Our Dignity in Your Hands

In an op-ed in the Frankfurter Allgemeine Zeitung of 24 January 2024, Friedhelm Hufen, professor emeritus of law at the University of Mainz, tries to calm people’s minds in difficult times: We don’t need a party ban. The Basic Law is sufficient to prevent even a party like the Alternative für Deutschland (AfD) from coming to power. The idea that intellectuals do not take the concerns of their fellow citizens affected by right-wing extremism seriously, play down real dangers or do not see them at all; this calmness frightens me. For some, the situation is only temporary. Don’t panic, Germany has already overcome many crises. For others, the danger is more palpable than before. For those affected, the question of how we respond to the AfD is not merely an abstract constitutional but an existential one.

The Dangers of Pacifying Rhetoric

Hufen talks about militant democracy (“streitbare Demokratie”), but writes about anything but. What if other parties started cooperating with the AfD? What if Björn Höcke was elected Prime Minister of Thuringia? What if the AfD gained a two-thirds majority in the Bundestag and could change the constitution? His answer: Our constitution is safe; its order is stable. Even if Höcke were to become chancellor with an absolute majority, the Basic Law would prevent bad things from happening. After all, it declares human dignity to be inviolable. What is more, the eternity clause (Ewigkeitsklausel, Article 79 III of the Basic Law) prevents the other central principles (the rule of law, democracy) from being subject to any parliamentary majority. Basically, Hufen says that what must not be cannot be.

In reality, it is highly unlikely that the AfD would stop at constitutional norms. The toolbox of militant democracy was precisely invented for this problem. It does not simply stand for the idea of public discourse or arguing for and against a cause. These are self-evident aspects of a democracy. When a political force attempts to disregard these basic rules, some militancy is necessary. This is precisely where its instruments come in. What is more, they strive to prevent such a force from coming to power in the first place. In terms of means, they provide, for example, for the banning of an anti-constitutional party or the forfeiture of the fundamental rights of its actors. “No freedom for the enemies of freedom” is not just a slogan, as Hufen believes. It is a promise and a mandate given to us by the mothers and fathers of the Basic Law. Because what must not be can be. Should Höcke come to power and society become sufficiently numb as a result of a disinhibited culture of debate, then neither the inviolability formula of Article 1 of the Basic Law nor the eternity clause will save us.

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Is Our Culture of Debate (Streitkultur) a Problem?

Hufen believes that we have to engage in democratic debate with the AfD. He identifies “cancel culture, wokeness, protection of cultural identity, safe spaces and so on” as reasons for its rise and as a threat to democracy. According to him, the “hypersensitivities” of “potential victims” lead to taboos that jeopardise fundamental rights and the “necessary openness of the democratic process”. In short: the danger to democracy does not come from the AfD but from “vulnerable minorities”. Of course, it must be possible to talk about everything in a pluralistic democracy. However, Hufen’s shifting of blame to minorities for the current evil is extremely worrying.

After all, he emphasises that despite the openness of the discourse, hate speech, defamation and humiliation must remain prohibited and anti-Semitism and racism must be combated. But what exactly motivates someone to highlight the dangers of “cancel culture” at this moment, of all times? If we allow “remigration” (as openly propagated in the texts of Höcke or the European election candidate Maximilian Krah) to be spoken about as if these were normal political demands, then the next step, a fully-fledged debate about mass deportations, is not far away. The increasingly harsh public discourse certainly does not bode well in this regard.

What is dangerous is not a lack of discourse on immigration. The existence of wokeness culture cannot justify the turn to racist groups and policies. The bitter truth is that people vote for the AfD not despite, but often precisely because of its ethnonationalist ideology. There are quite a few who would go along with the realisation of its inhumane plans. Cancel culture and the like are used as a pretext to allow them to present themselves as civil people. It is the AfD and other far-right actors who trivialise the real dangers and instead talk about what they are allegedly not allowed to talk about: the annoying sensitivities of minorities. It is not the sensitivity of some that is the problem, but the obvious urge of others to pound on these minorities. What do people actually mean when they say that issues such as migration should not be left to the AfD? Why does everyone across all parties keep repeating this phrase? Of course we have to talk sensibly about migration and integration. But you can’t prevent the shift to the right by moving to the right yourself rhetorically. If we play the game of right-wing extremists and move away from a respectful culture of debate towards an ugly, uncivil one, we are sure to end up on the road to fascism.

