This is a calculated violation of the constitution
Posted On 09/12/2021
We would like to thank Mr Thomas-Michael Seibert and Ms Camilla Hildebrandt for allowing us to publish the following interview on our website. Camilla Hildebrandt, journalist at Deutschlandradio Kultur, Deutschlandfunk and WDR, led the interview for Multipolar. We publish a version of the original interview from 19 November 2021, supplemented and expanded by Mr Seibert.
We are pleased to make contributions to Multipolar‘s website more internationally visible in this way. This is our second collaboration with the online magazine Multipolar after Ole Skambraks’ letter, which we translated into French and English after publication.
This is a calculated violation of the constitution
Multipolar: The 3G, 2G and 1G rules for protection against Corona amount to exclusion and discrimination of the unvaccinated — this is how constitutional lawyer Volker Boehme-Neßler, among others, sees it: “If vaccination is to continue to be voluntary, those unwilling to be vaccinated must not suffer any disadvantages because they do not wish to be vaccinated (…). If disadvantages arise for them, they are discriminated against, and that is not permitted by our constitution.” Mr. Seibert, how is the 3G, 2G or even 1G rule compatible with our Basic Law?
If you dislike something, then you try, in a calculated way, to get around the rule as a principle by making an exception based on the situation. For constitutional law, I maintain that there is the principle of bodily integrity. That means, in the first place, that one must consent to vaccination. Criminal law does not provide for the case at all, and there is no discussion that one could be forced to vaccinate. That would be assault and battery. All attempts in this direction have been challenging, delayed, and protracted, and it is notoriously difficult to make vaccination generally compulsory and to make it a legal requirement applicable to all. It took 200 years to enforce smallpox vaccination.
Seibert: Because in the meantime these rules have been put into a legal form in the federal law with the § 28 a and 28 b – that was the latest stop-gap measure, the so-called emergency brake.
The decisions of the German Federal Constitutional Court of 30 November 2021 have the expected fundamental relevance and significance only insofar as they give the government a free hand. A decision is still pending on the further restrictions of fundamental rights by G-regulations. At the time of the constitutional complaints, they were not yet in effect.
In my opinion, that was a violation of the Basic Law. It is an infringement of the organization of the state by means of the Epidemics Act, which had been in force since 1900 in the former Reich and then also in the Federal Republic of Germany, where it was only renamed at the beginning of the 2000s and has since been known as the Infection Protection Act.
The Epidemics Act was designed for limited, local measures intended for sick people. What we have experienced now – and in a very short space of time, within one and a half years – is the conversion of this law into measures against healthy people, who are not directly involved but who may become ill, possibly unwittingly carrying a germ, the presence of which, incidentally, cannot be confirmed by vaccination or a test. The medical question remains unanswered in all these measures. Judicial decisions on the usefulness of these measures will be taken only in cases where plaintiffs or applicants can be found. The possibilities for legal action were – and should be – deliberately and systematically made more difficult in April of this year by the introduction of § 28 b of the Infection Protection Act.
Multipolar: In what way?
Seibert: In principle, the administrative courts no longer have subject-matter jurisdiction, but the legal basis itself would have to be challenged. This happened in May 2021 with about 430 constitutional complaints pending before the Federal Constitutional Court. The Federal Constitutional Court decided not to rule for the time being because it was such a thorny issue. The decision was postponed until further notice. This is why a fundamental judicial decision on the matter is lacking.
All these measures can best be dealt with at the level of proportionality and on a case-by-case basis with regard to specific situations. It is just difficult to counter this. One could certainly say: If I am not allowed access to a hotel because I cannot show proof of a test or vaccination, then I will take legal action. This could also be a civil law action against the hotel operator, for granting access. In Germany, there is a tradition and corresponding case law of direct application of fundamental rights in contractual relationships, in which case the Covid exception laws would have to be reviewed indirectly. To my knowledge, however, no one has brought such a suit. These things are not that important to most people. As long as I can find satisfactory workarounds, I am not going to bring charges. For that matter, one could bring a declaratory judgment action in the administrative courts. I am not aware of the outcome of such attempts.
Multipolar: What about the right to education? That was a very important basic and human right in the Federal Republic of Germany until Corona.
Seibert: The same applies to the right to education as to the right to property. The right to education is part of Article 12 of the Basic Law and is considered a precursor to the right to freedom of occupation. But now, in this context, everyone is suddenly declared a danger. Our mere existence is a threat to public safety and order because we could be a factor of infection. The right to education is, constitutionally speaking, no more important than the right to property, that is to say, for example, the right of a restaurant owner to open his premises to those whom he can entertain there. The students and pupils, by the way, are currently easy to control. There is no protest there.
Multipolar: That means any individual could sue?
Seibert: Yes, that is possible. I am waiting for it to happen.
