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350

GERMAN LAW JOURNAL

[Vol. 07 No. 04

oriented towards defensive rights. Except for the right of mothers to the protection and support of society,21 the text of the Constitution does not contain references to any entitlements. There is a reference to the duty of all state power to protect human dignity,22 as well as a clause postulating that the Federal Republic of Germany is a social state,23 but that is the extent of it. Yet there is a rich jurisprudence on various entitlements ranging from duties of the state to protect the individual from third parties, entitlements concerning the provision of certain procedures and organizations, as well as social rights. How is that possible?

The key lies in an early judgment of the FCC concerning a private law dispute between individuals. In Lueth,24 the central issue was whether constitutional rights merely apply as defensive rights against the state or whether they also have horizontal effect and apply to the relationship between individuals.25 In that judgment the Court held for the first time what would become a standard mantra: that “constitutional rights are not just defensive rights of the individual against the state, but embody an objective order of values, which applies to all areas of the law

  • and which provides guidelines and impulses for the legislature, administration

and judiciary.”26 Constitutional rights norms “radiate” into all areas of the legal system. Freedom of expression, for example, is not just a right of an individual against the state, but a value or principle that gives impulses and provides guidelines to all areas of the law to which it is relevant. As such, it has implications for such questions as whether an individual can recover civil damages against another for having been subjected to derogatory remarks27 and other private law norms. The idea that constitutional principles radiate to affect the rights and duties of all actors within the jurisdiction is the basis not just for an expansion of the Court’s rights jurisprudence to private law cases. It is also the basis for establishing individual rights to positive actions by the state.

As far as the scope of constitutional rights is concerned, the consequences of the “radiation thesis” have been enormous. First, the Court insisted that constitutional rights required the institutionalization of certain procedures and forms of

21

Art. 6 Sect. 4 Basic Law.

22

Art. 1 Basic Law.

23

Art. 20 Sect. 1 Basic Law.

24

BVerfGE 7, 198 (Lueth).

25

For Alexy’s discussion of horizontal effect see, supra, note 13, 351-65.

26

BVerfGE 39, 1 (41).

27

BVerfGE 86, 1.

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