GERMAN LAW JOURNAL
[Vol. 07 No. 04
politics in Germany. In the second section these choices will be specifically analyzed with regard to their implications for the constitutionalization of private law. Here the claim is that the doctrine of indirect effect (mittelbare Drittwirkung) achieves practically the same result as a constitutional provision that explicitly makes individual persons addressees of constitutional rights provisions. It leads to the constitutionalization of private law. The third section will provide a critical assessment of the constitutionalization of private law and conclude that there is no reason why private law should not be constitutionalized. It is only appropriate that if political and legal decisions are generally subject to constitutional review, that private law and the courts that interpret it are not excluded. Those who lament the constitutionalization of private law may be making the same mistake as Schmitt who lamented the politicization of private law. Finally, the conclusion will provide a brief argument that a constitution in which rights are conceived as principles that guide and constrain each and every act by public authorities reflects a conception of rights that is part of the revolutionary enlightenment tradition and reflects an attractive understanding of constitutional legitimacy. Those who lament the demise of democracy and the emergence of juristocracy may be guided by mistaken ideas both about the point of rights and the appropriate understanding of democracy. The loaded formula of a “total constitution” as well as the critiques of the constitution as a juridical genome (Forsthoff) and of “juristocracy” (Boeckenfoerde), developed by some of Schmitt’s most influential pupils to describe the constitutional practice of the Federal Republic of Germany, is as inappropriate as the formula of a “total state” was inappropriate to refer to the struggling Weimar Republic.
The Structure of Rights and the Domain of Constitutional Justice
The scope of negative rights: Liberty, equality, and proportionality
The German constitution, as interpreted by the FCC, not only guarantees rights to specific liberties, such as freedom of expression and freedom of religion, along with rights against certain forms of discrimination, such as that on grounds of sex or race. It also grants a general right to liberty and a general right to equality. This has radical implications for the understanding of constitutional rights and the role of constitutional courts in reviewing acts of public authorities. Every act of legislation that restricts an individual from doing what she pleases, as well as any legislative classification, requires constitutional justification of the sort described above. The domain of constitutional justice and, institutionally, the domain of judicial control of public authorities, are thus radically expanded. In the following section I will