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The Blind Spot of the German Legal System

Essay published on disregard of worldview neutrality

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Cover section "Kirchenrepublik Deutschland"

In an essay on legal philosophy, philosopher and spokesman of the Giordano Bruno Stiftung Michael Schmidt-Salomon criticizes the disregard for the state's ideological neutrality and explains how the ensuing "illegitimate restriction of civil liberties" could be overcome. One issue he addresses is the responsibility of parliamentarians, who are by no means allowed to refer to their "religious conscience" in legislative procedures. Rather, they are obliged by the "conscience formula" of the constitution to follow the commandment of ideological neutrality.​

The 20-page article, which is of fundamental relevance for politics in a secular state, will appear in the autumn issue of the philosophy journal "Aufklärung und Kritik". It was already published today on occasion of the "99th anniversary of the democratic constitutional state" (the Weimar Constitution taking effect on August 14, 1919) on the website of the Institut für Weltanschauungsrecht (ifw - Institute for Worldview Law), which begins its activities on the subject of "100 years constitutional breach" with this publication. The text pointedly illustrates the extent to which citizens' freedoms are still being restricted by religiously based norms. It further determines the argumentative direction that secular thinking people should take in the coming years in both the political and legal spheres.

The fact that the various legal deficiencies, which are presented in the essay, have hardly been addressed in legal literature so far is attributed by Schmidt-Salomon to a "Christian bias": Given the homogeneous background of a Christian-influenced society, most legal experts do not even notice "that neither the laws of the state nor their legal interpretation meet the requirement of ideological neutrality". Therefore the "blind spot of the German legal system" can only now be recognized and corrected "in contrast to a largely secularized, dechristianized, ideologically pluralistic society".

Restrictions of freedom from the cradle to the grave

In the first section of his discussion, Schmidt-Salomon demonstrates the extent to which citizens' civil rights are restricted by irrational, empirically unfounded, and ideologically biased (and thus unconstitutional) norms - from the cradle to the grave, and even beyond, i.e. from embryo protection to the requirement to bury the dead in a cemetery. In contrast to the existing legislative regulations, the text illustrates how the provisions on abortion (§§ 218-219b of the German Criminal Code), on public education, on the labour market, or on euthanasia (§ 217 StGB) needed to be designed if they conformed to the constitution, i.e. if they met the "requirement of a rational, evidence-based, and ideologically neutral legal justification".

In the second part of the essay, the author examines how the disregard for ideological neutrality could be overcome. First, he emphasizes the importance of jurisprudence, whose "noblest task" should be to "systematically examine the legal order to determine whether or not the freedom of belief of all citizens is adequately taken into account within state norms, institutions, and practices". In this context, Schmidt-Salomon counters the often misinterpreted "Böckenförde Dictum" ("The liberal, secularized state lives on preconditions that it cannot guarantee itself") with an "alternative dictum": "The liberal, secularized state may not appeal to preconditions that it has not created itself, provided this leads to an illegitimate restriction of civil liberties."

In the domain of legal policy, the author criticizes politicians who, as soon as they run out of factual arguments, try to "put an end to all argumentation" by invoking Article 38 (1) of the German Basic Law. The Basic Law article states that members of the Bundestag "are not bound by orders and directives and are only subject to their conscience", which, according to Schmidt-Salomon, leads many parliamentarians to the "erroneous assumption" that this refers to their "private, possibly even religiously charged conscience". In fact, however, the constitution's "conscience formula", introduced in 1919 by a socialist deputy, does not at all aim at the private-religious, but at the "professional conscience" of a "professional politician" who should make his decisions "to the best of his knowledge and conscience", that is "as a representative of all people" and under strict compliance with constitutional provisions. As Schmidt-Salomon points out, the reference to "conscience" in Article 38 (1) of the Basic Law "certainly does not intend to free the members of parliament from the principle of ideological neutrality, but rather to remind them of this very commandment - and if necessary, in clear demarcation from the ideologically biased guidelines of their own faction".

No political majorities without non-denominationals

Towards the end of his comment, Schmidt-Salomon raises the problem that many politicians still act as if they live in a "church republic of Germany", even though the population share of "practicing believers" has now "dropped to a meager 12 percent". Considering the stable ideological trends of recent decades, it can be assumed that "the majority of Germans will no longer belong to any religious community within the next ten to twenty years", which is why in the foreseeable future political majorities can only be formed "in accordance with the interests of nondenominational citizens - not against their interests". The first party to realize this has the best prospects for the future.

By that time at the latest, according to the author, the "blind spot of the German legal system" could no longer be ignored, "the laws that violate the requirement of a rational, evidence-based, and ideologically neutral foundation will cease to exist". However, a constitutional state worthy of this name can not afford to eliminate clearly unjust regulations decades later. It is therefore necessary to "accelerate the change of the legal system - not only, but also with regard to a stronger consideration of the principle of ideological neutrality".
 

The complete essay on the "blind spot of the German legal system" in German language can be found here:
https://weltanschauungsrecht.de/blinder-fleck-des-deutschen-rechtssystems