SMU Law Review
Spring 2000
Fifty Years of German Basic Law The New Departure for Germany
*429 THE ROLE OF THE FEDERAL CONSTITUTIONAL COURT
Professor Dr. Jutta Limbach [FNa1]
Copyright  2000 Southern Methodist University; Professor Dr. Jutta Limbach
I. THE REPUTATION OF THE COURT
IN speeches and articles regarding the Basic Law's fiftieth anniversary, the Federal Constitutional
Court has been praised sumptuously. It has been claimed that the Court has unfolded and empowered Basic
Rights. Very figuratively, one could say: the Federal Constitutional Court has given the Basic Law
splendor and radiance while strongly polishing it as well. But the road to a democratic constitutional state
has not been easy. Rather, the Germans learned how to read their Basic Law very slowly. They probably
never would have succeeded if the Federal Constitutional Court had not tirelessly exercised the constitutional
alphabet with them. Part of this process, however, was that the German politicians had to learn what an
abundance of competences they had conferred upon the Court.
Indeed, the Federal Constitutional Court has enjoyed notable respect for many years. In a questionnaire
about citizens' trust in twelve institutions of public life in the Federal Republic of Germany, the Court has
been ranked at the top for many years. Despite strong public criticism in recent years, it currently shares first
place with the police. The government and the political parties, by contrast, occupy the bottom places on the
scale of trust. [FN1]
The frequency with which citizens invoke the Court seems to confirm these findings. Using a constitutional
complaint, anyone claiming to have had a fundamental right infringed by an act of the authorities may
seek protection from the Federal Constitutional Court. The constitutional complaint may be directed against
an executive, judicial, or (less commonly) legislative action. In only a few years, the constitutional complaint
became an extraordinarily popular cause of action. This popularity still continues. Since reunification,
some 5,000 constitutional complaints have been lodged annually. Admittedly, only around two percent are
successful. But the low success rate should not make one underestimate this right of appeal. It is the paradigmatic
effect of the decisions that is important for the future conduct of politicians, officials, and judges.
*430 II. IMPACT ANALYSIS
Do these survey data and court statistics suffice, though, to draw conclusions as to the Federal Constitutional
Court's central role in constitutional practice? Does Germany's pride in the Basic Law already show
its people are patriots of the constitution? What about the Court's influence on lower courts and political
practice? Has the Federal Constitutional Court managed to bring politics under the law? What has it
achieved in the context of political culture in the Federal Republic? All these questions can be answered
only by carefully analyzing research regarding the Court's impact. This means analyzing legal sociological
studies about the effectiveness of the Court's decisions; however, such studies are still in their infancy.
[FN2]
Initial theoretical studies are dealing with the effectiveness, implementation, and evaluation of the Federal
Constitutional Court's case law. These studies are developing parameters or dimensions whereby the effects
of the Court's decisions can be described and analyzed. Such parameters include, for instance, knowledge
of the case law, how far decisions conform with the Court's objectives, and the decisions' influence on
social values and political culture. [FN3] To date, empirical studies are only fragmentary, especially regard-
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ing knowledge of the law, political culture, and change in values. The preferred field for this sort of research
is mainly criminal law, sometimes labor law, but only very rarely the Federal Constitutional Court, which
has remained primarily an object for studying sociology of the legal profession only.
Accordingly, I cannot base what I have to say about the effects of the Federal Constitutional Court's
decisions on empirical studies. In accordance with the state of research, I shall therefore merely select a few
aspects of the history of the Federal Constitutional Court's impact and illustrate them. In so doing I shall
distinguish between the legal, political, and social effects of the decisions.
III. THE FEDERAL CONSTITUTIONAL COURT AS LEGAL FORCE
What can best be shown is how the Federal Constitutional Court acts as a legal force. Its interpretation
of the constitution affects the parliament's lawmaking and the courts' legal practice. A constitutional
norm explicitly stipulates that decisions of the Federal Constitutional Court are binding on all constitutional
bodies, courts, and authorities.
Allow me to make things specific by showing the effect, reaching far beyond the individual case, of an
early decision of the Federal Constitutional Court: the Lüth decision. [FN4] This decision has also contributed
in a *431 major way to refining the machinery and articulating the standards and methods of protecting
fundamental rights. [FN5] It set the course for the radiating effect of fundamental rights in all other
areas of law.
