The idea of introducing a compulsory year for young people is occupying politicians and society – whether in the form of a return to compulsory military service or as a compulsory social year without special status for the Bundeswehr. In its new policy program, for example, the CDU is committed to gradually returning to general compulsory military service, but converting it into a social year. However, the legal requirements for such a compulsory social year are much higher than the reintroduction of compulsory military service with the option of civilian service.
Legally speaking, reinstating conscription would only require a simple majority in the Bundestag to repeal the second paragraph of the Conscription Act, which suspended compulsory military service in peacetime in 2011.
Introducing a year of service is much more complicated, as military service is based on Article 12a of the Basic Law and is, quite simply, justified by national security. According to the current law, compulsory civilian service only exists as a “replacement service” for military service. No military service obligation therefore means no civilian service obligation either. From a legal perspective, the main argument against introducing a compulsory year of service is Article 12 of the Basic Law. The second paragraph states: “No one may be forced to perform a particular job, except as part of a conventional general public service obligation that is the same for all.”
However, this service obligation only applies to municipal services such as the fire service and dyke protection duties, for example if there are no professional positions in these areas in the municipality. According to the Bundestag’s scientific services, other civil or social areas such as service in nursing or schools are not included. They therefore argue that a compulsory community service year without an amendment to the Basic Law would be unconstitutional because it would affect the ban on forced labor. This ban was enshrined in the Basic Law against the historical background of forced labor during the Nazi era, among other things. Any amendment to the Basic Law would therefore depend on strict compliance with the rights in Articles 1 and 3 of the Basic Law.
There are also concerns under international law, as the European Convention on Human Rights also prohibits forced labor. As a result, Germany would fail under international law if it wanted to make a mandatory social year possible by amending the constitution – say critics of the mandatory social year.
However, the CDU sees another way of introducing the social year – without changing the constitution. In a guest article for the “Frankfurter Allgemeine Zeitung”, CDU General Secretary Carsten Linnemann and labor lawyer Gregor Thüsing argued for the interpretation of the above-mentioned “conventional” services, which represent an exception to the ban on forced labor, to be filled with new content – in other words, to be expanded to include many social or non-profit organizations. The law should be “interpreted dynamically.”
Thüsing tells WELT: “If we understand the term ‘traditional compulsory service’ from Article 12 Paragraph 2 of the Basic Law correctly, we can introduce the compulsory year of community service with a simple law without amending the constitution. I don’t think there are any major constitutional difficulties in doing so.”
With regard to compulsory military service, there are clear age limits in the Military Service Act. For example, the age of military service and thus also conscription ends at the age of 45 (or at the age of 60 for officers and non-commissioned officers). In peacetime, men are conscripted to complete basic military service up to the age of 32.
Such clear age limits would probably not be expected for a civilian service that is not so physically demanding. As columnist Kristina Schröder at WELT suggested, pensioners should also be called upon to perform compulsory social service – as a kind of compensation for the many long-term problems that Generation X and the boomer generations are leaving behind for the younger generations.
However, the idea of legally implementing the social year, as envisaged by Thüsing and the CDU, is difficult to implement with this extension to older age groups. “If one were to introduce this compulsory social year for older people as well, that would significantly change the legitimacy of the project,” said Thüsing. “Arguments such as the unstable living conditions of young people, the formation of a sense of solidarity, and the familiarization with the possibility of voluntary work at a young age would no longer be relevant to the same extent.”
It would make more sense to continue to rely on volunteers among older people. But it is not so easy for people who have full-time jobs. That is why Diakonie Deutschland and the Evangelical Voluntary Services are calling for a legal right to a year of voluntary work. Diakonie President Rüdiger Schuch stresses: “Everyone should have the opportunity to do voluntary work full-time or part-time.” Voluntary services make a significant contribution to keeping society together.
The compulsory model would also raise the question of whether it would be legitimate to impose a second service on older people who have already completed one service – such as military service.
Another possibility would be to reinstate conscription and amend the Conscription Act to recognize more reasons for doing community service – to diversify the options for refusal and to expand the list of institutions recognized as community service. “If conscription is reintroduced, the discussion about a compulsory year of community service will be de facto over,” said Thüsing. Even if it would still be the case that military service would take precedence over community service. “The idea of a compulsory year of community service with more options may therefore be more likely to gain consensus.”
