claim to equalizing assistance. Motherhood
has the right to the protection and care of the State.
Proposals were made, during the discussion of the draft of the
Constitution, to lighten the lot of illegitimate children. They
were aimed to assimilate, from the point of view of family rights,
illegitimate and legitimate children. The majority of the National
Assembly decided, because of the difficulties of regulating in a
constitutional text questions of private rights, to leave this matter
to legislation and to later development. The Assembly limited itself to
forming guiding principles only. Legislation must assure to illegitimate
children the same conditions for physical, moral and social development
that legitimate children have. But convinced of the need of legislative
reform on this matter, the Assembly passed a resolution that there should
be taken, as soon as possible and by legislative means, a new ordering of
the legal and social status of illegitimate children.
Concerning education, Article 120 declares only that parents have the
right and the duty to educate their children; “The physical, mental, and
moral education of their offspring is the highest duty and natural right
of parents.” But the State must not leave it entirely to parents and
intervenes as an organ of surveillance. The political community watches
over the execution by the parents of these duties imposed upon them.
In addition the State assumes as an obligation in a general way the
protection of youth; the care of children and youth comes under the
legislative authority of the Reich. As a guide for the accomplishment
of this obligation, Article 122 specifies that youth shall be protected
against exploitation as well as against physical and mental neglect.
* * * * *
II.--ASSOCIATION.--The right of assembly and association was already
regulated by the law of April 19, 1908; in addition to this the Civil
Code contained some provisions on the acquisition of civic rights. The
Constitution contents itself with taking as its own the principles that
inspired these laws, but it makes certain changes in the existing laws.
_As to the liberty of assemblage_, Article 123 holds to rules previously
adopted, “All Germans have the right of meeting peaceably and unarmed
without notice or special permission.” The obligation that public
meetings be reported in advance to the authorities, which formerly
existed, is abolished. Furthermore, while the law of 1908 demanded that
public meetings in the open air and manifestations on public ways and
squares receive in advance authorization by the police--authorization
which must be applied for at least twenty-four hours in advance--the
Constitution, on the other hand, declares that _in theory_ these meetings
are free and do not need to be authorized. It adds, however, that in
the interest of security and public order, liberty of assembly may be
limited by law, this limitation consisting furthermore not in the need of
authorization, but only in the obligation to give the police notice in
advance.
_As to liberty of association_ the Constitution still holds to the
principle of the regulations of 1908. “All Germans have the right
to form associations or societies for purposes not contrary to the
criminal law. This right cannot be limited by preventive measures.”
(Article 124.) Associations may acquire a legal status according to the
regulations provided by the Civil Code. Hitherto these regulations gave
administrative authorities the right to oppose the acquisition of legal
status by associations of a political, social or religious character.
This opposition resulted in the associations in question being kept from
the register of associations, and thereby prevented them from acquiring
legal standing. This restriction is abolished by the Constitution
as contrary to the modern principle according to which liberty of
association must be kept intact. To this effect it is expressly provided,
“Every association has the right of incorporation in accordance with the
civil law. No association may be denied this right on the ground that it
pursues a political, social-political, or religious object.”
* * * * *
III.--MUNICIPALITIES.--Article 127 provides, “Municipalities and
unions of municipalities have the right of self-government.…” Thus
the _principle of decentralization_ is found introduced in the list of
fundamental rights.
The Constitution declares that this autonomy must be exercised “within
the limits of the laws.”
* * * * *
IV.--CIVIL SERVANTS.--Finally, the Constitution reaches the question of
civil servants, to which it devotes no less than six articles.
Before the Constitution went into effect, the status of civil servants of
the Empire was regulated by the law on civil servants, March 31, 1873,
as amended by the law of May 18, 1907. The new Constitution left this
law intact, but it superimposed a series of general rules, some of which
were borrowed from the preceding laws applying to the civil servants of
the Empire, and which are destined hereafter to hold good for all German
civil servants, as well as those of the states and of public corporations.
The principles that serve as a point of departure are: that civil
servants are in the service not at all of the party in power, but of the
community; that, therefore, civil servants who remain faithful to the
community all their lives have the right to be kept in office for life
and to have guaranteed them a financially adequate situation; finally
that outside of his office every civil servant is neither more nor less
than any other citizen. These principles the Constitution applies in
the provisions relative to the free access of all citizens to public
functions, to the political liberty of civil servants and finally to
their financial responsibility.