I cannot imagine how our fellow Jewish citizens must feel at the moment. However, Margot Friedländer’s reminder that this is how it started back then should worry us all and make us take the concerns of others seriously.

What Can We Do?

Now is the time to show whether we have learnt from history. For one, we can call Höcke, as testified by a court decision, what he is: a fascist. Yet, with our eyes wide open, we are still hesitating to do what is necessary? Of course, banning a party or disenfranchising a politician who is backed by a significant and sometimes radical electorate would not go down quietly. But what would be the alternative? Whatever we do, we should be aware of the danger: If we fail to defend our system of values based on diversity and tolerance “against the attacks of intolerance, then the tolerant will be destroyed and tolerance with them” – to put it brutally in the words of Karl Popper (Die offene Gesellschaft und ihre Feinde I: Der Zauber Platons, 4th ed. 1975, p. 609 f.).

The civil society protests give hope. But what are politicians doing? At the moment, little is known about what the government has in mind. In any case, the words “We must finally deport people on a grand scale” are eerily similar to “We will deport millions”. Olaf Scholz will certainly not mean it the way the AfD likes to imagine. But a chancellor must be aware of the impact of his choice of words. It could give “moderates” the impression that the idea of “remigration” cannot be so unconstitutional if an SPD chancellor speaks like this.

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The European Law Open is pleased to share a special issue “The Court of Justice of the European Union as a Relational Actor,” guest-edited by Anna Wallerman Ghavanini. Observing that the CJEU has been a key player in shaping European legal integration, the issue takes as its starting point that courts – and the CJEU is no exception in this regard – are unable to drive developments in isolation. Read the issue, which also includes a symposium on Commodification and EU Law, here.

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Even the opposition can’t seem to come up with anything but imitating the racist style of the AfD. I wish I could say it was a bad copy of the original. But the imitation is worryingly good. It has also recently moved closer to the AfD in terms of colour – “Rhöndorf blue”. And unsurprisingly, it is once again invoking the German “Leitkultur“. Haven’t we learnt what “culture” can do when it is perverted into an ideology? In these times of all times, when anti-Semitic conspiracy myths are running wild? Did not “Auschwitz irrefutably prove the failure of culture”, as Adorno said (Negative Dialectics, 1966, p. 357)?

The aim of all political and intellectual endeavours must at least be to prevent fascists from coming to power. If we want to promote a culture, then it must be a culture of dignity. A culture of the values of freedom, equality, solidarity, respect for one’s neighbour and justice. Democracy means arguing respectfully, not ruthlessly. In the end, anti-Semitism and racism do not only affect those who think, believe or look differently. They are the sure path to barbarism and the destruction of the liberal order.

Endangering People, not just the Constitution

I came to Germany 25 years ago with my mother and siblings to join my father who was seeking asylum. When I acquired German citizenship 13 years ago, it never occurred to me that it could be taken away from me again. With the “Declaration of Loyalty” I declared: “I am committed to the liberal democratic order of the Basic Law”. And further: “I have been instructed and questioned in writing and verbally about the significance of this commitment”. The official from the naturalisation office told me when I was handed the certificate that I should be careful not to do anything wrong. Otherwise I could lose my citizenship again. And then I am expected to remain unbotheren when parts of the AfD fantasise about expelling people who aren’t German enough for them, i.e. who do not correspond to their racist image of humanity. If AfD members were also required to make a “declaration of loyalty”, some of them would probably not even be citizens of this state. This is because I had to promise “that I will not pursue or support any endeavours (…) that are directed against the free democratic basic order”. The Federal Constitutional Court made it clear in the proceedings to ban the right-wing extremist party NPD and again recently in its decision on the financing of the NPD successor party that an ethno-nationalist view of the political is incompatible with human dignity because it would deny elementary equality to those “who do not belong to the ethnic ‘Volksgemeinschaft'”.

