The Political and the Basic Law'sSozialstaatPrinciple—Perspectives from Constitutional Law and Theory

Abstract

The welfare state aspect is among the central characteristics of German statehood as established by the constitution. For the Basic Law's drafters, it was so indispensable that they included the mandate of a welfare state in the catalogue of constitutional principles which are to have eternal validity within the constitution and which could only be dispensed with at the cost of breaching the constitution, the cost of revolution (Article 79(3) of the Basic Law (Grundgesetz in German; hereinafter “GG”)). Article 79(3) GG codifies the distinction between constitution and constitutional provision made prominent by Carl Schmitt, whose constitutional doctrine of 1928 asserted that, while the constitutional legislature can amend an individual provision in the constitution, the constitution as a whole is not to be changed short of political action transcending the law, that is, a revolution. Article 79(3) GG takes up this idea, insulating certain features of the constitution from amendment. These features—outside all democratic reach and thus quasi depoliticized—include the inviolability of human dignity (Article 1(1) GG) and the nature of the state as a democracy, a republic, a federal state based on the rule of law, and a “social” state (Article 20(1) GG). On closer scrutiny, the principles underlying the state's structure reveal a significant difference between, on the one hand, the principles of democracy, federalism, the rule of law, and republicanism and, on the other, the principle of the welfare state. The four former features stem from long traditions in constitutional law; modern political philosophy has detailed them precisely and the Basic Law concretizes them in thorough regulations. In contrast, the political history of ideas has failed to produce a “flag-bearing” thinker for the welfare state. The establishment of the welfare state has played no significant role in constitutional history. And, on first glance, even the Basic Law seems to provide hardly any specifics as to what exactly makes up its “social” state or, in particular, what normative consequences follow from this constitutional principle. This raises the question: What actually justifies the principle of the welfare state's illustrious position among those constitutional entities endowed with highest relevance? The following discussion develops the answer: Regardless of its limited historical and theoretical traditions, the principle of the Sozialstaat finds its meaning beyond its doctrinal content in its own distinct, symbolic substance.

Consistency and Law Comparison in Consumer Protection Law Design in the Light of the Socially Responsible Market Economy Approach

“…It was developed to its recent form through the various modern constitutions and through the jurisdiction of the Federal Constitutional Court "Bundesverfassungsgericht" (King, 2014:25). In German constitutional law, the social state principle is a postulate in need of fulfilment as a state objective (Heinig, 2019(Heinig, :1889, from which state duties to protect and citizen rights of participation are derived. The state fulfils the obligation arising from the social state principle by shaping the legal system in the light of an active and socially just social policy and intervening with it in the economy.…”

“…In this sense, the social state principle serves as a legitimisation of the state's intervention in economic freedom, without entitling the state to establish a total socialist market order Invalid source specified. or to maintain a given social status quo (Heinig, 2019(Heinig, :1889.…”

Judicial Activism

“…45 For example, the German Constitution expressly establishes the existence of a social state-see Article 20 (1), and Article 28(1)-and the Portuguese Constitution, although not expressly referring to a social state, in addition to establishing an extensive catalogue of social rights, states in Article 2 that the Portuguese Republic is a democratic state based on the rule of law with a view "to achieving economic, social and cultural democracy and deepening participatory democracy", and establishes several economic, social and cultural state tasks [see Article 9(d) and Article 81(a) and (b)]. About the Social State in Germany, see, amongst others, Heinig (2011Heinig ( : 1887, and in Portugal, see Novais (2011: 291 ff), Sampaio (2015: 145 ff). 46 See Whitman (2005: 108).…”