A free society needs a foundation. Part 7

I first published this series of articles in the German-speaking area under #freie-gesellschaft. I started the attempt to translate this article series also for the English-speaking countries. I have only a limited command of English and have therefore used a translation program. However, many terms are very difficult to translate because there is no clear translation for some words. I hope, however, that at least the meaning of the content will be understandable.
for the English readers I will open the section #free-society

According to many people, jurisprudence is a dry and incomprehensible field of expertise. However, if you take a closer look at it, jurisprudence can also be exciting, humorous, dramatic, chaotic, so there is something for everyone.
What is certain, however, is that this subject and specialist area concerns every person who wants to or must make a living in a socialised living space.

Today's contribution to the series #free society also leads to a thriller, which in #my case is eagerly awaited by some readers. Therefore this amount is dedicated apart from all interested ones in the special @arglf @stehaller @freiheit50 @balte @saamychristen @uruguru @wissenskrieger @seo-boss @luegenbaron. If I should have forgotten someone, one may look me up this.

But now I would like to turn to natural law in the German "Grundgesetz", so that part 7 of the series #free-society does not become too lengthy.

In the parts 3 to 6 the natural law was compiled and in fact in the form, in which it can serve as axiom for all so-called "human rights". These can be derived from the axiom by means of syllogism and are thus derivatives of natural law. This circumstance saves us many individual studies on "human rights".

Before we turn to the three questions that guide the presentation of the research results in later publications (more in Part 8), it is important to point out that the essence of natural law can not only be misunderstood, but also lignified. This is done by omissions in the systematics and logic of its presentation and by a lack of knowledge of relevant causal connections. An example of this is the German ""Basic Law"".

The "Basic Law" (GG abbreviated in the usual way in legal texts - and so also in the following -). is the organisational scheme of the Federal Republic of Germany.
The GG begins with the sentences:
"The dignity of man is inviolable. It is the duty of all state authorities to respect and protect it.

This sentence stands in the tradition of the European Enlightenment and therefore gets its good sense. Since Friedrich Schiller, however, we have known that dignity is a characteristic of only a few people. For it is the expression of a sublime attitude of which not everyone can say that he has it. Therefore, the question must be asked: Should only the worthy be respected and protected according to the Basic Law? Should it not have been simpler and more appropriate to the matter: "the individual endowed with freedom must be respected and protected", by whomever. If only the worthy are to be respected and protected, who then respects and protects me?

The natural law principle developed above - its content appears somewhat confused in Article 2/1 sentence 1 (generality and freedom) and Article 3/1 GG (equality) - naturally already applies before and independently of state societies. For it formulates a right founded in nature. One could give the state constitutions a purpose based on this one principle. Thus with a briefly formulated statement a constitutional text could be considerably compressed and reasonably introduced. How, on the other hand, does the Basic Law proceed in its Articles 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 12, 12a, 13, 14, 16a, 16a, 17, 103 and 104?

Just like the international lawyers (the creators of the Human Rights Charter), the German creators of the constitution appoint derivatives of natural law (merely derived rights) as "fundamental rights". The principle of natural law is replaced by the "fundamental rights" contained in it as derivatives. The enumeration of derivative "fundamental rights", i.e. rights which even the weakest lawyer - in the sense of weakly understanding - can derive from the principle of natural law (see Part 6), would actually not be necessary and already has something like a clipping school. Mankind can do without such proclamation.

Even if one does not identify oneself with the view of the renowned professor of law Josef Esser that every programmatic enumeration of so-called fundamental and human rights is a "thing for demagogues", the diligence with which human rights and fundamental rights creators approach this activity is questionable.
A state constitution that lists mere legal derivatives beyond printed pages does not exactly appear to be the most intelligent work of human creativity. What could a socio-political organisational scheme be for a clear cause, if it could save as much text as the basic rights of the German "Basic Law"!

And the fact that this is not the most intelligent work of art is proven by the fact that this idea of time itself is conspicuous and that it is not counted among the enlightened circle of intelligentsia per certificate holder.

In addition: We humans use still substantially more and completely different nature rights than those, which stand in the human right charter or in the GG. We simply take the rights without ever getting permission from the Charter or the Basic Law. And nobody should stop us. We cannot claim the same legitimacy as for the few rights listed in the Charter or in the Basic Law for those rights that are not explicit in the Charter or in the Basic Law, but which can be derived subsumatively from the principle of natural law. And in many cases this leads to a restriction of individual freedom.

The legal restrictions which the Charter and also the Basic Law bring about with the formulation of what is called the legal basis of mankind are obviously historically conditioned. Because the "fundamental rights" were not consistently established and clearly formulated on the basis of the three principles of natural law, the human rights part of the Basic Law was hardly properly understood, as was, incidentally, the human rights charter itself. Sooner or later both had to degenerate into a weak-chested message of salvation.