(1) “All citizens without distinction are eligible for public office in
accordance with the laws and according to their ability and services.”
(Article 128.) In the future, citizenship in a particular state may no
longer be demanded by the laws of the States as a condition for public
employment; for the Constitution expressly provides that citizens must
be admitted to public employment “without distinction.” In addition,
Article 110, par. 2, formally declares, “Every German has the same rights
and duties in each State of the Commonwealth as the citizens of that
State.” On the other hand, Article 16 provides that as a rule officers
directly charged with the administration of services that depend directly
on the Reich, and who are assigned to a State, shall be citizens of that
State. From this it must be concluded that the civil servants of a State
may as a rule be recruited from among the citizens of that State without
violating the spirit of the Constitution.
Already in preceding laws one finds no legal obstacle to the admission
of women to civil service. The Constitution declares, meanwhile: “All
discriminations against women in the civil service are abolished.” By
this--a logical consequence of the provision of Article 109, by which
men and women have in principle the same civil rights and duties--all
obstacles to the admission of women to the service of the State on the
same conditions as men are abolished.
(2) _Civil servants are in principle appointed for life._ However,
exceptions are provided for, either in case future legislation on civil
servants contains contrary provisions, or if, up to then, the law on
civil servants of the Empire and the laws of the states have provided
a different rule. A proposal by the Independents, according to which
civil servants would have to be chosen by election and therewith lose
all guarantees the Constitution and the laws accord them, was rejected
by a great majority. The rights acquired by civil servants must be
_inviolable_. Claims in money matters must be heard by tribunals. Civil
servants may not be temporarily deprived of their function, retired for
a time or permanently, or be given new work of a lower nature except
under conditions and according to forms provided by law and not by simple
arbitrary administrative measures.
Against any disciplinary measure, civil servants may enter protests
and commence procedure for damages. Furthermore, the system of secret
reports on persons employed is abolished. Every civil servant has the
right to consult his record, and no disparaging entry may be introduced
in it without the opportunity being given to the employé to explain
himself on this matter.
(3) _Civil servants are in the service of the State, of the community and
not at all the servants of a party or the party in power_. In consequence
of this they retain the liberty of political conviction and of
association. A later law of the Reich was provided for organizations in
which civil servants are represented and which are supposed to co-operate
in the regulation of all questions concerning them. The same idea that
led to the recognition of the right of workers and clerks to co-operate
in the form of Factory Workers Councils applies to civil servants and
gives them the right to co-operate in all matters concerning them.
(4) Finally the Constitution prescribes in a uniform manner for the whole
Reich, for the public servants of the states as well as those employed
by public corporations, the limits of the _financial responsibility of
public servants_.
The responsibility of civil servants is regulated by Section 838 of the
Civil Code. “Every employé, who through premeditation or negligence,
violates the duty imposed upon him by his function, to the damage of a
third party, must recompense this party for the damage thus caused.” As
to the manner in which this compensation is to be awarded, the Civil Code
leaves it to the legislatures of the individual states to determine.
Making use of this authorization, most of the States individually
have decided that the State shall be responsible instead of the civil
servants, and that the public treasury assume the indemnity to the limit
for which the civil servant is responsible, the treasury retaining,
however, the right to proceed against the civil servant. Prussia adopted
this system in the law of April 1, 1909, and the Empire followed it, for
the employés of the Empire, in the law of May 22, 1910. However, there
are still member states, Saxony for example, in which this solution has
not yet been adopted and where the civil servants are still directly
responsible to any individual who suffers damage through them.
The Constitution confirms in Article 131 a state of affairs that
exists in most of the States and in the Reich, and declares that if a
civil officer in the exercise of the authority conferred on him by the
law fails to perform his official duty toward any third person, the
responsibility is assumed by the state or public corporation in whose
service the officer is. The right of redress against the officer is
reserved.
4.--RELIGION AND THE CHURCHES.
