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2006]

Who is Afraid of the Total Constitution?

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expertise of private law courts and lawyers to justify exemption from constitutional scrutiny?

Of course, the FCC respects the idea of the special expertise and comparative institutional advantage of other institutional actors and a division of labor between itself and other courts. But respecting an adequate division of labor does not amount to an abdication of jurisdiction to review legal issues on constitutional grounds. Such abdication would undermine the very clear and explicit commitment of the German Basic Law to constitutional rights review by a constitutional court. Instead the FCC tends to accord some degree of deference to other institutional actors when it reviews their decisions. In private law cases, for example, it intervenes only when civil courts or private law legislatures have either failed completely to address relevant constitutional concerns or seriously misassessed their significance.63 The Court insists that it is not a general super court of final appeals (Superrevisionsinstanz) that will review the finer points of private law. It will only review cases that raise serious constitutional issues.

It is true, of course, that if the development of the civil law is subject to the guardianship of the FCC, different elites, socialized into different sets of assumptions and sensibilities, will determine what the content of private law should be. A shift from the civil to the constitutional courts as final arbiters of private law claims may also effect outcomes. But to the extent that there is such a shift, it need not necessarily reflect the lack of expertise of a public law jurists and institutions relating to the specific requirements of private law. Such a shift could also reflect that the private law discipline – occupied with its internally generated occupations and distinctions – has failed to be responsive to legitimate concerns and societal shifts that a more generally focused constitutional court is more responsive to.

E. The Total Constitution or Complete Constitutional Justice?

When Carl Schmitt described “the total state” he was not describing the totalitarian state that he would later enthusiastically endorse. He was critically describing a struggling liberal republic in which the domain of private law became a domain of political disagreement and legislative intervention. This was a republic in which the traditional baselines that had informed the thinking and writing of mainstream private law jurists during much of the Wilhelmine era were subjected to political challenges and were redefined as a result of legislative intervention. The point of

This is the generally accepted doctrine used by the FCC. See e.g. BVerfGE 43, 130 (137), BVerfGE 61, 1 (7). 63

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