What is a fundamental right? Even lawyers get the answer to this question sometimes into stammering. For only shall establish a fundamental right would be something that one is given by a constitution or Basic Law is, is short-sighted. This article attempts a definition, a historical derivation and a critical look at the implementation and enjoyment of fundamental rights.
definition A fundamental right is not a given. A fundamental right is something that one can not be taken. A fundamental right is inalienable. It is a positive and pre-state. A fundamental right exists even if it is not written down.
A fundamental right is not to the citizen in front of people or protect the citizens from criminals, but a basic right is to protect the citizens in front of the State. In particular, here are the agents of the state, meant in the form of law enforcement authorities. Sense of a fundamental right is to the criminal violence of the state to draw boundaries, to not demand their use. (*)
limit fundamental rights, the power of the state, but not the freedom of the citizen. The contrary, they constitute freedom. (*)
A fundamental right is absolute. It may not be denied, no matter who he is or what he has done. This is the essence of fundamental rights, and this must never be compromised.
The state must also in the existential Disaster still true to fundamental rights. This is exactly the case for social disorder fundamental rights have been created. to submit the constitutional duty to protect not give the State the right to the protection of the individual aufzunötigen the life of a police service, thus building a welfare police summary of law:
But. The protection must not degenerate to guard. The law also indebted to the vulnerable citizens fundamental right distance. (*)
idea Historical Foundation
state legitimacy by security According to Thomas Hobbes is the first basic legitimacy of a state security. To this philosophical justification express a few words, people refrain from doing violence to each other. You submit to the state and set it as the guarantor of their security is a another. But the absence of private violence is not unconditional. It applies only if the state is willing and powerful to ensure the safety of the citizen. protect the state which do not have the power to have, not even the right to demand obedience. (*)
security against the guardians of the security But: The state, which removes the fear of the citizens of each other, itself becomes an object of fear is. The Guardian of the security is a threat. The new need focuses on security from the state. Security means freedom from the state. Freedom is the second legitimacy. Your basic theorist John Locke. (*)
With Locke put differences and trade-offs between them
by the state and security
against the state. He designed instruments for the protection of human rights against the state: representation, separation of powers, the obligation of state power in the given natural law and positive law to the self-imposed. Give the public the right of resistance as the ultimate means of defense against the tyranny of his natural rights. (*)
Again once a "terror alert"? It belongs in the basic course for professional revolutionaries: the act of terrorism but also the terror alert giving citizens the feeling of insecurity. The deliberate stoking of fear in the people thus makes its contribution to Entlegitimierung the liberal state and contributes to the citizens of the need for an authoritarian security guarantee to raise. The people should be freedom tired and ready for dictatorship. (*)
At the call "terror alert" the knee-jerk bark begins to tougher laws. Retention, restriction of press freedom in danger of terrorism, the Bundeswehr inside and suddenly much-needed restructuring of the intelligence services and police are just some ideas that are suggestive of an underdeveloped understanding of the law.
State attempts to restrict basic rights The list of government attempts to restrict the fundamental rights of the citizen is long and points repeated regular-like.
Article 13 GG Legal gun ownership is sufficient in the Federal Republic of today, already, to restrict the fundamental right of inviolability of the home or abolished.
5 Basic Law The restriction of press freedom in "terrorist threat" is a popular perennial. And Internet censorship in China is by no means the norm.
Article 10 GG The retention is a tool that law enforcement agencies want to love on the pretext of "fighting terrorism" to see implemented. Under current law considers the retention is unconstitutional.
Art 8 GG recently called for a Minister of the Interior at the country level, a "discussion" on freedom of assembly. Presumably with the aim of limiting it. Freedom of assembly is a fundamental right. One limitation is of no profit to internal security, but just means a sacrifice of freedom.
Conclusion The curtailment of fundamental rights does not begin with attempts to restrict or prohibit gun ownership. As the examples show, it begins much sooner: in everyday life. sometimes with banal and outrageous statements of policy and the fact that few citizens become more aware of their fundamental rights.
fundamental rights are obsolete if they are not perceived. they should be perceived by those to whom they were created: the citizens!
Sources:
(*) Josef Isensee, the basic right to safety - protection duties of the liberal constitutional state, Berlin, 1983, ISBN 3-11-009816-4
and
Federal Agency for Civic Education