According to this decision, Basic Rights are not merely defensive rights of individuals against the state.
Furthermore, they influence the relations between the citizens amongst themselves. For the constitution has,
so the Court ruled, created an objective value system through the catalogue of Basic Rights. They are not
only subjective rights, but also objective principles. This objective value system spreads to all sections of
the law. Thus, no statute may be in discordance with the value system of the Basic Rights, but must be interpreted
in its spirit. [FN6]
The Lüth decision focused attention on the so-called radiating effect of fundamental rights. The Court
thus developed a variety of affirmative or protective duties, which oblige the State, especially the legislature,
to protect human rights against threats from private individuals or groups. In the course of more than fortyeight
years of jurisprudence, the Court has drawn several conclusions from the premise that human rights are
also objective principles.
This fundamental finding has not been welcomed by everybody, because the borderline between constitutional
law and ordinary law blurs when the Basic Rights penetrate the whole legal and social order. In fact,
this decision has led to an "omnipresence of the fundamental rights in the *432 process of interpreting and
applying ordinary statute law." [FN7] The consequences of this result have been enormously broad, especially
for civil law, because the thinking in private law has changed fundamentally since the beginning of
the century. Certainly, private autonomy continues to be the guiding principle of civil law, that of Social
State has also become one of the main pillars of civil law. Under the influence of the fundamental rights and
the Social State clauses, a social law of obligations has developed through an interaction between case law
and legislation. What this means is a kind of law that takes the power gap or power imbalance between contractual
partners into account and protects the economically inferior, the socially weak. Examples of this are
socially just tenancy law and consumer protection laws.
The Court's most recent decision concerns the law of suretyship. The case concerned a young woman
who had become hopelessly over-indebted through a surety bond. She had stood surety for a high bank credit
to her father, although she had only a small income (DM 1,150 per month). The Federal Constitutional
Court decided that the civil courts ought to monitor the content of such contracts, and, where necessary, de-
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clare them void, provided that the guarantor is structually inferior and the suretyship is an unusually heavy
burden on him or her. [FN8]
The Federal Constitutional Court's case law on the radiating effect of fundamental rights has not only
been applauded, but also heavily criticized. The crisis of the Social State promotes the desire to set bounds
on case law that is seen as paternalistic. On the other hand, the case law on the radiating effect of fundamental
rights favors a great breadth and intensity of supervision. It enlarges the Federal Constitutional
Court's potential for control, thus curtailing the ordinary courts' competencies. In addition, it leads to a loss
of parliamentary power and a gain of court power, all in the name of human rights.
IV. THE POLITICAL INFLUENCE
That brings me to the political impact of the Federal Constitutional Court's case law. There is no
doubt that the Federal Constitutional Court is an outstanding factor in the political process. The Court adjudicates
in the name of the Basic Law. Its operation extends into the political sphere, because its criterion is
the constitution of a political community. As we all know, the checking of power is necessarily a power in
itself. [FN9]
I am interested in the influence the Court's decisions have on political debate and decision-making. By
looking at the political debates inside and outside parliament, it becomes apparent that during the legislative
*433 procedure, participants in the debate already orient themselves on future and likely forthcoming decisions
of the Federal Constitutional Court. MPs mostly engage lawyers to interpret the relevant decisions
right down to the details. The experts then sometimes play the part of the Delphic Oracle if they have to
foresee coming decisions of the Court. Especially in the political debate on parity codetermination (equal
representation for management and labor on supervisory boards of firms), politicians and lawyers alike refer
not just to the Basic Law, but primarily to the Federal Constitutional Court's case law. Rarely has a
threatened or intimidatingly aired action before the Federal Constitutional Court had such far-reaching preemptive
effects in terms of anticipated reactions and adjustments on the legislative process. [FN10] When
Federal Chancellor Helmut Schmidt was asked by workers in 1974 when the Codetermination Act was finally
going to be passed, he answered: "The question is whether that damned pettifogging CSU lot aren't going
to drag it all before the Federal Constitutional Court again." [FN11]
This tendency towards anticipatory obedience has, if anything, gotten stronger over the years. We, as
judges, can be proud if this omnipresence of the Federal Constitutional Court in the political debate points
towards a sensitivity regarding fundamental rights by politicians. But that is only true to a limited extent. In
the upper and lower House, and among the public, political argument is seasoned daily by using the accusation
of the alleged unconstitutionality of a planned decision. The threat of taking the road to Karlsruhe is
now part of the ritual stock-in-trade of politics in Germany. This anticipation of a constitutional risk, or a
risk from the Federal Constitutional Court, leads to risk-aversion and hostility towards innovation. Hence,
anticipatory obedience is harmful to the social imagination and tends to cripple the legislator's delight in de-
ciding.
