Berlin Mask requirement, curfews, schools, shops and border closings – in the pandemic, politics imposed restrictions on freedom that hardly anyone would have thought possible before. The result: an unprecedented flood of lawsuits. Not only angry citizens or “lateral thinkers” went to court. Many citizens saw and still see their basic rights being too restricted by the Corona requirements.
It makes you sit up and take notice when two former constitutional officers speak out. Hans-Jürgen Papier, President of the Federal Constitutional Court from 2002 to 2010, and Udo Di Fabio, Judge at the Federal Constitutional Court from 1999 to 2011.
Paper sees “freedom in danger”, so the title of his new book. He recognizes new challenges in climate change and economic distribution struggles, international terrorism or pandemics, which put a “community that has at times become immobile under enormous and unfamiliar pressure to adapt”.
His recipe: not to gamble away freedoms that have been won since the Enlightenment, to be more clearly aware of the essential characteristics of the free constitutional state and to concentrate on making the system “more functional” again.
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Di Fabio calls his book “Corona balance”. Nevertheless, for him the pandemic is only the starting point to point out that Western societies in general are dealing with “a shaking of their self-image and their self-image”. Due to Corona, Di Fabio now thinks he can again see a way of thinking in national power categories: “The state is becoming strong through the crisis, it is back on a stage that had already taken it off the cast list of the future.”
Hans-Jürgen Papier: Freedom in danger: why our freedoms are threatened and how we can protect them.
Heyne
Munich 2021
288 pages
22 euros
The EU is also making a new claim to self-assertion. That could become a “blueprint for the future”, for example with a view to the transformation of the economy on the way to climate neutrality or, more generally, to ideas such as sustainability, diversity and justice.
However, the first impetus for both writings is the corona crisis. The reader will find it easier to get started with paper. Germany’s highest judge a. D. chooses the format of the “popular non-fiction book”, as he calls it. Paper analyzes how the virus undermines fundamental rights. “Scenes of a policy in crisis mode” is what the lawyer calls the beginning from March 2020, when “it was possible to observe live how the proportionality of measures was discussed and weighed up between experts and decision-makers”.
According to Papier’s perception, it was not always clear whether all statements were meant “strictly to the point” or whether – as in the case of the fathers Laschet and Söder – it was not more a matter of profiling one’s own “politician persona”. Something like that shouldn’t be.
The state has largely overridden fundamental fundamental rights, explains the former President of the Constitutional Court, and presents a long list of restrictions: general freedom of action and classic freedom of movement, freedom of religion, freedom of demonstration and assembly, freedom of art, freedom of research and teaching, freedom of occupation and property.
Although this is basically allowed, for example due to danger to life and limb, it must always be justified and checked. Otherwise “the whole system of freedom will be suspended”.
No reading for angry citizens
The 78-year-old constitutional lawyer does not always see proportionality as a given and recalls the ban on accommodation, the introduction of curfew, hotspot regulations, the 180 square meter rule for retailers, or the Easter rest period that was finally tipped over. There was a lack of reliable evidence that the measures actually helped to contain the infection rate. Such irrational, “mindless” or contradicting decisions destroy the trust in the state and are “poison for democracy under the rule of law”, criticizes paper.
The fact that the state collects basic rights in order to adapt society to a changing world can hardly be a satisfactory solution to the problems at hand. Hans-Jürgen Papier, retired constitutional judge. D.
All in all, however, he balances an appropriate balance between the state’s interests in freedom of its citizens and the obligation to ensure the security of the general public in the long term: “Despite all the successive phases of lockdowns and easing, we are still relatively free, we can continue to do so based on our fundamental rights and freedoms. ”In the eighth decade of its existence, the Basic Law is still providing a reliable framework.
Di Fabio, at that time the youngest judge at the Federal Constitutional Court when he took office, kills any reading incentive for one-dimensional recipients in his foreword: “This book is not a settlement with corona politics. It is not read for angry citizens. ”
The pandemic tested the western democracies and they “essentially” passed this test, Di Fabio says. The autocratic, populist systems and also the dictatorships did not bring better results, in some cases like in Brazil they “arbitrarily accepted death and illness” without it being clear whether this would make them economically or socially better off.