I am afraid for my mother, who, as someone who wears a headscarf, is a target of the fascists. She cannot defend herself against the racist, sexist and islamophobic AfD. Because of her social background, she was never allowed to enjoy an education. Being illiterate, she never had the chance to learn German properly. That is why she was not naturalised. That is why she has had to go to the authorities regularly for 25 years to apply for an extension of her residence permit. Even under current law, she worries every time she goes to the authorities whether she will be allowed to stay with her family. With the AfD in power, the realisation of this danger would only be a bureaucratic step. Because it would depend on the judgement of the responsible case worker. This example alone shows that, contrary to Hufen’s reassurance, the danger may be small for the constitution, but it is real for many people.

I am also afraid for my brother. Sitting in a wheelchair, in need of care and unable to speak, he can neither verbally nor physically defend himself against the AfD which is not just racist but also ableist. He does not have citizenship either. Yet even if he did: He remains the enemy of the far right. How are we supposed to remain unbothered when Alice Weidel speaks disparagingly of “headscarf girls and other good-for-nothings” in the Bundestag? When Höcke promises that we could cope in Germany with 20-30 per cent fewer people and is elected precisely for this?

You and I, like millions of others, depend on a strong civil society. We depend on responsible democrats; on conscientious politicians; on people who are prepared to make our dignity their own concern. The Basic Law protects human dignity in normative terms. But in reality it is in the hands of those who believe in the values of the Basic Law. We must not give in to the illusion that democracy will defend itself. Even the best of all constitutions cannot be sure of its own liberal order. It requires defenders of democracy. Those who remain silent now close their eyes to the alarming signs. Those who tolerate it now will have no excuses later. Especially not those who minimize the threat posed by the AfD or its plans; those who devalue and delegitimise the protest against it as exaggerated instead of working constructively on how to prevent fascism.

The Week on Verfassungsblog

The suspension of an ‘anti-discrimination clause‘ by Berlin’s cultural administration shows that the legal definition of anti-Semitism remains a matter of heated debate. While some call for state cultural funding to be linked to a commitment against anti-Semitism, others point to the potential for abuse of such a clause, for example, when it comes to criticising Israeli government policy. GWINYAI MACHONA used the controversy as an opportunity to take a step back, warning that the debate should focus on developing a conceptualisation of anti-Semitism. In this context, a racism-critical approach argues for including Jewish experiences more strongly in the formation of the concept.

From 14 February to 24 March 2024, pro-life activists around the world will once again hold so-called “vigils” in front of counselling centres and abortion clinics to prevent abortions. These protests not only stigmatise pregnant women and staff but also violate the personal rights of pregnant women who, in the worst case, cannot exercise their right to a safe abortion without fear of punishment. To prevent “street harassment”, the German cabinet approved a bill on 24 January. EVA MARIA BREDLER has taken a look at the draft.

More than 100 prominent women from politics, culture, and business have signed an “Open Letter” to the Federal Minister of Justice. They are urging him to abandon his “blockade” of a directive proposal by the European Commission. The directive for combating violence against women and domestic violence includes, among other things, a standardization in sexual criminal law, specifically in the case of rape. TATJANA HÖRNLE believes that the minister’s concerns are justified.

The Saxon police are arming up. After an armoured vehicle, they are now getting hand grenades and machine guns. In deliberation on the respective Saxon Police Enforcement Act, the Saxon Constitutional Court now finally declared some parts of it as unconstitutional. JAKOB HÄRTERICH critically evaluates the decision. Meanwhile, the German Parliament finally discusses whether one should better protect the Federal Constitutional Court. WERNER REUTTER warns against remaining gateways and simplified solutions while looking also at the regional constitutional courts.

MARTIN NETTESHEIM devotes a lengthy contribution to the functions of a party ban procedure. He criticises the case law of the Federal Constitutional Court, obscuring the prohibition standard in the 2017 NPD proceedings. The Court was “charging the concept of the free democratic basic order with a broad concept of the guarantee of human dignity”. Yet, the author would like to see a return to mere functional protection of the institutional order. MALAIKA JORES also indirectly discusses the question of the prohibition of a political party. Concretely, she examines the recent decision by the German Federal Constitutional Court, the Second Senate, which for the very first time prohibited state funding for the next six years to the political party “Die Heimat” (Homeland), a direct successor of the party NPD. Moreover, the Court also specified the conditions under Art. 21 (3) of the Basic Law enabling such prohibition.

