A review of the theoretical origins and legal formation process of the social state principle: Focusing on the discussion in Germany
Authors:   Korean Constitutional Law Asscciation, Park Zin-Wan 
Published: August 2023

The German social state theory sets its starting point in emphasizing the role of the state for the realization of individual freedom, based on Georg Wilhelm Friedrich Hege's philosophical thought of the state. Social democrats demand increased opportunities for political participation beyond the satisfaction of individual material desires. They emphasize the superiority of the state or politics over the economy in order to justify the state's intervention in the economic order to realize social justice. The tradition of social democracy that justifies the state's intervention in the economic order for the realization of socio-economic justice is reflected in Article 119, Paragraph 2 of our Constitution. This constitutional provision reflects the core elements of the social market economic order theory (Soziale Marktwirtschaft) based on Hermann Heller's theory of the social rule of law (sozialer Rechtsstaat), which succeeded Hegel's theory of state philosophy in terms of comparative constitutional law study. As a conservative social reformer, Lorenz von Stein's important achievements were to foresee the importance of social problems related to the social alienation of the proletariat, the proletariat, in the process of modern industrialization, and the political dangers of class struggle that would result from this, in advance. It can be seen that it is in the point of presenting the theory of the state related to the role of the state in solving social problems. In order to prevent the spread of the destructive nature of social problems related to the social gap between the rich and the poor and to enable the free personal development of all citizens, he set survival guarantee as a key task of the state. Stein presents the following two solutions as solutions to these problems of capitalist society: ① the end of competitive social relations, ② the dissolution, weakening, and extinction of class structure. Stein seeks a solution to end the ever-evolving class struggle and the ideology that justifies it in an independent social state (der soziale Staat) that aims for the public welfare, free from the interests of any particular class. Stein accepts Hegel's philosophy of state, which sets the guarantee of individual survival as the state's task, and recognizes the state's support for individuals without the ability to Hermann Heller's theory of social rule of law is an attempt to realize the state's efforts to realize social justice and security in the form of democracy. In this process, efforts to realize social integration by the state emerge as an important factor. After all, the core element of reformist social democracy is the pursuit of gradual social reform through democratic means. This justifies the government, which has realized democratic legitimacy, to intervene in the economic order for the benefit of the whole society. Nevertheless, modern social democracy must develop into a form that presents a new alternative to realize social justice for the state and society through new forms of reform and innovation. The various historical establishment processes of the principle of the social state and the historical development of the legal ideology supporting it have become an important cause of various legal theoretical discussions on the social state. The German Basic Law (Grundgesetz) accepts the principle of the social state (Sozialstaat) as a constitutional requirement. Although the German Basic Law does not explicitly use the concept of the social state, in Article 20, Paragraph 1 of the Basic Law, the “Social Federal State (sozialer Bundesstaat)” ｣ And in Article 28, which guarantees the homogeneity of the state constitutional order with the Basic Law (Homogenitätsklausel), the adjective and transformative expression of ｢social rule of law (sozialer Rechtsstaat)｣ is used. It is necessary to examine the state theories of constitutional thinkers such as Lonrenz von Stein and Hermann Heller,