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In this post, it notes that art. 12(1) of the basic law (the constitution) says:

All Germans shall have the right freely to choose their occupation or profession, their place of work and their place of training. The practice of an occupation or profession may be regulated by or pursuant to a law.

Has art. 12(1) been interpreted to require that all students should be automatically graduated regardless of grades?

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    To a German, this question seems just as outlandish as asking whether 3 year olds are allowed to perform brain surgery in an IKEA ball pool (if you only read the first sentence and take it literally, that would be the consequence). Is there anything that makes you think it could or should be interpreted that way?
    – nvoigt
    May 14, 2023 at 5:22
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    @nvoigt Most of the reading stems from the quality of the translation: the german connotations are much clearer than the English ines.
    – Trish
    May 14, 2023 at 8:30
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    Could you explain how you think these two sentences have anything to do with students, grades or graduation? As far as I can tell the article is about choosing occupations and professions. Do you consider 'student' a profession, or is there some other link that I am missing?
    – user50372
    May 14, 2023 at 8:40
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    @wimi Well, that would be a way better, more nuanced question that could be answered in much greater detail than the general one above. That is why I was asking how or why this came up.
    – nvoigt
    May 14, 2023 at 18:39
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    And to your question, a cursory glance at the wiki page about it seems to imply that the court ruled that factual filters (for example by prior education or number of available spots) are in accordance with the law, but arbitrary filters that just generate artificial scarsity (like the NC) are not. But again, if you make that a question, I'm sure you'll get a much more detailed answer than my little comment here.
    – nvoigt
    May 14, 2023 at 18:42

4 Answers 4

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No

What it means is that no German can be forced by the government into a job, education or place of work. So for example, the Government cannot come and say "we are short on railroad workers, the next 200 graduates of this school will report to Hamburg Station for training and become rail workers in Munich".

That might be blindingly obvious today, but when this was written, the government that had just ceased to exist had heavily dictated who was allowed into which profession, not on personal qualification, but on things like faith, nationality, heritage and skin color. And other governments forming from the ashes right next door were indeed not capitalistic and their socialist central planning meant that they would direct at least parts of their workforce which jobs to take and sometimes even where.

In contrast, in Western Germany, whether or not one becomes a rail worker, which company educates them and where they work in the end is their choice.

Obviously choices are limited by reality. I can choose to be a railworker on an island in the North Sea, but I will be unemployed, because there is no rail line there and I won't get a permit to build my private one.

I can choose to study philosophy, but if I cannot find an employer in need of philosophers, I will have to fall back on making money driving an Uber.

I can choose to become a Pilot. But I will have a hard time finding a spare 747 to train on if I don't train with one of the big airlines. The may have their own, totally capitalistic goals. For example, contracts that say "if we train you, you have to stay for X years and work for us or pay X amount of money" are totally normal and legal in those businesses. And if their training center with the big 747 simulators is in city A, I can choose to train in city B, but I will obviously fail their program.

So no, this law does not imply any kind of automatic success on a personal level. You still need to qualify for the training you want, be able to pay rent in the city you want to live in and find an employer that employs you, or customers to become a successful freelancer. Maybe you cannot do that for personal reasons. But the government will not dictate instead. You are then free to choose the next alternative.

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    There is rail on Sylt, which is technically a North Sea Island, and has Railroad workers. There's also Rail to the Halligen, which are not islands, and have no railroad workers there but all in Dagebül, where the rail originates.
    – Trish
    May 14, 2023 at 6:09
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    I would put it even stronger. The government cannot order somebody to train or work in some profession (with the exception of military/alternate service and part-time fire brigades), but getting in is much more restricted.
    – o.m.
    May 14, 2023 at 7:33
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    This is related to the European (or maybe just German) conception as rights as goals to strive towards, which sometimes conflict with each other and must be weighed against each other, rather than absolute rules which cannot be violated under any circumstances ever. Compare the German free-speech-but-you-still-can't-be-a-Nazi to the American free-speech-means-you-can-yell-in-the-public-square-that-the-holocaust-didn't-happen-but-you-think-it-should-have-because-all-speech-is-legal-no-exceptions.
    – user253751
    May 15, 2023 at 12:53
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    The "may be regulated" clause means that you can choose to become a pilot, but you still have to get a license.
    – Barmar
    May 15, 2023 at 14:04
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    @vsz You don't happen to have a link to a source that claims that graduates of all fields should make the same amount of money? Because it sure sounds like you are attacking a straw man.
    – xLeitix
    May 16, 2023 at 8:39
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I don't think it can be interpreted that way, particularly due to the second sentence in your quote: The practice of an occupation or profession may be regulated by a law. And such laws (or at least articles) do exist, e.g. §132a StGB on the abuse of academic degrees. Whoever uses an academic title or certain professions (such as doctor or lawyer) without actually having such a degree risks a jail sentence.

Since such a law is (arguably) in line with the above article from the basic law, you can't name yourself lawyer without the relevant degree. And hence you cannot be a lawyer.

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Hell no!

The article you quote bans the government from banning a group of people from trying to achieve certain jobs. It was a direct answer to the Nuremberg Laws that the Nazis enacted to ban people of jewish faith from many professions.

In a similar fashion, it does not allow to order people to work or train in a specific job like mandating people to construct a new factory or making ammunition - another thing that reflects to the WW2 times in which Zwangsarbeit (forced labor) was common without a court's judgment. This ban from ordering specific jobs to be performed has two carve-outs: Mandatory civil or military service is on the Grundgesetz and not covered by this preclusion (and not used since about 2010 anyway) and neither is being drafted for community fire brigades where there are no volunteers. In fact, Both of these carve-outs are in the Basic Law: fire service (and similar) are under 12(2), Military service is in 12a.

As a different type of carve out, technically 12(3) might allow to force convicted people to work in certain fields, but instead of forcing inmates to work, they are offered to work for benefits and pay, as that furthers the goal of resocializing and reintegrating the convicted into society.

Those demands to the politics however have nothing to do with the exams that regulate qualification to do certain jobs - and thus the argument that you have to get graduated fails. In fact, the fact that qualifications might be required is explicitly called out in the very paragraph: The practice of an occupation or profession may be regulated

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As is the case so often — reflecting reality, after all! — there are conflicting basic rights. The one specifically conflicting here is freedom of teaching ("Freiheit der Lehre"), granted in Art. 5 Par. 3.

This Basic Law article's gist is to prevent the government from directly prescribing what is taught in universities, and in which way it is taught. This was, of course, a reaction to the National Socialist interference with universities after 1933.

The result is that universities are free to decide, for example, how they grade students and whom they let graduate under which conditions; the "only" requirement is that it doesn't violate other provisions in the Basic Law, for example the equality of men and women guaranteed in Art. 3. They certainly could decide to let everybody graduate, and some do: For example, the left-wing political science faculty of the Freie Universität Berlin where I happened to study in the 1980s was forced by the authorities to document the achievements of students who wanted to become publicly employed teachers. In an act of defiance, they tasked the checkroom attendant with the job: She had "office hours" at the counter of the checkroom of the auditorium maximum once a week. She had an official stamp she would use to approve of the self-assembled lists of courses a student had allegedly visited. Obviously, she had no means of verifying the veracity of those lists; that was the whole point.

Other departments have stricter requirements for graduating; it is their respective prerogative.

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