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Who is Afraid of the Total Constitution?


function of ordinary private law legislation, precedence and doctrine to strike the right balance between the relevant concerns. No doubt the court would engage and give some degree of deference to ordinary legislation, precedence, and doctrine that exist on these kinds of matters. But constitutional law as the supreme law of the land would supplant ordinary legislation, precedent, or doctrine as the ultimate point of reference for the resolution of private law disputes. Existing private law would only be applicable, if and to the extent it could be shown to strike a reasonable balance between competing constitutional rights as assessed by the relevant court charged with the adjudication of constitutional rights issues applying proportionality analysis.

Why waste all this time on the counterfactual hypothetical that constitutional rights have horizontal effect? In the real world any German civil court would immediately dismiss the idea of A violating C’s constitutional rights or vice versa. The constitutional rights of the German Constitution are generally addressed to public authorities, and not individuals.42 Individuals, the civil judge would claim, citing well established doctrine, are not the addressees of constitutional rights norms, public authorities are. Constitutional rights are the rights of individuals against the state and not the rights of individuals against one another. Constitutional rights do not have direct horizontal effect.

But this does not mean that constitutional rights are out of the picture. Of course constitutional rights are rights only against public authorities, but ever since the Lüth case43 it is generally accepted that the civil courts, as the interpreters of private law, are a public authority that is bound by constitutional rights. C may not have a constitutional right of freedom of contract that he can invoke against A directly, nor can A invoke a liberty right against C directly. Instead of a constitutional tort, C’s or A’s cause of action for a claim against the other must always be grounded in private law, an action for specific performance or damages, for example, grounded in the law of contracts or torts. But in the course of private litigation C and A can invoke constitutional rights against the court.

C could insist that the court, within its jurisdiction, is required to do what is in its power to ensure that freedom of contract, as guaranteed as an instantiation of the general constitutional right to liberty, is adequately protected. In that sense the basic value commitments underlying constitutional rights “radiate” throughout the legal order to also establish requirements for the interpretation of private law by

An exception is Art. 9 Sect. 2 GG, which provides that private agreements restricting the right of workers to organize collectively are unconstitutional and thus invalid. 42


BVErfGE 7, 198 (Lüth).

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