Multipolar: You say that currently everyone – mainly every unvaccinated person – is seen as a potential danger. This is what you see as the biggest problem in 2021: the “policification” of the law. Can you explain that in more detail?
Seibert: This leads straight to the heart of legal theory and the development of law in the 20th Century, and even more so in the 21st Century. Classical law was set on facts and legal consequences, violations of rights and their compensation, be it by way of compensation, by way of punishment or by measures that follow. So, a violation of rights would always have to occur first. You always had to wait to be robbed before you could say: This is a case of robbery. But the current idea is: we prefer not to wait that long. We want to prevent unpleasant events before they happen.
The first big push towards strict liability, in this case in criminal law, came in the 1970s with many individual provisions designed to prevent terrorism and the preparation of criminal acts. Since then, someone can also be liable to prosecution for offering a bed for the night to another who was known to the police as a dangerous person. Courts have taken evidence on this. That could be tantamount to promoting or even participating in a terrorist organization. And this idea of danger is now expanding. It is currently returning as a climate protection idea, and it is also appearing – promoted by the earlier SARS epidemics, which were only local in the end – in the area of infection control.
Multipolar: How is that policification?
Seibert: It is about this: we prefer not to wait any longer. The Prussian legislator said: We need legislation that prevents sick people from transmitting their disease to others through continuous interaction with them. This approach is now being extended and spread over the entire population by subjecting healthy people to the same measures — possibly quarantine, access ban, contact ban. This is policification. Police law is even less conceptual than classical law. Central concepts include the “danger”, the “offender” and a toolbox of “measures”.
“Policification” refers to the process of transforming a “right of sovereignty” into the modern disciplinary apparatus, as M. Foucault distinguishes both tendencies.1 Fundamental rights originally pertained to bourgeois sovereignty; they are used precisely as an instrument of discipline when the freedom of the unvaccinated has to take a back seat to (as claimed: appropriate) health protection measures. Critical Legal Studies have been familiar with the process of “Policification” since Aaron Cicourel’s observations on the police treatment of juvenile delinquency, and it can be read in Roberto M. Unger’s “Two Models of Doctrine”.2
This all sounds very familiar to us right now. The tendency is for measures for the police administration and the police officer, who will survey the situation and decide independently on the appropriate course of action. It is difficult to fight against this. Because what an experienced police officer considers appropriate is legally appropriate. Now, the special thing about the epidemic situation of national scope is that there are no experienced police officers at work any more, but inexperienced politicians who, at a relatively young age, think they know what should be prescribed for everyone after alleged consultation. This is a highly dangerous situation that was not actually foreseen in the legal system.
Multipolar: Why is this a highly dangerous situation? What would be the consequences for our democracy, for example?
Seibert: I am just using the word myself that I have reservations about: dangerous. Dangerous is something whose preconditions and consequences cannot be assessed. The danger may not even be there. Police law supports itself and says: then it is a prima facie danger. That is a nice term for lawyers. The burdens of justification become lighter in the process; they are themselves evaporated by ephemeral terms. And the concept of danger is ephemeral. Dangers are not seen. They can be there. They do not have to be there; they can materialize, one does not know. And because you do not know, it is very hard to argue against them. The whole classical process of argumentation is difficult to transfer to the danger situation. We are not set up for that. That leads to the courts saying very little, just as the Federal Constitutional Court did recently: The situation could be dangerous. If we say now that it is not dangerous, then we may be making a big mistake. So, we would rather not make that mistake, but make other mistakes and say: It could be dangerous.
Multipolar: So what is the danger if this “policification” continues and the potential danger is used to further justify the measures?
Seibert: It is no longer foreseeable in which area which restrictions will be imposed. Our fundamental rights are basically up for grabs, which is precisely what classical constitutional thinking was supposed to prevent. The fundamental rights were conceived and introduced in the 19th Century as an individual defence against the imposition of state laws.
Multipolar: Does that translate as political despotism?
Seibert: Yes, if we are talking about a despotic regime, then that is always the case. If you trust in a liberal state administration, then you say: Well, that does not necessarily have to concern me. That is roughly what the majority attitude to the 3G, 2G, 1G rules looks like to me.
Multipolar: In the preliminary discussion, you said: The law is a pawn of power. Does that mean that the judiciary is dependent on politics?
Seibert: No, unfortunately it is a bit more complicated than that. Politics and law are both dependent on power. In this context, power is understood as following without justification. Power is a medium like money, where following without justification is easiest to observe. One party pays, and in return others do what they would not otherwise do. With power, it is structurally more difficult. The watchword: the leader commands, we follow – that no longer works. But the underlying mechanisms do work: I tell you, you do it. And I am not obliged to explain the basis for this in detail. The police officer on the scene does not have to state the provision in the Highway Traffic Act to explain why he is intervening. This way of intervening with power follows from the position of the person in power at the time and the simultaneous renunciation of justification.
