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Core elements of the democratic state (VI): Constitutional state
Another text deals with the issue of "basic rights and democracy":
What does "constitutional state" mean? Any free democracy that positively encourages participation from all sections of society in the creation of political opinion has to be structured in the form of a constitutional state. Taken together democracy and the constitutional state form an inseparable unit. The rule of law in a democratic state should be understood as meaning all the basic rights and procedures that ensure individual freedoms and guarantee the individual's participation in the political process. The constitutional state is the complete opposite of the police state. In a police state individuals are subjected to continuous "monitoring" from above and live under constant threat of sudden action on the part of the police brought about by the all-pervasive state-security machinery. Individuals have the feeling that they are being watched over with distrust in everything that they do, which leads to the poisoning of community life. Whatever individuals do to camouflage their actions and no matter how careful they are, they are never able to escape the long arm of the state. Those incurring the displeasure of the dictatorship run the risk of being imprisoned or harassed, losing their job or being forced into a labor camp, without having the right to enforce their right to a fair trial. Even if cases are heard before a court, the judge is no more than an official of the dictatorship. The principle of an independent judiciary does not exist in a dictatorship. In a dictatorship the administration of justice is just one of a number of organizational techniques aimed at making "human material" available. Using these and other techniques the government is successful in creating a sense of uncertainty among citizens; they wonder whether they have come to the attention of the dictatorship, and this alone is enough to render them dependent and anything other than free. At a private level, it may well be that justice works relatively normally - even traffic offenders and thieves are punished in dictatorships. Yet citizens cannot even count on this. All laws in a dictatorship are subject to recall. At the end of the day, the dictator alone decides what is lawful and what is not. [Back to top of page] [Back to overview] In a democratic constitutional state, in contrast, those holding public office are bound to the rule of law. All are equal before the law. Individuals can also enforce their rights against the state, even if political authorities would like to deny this right. This is particularly true of the right to free personal growth. The protection and security of this right is the main purpose of the constitutional state. To this end, the constitutional state limits all state action for the good of freedom. State authorities are only able to take action provided they have the jurisdiction. And they are not allowed to give themselves jurisdiction. Jurisdiction can only be given by the constitution or through legislation. By binding state authority to the law of the land, the freedom of the citizen is ensured. This freedom may only be encroached upon through statutory authorization. This statutory authorization, however, can only be enacted by elected representatives in a fixed constitutional and formal process. An independent judiciary monitors adherence to the law. To this end, separation of powers and the constitutional state belong together and are inseparable. And that which is true of separation of powers, is equally true of the constitutional state. The constitutional state should be understood as being much more than just an institution for limiting and controlling the power of the state. In much the same way as separation of powers makes the state more easy to grasp and more accessible for citizens interested in politics, so the constitutional state gives the state conventions and scope. These conventions and scope makes it easier for the citizen to predict how the state will act and allows him/her to prepare in advance. Only in a state system in which state order is regulated by a constitution and the rule of law can the individual play a part in political life of his/her own freewill and of his/her own free decision. Both of these aims, that is, to make democratic activity possible and to secure basic rights, are equally intended by the constitutional state. When trying to fathom out the intentions behind the methods employed in a constitutional state, which can be summarized into four basic principles, it is essential to bear in mind both of these aspects at all times. [Back to top of page] [Back to overview] Independence of the judicial system A democratic constitution is, above all, based on the institutionalized independence of the administration of justice. A strict separation of power must be employed between the judiciary and the other state powers. Both the executive and the legislative have to be prevented from interfering with the work of the courts or, indeed, from placing them under pressure. For judges, personal independence means that they are unable to be removed or transferred from office against their will. Only in clear cases involving the perversion of justice or personal corruption can they be removed from office by special court proceedings. The judge's objective independence ensures that the judge is not subjected to any directives about the way in which he/she should operate. Judges in a democratic system serve only the law; they interpret the law in the way they feel is correct, and the public prosecutor or other higher authority are not allowed to influence their judgment. [Back to top of page] [Back to overview] Monopoly on the administration of justice Only when the independence of judges has been provided for and a monopoly on the administration of justice has been established can the administration of justice be regarded as being independent. This is desirable, of course, because it can hardly be regarded as being helpful when someone set free by the courts is then picked up and imprisoned by the police, as was often the case in Nazi Germany and is still the case in some countries. In systems operating this sort of system the government takes it upon itself to enact another penal law alongside the judiciary. In contrast, in a constitutional state authorization is required from the courts before freedoms can be restricted and before the police are permitted to invade the private sphere of individuals. Indeed, in a working constitutional state