More Than Just Rights – The Basic Law and Its Fundamental Rights Chapter


Michael Goldhammer

University of Bayreuth & University of Freiburg

With the enactment of the Basic Law, some of the central debates relating to Weimar Constitutional Law came to an end: the range of emergency competences of the Reichspresident became just as obsolete as the discussions about constitutional amendments and other problems. It is different with fundamental rights, though. The scholarly discussions bridged the 12-year gap between Weimar and Bonn. Both the early debate in the Federal Republic and the first major decisions appreciatively drew on prior works.

The Balance Sheet: Overwhelming Success

I will abstain from going through every single provision of the Bill of Rights Chapter here, even though each one is worthy of detailed consideration. Rather, I will try to shed light on the balance sheet of Fundamental Rights as a whole. Briefly: under the 1949 Basic Law fundamental rights provisions quickly infused the entire legal order, they became amazingly effective law and addressed all institutions. That is significant. Bearing that in mind that fundamental rights during the Weimar Constitution were mostly regarded as nonbinding and diffuse objectives, the order that took effect as of 24 May 1949 brought about the opposite. That is, in the first place, nothing but the result that the drafters wanted, when they designed the Basic Law. Yet, to a remarkable degree it also results from the Federal Constitutional Court´s (FCC) strategies for developing their function over the decades. Hence, we cannot tell the story of fundamental rights without taking into account how this Court deployed them as an institutional tool.

Elfes + Lüth = Super-Constitutionalization

The German legal order today is thoroughly constitutionalized. Almost every legal question can be reformulated as a fundamental rights issue. Lawyers in all fields construe law ‘in light of the fundamental rights’. As a result, there is hardly a legal issue that doesn’t touch the jurisdiction of the FCC, even though it was never designed to act as Super-Supreme-Court.

Two early decisions triggered this development: Elfes (1957) and Lüth (1958). What happened there? The newly established FCC obviously felt uncomfortable when more and more important cases bypassed the Court. The other Supreme Courts and the Constitutional Courts of the Länder were, in the early days, more frequently approached on fundamental questions related to the new Federal Republic. The FCC remained a mere spectator, because it was not clear how Fundamental Rights would work out in concrete cases and how they would reach the Court. Within a few years, however, the Court changed everything by taking two steps. First, in Elfes, it construed the “Right to Personal Development” in a way that meant nothing less than a general freedom to act. Every act – that means really every act – now triggers this fundamental right and thereby opens the FCC´s jurisdiction.

Second, in Lüth, the FCC put itself in a position of having the last word in potentially all legal matters. An injunction had been won against Lüth in a lower court, banning him from further calling for a boycott against the work of a former Nazi regisseur. While the 1949 Basic Law clearly declared fundamental rights provisions as immediately effective law, it was not at all clear what this would mean in practice. According to the wording, fundamental rights were in principle regarded as being directed against the state and not binding private parties. However, in finding in Lüth that the injunction, issued by the civil court, infringed on Lüth’s right to freedom of speech, private law was no longer a fundamental rights-free zone. This decision dramatically changed both substantive law and the architecture of jurisdiction.

Zeitgeist: The Various Meanings of Fundamental Rights

Understood as a system of objective values, fundamental rights provisions have accompanied both the legal and the political development of the Federal Republic ever since. Over the years both the FCC and scholarship unfolded more and more dimensions of the rights. In the 1950s and 60s the case law mirrored, to a remarkable degree, the contemporary questions related to the economic system, the establishment of the Soziale Marktwirtschaft, and drew first distinctions between individual rights and public choices; something that later became known as the principle of proportionality.

The 1970s were the most innovative years of the FCC. During this time, the Court widened the meaning of fundamental rights. To a large extent, this was a reaction to political changes during those years, especially changes that came about when the government of the first coalition between Labour and Liberals, with Willy Brandt as the Chancellor, came into office. This government expanded its programmes in the years after the revolution of 1968. Consequently, the Court had to respond to several reform agendas. As in the co-determination case, it backed progressive politics against industry, employers and shareholders. In other contexts, the Court opposed reform agendas like the reform of the military service.

Even though the Court is bound by nothing other than the Constitution, it reflected and sometimes struggled with the Zeitgeist. As in other countries, there were hard fights about abortion in Germany, too. While the FCC declared an exemption from punishment for performing abortions unconstitutional in 1975, it backed the ‘abortion compromise’ after the reunification in a 1993 decision. Similarly, the FCC went back and forth on matters related to sexual orientation and partnership. In the 1950s it backed the criminal liability of sexual intercourse between men. But, during the course of the 2000s, it incrementally pushed the legislature towards equal treatment of gay partnerships. More recently, a split court gave testimony to the changes in German society with regard to the quest for the right of female teachers to wear headscarves in the classroom. While the 2nd Senate in 2003 held that the state is entitled to ban headscarves on the basis of a parliamentary act, the 1st Senate in 2015 held that a general ban was disproportionate and therefore void.