A. The Limits of Judicial Review
Such obedience, which hurries ahead, does not come about without cause. Federal Constitutional Court's
critics would instantly point out that it is the consequence of judicial activism. They reproach the judges for
knitting the net of constitutional preconditions tighter and thus restricting the scope of action for politics. As
a member of the scolded Court, I will not discuss this reproach. Rather, I would focus on whether adjudication
can be separated from political action. Despite contradictory views, it is still readily held that judging
means finding, not shaping. That is, there is a qualitative difference between adjudication and lawmaking:
ideally, finding the law is a matter for adjudication, while making the law is a task for politics.
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*434 The debate on judges' creative relationship to the law is older than the Federal Constitutional
Court's jurisdiction. Montesquieu's saying that the judge is the mouth that utters the words of the law is still
often quoted, but only to fix a cheap point of attack for doubts. Over a century ago, enlightened jurists were
already rejecting the view of the judge's task as a purely intellectual operation, like any other judgement.
That is, like a logical operation with the statutory provision as the major term and the facts to be adjudicated
the minor term. If that were so, the judge would need nothing but "a reliable edition of the law, the art of
reading, care, and sound, clear human reason." [FN12] Yet the legal order is neither without lacunae, free of
contradiction, linguistically unambiguous nor above social change. [FN13] This is particularly true of constitutional
law, which is marked by a low density of regulation and vague wordings. [FN14]
Not just general clauses, but a multiplicity of undefined legal concepts delegate actual norm making to
the judge. They open up semantic room for maneuvers, allowing for not just one correct decision. Judicial
decision is not only finding, but always also law-making. "In every act of judicial application of law . . .
cognitive and volitional elements form an indissoluble combination." [FN15] The judge creates law in the
process of finding a decision. Accordingly, adjudication always has a political dimension too.
This is certainly true of constitutional jurisdiction; the Basic Law's articles are marked by a low degree
of definiteness. They are norms with great openness and margins of interpretation that are hard to delimit.
[FN16] The Basic Law essentially contains, apart from the law on the organization of the State, principles
that must first be spelled out before they can be applied. [FN17] One example is the constitutional principle
that the Federal Republic is a social state. [FN18] But also in the fundamental rights context too, terms are
used whose content can be made definite only by interpretation or even evaluation, sometimes through recourse
to extra-legal notions and historical experience. [FN19] Consider the dignity of the person protected
by Article 1 of the Basic Law, or that of the family, which by Article 6 of the Basic Law enjoys the special
protection of the State. The openness and breadth of the Basic Law should not be pointed to as defects. On
the contrary, a constitution can generally be regarded as successful *435 if it is couched tersely and vaguely.
If a constitution is not open and therefore "to some extent capable of ever-new interpretation" it will, as
Willy Geiger rightly says, "inevitably soon come into hopeless contradiction with its object, and reach the
critical point where the only choice left open would be to break it, i.e., to disregard it, or else continually and
very quickly adapt it formally to changing needs." [FN20]
B. Judicial Self-Restraint
Judicial self-restraint, the maxim often recommended to the Court, is, if taken literally, more misleading
than persuasive. The call for judicial self-restraint serves neither to locate grey areas of law and politics, nor
to clear them up. Moreover, judicial self-restraint cannot be a general strategy for a court whose primary
duty is to check power and assert the protection of fundamental rights. The latter task may, as Konrad Hesse
rightly stresses, call for resolute intervention rather than restraint, even at the risk of affronting some other
constitutional organ. [FN21] As for the formula of judicial self-restraint, Benda rightly calls it an attitude or
a virtue: the Court cannot limit its own power and function, but has to carry out its tasks. [FN22] Of course,
the Court may not extend its own power or function either, due to the principle of separation of powers that
must be respected. [FN23] The slogan of judicial self-restraint is just as correct in practice as the contrary
call on lawmakers to display more "political self-confidence." [FN24] Neither maxim serves an informative
function: they merely formulate a problem, but do not offer any criteria for solving it.
