Concept and Significance of Hostility to the Law
The Concept Hostility to the law refers to the rejection, disregard, or active opposition to the existing legal order, its principles, and norms. Hostility to the law is manifested through attitudes, opinions, behaviors, or actions directed against the fundamental values, principles, and laws of a constitutional state and its societal norms. The term is used in legal scholarship, criminal law doctrine, constitutional law, and political education to describe phenomena, groups, and individuals who explicitly position themselves against the existing legal order.
Historical and Systematic Development
History of the Term and Legal Classification
The use of the term hostility to the law is primarily found in legal theory, criminal law, and constitutional law discourses. As early as the 19th century, the classification of individuals or groups as “hostile to the law” appeared in the context of social upheaval and crises in the legal system. In totalitarianism theories of the 20th century, hostility to the law was taken up as the attitude of certain ideologies towards the democratic constitutional state.
Distinction from Related Terms
Hostility to the law must be distinguished from terms such as Violation of the law, Illegality or deviant behavior. While these terms refer to individual acts that are contrary to the applicable legal order, hostility to the law denotes a fundamental rejection or enmity toward the law and its institutions themselves, often with a political-ideological motivation.
Manifestations and Legal Importance
Legal Policy Dimension
Hostility to the law can occur both individually and collectively, for example through groups, parties, or movements. The significance in legal policy lies in the rejection of fundamental principles of the constitutional state, such as the separation of powers, fundamental rights, or the principle of legality in administration. Hostility to the law therefore targets not only individual laws, but the legal system as a whole.
Criminal Law Aspects
In criminal law, hostility to the law is particularly relevant in the prosecution of anti-constitutional activities and politically motivated crime (keyword: state protection criminal law). Crimes committed out of hostility to the law are often considered especially dangerous, as they aim at the abolition or substantial impairment of the legal and constitutional order.
State Protection Offenses
Typical offenses that target a law-hostile motivation in the sense of criminal law include, for example:
- Establishing or supporting an anti-constitutional organization (§§ 129a, 129b StGB)
- Preparation of a serious act of violence endangering the state (§ 89a StGB)
- Public incitement to commit offenses (§ 111 StGB)
Sentencing and Risk Assessment
During sentencing, a clearly law-hostile attitude can influence the sentencing range. Courts assess, based on the offender’s actions and motivation, whether there is a fundamental hostility to the law that contributes to particular dangerousness. This also includes terrorist or extremist motives.
Constitutional Relevance
In constitutional law, the term is particularly significant in the context of the concept of the free democratic basic order and the ‘militant democracy’.
Anti-constitutional Activities and Forfeiture of Fundamental Rights
Acts of hostility to the law can lead to the forfeiture of central fundamental rights, for example the fundamental right to freedom of expression (Art. 5 para. 3 Basic Law) or the freedom of assembly (Art. 8 Basic Law), provided these are abused to combat the constitutional order. The Basic Law (Art. 18 Basic Law) provides under certain circumstances for the withdrawal of fundamental rights.
Party Ban
Parties whose aims and practices are directed toward impairing or abolishing the free democratic basic order are considered hostile to the law and may be banned by the Federal Constitutional Court according to Art. 21 para. 2 Basic Law.
Sociological Aspects of the Law
Hostility to the law is also considered in sociology as anti-normative behavior within a society. It can be an expression of individual or collective anomie, as a result of which individuals or groups consider the legal system illegitimate and actively act against its foundations. Research into law-hostile movements includes phenomena such as right-wing extremism, left-wing extremism, religious fundamentalism, or anti-state subcultures.
Prevention and Countermeasures
Legal and societal engagement with hostility to the law includes preventive and repressive measures:
- Prevention: Programs on political education, the promotion of democracy, and the strengthening of legal awareness serve to prevent law-hostile attitudes.
- Countermeasures: Authorities such as the Office for the Protection of the Constitution monitor groups and individuals who are considered to have a law-hostile attitude, in order to identify risks to public safety and the constitutional order at an early stage.
Relation to International Legal Orders
Law-hostile attitudes are also seen as problematic internationally. The term is used in the European context within the framework of terrorism prevention, combating extremist movements, and international human rights protection.
Conclusion
Hostility to the law describes a phenomenon that goes beyond individual violations of law and questions or combats the very foundations of the constitutional state. The state responds with a comprehensive arsenal of preventive and repressive measures, which are of criminal law, constitutional law, and sociopolitical nature. The comprehensive analysis, monitoring, and classification of hostility to the law remains a continual challenge in the tension between security, freedom, and the rule of law.
