The theoretical sources and normative principles which contributed to the framing of the Basic Law continue to play a role in its interpretation, while also helping us understand how the BVerfG perceives the role of the individual within the constitutional mix. Partly, these principles are “rooted in the dialectic between the liberal, socialist, and Christian natural-law traditions that shaped the original document”, but they are also derived from what the Court calls “supra-positive principles of law” that “bind legislators and other political decision makers”.532 Within the German constitutional order these principles contribute to what Kommers and Miller describe as “communitarian values” which are “suggestive of aspects of the Aristotelian polis as well as the early American traditions of civic republicanism.”533
528
Stern, p. 20. 529 See infra note 577.
530 Donald P Kommers, 'German Constitutionalism: A Prolegomenon', Emory LJ, 40, (1991), 858. 531 When the values of dignity and democracy conflict, dignity will not always came out on top as in Der Spiegel Case, 20 BVerfGE 162 (1966). See infra note 568
532
Kommers and Miller. p.70. 533 Ibid. p.46.
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In signifying the identity of the new order, those who created the Basic Law had, as Kommers and Miller note, “given up on the old positivist idea that law and morality – and justice are separate domains. Constitutional morality would now govern both law and politics.”534
Escaping from legal positivism meant that the Basic Law became a fundamental charter of justice. Legality would now be measured against supra-positive principles of justice. The Rechtsstaat of the Basic Law is no longer an end in itself; it is a means which serves the ends of the Verfassungsstaat (constitutional state).535
Gustav Radbruch was the German legal thinker most responsible for setting out the distinction between positive law and justice. His 1946, article “Statutory Injustice and Suprastatutory Law”536
in which he provided a formula for dealing with the conflict between positive law and justice has been described as “one of the most important texts in 20th century legal philosophy”,537 while the importance of Radbruch’s formula has been confirmed by a number of judgements of both the German Constitutional Court and the German High Court538. Most significantly, in the context of the Basic Law, Radbruch’s view that certain higher principles of justice trumped positive law has been repeatedly cited by the BVerfG.539 The Rabruch Formula was primarily a response to the abuse of written law by the Nazis in the interest of injustice. As the German legal philosopher, Ralf Dreier, put it, “Radbruch’s formula was a reaction to Auschwitz.”540 The desire to embrace law but to reject positivism is reflective of an older German tradition of fidelity to the Rechtsstaat which meant more than simply the robotic adherence to statutory law associated with positivism. The Basic Law “represents a major break from this positivist tradition” by not conceiving of the state “as the source of fundamental rights. The core of individual freedom, like human dignity itself, is regarded as anterior to the state.”541
As Kommers and Miller note, “the notion of ‘inviolable and inalienable’ rights is also sharply at variance with the spirit of earlier German constitutions, for the Basic
534 Ibid. 5.
535
Donald P. Kommers, 'German Constitutionalism: A Prolegomenon', (1991). p.846. 536 Radbruch, 'Gesetzliches Unrecht und Übergesetzliches Recht'.
537 Thomas Mertens, 'Nazism, Legal Positivism and Radbruch's Thesis on Statutory Injustice', Law and Critique, 14, (2003). p.277.
538
Ibid. p.293.
539 See for example Equality Case, 3 BVerfGE 225 (1953). Kommers and Miller note that in the Equality Case, the Court’s opinion “quotes with approval Radbruch’s affirmation of natural-law theory”. Kommers and Miller, p. 746.
540 Cited in Peter E Quint, 'Judging The Past: The Prosecution of East German Border Guards and The GDR Chain of Command', The Review of Politics, 61, (1999), 318.
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Law is Germany’s first national constitution to recognise the pre-constitutional existence of guaranteed rights.”542
This post-war German view on the existence of pre- constitutional rights vested in people by nature has become fused with a post-1945 juridical-legal view where principles are often prioritised over written law or constitutional text:
In Germany, where the courts are by the constitution stated to be ‘bound to statute and to law’ (Gesetz and Recht), the reference to a body of law wider than the written statute law has been interpreted as requiring courts to expound fundamental principles implicit in the law, sometimes even in preference to the letter of the law. 543
Rights are, thus, not derived from the Rechtsstaat, but their maintenance and protection requires, in the German legal mind, the presence of the order of legality (which the Rechtsstaat represents) at the centre of the constitutional order to maintain the coherence and unity of the system.
There is, however, a paradox in this view of rights as existing prior to the state. Rights are dependent on the state for their protection, but the post-1945 rights mindset emphasised the idea that rights were anterior to the state (in the sense of natural) and that their existence was not derived from the existence of the state. In Germany, the general post-1945 move towards legally recognised rights was fused with an older notion of the Rechtsstaat where human dignity and personal freedom were seen as being derived from rights laid down in law. The discontinuity with the pre-constitutional rights view is that the preservation of individual autonomy through the imposition of rules on the state “presupposes that the planning and acting that are to be protected must take place in a social environment.”544 The paradox is, thus, that rights in reality cannot be protected if the constitutional order that supports them collapses – this was one lesson from the Nazi period; but equally, the Nazi period also showed that rights could not just be seen to be derived from, or dependent on, state power.
In the Court’s Elfes ruling of 1957, it further defined the nature of the value order and the constitutional implications of the move away from a German legal positivism that had too easily been used to equate law with justice. This would mean the Court’s interpretations of the Basic Law, and of unwritten higher law principles, and
542 Ibid. p. 44
543
MacCormick and others pp.484-485. 544 Kay. p.21.
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parliamentary statutes represent the final word on constitutional meaning. The Court’s First Senate545 declared that under the Basic Law,
Laws are not constitutional merely because they have been passed in conformity with procedural provisions. They must be substantively compatible with the highest values of a free and democratic order, and must also conform to unwritten fundamental constitutional principles […].546
The implications of this new BVerfG shaped understanding―that rights were anterior to the state and to democracy itself―for the new constitutionalism and for representative democracy itself were startling. This was not an American liberty oriented conception of rights. Rather rights and democracy were joined at the hip and could only be exercised in the social and political landscape created by the Basic Law, and by the BVerfG.
This was then the historical logical and the political imperative which shaped Germany’s postwar constitutionalism. Maintaining stability was a key political goal as much as it was a legal one to allow the country’s new constitutional institutions to become accepted. However, making democracy contingent on rights also meant defining the individual not as a lone isolated and free person―as in the U.S. conception of liberty―but as a person within the community. For reasons that will be explained in Section 6.6, the Court’s decision in the Lüth Case of 1958 to declare that the Basic Law governed not only public law, but also private law, automatically brought private relationships within the scope of constitutional protection, while also shaping Germany’s evolving conception of democracy.