C. The Case Law of the Federal Constitutional Court
The Federal Constitutional Court must follow a precisely formulated catalogue of competences. Once
an application is admissible, it must be decided on by the Court. As for the decision themselves, it may be
important that issues are not decided on the basis of legal criteria and considerations, or concern responsibil-
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ities of other constitutional bodies than the Federal Constitutional Court.
This sort of conflict situation has repeatedly been discussed in decisions of the Federal Constitutional
Court. Constitutional theorists have sought, on the basis of these self-restraining judicial utterances, to derive
normative guidelines. But in an attempt to mark the boundaries of the judicial areas of responsibility,
they have not managed to demonstrate a system of criteria and methods, but only to name some groups of
problematic *436 cases. [FN25] These relate either to particular decisional structures or to subject areas.
Thus, the Court is expected to and in fact does exercise restraint in cases involving forecast decisions or expediency
considerations. The same limitation applies to reviewing legislative and executive acts in the foreign
and economic policy spheres.
The most prominent example of a forecast decision is the Federal Constitutional Court's Kalkar decision
on the Nuclear Act. [FN26] This regulates the peaceful use of nuclear energy and protection against its hazards.
The background to the decision was the protest by a citizen against the building of a nuclear power station.
The Federal Constitutional Court was presented with the question of whether Parliament had precisely
regulated the permit procedure. Was it enough to hold the authority, in relation to the dangers, only to the
given state of scientific and technical progress? Or should the legislators set more precise standards to mark
the boundary of the bearable residual risk unambiguously?
The Federal Constitutional Court answered the second question negatively, and found that the basic decision
for or against the legal admissibility of the peaceful utilization of nuclear energy was a matter for the
legislature alone. Its primacy resulted not just from the far-reaching repercussions of the decisions for the
citizens, but also from the limits to human cognitive capacity. In such a "situation necessarily loaded with
uncertainty," it lay "primarily in the political responsibility of the legislature and the government . . . to take
the decisions they saw fit. Given this position, it is not the Court's task to stand in for the appointed political
institutions with their own assessment. There are no legal criteria for that." [FN27] Of course, uncertainty as
to the side-effects of a law "in an uncertain future" does not require refraining from enacting the law. The
Court points to practical reason, for assessing the hazards of nuclear energy, which it evidently sees as better
left to the legislature. [FN28]
The non-binding nature of the criteria postulated in the codetermination judgement can readily be shown
on the basis of other case law examples listed there. Take the area of foreign policy, often cited as an example
of judicial self-restraint. Thus, in the judgment on the Basic Treaty with the German Democratic Republic,
the Court wished neither to exercise criticism nor to express its views on the prospects for the then
federal government's reunification policy. Responsibility for choosing the political ways and means towards
this State objective of the Basic Law lay with the political bodies alone. [FN29] By contrast, in the
Maastricht judgment, the Court discussed the political ways and means chosen by the *437 federal government
towards the goal of European integration entirely critically. [FN30] The Maastricht decision is a good
example, as a voice in the academic sphere put it, "of how the Federal Constitutional Court copes with the
German tendency to constitutionalize foreign policy questions." [FN31] As a prominent example where the
importance of the object of legal protection at issue demanded intensive judicial review, the protection of
nascent life intended by the abortion law is readily cited. [FN32] By contrast, in the Kalkar decision the
Court, despite the far-reaching repercussions of the option in favor of the peaceful use of nuclear energy for
the life and limb of citizens, [FN33] saw no occasion for an intensive review of the Nuclear Act.
We need not go into whether other viewpoints have justified judicial self-restraint or activeness in this
or that case. We wish only to show that the principle of judicial self-restraint which the Court strove for in
the codetermination judgement has indeed been properly described in its generality. It "is aimed at keeping
open for the other constitutional organs the room for free political action guaranteed them by the constitution."
