I am pleased and grateful that you took the time to review the English version of the Basic Law. A couple of points though that you need to bear in mind when readig Law. Words in the Law, as you rightly point out are very important, and the interpretation of those words are key. The Courts (in the USA and almost all Legal Systems based upon Anglo-American jurisprudence) have a set process of interpreting the meaning of words as a word made have different connotation to different people. The Courts follow firstly precedent (i.e. prior interpretation, then the plain language of the meaning of the word and then the look to supporting analysis starting with Comparative Law Interpretation from other Countries, Academic published papers and submissions etc are used as "persuading" authority.
You also need to be careful regarding translation from a Local Language to English as that depends upon the skill and qualifications of the person carrying out the translation.
To give an example. I work in a developing country assisting companies (both Local and International) to be compliant with Local legislation. I recently encountered a Law which places an onerous burden and is almost impossible to comply with in a practical manner. I know the source of the Law (which has a prime language of English). That source was translated into the Local language to form the Law. I then reviewed using a translation of the Local language Law into English. The source Law used the words "Prime Purpose" and the subsequent translation via the Local Language Law into English resulted in the words "Pure Principle". To a Lawyer this is nonsensical. "Prime Purpose" has a legal definition whereas "Pure Principle" (in the Law's context) only has a Theological definition. When asking Local Lawyers of there interpretation I could get no clarity as the Local language does not have a linguist construction capable of supporting the initial Legal philosophy of the source law. I asked 5 and got 5 different answers....
The penultimate point is that the Western Powers insisted that the Germany Constitution council which drafted the German Basic Law insisted that the Basic Law included some details specific to banning representation of the Nazi's. Unlike Japan, Germany has honored that requirement to acknowledge and educate about the issues associated with the Nazi period so there is some wording in the Basis Law which seems inconsistent with the overarching principles of Article (1). The entire Basic Law needs to read retaining Article 1 as its context.
But the real point of this is that: Yes, there will be different interpretations and there will be different judgements depending on how the Law is read by the Judge. That is normal as both Landers (States) and Regional Federal Courts in German have, like the USA, the right to different interpretation so long as they are at equal level. It is then the responsibility of the Constitutional Court to resolve those differences. The German Constitutional Court (unlike SCOTUS) can ONLY consider Constitutional issues and is the penultimate Court with the ECJ or ECHR the final arbiters but the ECJ can only consider EU Legislation and the ECHR (whose decisions are non-binding) can only consider issues related to the European Convention on Human Rights.
Be grateful that you live in a world where Legal reasoning emanating from the Courts is published and form precedent/guidance. I work in a system where no reasons behind Court decisions are published and each case has to be argued as if it is a new case before a Judge or Government official. But you also need to give the Courts time. They have a logical and ordered process which takes time and decisions may take years to eventually be resolved (it is the same in the USA).
Look at the quality of the Judiciary and that will give you guidance and confidence. Are they legally trained? Are they Politically Appointed? Have any of their prior decisions been tainted by ideological bias? Do they have an obscured loyalty to a particular economic or political agenda? Are they subject to abnormal or extreme political influence? Is the appointment process transparent and free from political motivation?.... To those outside the USA the Judicial Appointments System of the USA is tainted but somehow SCOTUS slowly moves towards bringing the USA's Constitution from a position where it is weak on Human Rights to something that is more compatible with the realities of the 21st Century rather than the 18th Century.
PS. I am not a qualified Lawyer (i.e. I have no right of audience at Court) but I work in helping organizations change to become legally compliant. So I work on the practical application of Law & how that affects an organization's financial recording and reporting, its organizational structure, its management processes and its corporate governance. I don't get paid
Actually, "hate speech" is very clearly defined under the German Criminal code under Section 130 Articles (1) & (2). It is not an arbitrary or variable definition and is established on the basis of Articles (1) and (2) of the German "Basic Law" which is Germany's constitution. The competing rights arise from Article 5 of Basic Law impinging on the Rights Granted under Article 1 (the overarching right) and Article 2 of Basic Law.
I would strongly counsel that before making an immediate comment on the Law of other Countries that you first take the opportunity to read and evaluate those Laws. I feel that this article failed to do so and, by that omission, failed its journalistic integrity and responsibility. It fell far below acceptable levels of journalistic professionalism.
You also need to read the German Constitution in the context of its drafting (by the Allied Powers after World War 2) and the fact that it was drafted in a manner that would, wherever possible, preclude a reoccurrence of the movements that laid waste to much of Europe and allowed the mobilization of a populace to commit the atrocities of the Holocaust and associated Genocides.
The USA, thankfully, played a huge part in drafting the German Constitution having learned from the difficulties of its own Constitution and the problems encountered in other Countries like the UK, Italy, France and Japan.
Sadly, those Statesmen, or there approaches, seem to have no relevance nowadays.
What a xenophobic article showing a massive lack of understanding of European Human Rights Law with editorial comments locked into a USA-centric view of the World. This judgement is a right and proper judgement. There are 2 competing rights under the German Constitution and European Convention of a Human Rights as codified under EU Law. This Court has decided for one right and another Court has decided for the competing right.
