The Basic Law and fundamental rights: what you need to know

The Basic Law (Grundgesetz) is the constitution of the Federal Republic of Germany. After the preamble it opens with the fundamental rights (Grundrechte) in Articles 1 to 19, starting with the sentence “Human dignity shall be inviolable.” Article 20 then sets out how the state works: as a democracy, a state under the rule of law, a social state, a federal state and a republic. For the citizenship test you need to know which fundamental rights exist, where their limits lie and what terms such as Rechtsstaat (rule of law) and Volkssouveränität (popular sovereignty) mean.

Why is it called the “Basic Law”?

The Basic Law was drafted by the Parliamentary Council in Bonn and proclaimed on 23 May 1949 – the day the Federal Republic was founded. Its authors deliberately avoided the word Verfassung (constitution): Germany was divided, and the arrangement was meant to be temporary until the whole German people could adopt a constitution in a free decision (as Article 146 still says today). With reunification in 1990 the Basic Law became the constitution for all of Germany, and it kept its name. In the test the right answer is therefore always Grundgesetz – not “federal constitution” or “constitutional treaty”.

Article 1: human dignity

“Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.” This opening sentence was the answer to the crimes of the Nazi era (question 18). It applies to every human being, whatever their nationality, origin or religion. It means, for example, that torture and corporal punishment are banned and the death penalty is abolished (Art. 102). A fine, on the other hand, is perfectly compatible with the Basic Law.

Article 1 also says that the fundamental rights that follow directly bind the legislature, the administration and the courts. They are not a wish list but enforceable law you can rely on in court.

The key fundamental rights at a glance

Freedom of religion goes hand in hand with the separation of state and religious communities: there is no state church. The two still cooperate – for example, church tax (Kirchensteuer) is usually collected by the state tax offices on the churches' behalf, and religious education is usually a regular subject in state schools.

Human rights and citizens' rights: who has which rights?

Most fundamental rights protect everyone in Germany: human dignity, equality before the law, freedom of religion and of expression. Some, however, are reserved for Germans – the text then says “All Germans shall have the right…”. These include freedom of assembly (Art. 8), freedom of association (Art. 9(1)), freedom of movement (Art. 11) and occupational freedom (Art. 12). Protection against loss of citizenship and extradition (Art. 16) and the right to vote in federal elections also apply only to German citizens.

Without a German passport you can still demonstrate or set up a club – you are then protected by the general freedom of action (Art. 2) and by ordinary laws. Conversely, one fundamental right applies only to foreigners: the right of asylum for people persecuted on political grounds (question 9). When you naturalise you gain full citizens' rights and commit yourself to the free democratic basic order – see the loyalty declaration for German citizenship.

Where fundamental rights end

Fundamental rights are not unlimited; they end where other people's rights begin. Under Art. 5(2), freedom of expression is limited by general laws, the protection of young people and the right to personal honour. For the test that means:

• Allowed: criticising the government, including in public and online; debating religion; criticising Israeli government policy.
• Not allowed: insulting people; publicly spreading false claims about individuals (question 16); displaying Nazi, Hamas or ISIS symbols in public; publicly calling for the destruction of Israel.
• A criminal offence: denying the Holocaust – punishable by up to five years in prison or a fine.
• Demonstrations: they must be peaceful and unarmed, and an outdoor demonstration has to be registered with the authorities in advance.

Keep in mind that fundamental rights bind the state first and foremost. A public authority may not disadvantage you because of your origin, skin colour, religion or a disability. In everyday life – when you look for a job or a flat, for instance – the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, AGG) also protects you from discrimination by private individuals and companies. And while a law may restrict a fundamental right, it may never touch its essence (Art. 19(2)).

The principles of Article 20

Article 20 sums up in four paragraphs how Germany works:

• Democracy: “All state authority is derived from the people” – popular sovereignty (question 52). The people elect parliaments; there are several parties, free elections and a free press.
• Rule of law: legislation is bound by the constitution; government, administration and courts are bound by law and justice. State power is divided into legislative, executive and judicial branches.
• Social state: the state provides social balance, for example through social insurance, child benefit (Kindergeld) and basic income support. Germany's economic model is called the social market economy – although the term itself does not appear in the Basic Law.
• Federal state: Germany consists of 16 states with their own parliaments and governments. How the levels work together is explained in Germany's political system explained simply.
• Republic: the head of state is elected for a fixed term. Germany is not a monarchy.

Article 20(4) also gives all Germans a right to resist anyone trying to abolish this order – but only if no other remedy is available.

Rule of law or dictatorship?

Rechtsstaat means that everyone – including the state itself – must abide by the law (question 53). The difference from a dictatorship is clearest when you compare it with the Nazi era and the GDR:

In everyday life the rule of law is very practical: if an authority decides against you, you can challenge it. Against a wrong official decision you lodge an objection (Widerspruch), against a wrong tax assessment an Einspruch – and if that doesn't help, you can go to court (Art. 19(4)). Vigilante justice or arrests by a private police force have no place in a Rechtsstaat.

Can the Basic Law be changed?

Yes, but only with a large majority: two thirds of the members of the Bundestag and two thirds of the votes in the Bundesrat (Art. 79(2)). Some parts are protected entirely. Under the eternity clause in Art. 79(3) any amendment affecting the division of the federation into states, the states' participation in principle in law-making, or the principles laid down in Articles 1 and 20 is inadmissible – even with a two-thirds majority.

That is why a party in the Bundestag cannot abolish freedom of the press (question 12): it is a fundamental right, its essence is protected by Art. 19(2), and a free press is part of the democracy guaranteed by Art. 20. The Basic Law also defends itself – Germans call this a wehrhafte Demokratie (a democracy able to defend itself). A party that wants to set up a dictatorship, for example, is unconstitutional; only the Federal Constitutional Court can ban it.