[FN34] Yet it has not been possible to give this precept shape against the background of the leading
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cases with a catalogue of criteria. The formula of judicial self-restraint offers nothing more than a rhetorical
structure of argument that only gives information about the problem to be solved and the intellectual effort
proposed.
D. Functional Limits to Constitutional Jurisdiction
Even the Court's most passionate critics have not managed to draw a line between the overlapping competencies
of legislation and jurisdiction. This is not a consequence of intellectual laziness, but rather has to
do with the amalgamation of law and politics, which cannot be puristically dissolved. Increasingly, more attention
is being paid to constitutional principles whose infringement is continually alleged in cases of
boundary disputes, mainly the principle of separation of powers and the democratic principle. Of course, this
approach does not offer a simple answer either.
1. The Principle of Separation of Powers
Attention should be directed first to the principle of separation of powers, which is not to be understood
in the sense of a strict separation of legislature, executive, and judiciary. Rather, it distributes power and responsibility
by putting bearers of power under control. Surely, the freedom-guaranteeing aspect of separation
of powers, aimed at moderating the use of power and protecting citizens against government interference,
*438 is of particular importance. But for our problem, the functional aspect is more helpful. The principle
of separation of powers is primarily aimed at having government decisions taken as correctly as possible.
To be sure, by having the bodies best suited make decisions because of their organization, composition,
function and procedures. This allocation of tasks is made according to priority areas, but without any
claim to exclusivity. Functional overlaps, for instance, in creative legal interpretation by courts, are part of
this allocation from the outset. Creative and therefore social-patterning elements in constitutional case law
are not illegitimate per se either. Nonetheless, the Court must always bear in mind that the Basic Law has
made the legislature the "central actor" in shaping the political community. Its autonomy of action is comprehensive
and it can, by contrast to the Federal Constitutional Court, act of its own volition. On the basis of
an external impetus, the Court can only act reactively to review decisions already taken. While the legislature
can observe the effects of its decisions and, should these be undesirable, make corrections if necessary,
the method of trial and error is not open to the Court. Unlike the legislature, the Court cannot revise its
judicial pronouncements by itself.
2. The Democratic Principle
This principle requires respect, notwithstanding its separation of powers aspect, particularly when legislative
measures come onto the test-bench of the Federal Constitutional Court. It is not the Federal Constitutional
Court's business to decree a detailed regulatory program qua Basic Law. The narrower the Court
weaves the net of constitutional postulates and requirements, the more it restricts the legislature's possible
actions and cripples its political imagination.
The openness of the political process is essential to democracy. In all areas not adequately provided for
in constitutional law, as Grimm says, "the democratic principle requires that only those who can be held accountable
through the vote may decide." [FN35]
Response by the citizens in regular elections does not apply to the members of the Federal Constitutional
Court. The judges stand outside the day-to-day political struggle. Their personal and material independence,
guaranteed in the Basic Law, is intended to make them immune specifically to political requirements,
and guarantee that the law alone counts. Judgment as to the optimum realization of the common welfare is
by contrast a matter for politics.
3. Value Conflicts in the Pluralist Social Order
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If conflicts between values are made the object of abstract constitutional review, then account must also
be taken of the fact that the Basic Law has opted for a pluralist social order. In conflict situations where
*439 fundamental rights positions clash, the verdict on the constitutionality of a law is not a matter purely of
judicial acuity or the art of constitutional interpretation. Instead, what is called for is a weighing, an evalu-
ation.
As an example, we may take the conflict on abortion law, which occupied the Federal Constitutional
Court in 1993. Here, the constitutionally protected right to life of the unborn and the mother's fundamental
rights position had to be weighed against each other. The legislature had resolved this value conflict in 1992
with a time-limit concept. According to this, termination of pregnancy within twelve weeks of conception
was not unlawful and, therefore, exempt from punishment. Hardly any statute has been so thoroughly debated
in the Bundestag, or so massively underpinned academically by the securing of expert opinions as this
one. The final text of the act was a hard-fought compromise in the Federal Parliament based on many competing
preliminary drafts.
