27 October 2023

Special Law

This is a time of grief, fear and confusion, and three weeks after the Hamas terrorist attack on Israel, I do not feel ready to throw out strong opinions with regard to Israel’s reaction, the protest against it and the repression of this protest. At the same time, the 9/11-like force with which the coordinates of what is prohibitable seem to be shifting at the moment, particularly here in Germany, takes my breath away. What is going on here beneath our feet?

Large parts of politics and public opinion in Germany suddenly seem to accept as a matter of course that the answer to the question of how far the protection of freedom of expression and assembly extends is not to be sought and found in certain norms of constitutional law, but in something called “Staatsräson” (reason of the state). What exactly is that supposed to be? The security of Israel, I completely agree, must always be in the interest of the Federal Republic of Germany. But how can a foreign policy interest of the state be constructed as a justification for restricting the fundamental freedoms of its residents and citizens right on the territory where German constitutional law applies? How is this legally done? By which procedure has this limitation of fundamental rights been put into effect? Or is it perhaps already implied somewhere in the constitution, and if so, where and how exactly? Honestly, I don’t get it. Can someone please explain it to me?

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The CDU wants to make the denial of Israel’s right to exist a punishable offence. I have, to state the obvious, no sympathy with people who deny Israel’s right to exist. And I can also understand the annoyance people may feel at the need to go out and start a counter-demonstration against the deniers so that they do not go unchallenged. If only one could call the police! But as we all know, the Basic Law protects, within the limits of “general laws”, the freedom to publicly express even the most abhorrent opinion. By means of general laws, the state can do what is appropriate, necessary and proportionate to regulate the dangerous effects the expression of an opinion may have on a certain Rechtsgut (roughly: legal interest), which of course includes, in particular, the safety of Jews in Germany – it’s horrible enough that they aren’t safe already. But what the state cannot do is enact a Sondergesetz (special law) that directly prohibits having and expressing a specific opinion. That is categorically forbidden under Article 5 of the Basic Law.

The Hessian Minister of Justice, Roman Poseck, who has put this new criminal norm on the agenda of the next Conference of Ministers of Justice on 10 November, is according to a press report taking the view that denying Israel’s right to exist is not an opinion at all, but a false statement of fact: international law guarantees Israel’s right to exist, and anyone who denies this is asserting a false fact. It is not difficult to guess how he arrives at this: The denial of the Holocaust, as we know, is  punishable in Germany, and that is because it is indeed not an opinion about how reality should be, but an assertion of how reality already is, and an evidently false one at that (on the slightly more complicated matter of Shoa trivialisation, see here). That this line of argument cannot be applied to the denial of Israel’s right to exist is obvious. Whether or not something is legally valid can never be a question of fact, as anyone who has undergone any legal training at all should know in their sleep.

The prohibition of special laws does not hold without exception. In 2009, in a spectacular and highly risky intervention, the Federal Constitutional Court ruled that there is one opinion that can indeed be prohibited by means of a special law, and that is the opinion that the National Socialist rule of violence and arbitrariness was to be approved, glorified or justified. The National Socialist regime of violence and arbitrariness, the Court argued, was not just any regime on which a person could have this or that opinion, but was “of counter-image significance for the constitutional order of the Federal Republic of Germany”. The Basic Law came into being as a “counter-design” to this regime and was “designed in its structure, down to many details, to learn from historical experience and to rule out a repetition of such injustice once and for all”. Taking the side of this regime was therefore not an opinion whose dangerousness could be controlled by means of general laws, but as such “an attack on the identity of the community internally with peace-threatening potential”.

However, according to the court, this only applies to the glorification of the historical Nazi regime of 1933-45. As far as the Nazi ideology in general concerned, the Federal Republic must be able to cope with it without recourse to special laws. The Basic Law contains “no general anti-national-socialist fundamental principle”, the Constitutional Court argued, contradicting the Münster Higher Administrative Court with which it engaged in an ongoing feud at the time over the matter of banning Nazi demonstrations. “On the contrary, the Basic Law, trusting in the power of free public debate, grants freedom of opinion in principle also to the enemies of freedom.”

At the time, there was no lack of liberal voices that considered this exception dangerous. Once you start with those, they said, you get the appetite for more. I didn’t believe that at the time. The ban on glorifying the Nazi regime, it seemed to me, is the exception that powerfully confirms the liberal rule.

I’m not so sure about that anymore. Isn’t the denial of Israel’s right to exist just as much “an attack on the identity of the polity internally with peace-threatening potential”? Why shouldn’t another exception to the rule be allowed for this? And if it is, how does that affect the rule that is so “schlechthin konstitutiv” (absolutely constitutive) of our democracy?

One exception confirms the rule. 25 exceptions confirm the non-applicability of the rule. Could it be that we are already somewhere in between?

The last two weeks on Verfassungsblog

The fact that “Palestine demonstrations” can and should be banned across the board and as a preventive measure seems to be something that a lot of people seem to be able to agree on remarkably effortlessly at the moment, and not only in Germany. CLEMENS ARZT clarifies the legal situation regarding assembly and constitutional law and sees a worrying repressive trend.

Deporting supporters of the terrorist organisation Hamas or even revoking their German citizenship – is that possible? ANDREA KIEßLING shows where the migration law limits lie.

WERNER SCHROEDER and LEONARD REIDER examine how online anti-Semitism can be effectively combated under the Digital Services Act.