The law cannot justify everything anyway. We want it to be difficult to justify, with laws, an action that is supposed to be legal. If you remove the difficulty of justification and say there is the concept of danger that justifies everything, that may not be an immediate infringement of rights. But it puts the decision at the discretion of those in power.
With the concept of danger, one makes it easy for lawyers in such a situation; and that is what lawyers and courts like to have. A danger can be felt everywhere, and it is even nicer to say: science sees the danger, at least a certain kind of science. External institutions supply it, and the authorities only have to implement everything. When law becomes a pawn of power, it reduces the application of law to a stimulus-response mechanism. This also exists in politics. It is not supposed to exist in law, which is why the obligation to justify applies. But to the extent that justifications are adapted to the needs of those in power, the desired legal legitimacy is always available. The judicial organization is happy to make use of it.
Multipolar: Still, for the sake of understanding, what exactly does “right is a pawn of might” mean?
Seibert: One can give the matter an anecdotal twist. The Federal Constitutional Court has shown how dependent it is on power by allowing itself to be invited to dinner at the Chancellor’s Office. At the same time, its president ordered lectures on, of all things, the question of how to react in a situation of danger under uncertainty – a legal-theoretical and philosophical question that every jurist, as well as the President himself, should be able to answer. This is, of course, an embarrassing case of being a pawn of power. Usually it works much more subtly. Judges and politicians alike are addicted to the same societal ideas. No one likes to be told: You are going to kill your grandma. Then, of course, every prime minister will say: Oh, there must be a law immediately to protect grannies. And since you cannot protect grannies alone, let us just say over 60-year-olds or over 70-year-olds. And if that is not possible either, then all of them. That seems like a good thing after all. This is what happened, rapidly and in a terrifying way, during the first quarter of 2020: right was a pawn of might. But power is following suit.
Constitutional lawyers have said from the outset: You have no legal basis for the orders that have been made. The Infection Protection Act, which was still in force at the time, did not provide for what was put in place as the “first lockdown”. But at first, neither the Bundestag nor the Government cared, and there were no sweeping court decisions on the matter. No one cared that this was unlawful action, which has taken place in the Federal Republic since March 2020. The simple objection would have been that the actions, despite regulation, lacked a legal basis. Nevertheless, on March 25, 2020, all members of the Bundestag voted in favor of the law, with the AfD and the Left abstaining, when it came to declaring an epidemic situation of national scope.
Multipolar: Is the process comparable to the emergency legislation of the 1930s?
Seibert: It is not comparable. But similarities can be found. The provisions passed in March 1933 as the Enabling Act placed fundamental rights at the discretion of a state legislator, as was also the case in March 2020. This is not, of course – that is why the word must not be used even among jurists – the same, if only because the agents are not the same. It may be pointed out, however, that the Catholic and liberal members of the Reichstag, as well as Theodor Heuss, approved the Enabling Act because they did not, of course, expect that the participation of the NSDAP in a government would lead straight to genocide and a war of aggression. It was not clear to contemporaries in March 1933 what would happen in the future. At present, it cannot be anticipated either.
Multipolar: But what is similar?
Seibert: The abrogation of fundamental rights by laws that follow directly from the Infection Protection Act and from the appearance of an epidemic situation of national scope. It is also intentional – as clearly stated in the law itself. It is intended to override fundamental rights in many ways.
Multipolar: Where do you think our society is currently heading?
Seibert: It is developing into a neurotically reacting danger-averting state. The next issue is climate protection. This has been going on quietly for five to ten years now under the banner of climate protection, the necessity of which can be denied as little as that of health protection. One cannot deny that Corona is a fatal disease. You cannot dispute the fact that the poles are melting or the glaciers shrinking – you can measure that. But you do have to argue about what the 1.5-degree target is all about, what specific measures are associated with it, and whether it is even rationally defensible as a target for a limited, state-national scope.
We must have this discussion; it cannot be hidden behind the buzzword “1.5-degree target”. In this case, constitutional legislation has responded with Article 20a of the Basic Law. But even with this addition, one has to think about what expression is associated with it. The celebrated climate decision of the Federal Constitutional Court is highly problematic, scientifically contestable, and its impact on restrictions of freedom cannot be overlooked.
That is why I can hardly say in which direction we are heading. The dangers also come from those who think they are preventing dangers.
(Translated by KD.)
1. See Foucault, M. (2001). Dits et écrits: olume II, 1976-1988. Gallimard, pp. 124-130 et Foucault, M. (1997). « Il faut défendre la société. » Cours au Collège de France, 1975-1976. Gallimard/Seuil. ↩︎
2. Unger, R. M. (2015). The Critical Legal Studies Movement: Another Time, a greater Task. Verso. ↩︎