Declarations of Rights generally contain, justly so, principles
relative to religious liberty and the free exercise of creeds. But
the Constitution of Weimar could not limit itself on this point to
traditional general maxims. The question of the relations of church and
state forms an essential article of the programme of the Centre, and also
of the programme of the Social Democrats. Their solutions would seem to
be self-contradictory. The Centre wanted to guarantee to the Church a
privileged and preponderant situation within the State. The programme
of Erfurt, on the other hand, declared religion to be a purely private
matter, and refused all subsidies levied on public resources in behalf
of ecclesiastical or religious needs. But these two parties entered
at that moment into a coalition which, together with the Democrats,
governed the Reich. As neither of these two opposed conceptions was able
to prevail, the conflict of the two theories was finally settled by a
compromise--which before consummation required laborious negotiations.
* * * * *
The Constitution first proclaims the principle of liberty of belief
and conscience and the free exercise of religion. These liberties are
expressly placed by the Constitution under the protection of the
State. They are guaranteed against every invasion no matter from what
side it comes. But the general laws of the State remain intact and
religious liberty finds itself limited by the general regulations for the
maintenance of order and public security. Every abuse in the exercise of
religious liberty is punished by ordinary law. Civil rights and duties
must not be restrained or conditioned by the exercise of religious
liberty. The enjoyment of civil and civic rights as well as the admission
to public employ are independent of the religion professed. No one is
obliged to divulge his or her religious convictions before any authority
whatsoever, and the right of an authority to inquire into the sect to
which one belongs may not be exercised except as one’s rights and duties
depend upon this, as, for example, in the matter of church tithes or
in the matter of guardianship or instruction; or where it is necessary
for the gathering of statistics ordered by law. No one may be forced to
attend any Church ceremony or to take part in any religious exercise.
No one may be forced to make use of any religious oath as was formerly
prescribed in civil and penal procedure. It is sufficient, in taking an
oath, that the one swearing shall declare without a religious formula, “I
swear!”
On the other hand, the Constitution contains several provisions regarding
the exercise of religion. Sundays and legal holidays remain protected by
law as days of rest and spiritual edification.
These principles being admitted, there still remained the difficult
problem of the relations of State and Church. The following solution was
adopted: There is neither complete separation nor any close union of the
Churches and the State. The Churches are emancipated from the State, but
they enjoy certain privileges.
_The Churches are free._ “There is no State Church.” The union that
formerly existed between the Church and the State, in Prussia, for
example, and in the majority of the German States between them and the
evangelical church, has disappeared, and the principle according to which
religious affairs depend upon the state is abolished.
This freedom of the Churches is manifested first, in that the creation
of religious denominations and sects is free, and that the assembly of
religious denominations in associations within the Reich is subject to
no limitation whatever. It is also revealed in the complete independence
of the Churches in regard to the State. Each religious denomination
administers and conducts its affairs freely, provided that it observes
the laws that apply to all. It conducts its work without the co-operation
of the State or of the municipality. The new system realizes thus the
emancipation of ecclesiastical administration from secular control. The
State may neither decree regulations affecting faith, nor appoint any one
to ecclesiastical service nor demand that its assent be required to the
nominations made by ecclesiastical authority.
However, the Constitution does not push the principle of the separation
of Church and State to such a point as to allow religious denominations
no more than the merely private rights accorded by law to natural
persons. Recognizing the social force and the importance in public life
exercised by the Churches, the Constitution accords them _privileges
similar to those given to public corporations_. Religious denominations
existing in Germany at the time of the adoption of the Constitution
remain recognized as public corporate bodies. As for other similar
organizations, the same rights are accorded them on the motion of the
state government if, by their constitution and the sufficient number of
their adherents, they offer guarantees of permanence. While recognizing
that in theory the smaller religious groups, chapels, and sects may be
invested with rights similar to those of the principal churches, the
object of the above limitation is to prevent ephemeral organizations from
acquiring the standing of public corporate bodies.
The Constitution does not expressly state of what the rights of public
corporations consist, for these rights result from provisions made in
the legislation of the various states. In a general way, however, public
corporations, in addition to the legal standing that private law gives
them, are under the special protection of the State. Their organizations
are indirectly public agencies, and they have the right to levy taxes.
This right, practically the most important of those accorded public
corporations, is expressly emphasized and guaranteed in the Constitution.