Because in Article 2/1 the Basic Law replaces the free development of life with the "free development of personality", in Article 2/1 a "right to life" must again be formulated separately. If we read in Article 2/2, sentence 2: "The freedom of the person is inviolable", this means that the inviolability of human rights (Article 1/2, sentence 1) had not yet taken this freedom into account.

"These rights [fundamental rights] may only be interfered with on the basis of a law", it says, when it should be called "must". For everyone can claim natural law for himself, from which conflicts automatically arise (see Part 6 of the series #free-society ). These conflicts can only be neutralized by legal norms ("laws") (we will learn more about this in later publications). Hence the "must".

The example of the principle of equality shows how far away "fundamental rights" can be from the same right to free development of life for all. "All human beings are equal before the law", it says in Article 3/1, but not according to the ideas of other articles of the Basic Law. The class of the "sovereign trade" (Ulrich Lohmar, 1978), which derives from the imperial tradition of servants, was a little duped by the terrible time of the Third Reich, although not disenfranchised. In 1949, in the new version of the German constitution, its privileges were laid down anew in Article 33/5 of the Basic Law. Now it is clear why (apparently?) the principle of equality - already explicitly formulated in Article 3/1 GG - has to be invoked again in Articles 33/1 to 33/3 GG.

The German constitution undoubtedly justifies privileges, via Article 33/5 GG indirectly also the permanent privilege for the state personnel. This privilege is usually justified by the "sovereignty" of the tasks assigned to these personnel (the concept of "sovereignty" is dealt with separately). What effect does this have in individual cases?
A reasonably comfortable privilege for the supreme civil servants based on "personal protection measures" is, among other things, the provision of a considerable fleet of vehicles for the period after their retirement. "Gerhard Schröder has the most, Helmut Schmidt the most modern and Helmut Kohl the thickest cars... Thus Schröder (SPD) has seven vehicles at his disposal, including several Mercedes limousines and two VW T5 transporters. Schmidt (SPD) is content with four cars, but two of them were particularly expensive, namely 94275.55 Euro each for two Mercedes 420 cdi. Kohl (CDU), on the other hand, travelled most comfortably of all, he had three Mercedes 600 SELs, albeit somewhat older, as well as three smaller Mercedes models" (SPIEGEL, No. 46/2012). In view of this life of milk and honey, many people could become really jealous.

It is already violent, with which Chuzpe state functionaries and civil servants use the so-called "equality before the law" on the basis of art. 33/5 GG for themselves. If their old-age pension is already exclusive in itself, it mocks any description how, for example, in reunited Germany all former West German civil servants who now serve in the east of the country have not adapted their old-age pension to the lawful place of employment, but have invented a place of employment in the former West of the republic by bad tricks. They thus enjoy better pension privileges which are not actually due to them at their place of employment. Against this background, it is understandable that state services are only available at exorbitant prices: About half of the gross national product of German society goes to the state (later articles will be very precise here).

Privileges are special rights. Special rights can be of a private nature. Then they are the responsibility of the legal authorities. If, for example, a master gives his servant a position that cannot be terminated, then this is a question of his private disposition and his private budget. But special rights can also be granted by state law. Then they are always a scandal, because all citizens are unintentionally liable for them. Speaking of the state as a "constitutional state" is a misleading of the public as long as there are privileges laid down in public law.

It may be interesting in various respects that the German parliamentarians have recently also tried to classify themselves in the class of the "sovereign trade". Now German parliamentarians do not simply count as state personnel. But not because they may not enjoy its privileges, because they may, but because they also have extra privileges, some even with constitutional rank: to use the post bus or the railway without paying (Art. 48/3 GG; s also Art. 46 and 47 GG). Here any comment is superfluous.

Anyone who is often professionally involved with public authorities and state-owned enterprises knows that the billions wasted on the state (see SPIEGEL, 38/94 ff and the numerous publications of the Association of German Taxpayers) are largely due to the permanent privilege of state officials. The mistakes made by state personnel are considerable and usually have no consequences for those responsible. Speaking examples for this are the "tax graves" Berlin Airport, Hamburg State Opera and Stuttgart Central Station to name but a few. The series could be continued for a long time to come. The permanent privilege is the most fatal of all privileges, because it means billions of national wealth with nothing you nothing disappears in somewhere.

To article 3 GG still is to be supplemented: The statements in paragraphs 2 and 3 follow directly from paragraph 1. Nowhere is a reason given why the same - in other words - is said again in these paragraphs. Moreover, sentence 2 of Article 3/2 is not a fundamental right, but an instruction to the State to do something specific.