At the European Union level, VASILIKI KOSTA and OLGA CERAN reflect on some recent proposals by the European Parliament intended to advance the protection of academic and scientific freedom. They are cautiously optimistic that some of the proposed measures could address the concerns of stakeholders. JOYCE DE CONINCK, meanwhile, was not impressed with the General Court’s findings in Hamoudi v. Frontex, a case that could have clarified how FRONTEX might be held responsible for human rights violations committed during its shared operational conduct with Member States. Instead, the Court chose to impose an unreasonably high burden of proof on the applicant, with the effect of shielding Frontex from liability yet again.

In France, the government has been facing sustained protests against its new immigration law, which the Conseil Constitutionelle has now confirmed is partially unconstitutional. This wasn’t news to the government, which had acknowledged as much even as it proceeded with the law’s adoption. AURORE GAILLET and MICHAEL HEMPELMANN highlight the danger of this strategy for France’s rule of law.

In Norway, the Oslo District Court has rendered a seminal judgment that puts the brakes (for now) on the development of three oil and gas fields whose cumulative emissions would contribute to a 0.00023-degree Celsius increase in global warming. ESMERALDA COLOMBO  celebrates the decision’s success in enhancing state compliance with constitutional, lower-level legislation, and EU law. Meanwhile, in the Netherlands, the environmental group Milieudefensie has filed a lawsuit against the ING bank, arguing that the big banks must take their share of responsibility when it comes to financing fossil fuels. SIMON SIMANOVSKI explores how these legal arguments of duty of care and duty to maintain public safety work in a German legal system.

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On December 29, 2023, South Africa filed a lawsuit with the International Court of Justice (ICJ) against Israel for violations of the Genocide Convention in the Gaza Strip. On the second day of the hearing, the Federal Republic announced its intention to intervene in the proceedings on Israel’s side. The accusation of genocide lacks any basis, the German government argues. AMMAR BUSTAMI and VERENA KAHL see this step as a problem for Germany’s credibility in the multilateral system. PETER HILPOLD also deals with the provisional measures to which the court has obligated Israel and sees in the court’s orders a Solomonic decision and a further step towards the “humanization of international law”. ITAMAR MANN finally locates the court’s immediate measures within a larger project of US governance and sees in the provisional measures a potential tool for a two-state solution.

The “legalization” of the humanitarian space is also a concern for KRISTIN BERGTORA SANDVIK. Humanitarian actors are still hesitant and sometimes suspicious of regulation, litigation, and lawyers. Although the field is characterized by deep ambivalence, the juridification of the humanitarian sector continues to progress.

At the domestic level, the German government is considering reforming its legal framework on international criminal law, yet the current proposal is curiously missing a provision on the question of functional immunity for core crimes. FLORIAN SCHMID calls on the government to use this opportunity to clarify an existing ambiguity in this important area of law.

LIZ HICKS adds another perspective from Australia to our debate on civil disobedience in the climate crisis and asks what role courts have in processes of political change.

Finally, MARK DENG takes a look at the processes of constitution-making in South Sudan and urges a more “realistic” perspective. An inclusive process that involves the population at large is currently not possible due to various factors.

Online Symposium: Ruling Without the Power to Govern: Authoritarian Populism and Parliamentary Obstruction

What would happen if the AfD had a blocking minority in Thuringia? The Thuringia Project’s first Online-Symposium discusses parliamentary obstruction and authoritarian populism. CAROLIN LERCH and FRIEDRICH ZILLESSEN open the debate. While SVEN HÖLSCHEIDT examines possible obstruction in the 8th Thuringian state parliament, MICHAEL KOSS calls for consistent majority rule.

On the contrary, SOPHIE SCHÖNBERGER warns that the parliamentary majority, for its part, also could act abusively. Furthermore, she distinguishes between three types of obstruction. DAVID KUHN analyses the grounds and limits of the right to effective opposition. Finally, LUKAS C. GUNDLING proposes a right of self-nomination (Selbstergänzungsrecht) to solve a potentially gridlocked Thuringian Constitutional Court. In addition, while HENRIKE SCHULTE observes the “civil disobedience” of democratic parliamentary parties, LIZ HICKS adds an additional perspective from Australia, where the New South Wales Supreme Court in the Kvelde case reduced the democratic value of civil disobedience to what the author calls the “binary approach”.