GERMAN LAW JOURNAL
[Vol. 07 No. 04
private individuals is a feature of the total state, the constitutionalization of that relationship is a defining feature of the total constitution. In a total constitution, constitutional rights not only establish a comprehensive system of defenses of the individual against potential excesses of the state: Instead, a key function of constitutional rights is to provide the basis for claims against public authorities to intervene on behalf of rights-claimants in response to threats from third parties. These third parties can be terrorists threatening to kill a hostage,7 nuclear power plant operators imposing dangers on neighboring residents,8 creditor banks enforcing a contract against a debtor,9 employers firing an employee, or landlords threatening to evict a tenant. The public authorities to whom these claims are addressed can be the legislator (for not having enacted the appropriate protective legislation), the executive (for taking the appropriate protective measures), or the judiciary (for not interpreting the law in the appropriately protective way).
Second, if a total state provides no judical enforcement of constitutional rights a total constitution provides the constitutional resources to constitutionalize all political and legal conflicts – it constrains and guides their resolution in the name of constitutional rights. By means of its constitutional rights provisions a total constitution provides the general normative standards – even if stated in terms of abstract principle – for the resolution of all legal and political conflicts that occur within its jurisdiction. It also gives a constitutional court the jurisdiction to pronounce itself on what constitutional justice requires, if called upon by persons whose interests are at stake. A total constitution functions as “a juristisches Weltenei,”10 as Ernst Forsthoff has untranslateably called it: A kind of juridical genome that contains the DNA for the development of the whole legal system. It establishes a general normative program for choices to be made by public authorities vis à vis individuals. It commits public authorities to either intervene or abstain from intervention and guides public authorities with regard to the appropriate means of intervention. Democratic politics, executive decision-making,
BVerfGE 46, 160 (Schleyer). BVerfGE refers to the official collection of the judgments of the Federal Constitutional Court. The first number refers to the volume, the second refers to the page number on which the decision begins. A bracketed third number refers to the exact page on which a particular citation can be found. Particularly well-known cases are conventionally named either after the complainant or the core subject-matter addressed by the decision. 7
BVerfGE 49, 89 and BVerfGE 53, 30.
BVerfGE 89, 214.
E. FORSTHOFF, DER STAAT DER INDUSTRIEGESELLSCHAFT 144 (2d ed. 1971). Forsthoff was a leading public lawyer both under the National Socialists and in the federal republic, where he was able to take up teaching again in 1952. Forsthoff defended the leadership principle (Fuehrerprinzip) in one of his early major publications. See E. FORSTHOFF, DER TOTALE STAATE (1933). 10