Article 4 of the Basic Law also contains only conclusions from earlier provisions, so paragraph 1 follows from Article 2/1, paragraph 2 from Article 1/3 and paragraph 3 from Articles 2/1 and 2/2. The same applies to Article 5: its paragraphs 1 and 3 follow from Article 2.
Article 6/1 provides for a privilege unless it requires what is already provided for in Article 2. The word "special", however, refers more to a privilege. - With regard to Article 6/2, what kind of formidable living being is "the state community" that can watch over parental duties? The concept of community is apparently here subordinated to a kind of entity (an introduction to later articles), which is able to carry out special acts. Article 6/4 discriminates against fathers. Article 6/5 is consequentially derived from Articles 2 and 3. It therefore remains incomprehensible why a separate fundamental right must be formulated again here.

Article 7 violates in parts completely the right to free personal development according to Article 2/1 GG, already because it starts from the existence of schools as educational institutions to be used generally and thus discriminates against other educational pathways. The "supervision of the state" over the educational institutions is interpreted in subsequent laws in such a way that the state may exercise compulsory schooling.

The statements in Articles 8, 9, 10, 11 and 12 of the Basic Law follow directly from Article 2/1.
However, the articles of the Basic Law contain not only fundamental rights, but also prohibitions. With Article 8/2, for example, the right from Article 8/1 can be prohibited. The same applies to the right in Article 9/1, which according to Article 9/2 is limited by a prohibition.
Article 9/3 grants a privilege to one party to an employment contract and thus discriminates against the other party. The fundamental right under Article 10/1 is limited: by Article 10/2, which allows this right to be destroyed. The statement on the right of free movement in Article 11/1 is similarly contradictory in comparison with paragraph 11/2.

Article 12/1 follows directly from Article 2/1 but contradicts it in Articles 12/2 and 12/3, since it contains a contradiction with the restriction formulated in paragraph 2. Freedom and obligation to pursue a profession are mutually exclusive. A society cannot want both at the same time. The contradiction becomes even more obvious if we add Article 12a, which was inserted later. There the profession of soldier for men is prescribed - at least for a certain period of life - (at present suspended, but some parties have this again in the party book, one will see) The original form of the GG would have permitted only a professional army! With the creation of Article 12a, one took (for lack of better knowledge?) refuge to an ancient people-under-weapons ideology, which had been revived by post-revolutionary France. This does not change even if one tries to justify its inclusion in the Basic Law with the expectations or compulsion of the Allies. - Because one could have taken it out again on the occasion of the time- and cost-intensive revision of the constitution by two high-calibre occupied constitutional commissions.

Article 12a of the Basic Law also contradicts Article 3 of the Basic Law (principle of equality) because it indirectly favours a section of the population. Article 3/2 of the Basic Law states: "Men and women shall have equal rights". Similarly, Article 12a of the Basic Law grossly contradicts Article 33/1 of the Basic Law, which states that "every German" has the "same civic rights and duties".

The German legislators should have noticed just how blatant the contradictions here are when the so-called "community service" (civilian service) was introduced at the latest. Now the following situation can occur: A young couple, the same school year and the same time of the journeyman's examination, intends to work in the same profession (hairdresser). They want to become self-employed there. While she can now fully tackle her career (journeyman's and master craftsman's examination, saving money for setting up a business, etc.) and possibly achieve her goal in one go, he is compulsorily obliged for a certain interim period by "alternative civilian service" to a profession which is foreign to him and not desired by him, e.g. geriatric nurse. Only then may he think about his intended career again. - Against the background of such contradiction one must let the newly introduced so-called anti-discrimination law melt in one's mouth.

I will spare myself the disclosure of the contradictions, inconsistencies and proofs in Articles 13, 14, 15, 16a and 17a (in later articles they become obvious anyway). The dilemma arising from the simultaneous application of Articles 2/1 GG and 123/1 GG is far more consequential. Article 2/1 lays down the right to the free development of one's personality. Article 123/1 reaffirms the "public law" already in force before the end of the war, but also the private law often modelled by the Nazis, in particular the "Civil Code" (BGB), as well as its subsidiary and supplementary books. What causes a dilemma here?

