GERMAN LAW JOURNAL
[Vol. 07 No. 04
habit of thought. Or such a reconstruction fails and reveals the traditional lines to have been arbitrary. Then their revision deserves to be celebrated as progress.
But perhaps the problem of applying constitutional rights to private law is not primarily substantial, but institutional. If private law at its heart is about balancing competing constitutional rights, the FCC – whose jurisdiction is limited to constitutional questions – has general jurisdiction to review decisions by civil courts, to assess whether civil courts or legislators have struck the balance between the respective liberty interests correctly. The FCC would have the jurisdiction to effectively review all civil court decisions and all private law legislation on the grounds that civil courts or private law legislators may have struck the balance between the competing liberty interests in the wrong way and thus violated the plaintiff’s or the defendant’s constitutional rights. This is significant because civil law courts and administrative courts are still organized as different branches of the judiciary in Germany. Whereas no-one disputes that decisions by public law courts can be reviewed by the FCC on constitutional rights grounds, the role of the Court as a supervisory institution over the civil courts depends on how constitutional rights effect civil litigation in civil court. As was demonstrated above, the doctrine of indirect horizontal effect effectively subjects civil courts to the same constitutional discipline as public law courts. Under the current jurisprudence of the FCC the proud civil courts are mere equals of public law courts, with both of them equally subject to supervision by the Court.
The institutional question is whether it is adequate for the FCC to review the decisions reached by the civil courts. What reasons are there to assume that a review by a non-specialized court, which is not attuned to the finer doctrinal points of private law doctrine and private law culture, is likely to lead to better decisions? What is wrong with leaving private law questions to be decided by private law courts supervised by the private law professorial establishment and their critical commentary?
Here there are two answers. The first turns the question around. What grounds are there to assume that it is appropriate for the FCC to review the decisions reached by other specialized courts, specialized administrative agencies or legislators, generally aided by capable research services, but not the decisions of the civil courts? Finance courts with the jurisdiction to decide tax cases, administrative law courts with the jurisdiction to adjudicate administrative law cases, all of these institutions have special expertise, and yet their decisions are susceptible to constitutional review by the FCC. If there is a reason to have a constitutional court review these decisions, then what reasons are there to exclude decisions by civil courts or a legislator legislating private law? What exactly is so special about the