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(...) Political science and education are always keen to point out the mutual dependency of these two elements: The (...) basic rights constitute our democracy, and our democratic system guarantees the basic rights. This relationship between democracy and basic rights, however, has not always been taken for granted. The stumbling block was formed by the fact that the state is not allowed to encroach upon wide areas of private and public life, while state action is constituted from people's sovereignty, that is, the comprehensive self-determination of the people. Even during the French Revolution there were attempts to replace the Declaration of the Rights of Man and of the Citizen with a provision citing a universal and sovereign will of the people. There is a basic conflict between two principles: The elementary democratic right to rule over the affairs of the people, and the basic rights forbidding encroachment by the state. In actual fact, there is no easy way out of this argument (...). In order to understand the relationship between democracy and basic rights in a more differentiated way, it is first necessary to understand the term democracy from a number of dimensions. [Back to top of page] [Back to overview] If we accept that democracy does not represent the abolition of a system of rule, but rather legitimization of state power through the people, then even in a system based on the rule of people over people, basic rights represent defensive rights, since even power legitimized by the people can be abused. Even a legitimately formed government or administration might perform injustices and this means that that the people remain in need of protection. Since the political process in a democracy is promoted by conflicting interests, it is quite natural that in a system where people's sovereignty and individual freedoms are realized simultaneously, tensions form a part of the relationship and the latter is always in the greatest danger. Democracy as a system of rule also means that the majority opinion is always able to assert itself to the detriment of the minority. Those supporting the losing opinion, however, do retain at least the following (basic-) rights: They have the right to continued existence within the scope of guaranteed freedoms and must be taken into account with regard to public weal. They also have the opportunity to become the majority opinion and/or party. The freedom of speech and the freedom of association have to be in place for this to be achieved. Protection of minorities has often been cited as a characteristic of democracy and is a direct product of the basic rights. The protection of minorities has differing facets which include existential protection, integration in the public weal, the creation of the conditions necessary for power and a change of power. This demonstrates that basic rights in a democracy extend beyond that of being defensive rights and are, in actual fact, constituent elements within democracy itself. If one describes democracy as being a system of government in which power is subjected to limits of time, function and (in federalism) space, basic rights provide markers that indicate when freedoms are at risk. Their function, however, extends beyond this in that they provide set procedures in advance, that is, procedures in the constitution, which limit the extent of state power. These include separation of powers, constitutional bonds and a guarantee to take legal action. In this sense, basic rights are not unlike democracy and in actual fact can be regarded as being more of an integral part of democracy than in a "relationship" with it. [Back to top of page] [Back to overview] Democracy as a method for legitimizing rule In addition to the understanding of democracy as a system of rule, the second dimension regards democracy as a "system of legitimization, control and criticism of political rule". Democracy does not exist through elections alone. A major factor in the upholding of democracy is the process of communication, that is, the forming of political opinion in which all society's groups are invited to take part. Therefore, given that basic rights encourage and protect this communication, they actually perform a constitutive task for democracy. On the other hand, the freedom of speech, which is included in these so-called basic communication rights, is of outstanding importance for democracy, which cannot be imagined without it. Teachers in constitutional law regard the degree to which freedom of speech exists as being a criteria for determining democratic development - this can be seen particularly well in "young" democracies. The freedom of speech makes possible criticism of political decisions regarded as being unfair, it projects society's desires into the political decision-making arena and demands reasons for decisions made. These communication rights protect the freedom of speech for both individuals and groups. Such groups are set up by people trying to find a more efficient way of protecting their interests (freedom of association) (...). [Back to top of page] [Back to overview] Democracy as a way of gaining rights Making differing public interests binding for all through a process of generating law creates political order. Just how these laws are generated is a determining factor in the characterization of the order for example as democratic, absolutist or totalitarian. As far as democratic systems are concerned, a distinction will be made (ideal typically) between plebiscite and representative systems (...). With regard to the relationship between basic rights and democracy it would be right to regard parliaments in their role as law-making bodies as performing conflicting tasks: On the one hand they create the legal basis for the realization of basic rights, while on the other they are also the institutions that legally restrict them. This means that democracy requires that trust and mistrust of state power must be weighed up - a difficult process The securing of basic rights through procedures plays an important role in this regard. Energy and transport policy provide a good example of this. In securing basic needs such as the need for warmth and mobility both of these can be regarded as falling within the wider scope of the protection of basic rights. On the other hand, however, when certain limits are crossed in the provision of these needs a situation is created in which other basic rights are limited, such as the right to remain physically unharmed. One way out of this dilemma, albeit a theoretical one, is by introducing a procedure of participation for citizens. Since it is citizens that will both benefit and be affected by the measures, surely they are best placed to decide whether they are prepared to accept a worsening air quality or an increase in roads (...) [Back to top of page] [Back to overview] Democracy as participation and co-determination During the history of basic rights and how they were won from the king and nobility it became clear that what started out as rights to certain freedoms developed into participation rights - they included an obligation of political responsibility from the very beginning. The transition to sovereignty of the people meant that participation rights became self-rule. Each individual, however, only became his/her own share of rule. The arrival of democracy also served in changing the meaning of participation: Instead of a "graciously given" share of power prescribing the personal political possibilities of the individual, they were now prescribed by self-rule defined by the basic right to equality. Therefore, basic rights do not only have a functional purpose as shown above, they also become "democratic status rights" and transform the political order into a "community". They do this by guaranteeing citizens self-determination and political co-determination. If these basic rights as participation rights have such a fundamental importance for democracy, then the promotion and encouragement of these rights among people who might otherwise not perceive them as being essential becomes equally important: Democracy can only survive as a system of government if the status rights that carry democracy are seen not only as a possibility by citizens, but are also actually used and promoted in everyday political and public life. The danger that basic rights might be repealed is today less worrying than the possibility that encouragement by the state might wane and that the public might increasingly fail to take them seriously. Basic rights do a job - they criticize the state and help to maintain it - and are indispensable for a democratic system. It is essential that the state and its citizens realize that these jobs belong together and every one-sided assessment of the system can endanger both the rights of citizens as well as the existence of the democratic order. [Hans-Otto Mühleisen; taken from: Bundeszentrale für politische Bildung (Hrsg.), Grundrechte, Informationen zur politischen Bildung Nr.239, Bonn 1998]
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Subjects: Human
Rights I Democracy I Parties
I Examples I
Europe
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Globalisation
I United Nations
I Sustainability
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