The Constitutional and Institutional foundations of the German Social State
One has to consider that the term "Social State" sometimes is used in a double meaning. First of all, to describe a state with social fairness as it should ideally be; that’s when the term is used in a normative way. Secondly, the term can be used to describe reality, by showing which elements of the ideal social state are indeed realised in an existing state. Then, the term has a describing character.
A good definition which combines these two elements, can be found in: Hans Zacher, Artikel "Sozialstaatsprinzip", Handwoerterbuch der Wirtschaftswissenschaften, Stuttgart 1977, S. 154:
"The Social State is a state which guarantees and, if required, corrects the economically influenced proportions in a society, with the aim to offer each and everybody a life with dignity of man by giving the members of this society a minimum amount of social welfare. A social state has to try to minimise or control the differences in personal properties so that nobody is dependent on other people. The principle of a social state requires a state to act accordingly."
The idea of a social state has its historical origins in the social problems of the 19th century; when some people tended to get away from the idea of liberalism. This liberalism basically meant that the social, cultural and economical development of a society should be due to the "laissez-faire" principle. The new idea was that the state should regulate extreme social differences between people.
In Germany, the social state has got a long tradition. It wasn’t invented in the Federal Republic, but dates back to the 19th century. The present social state has a lot of elements of the state of the "Weimar Republic". Yet, constitutionally it is rooted more deeply. The Basic Constitutional Law contains the principle of a social state as an obligatory element of our republic. In the Federal Republic of Germany, there are numerous regulations and laws with the aim to guarantee social fairness and to offer social security.
Traditional fields of social policies are:
Family and housing policy, policies to protect workers, youth policy, tax policy, education policy, policies for elder people...
The beginning of social acting by the state
In the 19th century, the German State mainly represented the interests of the monarch and the nobility, later also of the upper middle class. These classes were not affected by the social question of the 19th century, so the state saw no need to change the situation.
Practical ways of improving the worker’s hard life therefore came from other sides:
Some entrepreneurs tried to improve their workers’ hard life situation, for example by building houses for them. The church also tried to help the poor. And the poorest themselves took actions to, at least, fight in an organised group against social injustice.
In the 1860s, there were also political actions to improve the life of the lover classes. In 1863, the German Workers’ Club was founded by Ferdinand Lassalle and in 1869, the Social Democratic Workers’ Party was founded by August Bebel and Karl Liebknecht.
All these groups, the churches, the entrepreneurs, the political groups and the poor themselves, urged the state to take action against social injustice. Yet, the state’s reaction was reluctant.
The first great document of social commitment by the state, was the "Imperial Message" in November 1881. The protection of workers by laws, such as the "Health Insurance Law" (passed in 1883), the "Law concerning invalidity and retirement payments" (passed in 1889) and the "Law for cases of accidents at work" (passed in 1884) were the aim of the "Imperial Message".
Until today, these 3 laws, passed in the period of Bismarck, are regarded as internationally leading and as the basis for laws concerning social fairness and these laws are still in force today.
The development of governmental social commitment in the
"Weimar Republic"
The change of the governmental system after the First World War (from a constitutional monarchy to a parliamentary democracy) was of great importance. Now, there was a general and secret right to vote and each and everybody (except for women, of course) had this right. So, workers could actively vote for policies that had the aim to improve their own situation. Now, government had the people’s order to try to improve the workers’ hard lives. The state did this by adding new laws to the ones Bismarck had passed.
In 1920, the government reorganised the situation of workers by giving them the right to from works councils (Betriebsraete) and in 1927, the "Law for cases of unemployment" was passed.
The development of government’s social commitment during the totalitarian time of the NAZI-state
In March 1933, the "Reichstag" passed a "Law to eliminate neediness of the people and the state". The government of the "Reich" was hereby empowered to pass laws without regard to constitutional regulations. Now, the way was free for a totalitarian state under Hitler’s leadership. The parliamentary democracy ceased to exist.
Already in May 1933, the existing works councils had been replaced by the "German Works Front". The right to freely choose the place where to work and the kind of work one wanted to do, was limited systematically between 1934 and 1939. And finally, it was replaces by the now existing governmental decision, where, when and what kind of work people had to do.
The social principle in the Basic Constitutional Law
After the end of the Second World War, the state and the relation of citizen and state had to be rethought and rearranged.
The Basic Constitutional Law contains the constitutional principles of a social state as the new Federal Republic of Germany should be. There are numerous regulations which comprise the governmental social engagement.
They can be divided into two categories:
1. the general principles of a social state
2. the social values, written down as basic laws, which each citizen has in a social state.
