The Basic Law and the Limits of Toleration - Essay Example

The Basic Law and the Limits of Toleration Toleration is one of the most significant virtues advocated for by liberals. This is because it is dedicated to the value of individual autonomy, which is the ability of human beings to make its own laws. Individuals are driven by a number of optional actions at any given moment. Therefore, in order to manage these actions, which are complex and entirely possible, people need society (Schmitt 146). The function of the society is to frame rules and regulations that limit the actions of its members. Liberalism strives to create justifiable criteria for determining what courses or options of actions are justifiable out of a person’s set of feasible actions, or added to improve its significance, and options that people can legally pursue (Schmitt 147). A person’s ability to make law for his or herself does not imply that the results of actions will be wise. In the name of liberty, they will begin doing weird things, in their privacies, and then complain about life being boring. According liberalism, liberty has a significant meaning only if it includes the freedom to do things that everyone does not agree with. These are the actions that the liberals have to tolerate. This is what is referred to as liberal tolerance (Schmitt 145). Annette Schmitt, in his article “The Basic Law and the Limits of Tolerance” is determined to assess whether a constitution that allows the suspension of individual rights (Art. 18GG), and the prohibition of parties (Art. 21.2 GG) deserves to be labeled as a liberal-democratic constitution (Schmitt 149). Schmitt performs this assessment based on the analytical framework created by the liberal concept of toleration. Tolerance is only meaningful, within the liberal concept theory if it has certain limits. Schmitt concludes that the key purpose of suspending individual rights and prohibiting parties is to serve as a reminder of tolerance limits while the actions of the Federal Constitutional Court reflects the liberal constrains on enforcing tolerance limits (Benvindo 332). In order to support her arguments, Schmitt begin by identifying Basic Law as stipulated in the German Constitution. The framers of German Constitution assumed that there is natural law created by Creator to, which everyone is entitled to, and it is the duty of a state (society) to protect these rights (Benvindo 333). Some of these rights include: equality before the law; freedom of expression; freedom of assembly and association; freedom of faith; of conscience, and of creed; right of property, of asylum, and of petition; right to life, and the right to privacy of correspondence, posts and telecommunications (Schmitt 149). These rights are stipulated in Art. 1 GG. It asserts that Human dignity shall not be violated, and it is the duty of a society (state) to respect and protect these rights (Schmitt 150). The content of Art. 1 GG, may not be altered at all, like Art.2 to 17 GG whose contents may not be altered as long as their essential content is concerned. This is because Art. 1 to 17 GG are not ordinary programmatic statements, but directly applicable laws (Schmitt 149). According to the basic law, anybody who feels that his or her rights have been violated with a judicial ruling, a statute enacted by parliament, and a decree issued by the administration has the legal rights to present his or her complains before the Federal Constitutional Court. In this case, Schmitt feels that the parliament, local administration, and the judiciary are responsible for suspending or prohibiting an individual’s right, which the citizens feel that is not objectionable (Rogowski & Gawron 25). A state is tolerant if it accepts to puts up with its citizens doing certain objectionable things. However, it has the freedom to stop tolerating these actions. The first stage in “stopping tolerating” is “Start prohibiting”. A state may decide to prohibit certain courses of actions if it finds that certain rights are objectionable. When a state begins prohibiting certain rights, citizens usually present their grievances before the Federal Constitution Court challenging the prohibition of those rights. In this case, the Federal Court acts as a liberal constrain on enforcing limits of tolerance, just like Schmitt claims (Benvindo 332). Certain rights, like social rights, are not contained in the Basic Law. A court cannot hold a state responsible for failing to implement positive rights. These facts indicate that Schmitt’s argument that Art. 18 GG and Art. 21.2 GG serves as the reminder of limits of tolerance, and the Federal Constitutional Court acts as the barrier to the enforcement of limits of tolerance, are valid. American judges, in the 18th Century, were faced with the problem of determining whether to apply Federal or State Laws when judging a given case. This is the time when the Congress called for the need to amend some federal laws to align them with state laws. However, it was decided that the federal government was supreme over state laws (Rogowski & Gawron 25). Most of these clauses were amended were those relating to the Basic Laws such as the right of privacy. I agree with Schmitt that a liberal state cannot be termed as a tolerant state. First and foremost, a liberal state is related