“The democratic constitutional state and the market economy have shown themselves to be capable of acting,” writes Di Fabio. The order of values of the basic rights, the humane paradigm has asserted itself: “It was right to make the danger of a medical supply disaster and the protection of vulnerable groups the yardstick for action in limiting the occurrence of infections.”
Udo di Fabio: Corona balance. Lesson in democracy.
CH Beck
Munich 2021
250 pages
24.95 euros
The textbook is not easy for the reader. The 67-year-old legal scholar, who also received his doctorate in sociology at a young age, refers to the “functional systems” of science, economics, politics or law, in which “certain purposes dominate and actions towards them Purposes can be measured as rational. “The legal system, with the courts in the middle, asks” about legality (or of course always in binary: illegal) and nothing else “.
This shows that Niklas Luhmann, with his systems theory, was once Di Fabio’s doctoral supervisor. Anyone who gets involved in the superstructure receives exciting insights. For example, when Di Fabio describes what happens when the political system collides with the science system.
Over long stages of the pandemic, Di Fabio said, governments had acted as if they were “hanging on” by some leading virologists. It is naive to believe that there is representative advice on a complex subject.
Conversely, scientists often have no real idea what political means are available at their respective level of competence and how one has to calculate the behavior of courts in order to quickly implement a measure.
If you are looking for a treasure trove of freedom, you will find it in paper. At the end there is a plea for a strengthening of civic engagement and self-determination instead of “state responsibility covering almost all areas of life”, which only contributes to the “infantilization of society”.
Anyone who wants to bridge the gap from the corona crisis to the climate crisis with a stopover in an expansive monetary policy should turn to Di Fabio. He sees the world heading towards a kind of “ecological planned economy” in which the European and international state is increasingly becoming a “management unit” of the supranationally agreed or judicially prescribed plan goals. As a result, the scope for design is shrinking, something the voters could hardly change with their ballot papers.
Partly contradicting views
Both Hans-Jürgen Papier, son of a Berlin master baker, and Udo Di Fabio, son of a Duisburg miner, contributed to the public debate after their term of office at the Federal Constitutional Court.
In refugee policy, paper accused the Chancellor of “breaking the law” with a view to opening the border. Di Fabio wrote an expert opinion for the then Bavarian Prime Minister Seehofer, declaring border closings and a limitation of the admission of refugees to be permissible as soon as the state’s ability to act and order was jeopardized.
In their new books they come to partly contradicting views. Example: the role of Parliament. Paper states “with great concern” that parliaments “fell silent” in the corona crisis.
When it comes to political decision-making, the procedures are no longer adhered to: “When it comes to such serious measures as shutting down all social life, the decision-making process can certainly not be agreed between the federal and state governments over a long period of time without them necessary parliamentary legitimation is obtained. ”
In view of the length of the crisis, the paper also finds it questionable to speak of an “hour” for the executive branch. He basically sees a “high zone” of responsibilities, at the price that the legislation is moving further away from the citizens.
The crisis has made the state strong; it is back on a stage that had already taken it off the cast list of the future. Udo di Fabio, retired constitutional judge D.
Di Fabio is different. He warns against exaggerating the pandemic as an “epochal turning point or as a shock” to the system of parliamentary democracy. Soberly, he balances a loss of parliamentary importance.
This arises, however, because most of the laws are based on an initiative of the federal government, “which shouldn’t be discussed too vigorously in parliament”. Parliament is no longer the place where the executive is limited, but often a space that calls for regulations.
Both authors agree on this point: Legislation is not an all-purpose weapon and creates excessive bureaucratic burdens. Di Fabio explains: “The logic of political operations demands constant proof of activity.” Every minister and every EU commissioner proudly speak of the legislative proposals that have been implemented during the legislative period.
The number of laws is growing incessantly, in the European multilevel system and in the federal system, “while the sheer mass of the complex interwoven law makes the dismantling of the law seem to be a hopeless Sisyphean work – a job that ultimately does not yield any political merits “.
Paper also demands: “In general, legislation should not overregulate any further.” Not every current issue needs a new law. Better to create fewer, but technically better and foreseeable sustainable laws.
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