Religious denominations that are public corporate bodies have the right
to _levy taxes_ on the bases of the lists established for the collection
of civil taxes. The right to levy the taxes granted to public religious
denominations is limited, as a rule, to their members. They may, however,
in exceptional cases levy on certain other taxables, particularly
corporations and joint stock companies, etc., to the same extent as on
their co-religionists, if the laws of the particular State authorize this.
If several religious bodies combine into one association, the latter,
without being required to secure any special authorization, becomes a
public corporation. This provision is important and has been voted out
of consideration for the evangelical churches of the States which up to
now were territorially separated, and which are seeking to unite in a
German ecclesiastical organization, such as had to be formed after the
disappearance of the régime in which reigning princes ruled the churches.
The financial situation of religious bodies is regulated by Article
138. The property and other rights of religious bodies and associations
for the maintenance of their cultural, educational, and charitable
institutions, their foundations and other possessions, are guaranteed.
As a consequence of the separation of Church and State, the Constitution
provides that the obligations hitherto imposed on the State to
participate financially in the expenses of the Churches no longer
exists. But on this point the Constitution compromises. Payments due from
the State to the Churches because of some law or of legal title to such,
must be commuted by state legislation, on bases fixed by the Reich. The
States, however, cannot proceed to do this before a law of the Reich has
fixed these bases. Till then, these payments continue. (Articles 138 and
179.)
The liquidation must include not only the payments owed because of a law
or treaty, but also those due by virtue of some special legal title,
particularly those resting on customary law and tradition.
The question whether, in the new legislation relative to the Churches,
there subsists still any special right of supervision by the States,
cannot be answered uniformly. Properly speaking there is no right
of supervision by the States. But the latter may exercise over the
Churches the same control as over public corporations for the purpose of
maintaining order and public security.
5.--EDUCATION AND SCHOOLS.
After having regulated the question of the relations between Church and
State, the Constituent Assembly took up the problem of education. It
approached it in the same spirit that inspired the provisions it adopted
relative to fundamental rights and duties. Here, too, it exerted itself
to give its work a marked social character; and to a very large measure
it succeeded.
However, the Articles concerning the schools were the subject of long
deliberations and lively discussions in committee and in the full
session of the Constitutional Assembly. In the debates on schools, on
the relations of Church and State, and on the relations of schools and
churches, two conflicting conceptions were manifested. Whereas the
Centre and the parties of the Right declared in principle for religious
schools, the Social Democrats championed the idea of secular schools, and
long negotiations were required to find a compromise between these two
apparently irreconcilable doctrines.
The Constitution, in its final text, contains provisions relative to
public instruction, and to private instruction as well as provisions
applicable to both of these.
* * * * *
I.--Public instruction must form an “organized whole.” That is to say,
it must not consist of a collection of schools of different kinds
without any logical bond between them; but on the contrary it must be
systematically organized, in such a manner that each kind of school
will be part of a harmonious whole, constructed on a rational plan and
answering a definite object. This instruction must be systematized by
co-operation of the Reich, the States and the municipalities.
But what principles should guide this organization and what should be its
aims? It is here that the social doctrine of the Constituent Assembly
reappears. Public instruction whose detailed organization is left to
the regulation by ordinary laws to be enacted must present certain
characteristics, all arising from the same idea--_guaranteeing to every
individual a maximum of development to the end that he may co-operate in
the most effective fashion in the well-being of the community_.
(1) At the base of the educational edifice there is the common or
elementary school (Grundschule), which gives all children an equal
education, from the point of view of length of time and content. _This is
the principle of the “uniform” school._ This does not mean, however, that
everywhere and in all the states public schools must be organized after
an invariable pattern. They are uniform in the sense that they are one in
the conception underlying their establishment, in that they are inspired
in every respect and exclusively by the same democratic principles,
that no difference in instruction is made and that the economic and
social position and the religious beliefs of parents are deliberately
disregarded in according to children the right to an education.
(2) Above the common schools are the secondary and higher schools. The
Constitution does not say how these are to be organized. It indicates
only the idea that is to serve as a guide to legislators when they
construct the educational edifice. The State is not to yield to the will
and the desires of individuals, but is to be guided before all by the
aptitudes and the interests of the children.
(3) All children are naturally not compelled to go through the whole
educational curriculum, but there is an _obligatory minimum of
instruction_. Educational obligations are notably extended in the
Constitution as compared to their former limits. “Attendance at school is
obligatory. This obligation is discharged by attendance at the elementary
schools for at least eight school years and at the continuation schools
until the completion of the eighteenth year.” Formerly the obligation
to attend school was only for seven years for the public schools.