Due to Article 2/1 of the Basic Law, freedom of action must unconditionally apply, e.g. to conclude agreements and contracts freely. It must apply if it violates neither "the rights of others", nor the "constitutional order", nor "the moral law". According to Article 123/1 of the Basic Law, however, the "public" and civil laws should also apply.
Even if one takes into account the limits just mentioned by Article 2/1 GG, laws would have to fall by the dozen because they do not satisfy the condition laid down in Article 123/1 GG not to contradict the "Basic Law". Because consistently all "public" and many civil laws do not prescribe any mandatory norms for action, but also those which can be enforced - for instance by a fine or imprisonment for curtailment. These are not patterns to be freely adopted by the citizen, but forced regulations (we will see in more detail later).
Enforceable norm specifications of positive law are irreconcilably opposed to the personal freedom proclaimed in the "Basic Law". In most cases, the civil legal requirements are not free offers for agreements and contracts, but imposed commandments (as this will be understood later), not to mention "public law", of which the philosophy of law says that it is a pure "right of command". These laws are diametrically opposed to natural law, according to which freedom of agreement must be unrestricted. In principle, regulations of positive law that are not self-determined (i.e. can be circumscribed) are always contrary to a principle that establishes freedom of personality. They ultimately amount to coercion.

As Roberto Natale Haslinger (2009) in particular pointed out, the most serious consequences for the German legal and state system result from Article 19 of the Basic Law. (Anyone who knows the pseudonym from Zeitgedanken knows who is more named. Zeitgedanken, however, continues to write in Dritter Person) This article deals with the legislation of the German Federal Parliament. It refers to any law that restricts the "fundamental rights" listed in the "Basic Law" in any respect. And more or less everyone is affected, especially the right to vote. Article 19 of the Basic Law reads under paragraph 1, sentence 2: "In addition, the law must state the fundamental right, stating the article". The sentence was expressly included in the German Federal Constitution - as the "fetter of the legislator" (Thoma Dehler, one of the constitutional fathers).

Haslinger recognises that this sentence "is a mandatory provision and a condition of validity which must be fulfilled by the legislature in order to avoid the invalidity of such a law [which restricts "fundamental rights"]". Now this provision - presumably because of the complexity and contradictoriness of the statements assembled in the German Federal Constitution - has already been ignored in the first legislative projects of the Parliament. This has consequences not only for the legitimacy of most German laws, but also for the legitimacy of the legislative parliament itself. For the parliament owes its existence to an electoral law which does not fulfil the validity requirement mentioned in Article 19/1 sentence 2, i.e. that it is legally void (but more on this in later articles of the series #free-society and quite clearly and empirically in my case). But not only the obvious contradictions of the articles of the Basic Law against each other, but also the lack of conceptual clarity in the individual articles have serious consequences for the relationship of the state to the citizens and also for the everyday interaction of the citizens with each other. A lack of clarity regarding legal concepts has always had an influence on the nature and form of legal conflicts. If there is no legal clarity, friction surfaces arise even where they would not actually be necessary. Here a rich potential for irrational and senseless arguments can unfold, which gives the lawyers high incomes.

The formulation of natural law given in Part 6 allows the separation of the wheat from the chaff in the Basic Law. This means that all provisions that are not genuinely rooted in natural law must lose their status as "fundamental rights". And in addition: Those provisions which were clearly not found in the nature of man by the creators of the constitution, but - e.g. in the form of commandments and prohibitions - in a way invented, i.e. originally set, would have to be banished from the "fundamental rights" and added to the statuary law (which will be described in more detail in later parts of this series).

The "fundamental rights" in Articles 1 to 19 and 103 to 104 of the Basic Law were to be analysed against the background of the principle of natural law. The inconsistencies that emerge are partly due to the fact that the "Basic Law" does not clearly distinguish between natural law and statute law. This thwarted the exact distinction between what belongs to pure natural law and what belongs to statutory law (art law). This had to lead to contradictory statements. In particular, it was not seen what an important function statuary law has in view of the Janus-headedness of natural law (see e.g. Part 6 and even more clearly in other publications).

It would now be further questionable whether the articles of the German constitution (which essentially represent rules on the structure and function of the state apparatus) which have not been considered so far in this publication are compatible with natural law. An investigation of this question cannot be carried out here in its entirety. However, in individual sections of the main section I will return to one or the other article of the Basic Law.

The more thoughtless the foundation of a social status is, the more madly the consequences are. The irrationality and pointlessness of the conflict between conflicting parties is intensified when lawmakers muff the foundation of reasonable forms of conflict resolution. This has happened and continues to happen as a result of the Basic Law to such an extent that even the "experts" often no longer understand anything. Hundreds of lawyers and consultants mix up the basic legal chaos in the interest of their clients. - It does not speak in favour of a constitution if a legal community degenerates into an advocate regime on the legal basis created by it.

I am now saying goodbye and working on Part 8.

Have a nice Sunday,

Your @zeitgedanken

#free-society #anarchy #freedom #voluntaryism #utopian-io