Chapter V: Fundamental Rights and Duties of Germans (1)

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.

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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.

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_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.

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_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.

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_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.

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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.

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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.

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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.”

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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.”

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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.

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