Supplementary instruction, therefore, thus becomes an essential part of
public education in all the Reich.
(4) Instruction is free, at least in the elementary and supplementary
schools. This is a necessary result of compulsory education. The
secondary and higher schools are in theory not free, but “to facilitate
the attendance of those in poor circumstances at the secondary and higher
schools, public assistance shall be provided by the Commonwealth, States,
and municipalities, particularly, assistance to the parents of children
regarded as qualified for training in the secondary and higher schools,
until the completion of the training.”
(5) Instruction in public schools, with some exceptions, remains
religious. The most serious disputes arose over this point. Undoubtedly
obvious progress has been realized by withdrawing the public school from
the local supervision of members of the clergy; and by making hereafter
public instruction as a whole subject to the inclusive control of the
State. Municipalities may in addition be summoned to participate in this
supervision. This will permit future educational laws of the Reich and
administrative laws of the States to give the municipality a share in
supervising the instruction--not only over the work of the schools but
also over the spirit in which it is carried on. Even parents will be
allowed the right to co-operate in it and teachers will be given a voice
in the management. The supervision of the schools on the part of the
Reich will be hereafter solely by civil servants, who will have this as
their principal function and who will be especially appointed for this
purpose.
But the principal question was whether the public school, even when
supervised by the State, should be neutral or whether it should remain
religious in teaching.
Three systems were submitted. One was the system of the secular school,
where no religious instruction is given. Another was the mixed school,
where children of all religious faiths are admitted without distinction
and where the parents indicate whether they wish their children to
receive religious instruction, and if so, what. The third was the
denominational system, properly so-called, in which the public school
is specialized by religious denominations, each denomination having its
own school where the child receives the religious instruction of its
denomination.
The discussions on this question went through three successive phases.
At first there was some agreement on a plan according to which schools
would be mixed, in theory, but the denominational school, properly
so-called, would not be completely excluded; for the law could admit, on
the proposition of parents, the creation of schools in which only the
children of a single denomination would be received.
This compromise not completely satisfying the Centre, which used its
influence to effect a change, a new plan was therefore accepted.
This introduced the denominational school, properly so-called, into
the Constitution. According to this plan, the wish of parents would
decide whether a school should be secular, mixed or denominational, the
free choice by the parents being limited only by the requirements of
well-ordered scholarship. The parties of the Left vigorously opposed
this. The most serious objection they raised was that it would have as a
consequence the necessity on the part of some states, such as Baden and
Hesse, which had already introduced mixed schools legally, to renounce
them again. A new compromise was thereupon arrived at, which under the
new form became the final text. Denominational schools and lay schools
would constitute exceptions and could not be established except when
demanded by heads of families and conditioned by the requirements of
well-ordered scholarship. As for the rest the educational questions must
be regulated, the principles by an educational law for the Reich, the
details by the legislation of the States.
Thus _in principle the public school is mixed_. The public school is
attended by all children no matter to what religion they belong, and
religious instruction forms part of the regular school curriculum.
(Article 149.) The imparting of religious instruction in the school must
take place within the general framework of educational legislation. In
other words, it is not the church but the State which gives instruction.
It is the State that must take into its hands the organization of
religious instruction. It is the State that decides what place religious
instruction shall hold in its curriculum. It goes without saying,
however, that, as to the content of religious instruction, this must be
in agreement with the principles of the religious society concerned.
No teacher, according to Article 149, par. 2, can be compelled to give
religious instruction or to participate in religious exercises. In the
same way no pupils are obliged to take religious instruction or to
participate in ecclesiastical ceremonies and festivities. They may only
be compelled to do so if the persons who have the right to decide on
their religious education express the desire that they do so.
But public secular schools and public denominational schools, properly
so-called, also may continue, and their existence is constitutionally
guaranteed. These schools, by the same title as the mixed schools, are
elementary schools, on which may be based secondary and higher education.
But these cannot be established in municipalities except under certain
specified conditions. There must first be a formal demand on the part
of a sufficient number of heads of families. Then the organization of
the school asked for must conform to high educational standards. From
all this it may be concluded that the system of the uniform school and
the transition from the public school to secondary and higher schools
must not be interfered with. In addition, the arrangement of instruction
based on the diverse vocational needs, must not be made impossible.