The social state principle
Only at two points in the Basic Constitutional Law, the social state is clearly demanded:
Article 20, paragraph 1 says that the "Federal Republic of Germany is democratic and social Federal Republic". Article 28, paragraph 1, phrase 1, states that "the constitutional order in the single states has to follow the principles of a republican, democratic and social state, as the principles are written down in the Basic Constitutional Law." Articles 20 and 28 are called the "social state principle", in which the state is given to obligatory aims:
Social Fairness and Balance
Differences between socially weak and socially stronger people should not be accepted by the state, but should be changed into more balanced properties. The German supreme court, the "Bundesverfassungsgericht", speaks of the state’s duty to create a fair social order with a certain, good balance of social differences.
Social Security
The state should secure the citizens’ minimum requirements for a human life with dignity. This security can, for example, be given to the citizens in the fields of education, health, family and economy policies.
Basic social values
Besides these rather vague laws concerning the state’s social commitment, the Basic Constitutional Law contains a numerous amount of regulations which oblige the state on certain basic social values.
The first and most important regulation is Article 1, paragraph 1 of the Basic Constitutional Law. It tells us that human dignity has to be protected by all means of governmental power. The duty to secure a minimum income for needy citizens follows this important article directly. Another article of great importance is Article 3, which forbids the unequal treatment of citizens, no matter for which reasons (such as discrimination because of race, origin, skin colour, religion, personal opinion, gender or other features). Equal treatment for everybody is the state’s absolute duty. This means, for example, that the state cannot make a difference between men and women, for example, when offering jobs to somebody, when paying wages... The same requirements apply to both genders. For the same work, everybody has to meet the same standards.
It is also the state’s duty to protect marriage, family, mothers and children, no matter if they live in a family of married parents, or not, not matter if they have a single parent or anybody else who brings them up (Article 6, paragraph 1, 3-5). This law also contains regulations for tax reductions for families, mothers and their children, as well as orders, concerning the special protection of mothers when they take a "baby break" or at their working places during their time of pregnancy.
Article 9, paragraph 3, talks of everybody’s "right to form works councils to upkeep and improve working conditions, incomes etc", so to say: any actions, taken by the workers in a group, which have the aim to improve the workers’ situation, to negotiate or to decide about decisions made by the management, are allowed by law. This law is a special form of social balance. In Article 14, paragraph 2, we read: "The possession of property brings along duties. Its use should be of help for society and its social balance." This article demands that the right to own private property, should always be seen in combination with a balanced and fair distribution of existing property.
The guarantee for basic rights, as written down in the constitution
If one compares the "Weimar Constitution" with the Basic Constitutional Law, one will find out that the Weimar Republic had more ideas concerning the social commitment of a state. Yet, these ideas had not been written down as constitutional regulations. Today, there are less ideas but more constitutional and therefore binding regulations. In the Basic Constitutional Law, they are put down as binding and unchangeable premises for the state. The "Fathers of the Constitution" had learned a lot from the experiences of the Weimar Republic. They saw that it wasn’t enough to have good ideas but nobody to realise them. Therefore, they obliged the governmental power to certain basic values that should be unchangeable:
1) The basic laws are "binding for all laws that are passed, for any kind of governmental
institutions, as well as for jurisdiction" (Article 1, paragraph 3) and these laws can never
be changed (Article 19, paragraph 2).
2) "The duty to honour and protect human dignity" is another law which cannot be changed
or even touched (Article 79, paragraph 3).
3) "The social state principle" has an absolute guarantee of existence, too. Because according
to Article 79, paragraph 3, any change of the Basic Constitutional Law which would touch
article 20 (in which the basic rights are written down, one of whom is the regulation that
the Federal Republic of Germany is a social state) is not allowed.
We have seen that the social state principle is written down in numerous articles of the Basic Constitutional Law. Yet, these articles do not contain many definitions of the term "social fairness". That is, because the "Fathers of the Constitution" knew that they could oblige the state on certain rights and values, but not on a definition of social fairness and justice, which is, according to the Basic Constitutional Law, the aim of the Federal Republic of Germany. They knew that concrete ways of realisation could not be written down, as they were always due to changes. Social values and the degree of social fairness are dependent on the people’s own attitude towards social fairness, as well as on the historical, economical and political situation of a society. Therefore, the idea of social fairness has to be redefined and rethought constantly and has to be realised differently from situation to situation. The "Fathers" also wanted to give future generations the chance to add certain values and to adapt existing values to present needs of the society.
The legislative of the Federal Republic of Germany therefore got the binding order to never stop giving the direction for realising a fair social state with opportunities for each and everybody.