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The German social state principle : some focal points
Thesis (LLM) -- Stellenbosch University, 1995.
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| Format: | Thesis |
| Language: | English |
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Stellenbosch : Stellenbosch University
2012
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| _version_ | 1867614030931165184 |
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| access_status_str | Open Access |
| author | Gorter, Jacob Daniel Rienk |
| author2 | Erasmus, M. G. |
| author_browse | Erasmus, M. G. Gorter, Jacob Daniel Rienk |
| author_facet | Erasmus, M. G. Gorter, Jacob Daniel Rienk |
| author_sort | Gorter, Jacob Daniel Rienk |
| collection | Thesis |
| dc_rights_str_mv | Stellenbosch University |
| description | Thesis (LLM) -- Stellenbosch University, 1995. |
| format | Thesis |
| id | oai:scholar.sun.ac.za:10019.1/54891 |
| institution | Stellenbosch University (South Africa) |
| language | English |
| last_indexed | 2026-06-10T12:45:33.890Z |
| license_str | Other — see source repository |
| provenance_str_mv | Harvested via OAI-PMH from SUNScholar — Stellenbosch University Repository |
| publishDate | 2012 |
| publishDateRange | 2012 |
| publishDateSort | 2012 |
| publisher | Stellenbosch : Stellenbosch University |
| publisherStr | Stellenbosch : Stellenbosch University |
| record_format | dspace |
| source_str | SUNScholar — Stellenbosch University Repository |
| spelling | oai:scholar.sun.ac.za:10019.1/54891 The German social state principle : some focal points Gorter, Jacob Daniel Rienk Erasmus, M. G. Stellenbosch University. Faculty of Law. Dept. of Public Law. Constitutional law -- Philosophy Constitutional law -- Germany Constitutional law -- South Africa Social policy Dissertations -- Law Thesis (LLM) -- Stellenbosch University, 1995. The South African interim constitution is a value-based document, providing for the Rechtsstaat (constitutional state) in a material sense. This is a German continental concept of origin. Among the most important values underlying this idea are justice and human dignity. It will be argued that these values are also fundamental to socio-economic rights, and that they therefore would deserve recognition on the same basis as human rights of the first generation. A material Rechtsstaat can thus, with some exaggeration, be described as a ‘social state in a narrower sense’, as they both are required to further the same values. The content of the German social state principle is examined, and compared from a more theoretical point of view. The focus will be on the clause in relation to other fundamental principles and ideas in both German constitutional law and theory, such as ‘real freedom’, the relation with the Rechtsstaat and the ‘image of man’, developed by the German Federal Constitutional Court, to get a better notion of the principle. Some concrete applications given to the social state principle by the Federal Constitutional Court are also mentioned. The judicial aspects of the social state principle are dealt with in chapter IV. The principle can be described as a directive principles of state policy (Staatszielbestimmungen). Together with ‘instructions to legislative’ (Gesetzgebungsaufträge), these directives compose so-called objective legal norms. In German constitutional theory, Staatszielbestimmungen hold both a constitutional duty and mandate to the legislature to shape the just social order. The legislature enjoys a wide discretion to do so. The social state principle as such does therefore not guarantee any subjective rights to the individual citizen, but needs to be concretized first into legislation. There are however exceptions to this rule. In the relation between the Rechtsstaat and the social state, the basic rights are considered an important bulwark to protect individual freedom against the ‘inherent collectivist tendency’ of the social state principle. Nevertheless the principle is capable of influencing and hence restricting the basic rights. This is shown on the basis of the freedom and equality rights. Furthermore, under the influence of the social state clause and especially the Numerus-clausus decision of the Federal Constitutional Court, there was argued for the reinterpretation (Umdeutung) of basic rights as constitutional subjective rights to participate in state performances. Chapter V will deal with the problem how to address the dire socio-economic circumstances of the underprivileged in South Africa. Attention to their needs should preferably be paid on a constitutional level, to emphasise the importance of such demands. The legitimacy and ‘moral acceptability’ of a constitution should also be considered. Despite the contention that an innovative approach is necessary to deal with the issue of socio-economic rights, there is at this stage consensus however, that they should not be entrenched in a bill of rights as constitutional subjective rights. Another way of paying attention to socio-economic rights is the inclusion of directive principles. The German method, as a general social state clause is under review here, but the spotlight normally falls on India’s directive principles of state policy. A comparison between the two systems is made. Finally, one possible ‘technical’ solution to provide for real justiciability of directive principles is looked at: the mandamus in the public interest. It is contended however that one should be careful with the ‘import’ of foreign concepts which are too technical to achieve easily. Masters 2012-08-27T11:36:47Z 2012-08-27T11:36:47Z 1995 Thesis http://hdl.handle.net/10019.1/54891 en Stellenbosch University 79 pages application/pdf Stellenbosch : Stellenbosch University |
| spellingShingle | Constitutional law -- Philosophy Constitutional law -- Germany Constitutional law -- South Africa Social policy Dissertations -- Law Gorter, Jacob Daniel Rienk The German social state principle : some focal points |
| title | The German social state principle : some focal points |
| title_full | The German social state principle : some focal points |
| title_fullStr | The German social state principle : some focal points |
| title_full_unstemmed | The German social state principle : some focal points |
| title_short | The German social state principle : some focal points |
| title_sort | german social state principle some focal points |
| topic | Constitutional law -- Philosophy Constitutional law -- Germany Constitutional law -- South Africa Social policy Dissertations -- Law |
| url | http://hdl.handle.net/10019.1/54891 |
| work_keys_str_mv | AT gorterjacobdanielrienk thegermansocialstateprinciplesomefocalpoints AT gorterjacobdanielrienk germansocialstateprinciplesomefocalpoints |