GERMAN LAW JOURNAL
[Vol. 07 No. 04
Drittiwrkung” and support the generally expansive understanding of rights that informs the FCC’s jurisprudence. But for private law jurists the challenge is greater still. Such an understanding of private law goes against some deeply engrained ideas that still resonate in the intellectual universe that German jurists inhabit. Is the German Civil Code (BGB), originally thought of as the crowning glory of the legal system and the work product of centuries of civil law scholarship, merely an implementing device for constitutional commitments? The idea that private law is merely worked out constitutional law is deeply insulting to private law jurists, who, since the heyday of 19th century codification debates have suffered a comparative status loss in the academy as public law increasingly took center stage in the 20th century. It also seems incompatible with the idea that there is a deep significance to the distinction between public and private law. In Germany you are either a public lawyer or a private lawyer. A constitutional lawyer may also teach administrative law or even municipal law. He will never teach contracts or torts. Conversely, a private lawyer will never teach constitutional law. The idea that a public lawyer, using concepts and categories of a public law discipline, could intrude on the domain of civilian expertise, borders on the preposterous. The conceptual issue is therefore deeply linked to turf battles over traditional disciplinary boundaries and prestige.
But besides habits of thought, disciplinary turf wars, and loss of prestige, are there not also good reasons for the resistance by the private law establishment to the constitutionalization of private law? Are there serious concerns that need to be addressed? Beyond inevitable complaints about the court having decided one or the other case in the wrong way, is there anything deeply problematic about current practice?
There are at least two levels on which the basic structure of current practice can be challenged. The first, more general question concerns the expansive scope of rights under the German Constitution generally56 and questions the wisdom of an understanding of rights that is so expansive that it effectively constitutionalizes every political and legal issue. On this level some have questioned whether the FCC should recognize a general right to liberty or only more restrictive, specifically defined liberty rights.57 Others question the use of a balancing test and propose that the Court should restrict itself to the assessment of the legitimate purposes,
For a more general discussion see M. Kumm, Constitutional Rights as Principles: On the Structure and Domain of Constitutional Justice, 2 INT’L J. CONST. L. 584 (2004). 56
See the dissent by Grimm, J. in BVerfGE 6, 32 (Equestrian Case).