The decision regarding which right has supremacy will first rise to the highest German Court and then be referred for decision by the ECJ.
In the USA you have similar conflicts between Courts in the Federal Courts System and they are usually resolved by the SCOTUS.
Germany and the EU acknowledge such competing rights where as the USA, and especially Techdirt, fights for and protects Hate Speech regardless of the harm it causes. But the World now expects that of the USA.
Techdirt has not posted any stories submitted by Competing Rights.
Re: Ok, if words are too much for you to comprehend
https://www.buzzfeednews.com/article/pranavdixit/whatsapp-destroyed-village-lynchings-rain pada-india
As is mentioned in a latter post you need to.....
You also need to be careful regarding translation from a Local Language to English as that depends upon the skill and qualifications of the person carrying out the translation.
To give an example. I work in a developing country assisting companies (both Local and International) to be compliant with Local legislation. I recently encountered a Law which places an onerous burden and is almost impossible to comply with in a practical manner. I know the source of the Law (which has a prime language of English). That source was translated into the Local language to form the Law. I then reviewed using a translation of the Local language Law into English. The source Law used the words "Prime Purpose" and the subsequent translation via the Local Language Law into English resulted in the words "Pure Principle". To a Lawyer this is nonsensical. "Prime Purpose" has a legal definition whereas "Pure Principle" (in the Law's context) only has a Theological definition. When asking Local Lawyers of there interpretation I could get no clarity as the Local language does not have a linguist construction capable of supporting the initial Legal philosophy of the source law. I asked 5 and got 5 different answers....
The penultimate point is that the Western Powers insisted that the Germany Constitution council which drafted the German Basic Law insisted that the Basic Law included some details specific to banning representation of the Nazi's. Unlike Japan, Germany has honored that requirement to acknowledge and educate about the issues associated with the Nazi period so there is some wording in the Basis Law which seems inconsistent with the overarching principles of Article (1). The entire Basic Law needs to read retaining Article 1 as its context.
But the real point of this is that: Yes, there will be different interpretations and there will be different judgements depending on how the Law is read by the Judge. That is normal as both Landers (States) and Regional Federal Courts in German have, like the USA, the right to different interpretation so long as they are at equal level. It is then the responsibility of the Constitutional Court to resolve those differences. The German Constitutional Court (unlike SCOTUS) can ONLY consider Constitutional issues and is the penultimate Court with the ECJ or ECHR the final arbiters but the ECJ can only consider EU Legislation and the ECHR (whose decisions are non-binding) can only consider issues related to the European Convention on Human Rights.
Be grateful that you live in a world where Legal reasoning emanating from the Courts is published and form precedent/guidance. I work in a system where no reasons behind Court decisions are published and each case has to be argued as if it is a new case before a Judge or Government official. But you also need to give the Courts time. They have a logical and ordered process which takes time and decisions may take years to eventually be resolved (it is the same in the USA).
Look at the quality of the Judiciary and that will give you guidance and confidence. Are they legally trained? Are they Politically Appointed? Have any of their prior decisions been tainted by ideological bias? Do they have an obscured loyalty to a particular economic or political agenda? Are they subject to abnormal or extreme political influence? Is the appointment process transparent and free from political motivation?.... To those outside the USA the Judicial Appointments System of the USA is tainted but somehow SCOTUS slowly moves towards bringing the USA's Constitution from a position where it is weak on Human Rights to something that is more compatible with the realities of the 21st Century rather than the 18th Century.
PS. I am not a qualified Lawyer (i.e. I have no right of audience at Court) but I work in helping organizations change to become legally compliant. So I work on the practical application of Law & how that affects an organization's financial recording and reporting, its organizational structure, its management processes and its corporate governance. I don't get paid
Re:
I would strongly counsel that before making an immediate comment on the Law of other Countries that you first take the opportunity to read and evaluate those Laws. I feel that this article failed to do so and, by that omission, failed its journalistic integrity and responsibility. It fell far below acceptable levels of journalistic professionalism.
You also need to read the German Constitution in the context of its drafting (by the Allied Powers after World War 2) and the fact that it was drafted in a manner that would, wherever possible, preclude a reoccurrence of the movements that laid waste to much of Europe and allowed the mobilization of a populace to commit the atrocities of the Holocaust and associated Genocides.
The USA, thankfully, played a huge part in drafting the German Constitution having learned from the difficulties of its own Constitution and the problems encountered in other Countries like the UK, Italy, France and Japan.
Sadly, those Statesmen, or there approaches, seem to have no relevance nowadays.
(untitled comment)
The decision regarding which right has supremacy will first rise to the highest German Court and then be referred for decision by the ECJ.
In the USA you have similar conflicts between Courts in the Federal Courts System and they are usually resolved by the SCOTUS.
Germany and the EU acknowledge such competing rights where as the USA, and especially Techdirt, fights for and protects Hate Speech regardless of the harm it causes. But the World now expects that of the USA.
Techdirt has not posted any stories submitted by Competing Rights.
Submit a story now.
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