Due to Corona, the freedom of citizens is being limited. States – not only in Germany – issue statues and regulation to make people “stay at home”.
Just as with many matters, opinions divert on this issue. The span reaches from “I can take care of myself,” “This does not bother me”, “It is too late anyway”, to “Why do the politicians not act quicker, they will be to blame if Corona spreads.”
This is about one of the highest goods people have the right to, not only in Germany and Europe: Freedom. That is why politicians have to balance reasons. Which measurements are necessary to prevent the spreading of the Corona virus, which at the same time leave as much freedom as possible to the individual.
Artikel 2 Abs. 2 Satz 2 GG (Grundgesetz) lautet: Die Freiheit der Person ist unverletzlich. In Satz 3 steht: In diese Rechte darf nur auf Grund eines Gesetzes eingegriffen werden.
Article 5 ECHR (European Charter on Human Rights) Para. 1 says: Every person has the right to freedom and security. And further:
Die Freiheit darf nur in den folgenden Fällen und nur auf die gesetzlich vorgeschriebene Weise entzogen werden: e) rechtmäßige Freiheitsentziehung mit dem Ziel, eine Verbreitung ansteckender Krankheiten zu verhindern.
During the Corona-Crisis – in Germany- it is the “law to prevent infectious diseases” (Infektionsschutzgesetz), which gives the legal legitimation to limit the constitutional right of freedom: Para 32: State governments are granted power to issue orders and bans for the suppression of infectious diseases. Constitutional rights of freedom of the individual (Article 2 Para. 2 Sentence 2 German Constitution) (…) may be restricted to this extent.
Another constitutional principle is the one of proportionality. This states that constitutional rights may only be limited to the extend necessary but not further to reach the sought for aim.
That governments seem to hesitate to restrict freedom of the individual more strict is an expression of strength in the state we live in, which highly values constitutional rights of freedom. It is not a sign of weakness as many say (and many more will say, particularly those from the populist right political field). It is a sign of strength of our democracy and the rights of the individual.
State governments initially observe, how their citizens cope with their responsibility and only react and then only to the extent necessary.
All citizens should remember this when in the future arguing in one line with the far right populists: “If you wimps had not prevented me from driving on the autobahn as fast as I want, but had imposed a strict speed limit, I would not have caused an accident and all these people would not have been killed.” Equally absurd is: ”Had you prevented me more strictly from leaving my, I would have coped with the law, the Corona virus would not have spread as quickly and less people would have died.”
Rights of freedom are an expression of the value and maturity of every individual. They should not be limited frivolously, not even under exceptional circumstances. First, the ability of the individual to carry responsibility should be tested. Only then the state may take over. This is how it should be done in a strong democracy.
Furthermore, fear is a bad counselor. Not only Jedi knights say this but also many intelligent people including for example one of the highest German judges, Thomas Fischer, former Chief Judge of the Supreme Civil Court in his book “About Punishment”. Retrospectively many will be of the opinion that they had been smarter. This is easy though. To hold high freedom during a time of fear and insecurity is a sign of strength within the frame of constitutional rights.
Many may now oppose: “No, it is a sign of stupidity.” They may well do so as the freedom of expression is another highest constitutional right. I will write shortly why this is being endangered by the ever lament of “Fake News”. After all, a state, which has no confidence in the ability of its citizens to carry responsibility incapacitates its citizens. If the people show that they cannot cope with their responsibility, should not rather they be regarded as the “stupid ones” (instead of the government)?