German Angst and Fundamental Rights

As the FCC and fundamental rights provisions gained more and more trust over the decades, the Court was regularly involved in questions that elude the typical function of a fundamental rights case. I call one line of these decisions the “risk-cases”. Confronted with technological progress, environmental pollution and shifts in living circumstances, fundamental rights had to respond to topics of a “risk society”. Decisions related to nuclear power, radiation exposure, genetic engineering, or the introduction of the Euro bear testimony to the specific ‘German Angst’.

In none of these cases did the Court demand a maximization of security and safety. However, through its concept of extensive fundamental rights, it at least provided a public forum for ‘worried citizens’, who felt otherwise unrepresented. Often, thousands filed those constitutional complaints.

In a similar way, the Court faced challenges arising from antiterrorism, governmental activism and sometimes from public hysteria. By simply testing strategies and enactments against fundamental rights and proportionality, the Court took a lot of pressure out of the boiler.

The Method: Proportionality

As millions of people – including natural persons, corporations and associations – are all entitled to extensive fundamental rights, many conflicts of rights arise. The methodological focus of the FCC therefore soon shifted from the scope of protection of rights, to techniques to solve the millions of conflicts of rights. To put it differently, the idea of a thoroughly constitutionalized legal order wouldn’t work without a tool to manage the collisions. This tool is proportionality. Historically a concept of Prussian administrative law, it perfectly met the needs of the new fundamental rights order. Proportionality in this sense performs a couple of functions. As a multi-step test, it helps courts to analyse complex factual and legal settings. By relating ‘means’ to ‘ends’, proportionality enables us to understand and assess the value of goods like life and free speech. It also forces public agents to explain the rationality underlying an infringement.

It is Complicated: Fundamental Rights and Democracy

However, proportionality, both as a method and as a principle, has always raised questions and received criticism. As German courts traditionally consider both law and facts, proportionality opens the door to discussing the rationality of matters that are in essence for the executive and legislative branches of government to decide. Over the decades this caused Germany to be viewed as an “Abwägungsstaat”, that is to say, a state that eschews bold decisions.

Hence, the meaning and success of both fundamental rights and proportionality is double-edged. While the FCC clearly construed fundamental rights as a precondition to democracy, critics point to the imbalance between parliamentary decision-making, public deliberation and the fact that everybody can permanently refer to some fundamental rights. Omnipresent fundamental rights-thinking gave cause for criticism, which can be summarized by “Vergrundrechtlichung” of the German legal order. This means, that too many legal issues are reformulated as fundamental rights questions, leading to a frustrating zero-sum game in the end.

The Future

While the FCC – along with other courts – successfully caused the Court of Justice of the European Union (CJEU) to protect fundamental rights, some worried whether this would leave the FCC behind as unimportant. It is a matter of fact that many fundamental rights questions today fall within the jurisdiction of the CJEU and no longer come before the FCC. Ironically, this crash into meaninglessness was exactly the fate of the Constitutional Courts of the Länder and their fundamental rights provisions. Both became incrementally unimportant as the FCC strengthened the standard of review. In the end, it won’t be that bad for the FCC. There are many signs that indicate a new self-understanding of the CJEU as a “Fundamental Rights Court” – and not just as the Court of the Internal Market. However, as it mostly decides by way of preliminary rulings, the CJEU’s judgments can’t reach the quality of decisions of domestic constitutional courts. This is not because of ignorance, the nature of the CJEU’s decisions are simply a production of the type of decision-making it does; decision-making which devalues fundamental rights as mere considerations in the balancing procedure. As the CJEU is restricted, for procedural reasons, preserving vigilant domestic courts, a willingness to engage in the dialogue of a Grundrechtsverbund (‘fundamental rights network’) is essential for providing excellent fundamental rights standards in the future.

Michael Goldhammer is a senior research fellow of the University of Bayreuth and currently teaches at the University of Freiburg. He mainly works in German and European Public Law, with a special focus on theoretical foundations and comparative analyses.

Suggested Citation: Michael Goldhammer, “More Than Just Rights – The Basic Law and Its Fundamental Rights Chapter” IACL-AIDC Blog (1 October 2019)