The Federal Constitutional Court, invoked by the defeated minority in Parliament, nonetheless quashed
the law and decided that termination of pregnancy is to be treated as wrong for the whole duration of the
pregnancy. It declared admissible a consultative model that combined the time-limit solution with compulsory
counseling. The parliamentary majority, defeated in court, responded--it could hardly do otherwise--with
the accusation that the Court in Karlsruhe was once again presuming to do the legislators' job.
Certainly it is the task of the Federal Constitutional Court to decide authoritatively on the constitutionality
of provisions brought before it; however, it must be mindful that such determinations are the outcome of
a multi-layered process of evaluation. There is no absolute correctness to such decisions; or at least it is not
attainable for us here on earth. The dissenting opinions of judges on many such decisions are proof of this
perception.
Differences of opinion among judges are not just random. Historical, cultural, and socially divergent
views as to values held by those adjudicating play a part. We all know that there is a prior understanding that
also, more or less consciously, influences the acquisition of law. This has nothing to do with bias or prejudice.
Instead, we are all marked by this sort of basic attitude preceding any legal cognition, which is more
experienced with intuitive conviction than acquired rationally. It is a mixture of moral, legal, philosophical,
and political convictions, that include a particular conception of reality.
Accordingly, the Court has to bear in mind that the election of parliamentary representatives has ensured
a particularly broad spectrum of such interpretations. This compels reticence in relation to the
products of parliamentary work. Therefore, in a case of conflicting value judgements, the Federal Constitutional
Court should pay attention to the procedure of lawmaking rather than the outcome; that is, the process
of political opinion-forming and decision-making that led up to the statute that is under examination.
*440 Intellectual honesty compels us to state that there is no usable catalogue of criteria which could
serve as a signpost in the ridge-walking between law and politics. The two fields of action partly overlap and
cannot be separated from one other unambiguously. As the constitutional review body, the Court has a share
in politics. The problem to be considered is the scope of the Court's responsibility. The test criteria, or maxims,
are the structural principles of the Basic Law, which have as their object the interplay and contrary motion
of judicial review and political activity. These are necessarily very abstract, and denote only stages in a
thought process. The horizon of reflection marked by the principle of separation of powers and the democratic
principle must be paced off in thought for every decision. Although these principles are only types of
reflection, they should not be misinterpreted as being more or less non-binding appeals to constitutional
judges. What is at stake here is not voluntary self-restraint, but the fulfillment of a constitutional precept.
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The sensitive definition of its own sphere of responsibility is a self-evident duty for an organ of government,
which according to the Constitution must, through the separation of governmental powers, watch over their
balanced exercise.
V. THE SOCIAL IMPACT OF PROTECTING FUNDAMENTAL FREEDOMS
Let me draw your attention to the theory that the Court's jurisdiction concerning fundamental rights has
promoted the development of a civic society in Germany. By this, I mean a society of participating citizens
who know their constitutional rights and defend them against infringements by the State. Individuals may
file a constitutional complaint claiming that a public authority has violated one or more of their constitutionally
guaranteed rights. In these cases, the primary object of review is usually the decision of a lower court.
But, if necessary, the original government act and the law on which the decisions are based may also be
evaluated, since no act or court decision can be constitutional when the underlying law is unconstitutional.
The complaint may be lodged against any official action, including judicial decisions or administration regu-
lations.
A constitutional complaint requires acceptance for adjudication. A complaint must be accepted if: (i) it
is of fundamental constitutional importance; (ii) the claimed infringement of fundamental rights is of special
severity; or (iii) the complainant would suffer particularly severe detriment from failure to decide the issue.
[FN36] The Federal Constitutional Court must determine whether a complaint satisfies the prerequisites for
acceptance before actually deciding a constitutional complaint.
The Federal Constitutional Court has certainly been active in terms of unfolding and developing fundamental
rights. Through a series of individual *441 cases, it has developed, for example, a law of privacy, especially
the right of informational self-determination, and principles of fair trial. The Court's case law concerning
the basic rights of freedom of speech contributed significantly to the shape of the Basic Law and to
the development of the free, democratic, rule-of-law state of the Federal Republic of Germany. Furthermore,
it attests to the readiness of the German people to learn from the failure of the Weimar Republic and the
reign of terror which existed between 1933 and 1945. This historical jurisdiction, starting with the Lüth case
(1958) and concluding with the Auschwitz Denial case (1994), clearly illustrates how the Court has tried to
grapple with a disastrous past.
