For a while now there have been attempts to construct a dichotomy between the German constitution, the “Grundgesetz” (Basic Law), and natural law. Moreover: Proximity between natural law and totalitarian thinking is insinuated. What is demanded is a “right” to act out any style of living without taking into account what is good or bad for humans from an impartial standpoint. Instead a lot is reinterpreted in a liberalistic (or postmodern, post-factual or simply destructive) manner. The latest example is an article by Jan-Werner Müller, a German political scientist teaching in Princeton (USA), published on 26 August 2017 in the “Neue Zürcher Zeitung”. It is also obvious that we are witnessing the corruption of historical facts here; these reinterpretations are doing justice neither to the genesis of the German constitutional text nor to many of its articles.
The preamble of the “Grundgesetz” already is speaking of “responsibility towards God and man” – also of “serving peace on earth”. State and civil society in Germany are committed to the bonum commune, the well-being of all. Article 14 concerning the right of ownership even stipulates expressly that ownership is also an obligation and should “also serve the well-being of all”.
The German “Grundgesetz” is a liberal constitution, but no constitution of arbitrariness or relativism. If Article 2 grants every person living in Germany the “right for free development of his personality”, this is not speaking of arbitrariness limited only by the “rights of others” and the “constitutional order” but calls for commitment towards the “moral law”.
The “right for free development of his personality” cannot be seen isolated from the concept of man which is the basis of the ‘Grundgesetz’. The Federal Constitutional Court has stated clearly: “The constitution’s concept of man is not one of an isolated sovereign individual. Instead, between the poles of individual and community the “Grundgesetz” has decided for a centring and binding of persons towards the community, without reducing their individual value.”
In addition, Article 6 states: “Marriage and the family shall enjoy the special protection of the state” and “the care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them”. Additionally, if Article 20 binds the executive power and the jurisprudence not only to the law, but also to the right, then this alone makes it clear that the Basic Law is value-oriented based on the social nature of man, which cannot be understood as postmodern. The value orientation is well-founded on natural law. Article 1 of the constitution makes this clear: “Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.”
When the mothers and fathers of the “Grundgesetz” decided against a clean liberalism and positivism and for an orientation based on natural law, they had in mind the National Socialists’ despotism and tyranny, but also the unfortunate transition from a rather liberalistic and positivistic Weimar Constitution to this dictatorship. The substance of Article 1 (human dignity and avowal of human rights) and Article 20 (principles of democracy, of state of law, of federalism, of social state, division of powers and right to resist) may never be challenged again within the framework of this constitution. After all, the National Socialists had succeeded in unhinging the basic rights of the Weimar Constitution, the division of powers and finally the complete constitutional order in a “formally correct” manner, brutally suppressing any resistance against it.
Attempts to create a dichotomy between natural law and liberal-democratic order are part of a political campaign aimed at retaining power through confusion. The opposite is true: natural law is an essential basis of the liberal-democratic constitutional and social state – and a protection against a new absolutist dictatorship in a liberalist-postmodern disguise. •
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