PETER VAN ELSUWEGE is appalled by the way the European Union, especially Neighbourhood Commissioner Olivér Várhelyi and Commission President Ursula von der Leyen, communicated with regard to the Hamas terrorist attack and the subsequent war in Gaza, and sees reason to critically review how the Union presents itself to the outside world.

Fleeing from the horrible war in Gaza across the only border other than the one with Israel, namely the Egyptian, is impossible. Egypt does not let anyone pass. JAMES HATHAWAY explains why this is a violation of the ban on non-refoulement and thus clearly contrary to international law.

Israel has the right to defend itself, but in doing so it remains bound by international humanitarian law. KAI AMBOS outlines what that means, and MURIEL ASSEBURG and LISA WIESE examine the implications for Germany. BARAK MEDINA and DAVID ENOCH discuss the Israeli government’s moral dilemma of not being able to effectively fight Hamas without extreme harm to thousands of innocent people.

Defending the absoluteness of human dignity does not yet lead to an answer to the question of how Israelis and Palestinians can live in safe, peaceful states, which VICENTE MEDINA elaborates in a moral-philosophical essay.

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With its latest asylum law package, the German government seeks to stem the rise of right-wing populism in Germany, but according to the analysis of ISABEL KIENZLE and ANUSCHEH FARAHAT, the package mainly contains tightening measures against protection seekers and the simulation of the ability to act, which will only exacerbate the impression of paralysis. JULIAN SEIDL explains why the current debate about an “obligation to work” for asylum seekers in Germany is beside the point.

The Federal Constitutional Court has rejected as inadmissible an application by the Thuringian AfD parliamentary group to declare the commissions who make recommendations to grant a right of residence in cases of hardship unconstitutional. WINFRIED KLUTH takes the opportunity to explain the legal background.

Sahra Wagenknecht and her followers have left the party “Die Linke”. Does this mean that they have lost their parliamentary group status automatically? Can the Bundestag revoke it now? Answers are provided by JANNIK KLEIN.

Can ministers who are also members of parliament evade their ministerial duties under the Freedom of Information Act by invoking the freedom of their mandate? The question is currently pending before the Berlin Administrative Court in relation to former Foreign Minister Heiko Maas. LENNART LAGMÖLLER examines the legal situation.

The Bavarian State Office for the Protection of the Constitution is also allowed to list the AfD as a suspected case. TIM RENNER analyses the ruling of the Munich Higher Administrative Court.

Is the EU Commission allowed to use microtargeting on Twitter to increase its chances to push through its legislation against the member states? It tried this with the Child Protection Regulation, also known as “chat control”, but should not have, according to TIMO HAMMELSBECK.

ANTJE NEELEN also considers the draft law on the financing of political foundations to be inadequate.

Our book “Kleben und Haften” on civil disobedience in the climate crisis has inspired FAZ editor Jürgen Kaube to engage in what MATTHIAS JAHN and FYNN WENGLARCZYK call “basta-legalism”.

Who decides what counts as disinformation under the Digital Services Act? ALEXANDER PEUKERT describes the landscape of private organisations that perform this central function and calls for a closer look at what they do.

The opposition’s election victory over the authoritarian populist PiS party in Poland was not the end of the struggle to restore democracy, but only the beginning. YANIV ROZNAI and AMICHAI COHEN use the example of the last anti-Netanyahu coalition in Israel to show that post-populist governments often act more populist themselves than they like to admit. Our blog symposium on the change of power in Poland and its consequences continues: ANNA WÓJCIK examines how media freedom could be restored. WITOLD ZONTEK takes a closer look at the public prosecution office. And MACIEJ BERNATT discusses the role of state-owned enterprises.

In Italy, the right-wing government of Giorgia Melloni is now taking the independent judiciary under fire after a number of migration law defeats in court. ELEONORA CELORIA and VIRGINIA PASSALACQUA cannot find any legitimate reason for these attacks.

After Robert Fico’s election victory, Slovakia is in danger of sliding in a disturbingly illiberal direction. MAX STEUER and DARINA MALOVÁ point to the comparatively low threshold for constitutional change and hope that the Constitutional Court can withstand the expected pressure.

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Since 2018, RADOSVETA VASSILEVA has been trying to get the EU Commission to punish Bulgaria for violations of European law in the protection of fundamental rights under criminal procedure law. What the process reveals about the EU institutions’ respect for fundamental rights and their handling of citizens’ complaints is described here.

In Mexico, President Lopez Obradór wants to weaken the rule of law by slashing the judiciary’s budget. DANIEL BERTRAM and LAURA HIGUERA SÁNCHEZ see the independence of the judiciary at stake in next year’s presidential election.

In India, the Supreme Court has ruled against a right to equal access to marriage for LGBTQ+ couples. AKSHAT AGARWAL is deeply disappointed. Meanwhile, India’s parliament has introduced by constitutional amendment that one-third of seats in parliaments at the federal and state levels must be reserved for women – but only after the next census and thus certainly not in the 2024 elections, probably not even in the elections that follow. ANMOL JAIN explains the Modi government’s tactics behind this.

The latest blog symposium we launched this week with an initial post by SINA FONTANA, PIA LANGE and DANA VALENTINER is dedicated to the Prostitute Protection Act and the experiences with it so far. STEFANIE KILLINGER, STEPHAN RIXEN and DEMET DEMIR contribute, others will follow in the next few days.

That’s all for now. All the best to you, see you next week, and chin up!

Max Steinbeis


SUGGESTED CITATION  Steinbeis, Maximilian: Special Law, VerfBlog, 2023/10/27, https://verfassungsblog.de/special-law/, DOI: 10.59704/70e9cb0a8022d50a.