The Duty of Loyalty to the Constitution in the Judicial Tenure – On the Scope and Limits of State Measures
To make it clear that he or she will at all times uphold the free democratic basic order within the meaning of the Basic Law is condition for appointment to judicial tenure and retention. The requirement of this loyalty to the constitution, which is a matter of course for all states under the rule of law, is part of the aptitude criterion within the meaning of Article 33 (2) of the German Basic Law.
As early as the 1970s that were marked by the so-called Anti-Radical Decree (‘Radikalenerlass’), there were numerous legal-political and constitutional debates about the extent to which the state may or even must go in containing the threats posed by enemies of the constitution in the civil service. The starting point for such considerations is that threats to the state can also come from within in terms of personnel.
Current weaknesses with regard to compliance with the duty of loyalty to the constitution were demonstrated not least by the large-scale raid on December 7, 2022 against persons associated with the ‘Citizens of the Reich’ movement (‘Reichsbürger’) and right-wing extremists. In the course of the subsequent roundup of a conspiracy circle – the so-called Reuß Group –, an active professional judge also turned out to belong to the group. Since then, the issue of suitable measures for dealing with judges and civil servants in general who have either been accused or even proven to have anti-constitutional efforts has been raised.
The dissertation addresses the tension between the concept of a self-defensive democracy (‘well-fortified democracy’), state security interests and official duties of judges relevant to state protection on the one hand, and constitutionally guaranteed judicial independence, the rule of law and fundamental rights on the other hand. The central issue here is to draw the boundaries of permissible conduct by judges, both within and outside the judges’ service, based on their official duties. Moreover, the study focuses on the question of the extent to which compliance with the duty of loyalty to the constitution is already being reviewed or must be reviewed, and how to proceed in the case of a possible violation.
Using selected state and federal regulations as examples, this paper examines whether the current set of measures for dealing with (suspected) anti-constitutional judges meets legal requirements and to what extent new instruments are needed to protect the idea of a well-fortified democracy and the rule of law. In addition to the professional judges, the legal situation surrounding the duty of loyalty to the constitution on the part of the approximately 40,000 honorary judges in the nationwide courts is also examined.