Finally, public instruction must not be handicapped by the unnecessary
establishment of useless and inefficient schools. The wishes of heads of
families, as far as possible and in accordance with the above conditions,
must be taken into consideration and their proposals accepted. Questions
of detail, such as, what is understood by “head of a family”; how
many such are sufficient within a municipality to be able to demand a
sectarian or a secular school; how many schools there shall be and of
what kind, must be settled by educational laws of the Reich and by laws
of the States which must follow those of the Reich.
* * * * *
II.--_Private instruction is permitted._ (Article 142.) However, this
liberty is subject to important restrictions (Article 147) in the case of
private schools considered as substitutes for public schools.
In general, establishments of private instruction, no matter of what
grade, can be created only _by the authorization of the State_. This
authorization is subject to the following conditions: the programme
and the equipment of private schools must not fall below the programme
and equipment of public schools. The scientific training of teachers of
private schools must be of as high a standard as that of public school
teachers. The economic and legal position of private school teachers must
be guaranteed. Finally, private schools cannot become the schools of
class or caste.
Elementary private schools are subjected by the Constitution to several
special conditions. Their establishment is authorized when in any
municipality there does not exist for a minority of heads of families,
whose needs must be considered, a public school of their denomination,
or one that conforms to their ethical system. Such a school may also be
established if educational authorities recognize in the demands of such
a group a special pedagogical interest. The Constitutional provisions
relating to programmes and free instruction apply also to private
elementary schools.
Private preparatory schools are abolished.
Finally, for private schools that are not substitutes for public schools,
such as commercial and professional schools, the laws formerly in
existence still operate.
* * * * *
III.--The Constitution contains a number of provisions for instruction,
both public and private. It provides that vocational instruction and
moral and civic education shall be part of the programme of all schools.
By means of vocational instruction children must be made to understand
the great importance of work, for the individual as well as for society
as a whole. Civic instruction must acquaint children with the rights and
duties of citizens, with the organization of the German State, and with
the public life of Germany. To this end, every scholar on completion
of the course in compulsory education shall receive a copy of the
Constitution.
* * * * *
Such are the provisions relative to instruction in the schools. They
constitute, as compared to the former state of affairs, a considerable
change. But these provisions cannot be effectively put into operation
except by a series of laws on the part of the Reich as well as of the
States, a process which threatens to be a long one in point of time.
However, in April, 1920, the first law on this matter was passed by the
National Assembly. It was the law _on the elementary school_. According
to this law, primary schools must be so organized that the first four
years may at the same time serve as a preparation for secondary and
higher education. Every child who has successfully graduated from the
highest class of the elementary school must be sufficiently prepared to
enter immediately a secondary or a higher school. Public preparatory
schools and public preparatory classes are abolished. As for private
preparatory schools, their suppression will take place only after a
sufficiently long reprieve; their complete abolition need not take place
until the commencement of the school year 1929-1930; since economic
difficulties prevent the earlier abolition of these schools, and means
must be taken to provide for the teachers who will be deprived thus
of their occupations. Private instruction is not allowed except in
particular cases and can only in special circumstances be substituted for
the elementary school. The law does not touch instruction and training
in auxiliary classes; nor does it concern itself with the instruction of
children physically or mentally diseased.
In addition a certain number of interesting innovations have been
enacted into legislation. These have as their purpose the participation
by parents and pupils in the administration of schools. On the one
hand, in the secondary schools there are organized Students’ Councils
(Schulgemeinden). These Councils are formed by pupils of the three upper
classes, who meet periodically in assembly to discuss questions of
instruction--educational matters, quarterly reports, discipline, duties,
etc. Teachers attend these meetings without the right to vote. Up to now
these assemblies have had only the right to propose reforms without power
as yet to make them operative. On the other hand, parents elect for each
school a Parents’ Council, one member for every fifty pupils.[56] This
Council concerns itself mostly with classes, examination and discipline.
If a pupil has committed a fault involving the possibility of expulsion
from the schools, it is before this Council that this question is taken.
Teachers are sometimes admitted to these deliberations but have not the
right to vote.