only following permission from the courts may arrests be made and houses searched, and it is also for this reason that a constitutional state guarantees a clear statutory right of all those accused to legal examination and a lawful trial. [Back to top of page] [Back to overview] Development of the rule of law The modern constitutional state is based on the premise that no one should pass judgment on his/her own affairs. Throughout history opposing parties have always tried to settle their arguments before a neutral judge. This was especially true for differences between the government and its subjects. Independence of judges and a monopoly on the administration of justice was historically one of the first and most essential demands made by subjects in their efforts to gain more individual freedoms from rulers notorious for their attempts to impose a dependent court of justice on the people. The foundations for today's constitutional state were formed by these disputes. It is no accident that the earliest available documents on England's constitutional history concentrate primarily on a repeated confirmation of the people's right to freedom and their protection through the rule of law. The rule of law was to be exercised by independent judges and to be guaranteed against the king's absolute claim to power. This was the aim of the Magna Charta Libertatum from 1215 and in particular the Habeas Corpus Act from 1679, which ordered that those in custody must be brought before a court within a specified period of time. [Back to top of page] [Back to overview] Yet for all its importance, the independence of the courts represents only one of the preconditions required to create a constitutional state. The other equally important condition is the principle that all the state's actions should be measurable and predictable. Only when citizens know what the state is allowed to do and what they themselves are permitted to do can legal security exist. This is where the basic constitutional principle comes in which states that no one may be punished if no legal basis exists - nulla poena sine lege - and the no less fundamental ban on retrospective laws in this regard. Moreover, the requirement that laws should be clear also exists for the same reason, as does the ban on retrospective enforcement. "Catch-all clauses" are inadmissible in a constitutional state, since they undermine legal security. The needs of the constitutional state, therefore, makes it important that care be taken with so-called vague legal terms. While it is true that in certain cases legislation must use terms such as "bona fide" or "public decency", the sad infamy of the term "sound popular feeling" as used by the Nazis in their administration of justice demonstrates just how disastrous the effects of unclear terms can be in inviting arbitrary justice. It is for this reason that legislators in a constitutional state try to make laws precise and clear. Indeed, short and handy terminology is often left out of legislation in case it makes legislation vague. This is a major factor in upholding legal security. And legal security is indispensable in any democratic state that wants to guarantee its citizens the greatest amount of free action. [Back to top of page] [Back to overview] The legitimacy of administration Given that the ability to measure and calculate in advance all state action is an elementary precondition of a constitutional state, the requirement for the government and administration to be bound by the rule of law is essential. All state action must be based on legislation which has been democratically legitimized. The principle of legitimate administration states that state administration may be active only in those areas in which a parliamentary majority has granted authority. This, of course, does not mean that each and every administrative act must be based on clear legal authority. Creative ideas from a town's lord mayor or the welcome initiatives on the part of a youth welfare officer are not written down expressively in law. The constitutional state is not there to snuff out creative spirit within the administration. But if a clash in interests arises it is the law rather than individual dynamic force that has priority. [Back to top of page] [Back to overview] The principle of legitimate administration, that is, that the administration is subject to law, means that an ongoing process is necessary to make sure that the administration adheres to the law. Montesquieu expected parliament to perform this task. But it soon became apparent that the judiciary was much more suited to this task and more effective. The huge expansion of state administration in a modern welfare state made it equally necessary for there to be a sharp rise of administrative courts and their independence. All citizens may turn to the administrative courts if they have a complaint or feel that a given administrative act was unlawful and enforce their right to investigation (...). The thinking behind this arrangement is that the threat of possible court action for irresponsible decisions will help prevent civil servants from making them in the first place. Complaints brought before the courts can become very drawn-out however, since the same right to appeal that exists for normal courts of law also exists for administrative courts. [Back to top of page] [Back to overview] Problems faced by the constitutional state The term "litigious state" has often been used to criticize the slow-moving and heavy nature of the legal process in a modern constitutional state. They complain that it forms an open invitation for litigious members of the public, while restricting the ability of civil servants to make decisions. These objections are very real and should be taken seriously since they make clear the limitations and cost of the constitutional state: Administrative courts tend to impose a formal control on administrative acts and concentrate for the most part on procedural matters and jurisdiction. Court proceedings focus on issues such as whether deadlines were met, whether all those concerned were involved and other formal regulations, while the actual content of the case being presented before the court can only be examined if there has been a clear failure of judgment. In Germany, for instance, teachers award school grades to their pupils. In cases where grades have been "falsely" given or a child has been moved down a class, courts have traditionally been reluctant to question the educational freedom of teachers, preferring instead to concentrate on whether formalities were adhered to such as if all concerned were present at the