Doctoral dissertation by Alexander Schwitanski

Right side of the law? - Basic and human rights in the history of German Social Democracy (1919-1949)

Article 1 of the Constitution of the Federal Republic of Germany has one of the German constitutional history of unique design: The rule is understood the constitutional rights as a positivity of natural and inalienable human rights, it is based on the uncontrollable for the government category of human dignity and which requires the entire state power to their protection. This natural law discourse, which ultimately is linked to ideas of the Enlightenment itself was not up to the proclamation of the Basic Law in the Constitutional Law of the German states can enforce learned in the Weimar Republic characteristic shifts. Starting from the second part of the Weimar Constitution, which dealt with the fundamental rights and related matters, developed parts of the state law doctrine a überpositivistische interpretation theory of law, to contain the effect that the second main part, a way of life of the German people, which would be contrary to the state organization law of the Constitution. This was - and pointed generalized - nothing more than an attack on the democratically elected legislature and parliamentary written, on behalf of the superior rules of law's legitimacy has been denied. This dissertation project examines the localization of the Social Democrats within this discourse.
The derivation of the constitutional rights of the transpositive human rights, that is its natural law justification and backup, has far-reaching consequences for the understanding of democracy, the relationship of the individual to the state, the expectations of the legitimacy of law and government action and the structure of the law in general, especially the possibility of its variability, which means that involve the investigation of a human rights discourse needed wider circles of society must, as it did the earlier history of ideas. The question of the reactions of the Social Democrats to change the legal understanding in dealing with crises and political conflict areas of the Weimar Republic is not only the actors in the political institutions and the few great jurists of the Social Democrats made, but must also to larger parts of the social democratic environment be addressed. Let it also be have been first, the parameters of the theoretical analysis formulated, it is checked but their connectivity in the environment, so can be finally answered at least for the Social Democrats gesellschaftsgeschichtliche question, through which social transformations fundamental categories of legal understanding of the Germans start the Federal Republic had been formed.
The investigations, therefore, the communication of law, particularly about its legitimacy justifications and variance expectations, within the Social Democratic GroƟmilieus, leaving a wide field is known, to be examined also has a very long time, and therefore to the operationalization of the question to some limitations need. From the large area of the law only that communication is examined, the actual impact on constitutional law, is based in particular on its Grundrechtskodifikationen. When asked about the issue so fundamental to the underlying legal reasoning strategies, the development in relation to political and social position of the speaker is to be set within its environment. Under this premise, results in the deliberations to the Weimar Constitution and the Bonn Basic Law and the contributions of social democratic state of law teachers, especially from those here Gustav Radbruch and Hermann Heller had called himself as a closer examination of fields. Based on the reporting of the constitution in the Social Democratic newspapers can also be identified for the situation-the milieu provided interpretations. was for the further investigation period of the Weimar Republic to the selection of further investigation fields assumed that reflections on the effects of fundamental rights and the reasons - and with it the possibility of claiming - need to be especially often found in situations of conflicting expectations on the right, where the issues are likely to draw more interest to themselves, or for certain categories of social milieu, their own social role was conflicting.
Therefore be at the time of the Weimar Republic, the constitutional debate and the academic constitutional law doctrine of judicial implementation of the new interpretation of doctrine and its associated car related reactions in the social public, the approaches Radbruch to a penal reform, the struggle of the Social Democratic women against abortion, criminal justice, the search according to a new understanding of the state in the various currents of the Young Socialists, the conflict over fundamental restrictions of civil service and the work of the German League for Human Rights. The investigation of the Weimar period ends with a chapter on the reflections at the annual Celebrate Constitution under the shadow of a growing radical threat to the Republic and the debate on a reform of the constitution in the face of constitutional reality that increasingly deviated from the constitutional norm. Finally, we study the transformation of the Weimar experience and lessons based on these categories of legal interpretation in exile and in the development of the Basic Law.

This project was edited by:
Alexander Schwitanski