독일 기본법의 “방어적 민주주의” 원리: 그 헌법이론적 논거의 배경

An important element of the German Constitution, or Basic Law, is the principle of “defensive democracy(wehrhafte Demokratie)”. This element was originally added to the West German Constitution as a means to both support the liberal democratic order and refute the principle of a neutral democracy found in the constitution of the Weimar Republic. Under the principle of defensive democracy, freedom to express thoughts that violate the basic liberal democratic order is restricted, and unconstitutional political parties and associations are forbidden. To this end, West Germany showed a clear bias in favor of liberal democratic values. The Weimar Republic was a state dominated by the parliament in which the constitution could be reformed by a parliamentary majority; furthermore, the latter could also legislate against constitutional law. Meanwhile, West Germany adopted a “constitutional democracy” under which any legislation deemed to be unconstitutional is not permitted without a constitutional amendment; moreover, such legislation can always be found unconstitutional by the German Constitutional Court. The provision which has most effectively strengthened constitutional democracy has been the so-called “permanent-guarantee-provision” in which the basic liberal democratic order is entrenched. This provision was made so that it could never be revised, not even by the parliament that holds the power to bring about constitutional amendments. All of this has resulted in the exclusive predominance of the liberal democratic order and the German Constitution over the Parliament and legislative power.