grades' meeting, whether enough notice was given to pupils about upcoming written work or on proving how the teacher arrived at his/her decision. Set against a background of an increasing willingness of parents to go to law against school decisions, a situation has arisen in which school evaluations have become formalized and an object of law. While this development is often educationally counterproductive, it is a necessary price for the fact that all state decisions - and school grades do have an impact on life chances - are subject to control by the courts. The litigious state and the way in which other issues become an object of law serve in filling the courts with cases concerning the building of airports, nuclear-power stations, motorways, rubbish dumps and industrial estates. Such processes often mean that projects are subjected to massive delays, forced to incur huge extra costs or are pushed over the brink and are never realized. Another significant aspect is the great cost of court action for all involved. Indeed, "average citizens" unable to afford good lawyers and expensive experts often find themselves in the weaker position if their claim is not clear cut. States ruled over by a dictatorship are often faster and more effective in their actions. Dictatorships do not have to concern themselves with long-drawn out compensation cases with landowners when they want to build a motorway. Yet it is this very effectiveness that harbors the greatest danger for the freedom of citizens. In contrast, those wanting to secure freedom and equality and to enjoy the protection of the constitutional state offers have to accept the slow-moving and heavy nature of the litigious state. They also have to accept the possibility of abuse and pay the price for the litigious nature of our everyday relationships. Surely the conclusion must be that the costs of the constitutional state must be reduced rather than doing away with it [Back to top of page] [Back to overview] The constitutional state prescribes a great number of procedures and control measures for the sake of democracy, which serve in providing public authorities with conventions and scope. The constitutional state binds politics to the rule of law and places all state power under the control of the courts; this secures the freedom of citizens. Rather than forcing citizens into subordination it is based on their voluntary cooperation. While this may often make things difficult for the government and administration, the complicated methods used by the modern constitutional state should not be rejected and discredited as being nothing more than pure formality. Even if - as written by Tocqueville - "the people living through these democratic times,...do not readily recognize the usefulness of conventions; they confront them with an instinctive distain... rules and formalities stir their contempt and even their hate. Because they are only interested in instant benefit, they pounce passionately on all the objects of their desire; the slightest delay serves in getting their backs up. This behavior, when transferred to politics, is taken up against the conventions that hinder them in carrying out their plans. Yet it is this, the very thing that democratic society regards as being the disadvantage of conventions that makes them so useful to freedom. Indeed, the greatest achievement of these conventions is their ability to create a barrier between the strong and the weak, between the government and the people, in order to check the former and give the latter time for reflection. The stronger and more active the sovereign and the more indifferent and weak the individual the greater is the need for rules and conventions. To this end, a democratic people have an inherent need for more conventions and rules than other peoples." Nevertheless, it would be a mistake to define the democratic constitutional state only in terms of its formal rules and principles. Because the legitimacy of the administration only remains a formal principle for a long as the legislator is able to do as he pleases. A situation can be imagined in which the basic rights and fundamental principles of the constitutional state might be done away with by a completely correct and legally enacted law, as happened in Germany with the Enabling act of 1933. This would mean the effective end to all the safeguards provided by the constitutional state. Indeed, the reason why the constitution must go before the law is to counter possible abuse by parliament's legislative powers. The legislative is also bound to the basic values of the constitutional order. In a constitutional state system there exists constitutional jurisdiction which makes sure that these values are adhered to. This body represents the innermost part of a constitutional state. Its existence certifies that the scope for political decisions must be in line with the law of the community. Yet this bonding of the legislator to the constitution under the control of the constitutional court would also remain purely formal for as long as the body responsible for changes to the constitution - usually a two-thirds parliamentary majority - would remain in a position to get rid of the principles of the constitutional state and with it the basic rights of citizens. [Back to top of page] [Back to overview] People's sovereignty and constitutional state Those, however, who see the constitutional state as being more than a byword for formal procedures, who see a real greatness within it and regard it as providing justice and freedom shall have to bind the body responsible for making changes to the constitution and with it the people's sovereign to the basic rights of all constitutional orders beyond the legislator's power of disposition. Even the largest of majorities must face a line in the sand over which they are not allowed to cross. According to thinking on the constitutional sate, the dynamic principle, which is supposed to reflect the will of the people and which forms the basic democratic principle of a majority decision, is provided with a static principle through which freedom of the individual and protection of minorities is made possible and through which democracy is achieved. In a constitutional state it has been shown that democracy is founded upon the joint convictions and deep agreement of all its citizens to respect and safeguard the basic rights. Only in this way can they be secured over the long term. [Taken from: Waldemar Besson/Gotthard Jasper, Das Leitbild der modernen Demokratie. Bauelemente einer freiheitlichen Staatsordnung, Bonn 1990]
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