Judicial Protection of Civil Liberties in Germany
| Author | Charles R. Foster,George Stambuk |
| DOI | 10.1111/j.1467-9248.1956.tb00953.x |
| Date | 01 January 1956 |
| Published date | 01 January 1956 |
| Subject Matter | Article |
190
NOTES
AND
REVII'W ARTICLES
to social
groups
or
political parties. are liable to triumph over the polic> advocated by the
Church. It follows that when we refer
to
'Roman Catholics' in the context
of
any particular
piece
of
political action, we generally mean
some
group
or
groups
within that Church. and
not the whole body
of
its adherents. The question
of
Roman Catholic schools has often
arisen in British politics over the past seventy years. It might well be imagined, therefore,
that there would have been a well-organizcd machine
to
handle these matters,
but
investiga-
tion has provided no evidence
of
this.
JUDICIAL PROTECTION
OF
CIVlL
LIBERTIES
1N
GERMANY
CHARLES
R.
FOSTER
AND
GEORGE
STAMUUK
Iritliciriii
Utiirrrsity
Tur:
Bonn Constitution1 attempts
to
protect the civil liberties of the Gcrnian citiren not
only by the assertion
of
rights independent of the state hut
also
by endowing the judiciary
with the key
role
in protecting pcrsonal freedom from
governmental
interference and from
infringcinent by anti-democratic forces.
In
contrast
to
the ill-fated Weiniar constitution,
whose hill
of
rights was merely
a
policy declaration, the basic rights arc moved
to
the
head
of
the Constitutional document and
;ire
decl;ircJ
binding on
all
state activity including
amendment of the Constitution itself.'
I
he courts, whosc independent position is guaran-
teed, are expressly assigned the functioii of protecting thc rights
of
thc individual and
the
deniocratic systcin:'
The
Bill
of Rights (Articles
1
-19)
of
the I3onn Constitution is similar to that
(~f
other
modern democratic constitutions, except that some rights are included which in countries
that have not had the experience
of
a total dictatorship arc takcn as a matter
of
course
rather than as constitutional privileges. Among these first and foremost is inviolability
of
human dignity, from which
arc
derived
all
othcr
hasic
rights. I'rcedom of moccnient, free
choice
of
occupation. frecdom from arbitrary
forced
I;ihour.
:ind
frcc
tlcvclupmciit
of
personality may
also
be includcd
in
this
gicitip
Rights which
arc
hcrc expresxd
in
a
forni very siiiiil:ii-
to
th:it
Iound
in
otlicr
Li)ii\titutioii\
are the right
01
citizenship, frecdoni
of
a\wnihlq. inviol.ibility
01
dwelling. equal pl.otectioii
of
laws,
and a prohibition of discrimination on the basi.;
of
sex. race. Iangriagc. origin. and
political opinion. Freedom
of
faith includes freedom
of
profcs\ing religious
;tiid
ideological
beliefs, undisturbed religious practicc. and the right
of
conscientious
objcctols
to
refuse
combatant service. Speech, press. r;idio, and motion-picture reporting are free and there
is
an absolute prohibition
of
prior cenwrship. There are further guarantees of frecdonl of
art.
science, research, and teaching. including
thc
right
of
teachers to refuse
to
teach 1-eligion
and the right to establish 'adequate' privatc:
si-hools
if
no discrimination on the basis
ot
wealth
of
the parents is practiscd.
Grundgesetz fiir die Bundesrepublik Deutschland'.
Hirrii/~,sgc..\c,r-hlirtr
I,
No.
1
(23
May
1949).
There
is an English translation in State Department Publication
No.
3526.
The
Uoriri
Constitrrriori:
Basic
Low
for
the
Frdrrcrl
Rrpithlic
of
Gcrrriiiriy
(Washington,
USG
PO,
June
1949).
See Arts.
1
and
79
(3).
It is interesting to note that the Western Powers. in approving the newly-drafted
Con-
stitution in
1949,
devoted their primary attention to the question
of
federalism rather than
to the principles concerning the maintenance of liberty. See
OMGUS.
Civil Administration
Division,
Documents
on
the
Cretifiorz
of
tho
Frderul Grrnzcin
Constifirfion
(Berlin,
1949),
pp.
108-35.
To continue reading
Request your trial