I am convinced that the German citizens have understood that they are being called upon to be the
guardians of the Constitution by way of the right to file constitutional complaints. Due to their attention,
their sense of law, and, last but not least, their mind to oppose, the Federal Constitutional Court was able to
act as the guardian of the Basic Rights. With its jurisdiction on the Basic Rights, the Court broke with authoritarian
traditions and outlined the principles of the free and democratic rule-of-law state. On the one
hand, the decisions on freedom of speech and the press have to be mentioned. These decisions rendered the
Basic Rights of communication to be essentially constitutive for a free and democratic stately order, because
it is through them that the constant intellectual debate is possible, which is the characteristic element of
democracy. On the other hand, the jurisdiction regarding the principles of due process and fair trial have to
be mentioned. These rule-of-law principles are to guarantee that all the decisive facts and aspects of a case
come up, and that the accused, or the person seeking justice, is not degraded as an object of procedure. Last,
but not least, these decisions also intend to show to the citizens as well as to the public persons involved that
the Basic Rights are directly applicable law.
The history of the Federal Constitutional Court's impact is a story of success. This is true irrespective
of the fact that it has repeatedly unleashed a barrage of critical fire with its decisions. Even these decisions
have never been able to shake the people's trust in the Court permanently. It may be said without exaggerating
that the Federal Constitutional Court has become a citizens' court par excellence. [FN37] Such popularity
is not raised up above all doubt. This is true especially when the other institutions that guarantee plural-
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ism (the variety of opinion) suffer from a decline in public trust. For instance, the press, the trade unions,
employer associations, churches, the federal government, and parliament as well as the political parties are
all primarily in the negative zone of the trust scale for public institutions in the Federal Republic of Ger-
many.
*442 Does the unbroken great trust in the authority of constitutional jurisdiction point to some political
mistrust of democracy? As Häberle rightly warns, "[t]he German faith in constitutional jurisdiction must not
be allowed to turn into lack of faith in democracy." [FN38]
[FNa1]. President, Federal Constitutional Court, Karlsruhe, Germany.
[FN1]. See Bundesverband Deutscher Banken (ed.), INTER/ESSE, Wirtschaft und Politik in Daten und
Zusammenhängen, Nov. 1997 at 2.
[FN2]. See Thomas Gawron & Ralf Rogowski, Effektivität, Implementation und Evaluation, Wirkungsanalyse
am Beispiel von Entscheidungen des Bundesverfassungsgerichts, in Zeitschrift für Rechtssoziologie
177, 178 (1996).
[FN3]. Cf. Gawron, supra note 2, at 179-85.
[FN4]. See BVerfGE7, 198.
[FN5]. The facts of the Lüth case: Veit Harlan was a popular film director under the Nazi regime and the
producer of the notoriously anti-Semitic film Jud Süss. In 1950 he directed a new movie entitled Immortal
Lover. Erich Lüth, Hamburg's director of information and an active member of a group seeking to heal the
wounds between Christians and Jews, was outraged by Harlan's reemergence as a film director. Speaking before
an audience of motion picture producers and distributors, he urged his listeners to boycott the movie
Immortal Lover. In his view, the boycott was necessary because of Harlan's Nazi past: he was one of the important
exponents of antisemitism. And Lüth was concerned that Harlan's reemergence would strongly renew
the distrust against Germany. The film's producer and distributor secured an order from the Superior
Court of Hamburg forbidding Lüth to call for a boycott. The Court regarded Lüth's action as an incitement in
violating the law of torts. Lüth successfully filed a constitutional complaint asserting a violation of his basic
right to free speech by the Superior Court of Hamburg.
[FN6]. The Court said in the Lüth decision:
The primary purpose of the basic rights is to safeguard the liberties of the individual against interferences
by public authority. They are defensive rights of the individual against the state .... It is equally
true, however, that the Basic Law is not a value-neutral document. Its section on basic rights establishes
an objective order of values, and this order strongly reinforces the effective power of basic rights. This
value system, which centers upon dignity of the human personality developing freely within the social
community, must be looked upon as a fundamental constitutional decision affecting all spheres of law
(public and private). It serves as a yardstick for measuring and assessing all actions in the areas of legislation,
public administration, and adjudication. Thus it is clear that basic rights also influence the development
of private Law. Every provision of private law must be compatible with this system of values,
and every such provision must be interpreted in its spirit.