to a practical condition of neutrality (Schmitt 154). This means that a state should not interfere with the development of reasonable individual’s actions. Additionally, if the state decides to adopt a liberal stance, in all sincerity and seriousness, then it should not privilege or favor any individual’s action. Moreover, the other requirement of a neutral stance is that the state should not act in accordance with an individual’s actions. This implies that a state cannot adopt any ideological, philosophical or religious stance (Almagor & Raphael 284). From this point of view, one of the requirements that are needed, in order to achieve a neutral state, is the regulation of a state’s acts in the context of previously accepted guidelines of principles and rules, which were created by certain framework that ensures its commitment to justice (Rogowski & Gawron 239). These sets of requirement are what limits the performance of a state, and allows it to tolerate certain individual’s actions that if feels should be objectionable. Therefore, by taking these requirements into consideration, it is necessary to note that a tolerant state should be the one that has failed to achieve a neutral stance. In other words, tolerance does not encompass neutrality. Neutrality is measured based on the attitude of a reference (Rogowski & Gawron 239). For example, a neutral person cannot favor any side of conflicting parties, which he or she is trying to arbitrate because he or she fears the risk of losing the neutrality that is required of him or her. Therefore, according to neutrality requirements, a tolerant person has no place in this situation. Refraining from arbitrating against or in favor of one party does not imply that he has refrained from taking a moral stance, in the face of some state of affairs (Tulis & Macedo 155). In this case, a tolerant person has the capability of stopping being tolerant at any given time. Schmitt argues that allowing a state to carry tolerant acts also gives it the right to cease being tolerant at any given time (Schmitt 148). When a liberal State begins suspending or prohibiting certain individual’s actions, then it implies that this state is also beginning to abandon the previous legal framework of formulating law and regulations, and start adopting some sort of authoritarian government. Most liberal states practice neutrality so that different and numerous plans of life may thrive (Tulis & Macedo 157). Let us consider a case where a liberal state decides to establish which life plans are fairer or better, based on certain objective framework, and then begin working politically in accordance with the guidelines of those fairer or better life plans. Such a State cannot be termed as a neutral State just like Schmitt refutes Germany as a liberal democratic institution (Schmitt 145). According to Schmitt, a state should include what it considers as other less valuable forms of life, under its moral standards in order to qualify as a tolerant state, something that I also agree with. In the modern world, liberalists have changed their expectations out of a neutral State. They are advocating for peaceful coexistence presided over by universal rules and principles, which can easily be acquired by any rational agent in spite of his or her belief of what entails a decent life (Almagor & Raphael 284). They also expect that State actions should be ruled by those frameworks of Law since those principles and rules have been developed by the objective criteria of universality and impartiality. The overlap between universality and impartiality criteria is what makes such a Law be widely accepted, by most members of the society, in spite of what they consider as a comprehensive or incomprehensive conception of moral ethics. Liberals advocate for “bridging” of norms that govern society because what is offered allows all members of a society consider these rules and principles as fair, unlike a situation where these principles are believed to favor only a group of people. In this respect, such a state is not perceived as a neutral State but as a tolerant State. This means that such a state has stopped being neutral and has began promoting a certain morality, liberal morality (Almagor & Raphael 285). In summary, in the context of a liberal State, tolerance exists as a vice, rather than a virtue. It is a fact that these elements are not compatible with the objective guidelines, which govern the actions of a public institution. This is in accordance to Schmitt’s argument that a state has to “bridge” both fair and unfair actions in order to achieve its tolerant status (Schmitt 150). Works Cited Almagor C, Raphael. The Boundaries of Liberty and Tolerance: The Struggle Against Kahanism in Israel. Florida: University Press of Florida, 2004. Print Benvindo J. Z. On the Limits of Constitutional Adjudication: Deconstructing Balancing and Judicial Activism. New York: Springer, 2010. Print Rogowski R, Gawron T. Constitutional Courts in Comparison: The U.S. Supreme Court and the German Federal Constitutional Court. New York: Berghahn Books, 2002. Print Schmitt A. "The Basic Law and the Limits of Toleration." German Politics (28 Sep 2007): 145- 160. Print Tulis J. K, Macedo S. The Limits of Constitutional Democracy. London: Princeton University Press, 2010. Print Read More