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Who is Afraid of the Total Constitution?


suitability and necessity of a measure.58 Others again have questioned the wisdom of the idea of protective duties and advocate the return to a conception of negative rights.59 Restrictions of this kind would significantly limit the role of the FCC, both concerning its supervision of private law and its supervision of public authorities more generally. These questions can’t be addressed here.

The discussion here will focus on a second, more specific critique. It insists that, whatever the right general conception of rights may be, private law is special and should be exempted from constitutional scrutiny. There are two main arguments against using constitutional rights as a standard to assess private law, one substantive and the other one institutional.

Substantively, the claim is that there is something important about the distinction between private and public law that is directly connected to the question whether constitutional rights should also be addressed to individuals or applied to private law through the doctrine of indirect effect. Private law addresses the relationship between individuals, whereas public law addresses the relationship between the individual and the state. Constitutional rights ought to be conceived primarily as rights of the individual against the state, whereas private law addresses the relationship between individuals.60 Not recognizing that difference will tend to undermine private autonomy. To illustrate the point: Freedom of speech paradigmatically protects against legal sanctioning of speech because of its content. If a professor aggressively advocates tax reforms aimed at establishing a flat tax, he may well be advocating a position that is unjust and harmful to the weaker segments of society. But any legal sanctions against someone advocating such reforms would be clearly unconstitutional and in violation of his right to freedom of speech. He could not, for example, be forced to give up his chair at a public university. But even if public authorities may not legally discriminate against or sanction a person based on his political views, individuals, to some extent, may. Private law in a liberal society rightly allows individuals to discriminate against and sanction those whose political views they dislike in many social contexts. No

B. Schlink, Der Grundsatz der Verhältnismässigkeit, in BUNDESVERFASSUNGSGERICHT VOL. 2, 445 (P. Badura & H. Dreier eds., 2001). 58





See E.W. Böckenförde, supra, note 6.

The debates about what the defining features of private law really are and what makes a dispute a dispute of private law is a significant practical issue in Germany, because it determines whether the administrative courts or the civil courts have jurisdiction to hear the case. Although there are a number of practical rules that are used in practice, a standard treatise describes the issue thus: “The dogmatic attempts to define the distinction between private law and public law have endured now for over a century, without any of the offered theories having gained general acceptance.” See PITZNER/RONELLENFITSCH, DAS ASSESSOREXAMEN IM ŐFFENTLICHEN RECHT 51 (9th ed. 1996). 60

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