Frequently Asked Questions
What are the possible criminal law consequences of hostility to the law?
Hostility to the law in itself does not constitute a separate criminal offense under German law; however, a law-hostile attitude can give rise to numerous actions relevant under criminal law. For instance, the use of symbols of unconstitutional organizations (§ 86a StGB), incitement of the masses (§ 130 StGB), or forming a criminal organization (§ 129 StGB) often occurs in contexts where law-hostile attitudes play a role. Furthermore, acts of violence or damage to property motivated by rejection of democratic values may result in a more severe sentencing range, as a political or reprehensible motive can be taken into account as an aggravating factor. In addition, certain serious criminal offenses in a law-hostile context are considered to pose a particular risk to society, which may also affect sentencing.
To what extent is hostility to the law protected under the Basic Law?
The Basic Law protects freedom of expression under Art. 5 para. 1 Basic Law. However, this freedom is limited by Art. 5 para. 2 Basic Law where it violates personal honor or other general laws. Law-hostile attitudes that are expressed solely as an opinion and do not lead to further punishable acts are thus covered by freedom of expression. However, as soon as statements or actions put the free democratic basic order at risk, the so-called “militant democracy” applies. This may, for example, prohibit the dissemination of certain content or ban assemblies. The Federal Constitutional Court always defines the legal boundaries comprehensively when law-hostile conduct poses a concrete threat to the rights of others or public safety.
What role does hostility to the law play in association and party law?
The Associations Act (§§ 3 ff. VereinsG) stipulates that associations whose purposes or activities contravene criminal law or are directed against the constitutional order can be banned. Law-hostile associations that promote or pursue unconstitutional aims are therefore subject to special monitoring and prohibition scrutiny. Even parties that are demonstrably aimed at impairing or abolishing the free democratic basic order may, under Art. 21 para. 2 Basic Law, be banned by the Federal Constitutional Court. In the past, this regulation has been applied or reviewed with regard to several – particularly extremist – parties.
What measures can authorities take against law-hostile activities?
In addition to criminal prosecution, the law on assemblies, police law, and the law on associations and political parties play a role in countering law-hostile activities. Authorities are entitled to prohibit or dissolve assemblies if they pose a risk to public safety or order due to their law-hostile nature (§§ 15 Assembly Act, § 13a NRVersG). Furthermore, relevant groups or individuals are monitored by the Office for the Protection of the Constitution (§ 3 BVerfSchG), and, based on the information obtained, further measures such as occupational bans in the public sector (§ 33 BeamtStG) can be initiated. The Federal Criminal Police Office and state police authorities are authorized to take preventive action, for example, through risk analysis measures.
How is the concept of hostility to the law considered in judicial proceedings?
Courts take into account law-hostile attitudes primarily in the context of sentencing, that is, when deciding what penalty should be imposed. A law-hostile motive can be considered an aggravating factor, especially when the act aims to impair or abolish the free democratic basic order. Additionally, during prognostic decisions (for example, in penal execution or supervision of conduct), it is examined to what extent an individual’s law-hostile attitude continues to pose a risk to society or the state order. In employment law, especially in the public sector, a law-hostile attitude can also lead to disciplinary or civil service consequences, including dismissal.
What influence does hostility to the law have on access to public service?
The constitutional duty of loyalty (Art. 33 para. 5 Basic Law) requires all civil servants and employees in the public service to uphold the free democratic basic order. Individuals who have become conspicuous due to proven law-hostile attitudes or activities may be excluded from access to public service or – in the case of an existing employment relationship – may face disciplinary or service law consequences up to dismissal. The responsible recruitment and supervisory authorities regularly check, based on reports from the Office for the Protection of the Constitution or investigation files, whether there are relevant findings.
What is the significance of hostility to the law in the context of the Office for the Protection of the Constitution?
The Office for the Protection of the Constitution plays a crucial role in monitoring and assessing law-hostile activities. The Federal Office for the Protection of the Constitution and the State Offices for the Protection of the Constitution monitor organizations, networks, or individuals who exhibit tendencies directed against or capable of impairing the free democratic basic order (§ 3 BVerfSchG). The information obtained serves not only for prevention and hazard prevention, but also forms the basis for potential ban proceedings or other official measures. The work of the Office for the Protection of the Constitution is strictly regulated by law and subject to close parliamentary oversight.
