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348

GERMAN LAW JOURNAL

[Vol. 07 No. 04

The FCC has taken a different approach. Both the scope and the limitations of constitutional rights have been given an expansive interpretation. First, the Court was quick to dismiss narrow conceptions of the “free development of personality” that limited the scope of the right to “expressions of true human nature as understood in western culture” as was suggested by influential commentaries.15 Instead the FCC opted for an interpretation that the right guaranteeing the free development of the personality should be read as guaranteeing general freedom of action understood as the right to do or not to do as one pleases.16 This means that the scope of a general right to liberty encompasses such mundane things as the prima facie right to ride horses in public woods17 or feed pigeons in public squares.18 If public authorities prohibit such actions they would infringe the general right to liberty.

As a corollary to the wide scope of the right, the court has embraced a broad interpretation of the limits of the right. Any infringement of the right is justified if it follows appropriate legal procedures and is not disproportionate. The triad of requirements stipulated by Art. 2 Sect.1 (rights of others, constitutional order, public morals) in the jurisprudence of the Court translate into the requirements of legality and proportionality. This is a move that has been characteristic of the interpretative approach that courts have taken to limits of rights. The proportionality test is at the center of most of the human rights jurisprudence not just in Germany. The proportionality test generally consists of four subtests. A measure infringing a constitutionally protected interest has to: (1) be enacted for a legitimate purpose; (2) actually further that legitimate purpose; (3) be necessary (a measure is necessary if no equally effective but less intrusive measure is available); and (4) be proportional in a narrow sense (the benefits of infringing the protected interests must be greater than the loss incurred with regard to the infringed interest). It is important to point out that even though the substantive limit of proportionality is broad, it does have bite. It is not adequately compared to the analysis – or lack of it – that generally characterizes the application of the “rational basis” test in cases involving liberty interests that are not deemed fundamental by the U.S. Supreme Court.19

15

For further references see TCR, 224 n.5.

16

BVerfGE 6, 32 (Elfes).

17

BVerfGE 39, 1, BVerfGE 88, 203.

18

BVerfGE 54, 143 (147).

19

See LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW 1362 (3d. ed. vol. 1, 2000).

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