Politische Neutralität in der Parteiendemokratie - 10.1628/000389117X15151513970346 - Mohr Siebeck

David Kuch

Politische Neutralität in der Parteiendemokratie

Jahrgang 142 () / Heft 4, S. 491-527 (37)

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Political neutrality is a normative concept of growing importance in constitutional law. In Germany, due to some recent decisions of the Federal Constitutional Court the question of the limits of the government's right to participate in political communication is highly controversial. Whether one recognises or rejects a general legal principle of political neutrality regulating such communication, one necessarily takes a stance on fundamental issues concerning the relation between state and society in a modern democracy. In jurisdictional legal reasoning the principle of political neutrality typically appears in connection with the subjective rights of a complainant. Thereby the question of the principle's deeper justification in the objective constitutional law is not answered – which is one of the subjects dealt with here. Some authors even maintain that the whole picture emanating from such cases does not fit into our democracy. According to them, in a »party democracy« (Parteiendemokratie) it is quite normal that governmental authorities have similar political freedoms like ordinary citizens, even if it comes to polemic statements. This essay locates the principle of political neutrality in the objective constitutional law, i.e. in the democratic principles laid down in Art. 20 (1) and (2) of the Basic Law. From this point of view, the distance between the actors – the government, the party, the voter and the ordinary citizen – is indeed narrow. There is no hierarchy between the participants in democratic discourse. Nevertheless, there are certain legal rules addressed to the government limiting the government's public communication. They (partially) constitute the legal position of the government vis-à-vis the other democratic actors and protect the realm of the open democratic process. According to them the government has legal duties that can duly be labelled duties of »political neutrality«: First, the government must not participate in the election campaign thereby obscuring the fact that all power for a moment returns to people's hands; instead it should leave the struggle for voters to the political parties. Second, during its period of office, the government has to be open to the concerns of all citizens alike because of its responsibility for the common good. In particular, this position is inconsistent with disintegrating measures such as communicative discrimination of any political opinion.

David Kuch Geboren 1983; Studium der Rechtswissenschaften und der Philosophie in Würzburg und Poitiers; 2010 Erste juristische Staatsprüfung; Wissenschaftlicher Mitarbeiter am Lehrstuhl für Rechtsphilosophie, Staats- und Verwaltungsrecht in Würzburg; Gastaufenthalt in Oxford, Law Faculty; 2015 Promotion; 2014–16 Rechtsreferendariat in Berlin.