BVerfGE 7, 198 (204); see The Constitutional Jurisprudence of the Federal Republic of Germany 363
(Donald P. Kommers trans., Duke University Press 2d ed. 1997).
[FN7]. Thus Ossenbühl, Verfassungsgerichtsbarkeit und Fachgerichtsbarkeit, in Festschrift für H.P.Ipsen
129-38 (1977).
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[FN8]. See BVerfGE89, 214.
[FN9]. As he tellingly puts it in relation to judging in general, see Adolf Arndt, Das Bild des Richers:
Vortag geralfen vor der Juristicschen Stediengesellschaft in 2 Karlsruhneam 15 (1957).
[FN10]. See Christine Landfried, Bundesverfassungsgericht und Gesetzgeber, Wirkungen der Verfassungsrechtsprechung
auf parlamentarische Willensbildung und soziale Realität 52 (1984) (discussing the "preemptive
effect" of Federal Constitutional Court decisions).
[FN11]. Frankfurter Rundschau Oct. 21, 1974 at2.
[FN12]. Oskar Bülow, Gesetz und Richterarmt 14 (1885).
[FN13]. See Dieter Grimm, Politik und Recht, in Grundrechte, Soziale Ordnung und Verfassungsgerichtsbarkeit:
Festschrift für Ernst Benda 91, 99 (1995).
[FN14]. See Konrad Hesse, Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland 11 (20th ed.
1995).
[FN15]. See Grimm, supra note 13, at 100.
[FN16]. See Hesse, supra note 14, at 20; Wolfgang Zeidler, Verfassungsgerichtsbarkeit, Gesetzgebung und
politische Führung, Ein Cappenberger Gespräch 46 (1980).
[FN17]. See Ernst-Wolfgang Böckenförde, Die Methoden der Verfassungsinterpretation, in Staat, Verfassung,
Demokratie 53, 58 (2d ed. 1992); Willi Geiger, Verfassungsentwicklung durch Verfassungsgerichtsbarkeit
4.
[FN18]. Grundgesetz [Constitution] [GG] art. 20(1) (F.R.G.).
[FN19]. See Geiger, supra note 17, at 4.
[FN20]. Id. at 5.
[FN21]. See Konrad Hesse, Funktionelle Grenzen der Verfassungsgerichtsbarkeit, in Recht als
Proze<<beta>> und Gefüge, Festschrift für Hans Huber 261, 264 (1981).
[FN22]. See Ernst Benda, Constitutional Jurisdiction in West Germany, 19 Colum. J. Transnat'l L. 1, 11
(1981).
[FN23]. See id.
[FN24]. See Landfried, supra note 10, at 175.
[FN25]. Cf., e.g., Gunnar Folke Schuppert, Self-restraints der Rechtsprechung, in DVBl1191, 1194 (1988)
(illustrating a weather attempt at classification).
[FN26]. See BverfGE 49, 89 (127).
[FN27]. Id. at 131.
[FN28]. The Court stresses that in view of the limited empirical knowledge, one could not demand of the legislature
a regulation that would rule out endangerment of fundamental rights with absolute certainty. Cf.
BVerfGE49, 89 (143).
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[FN29]. See BVerfGE36, 1 (18).
[FN30]. See BVerfGE89, 155.
[FN31]. Juliane Kokott, German Constitutional Jurisprudence and European Integration, in 2 European Public
L. 413, 416.
[FN32]. See BVerfGE39, 1 (51); cf. BVerfGE88, 203 (340).
[FN33]. See BVerfGE49, 89 (127).
[FN34]. BVerfGE50, 1 sub 2.
[FN35]. Grimm, supra note 13.
[FN36]. See § 93a BVerfGG.
[FN37]. See Peter Häberle, Verfassungsgerichtsbarkeit als politische Kraft, in Verfassungsgerichtsbarkeit
zwischen Politik und Rechtswissenschaft 59, 79 (1980).
[FN38]. Id.
END OF DOCUMENT
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