Thursday, February 11, 2010

Human Dignity and Social Welfare

Unlike the US Supreme Court, the German Constitutional Court (the Bundesverfassungsgericht in Karlsruhe) rarely makes national headlines. Two days ago it did. On Tuesday the court rendered that German social welfare benefits violate in part the dignity clause of the German constitution.

In 2005 the infamous German Hartz IV Act had significantly lowered welfare benefits. The Federal Constitutional Court (FCC) had to decide whether the benefits are so low that they unable especially the receiving children to lead a dignified human existence. The spectacular thing about it, discussed nationwide, was that the court said that they do. But that´s not so spectacular. The spectacular thing is that the court discussed whether the degree of social benefits does or does not comply with the constitution in the first place, that it categorized the issue before it as legal.

The German dignity clause in Sec. 1 is the highest provision of the Grundgesetz. It´s the supreme provision of the supreme law of the land, the most basic of the basic law(s). It was introduced after (and meant as a direct remedy against) the horrific crimes of Nazi Germany it sought to prevent for the future. The fathers (and the two mothers) of the German constitution meant the "Third Reich" when they formulated that human dignity is untouchable.

In this light, you could say that the constitution does not say anything about the issue before the court. And you could say that how much social welfare benefits a child should get is a question of morality (church) and politics (parliament), but not law (courts). Of course, you´d have to be an Originalist to say that. And that´d be a tough call. But the alternative is to turn all politics into law. And that not only weakens the persuasive authority of the law (that might be neglectable), but it also weakens the political discourse (in the latter you can participate without a law degree). Therefore my ruling would have been: Whether social welfare benefits maintain a dignified human existence is for the volonté des tous to decide, not the German Constitutional Court.


  1. Very interesting, Viktor. Fascinating.

    So am I correct to interpret your view as being that the correct/just/proper level of social welfare benefits is a matter for Parliament, not the Constitutional Court, to decide?

    If yes, how do you respond to the argument that the Constitutional Court should necessarily decide issues like these because the underprivileged cannot ever hope to receive a fair audience in Parliament--precisely because they are underprivileged, deprived of the requisite resources to lobby Parliament, and are unlikely to be regarded by politicians as a constituency deserving of responsiveness from parliamentarians?

  2. I think your argument is terrific. It´s the best argument against mine. And that is not politeness towards a colleague, mind you. It´s so good an argument because the very rationale of the German Constitutional Court, and of any such court perhaps, is exactly that: These courts embody the protection of the minority, it´s what they are there for.

    And it´s a pillar of basic right theory, too, that they serve minority protection, in short: (as my con law teacher used to say): constitutional rights are minority rights. So I couldn´t agree more. I believe the only thing where I disagree with the argument you present is this: Basic rights are minority rights, but they are only if the provision actually demands their protection, in other words: The law has to be interpretable in this way. Since I argue that Sec. 1 of the German Grundgesetz does not demand this particular protection, the minority argument cannot contradict my argument which is, of course, the argument of an (extreme) positivist (and the latter is a very debatable position).

    Therefore: I´d say if the constitution cannot be interpreted in a way that it demands for children to receive a certain amount of welfare benefits (that was the case before the court), the fact that underprivileged children do not receive a fair audience in parliaments (and it is surely a fact they don´t) has to be solved politically. Or remain unsolved, politically. Is this fair? No. Is it lawful? I´d say yes.


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