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Who is Afraid of the Total Constitution? Constitutional Rights as Principles and the Constitutionalization of Private Law

Published online by Cambridge University Press:  06 March 2019

Mattias Kumm

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In 1931 Carl Schmitt published an article titled “the turn to the total state.” The total state that Schmitt describes is not yet a totalitarian state. Germany is still a liberal democracy and the Weimar Constitution is still the supreme law of the land. But the total state Schmitt describes is a state in which the traditional lines between the sphere in which the private law society governs itself and the sphere of state intervention, or the public domain, have been undermined. According to Schmitt, the pluralistic forces of civil society have captured the state and made it an instrument to serve their purposes. Everything is up for grabs politically. It is a state of political mobilization and deep ideological conflict, reflected in the plurality of deeply divided political parties in parliament. It is possible to distinguish between three features, which together illustrate the total prevalence of politics over law underlying “the turn to the total state.”

Type
Articles
Information
German Law Journal , Volume 7 , Issue 4 , 01 April 2006 , pp. 341 - 369
Copyright
Copyright © 2006 by German Law Journal GbR 

References

1 Schmitt, Carl, Die Wendung zum Totalen Staat, in Positionen und Begriffe im Kampf mit Weimar, Genf, Versailles 1923-1939, at 166-78 (3d ed. 1994).Google Scholar

2 Schmitt, Carl, Der Begriff des Politischen (3d ed. 1963).Google Scholar

3 Kelsen, Hans, Reine Rechslehre (2d ed. 1960).Google Scholar

4 Id., 349.Google Scholar

5 Schmitt himself never used the term “total” in conjunction with the term “constitution.” In Schmitt's jargon the term “total” was reserved to states, wars, and enemies, see Carl Schmitt, Totaler Feind, totaler Krieg, totaler Staat (1937), in Postionen und Begriffe im Kampf mit Weimar – Genf-Versailles 1923-1939, at 268 (3d ed. 1994).Google Scholar

6 The term “constitutional juristocracy” was introduced to contemporary debates by Schmitt's probably most brilliant late pupil, E.W. Böckenförde. See E.W. Böckenförde, Grundrechte lals Grundsatznormen, in Staat, Verfassung, Demokratie 185 (1991). In the Anglo-American world the term has been popularized by R. Hirschl, Towards Juristocracy (2004).Google Scholar

7 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.Google Scholar

8 BVerfGE 49, 89 and BVerfGE 53, 30.Google Scholar

9 BVerfGE 89, 214.Google Scholar

10 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).Google Scholar

11 See Art. 79 Sect. I Basic Law referring to Art. 20 Sect. 1 Basic Law.Google Scholar

12 For a comparative discussion of democratic constitutions that authorize militant actions towards the enemies of the constitution see A. Sajo ed., Militant Democracy (2005).Google Scholar

13 R. Alexy, A Theory of Constitutional Rights (2002).Google Scholar

14 Id., 223-59. Alexy deals with a general right to equality in chapter 8, at 260-87.Google Scholar

15 For further references see TCR, 224 n.5.Google Scholar

16 BVerfGE 6, 32 (Elfes).Google Scholar

17 BVerfGE 39, 1, BVerfGE 88, 203.Google Scholar

18 BVerfGE 54, 143 (147).Google Scholar

19 See Laurence Tribe, American Constitutional law 1362 (3d. ed. Vol. 1, 2000).Google Scholar

20 That does not mean that the two are identical. There are at least four differences between substantive rights analysis and general policy assessments. First, courts are not faced with generating and evaluating competing policy proposals, but merely with assessing whether the choices made by other institutional actors are justified. Second, they only assess the merit of these policy decisions in so far they affect the scope of a right. Third, specific constitutional rules concerning limits to constitutional rights or judicial precedence establishing rules that fix conditional relations of preference frequently exist. Fourth, proportionality analysis leaves space for deference to be accorded to other institutional actors. The ECHR refers to this as the “margin of appreciation.”Google Scholar

21 Art. 6 Sect. 4 Basic Law.Google Scholar

22 Art. 1 Basic Law.Google Scholar

23 Art. 20 Sect. 1 Basic Law.Google Scholar

24 BVerfGE 7, 198 (Lueth).Google Scholar

25 For Alexy's discussion of horizontal effect see, supra, note 13, 351–65.Google Scholar

26 BVerfGE 39, 1 (41).Google Scholar

27 BVerfGE 86, 1.Google Scholar

28 See Alexy, supra note 13, 300–14.Google Scholar

29 BVerfGE 30, 59 and BVerfGE 49, 89.Google Scholar

30 BVerfGE 46, 160. In that case the court held that even though the German government was under a constitutional duty to protect the kidnapped victim, it had wide discretion with regard to the means it chooses to do so. There are some limits to that discretion, however. In a recent decision concerning the constitutionality of a law that allowed for a civilian airliner to be shot down by the German Air Force in 11 September 2001 type scenarios was deemed to be unconstitutional. See 1 BvR 357/05.Google Scholar

31 BVerfGE 39, 1 and BVerfGE 88, 203.Google Scholar

32 TCR 334-348.Google Scholar

33 TCR 292.Google Scholar

34 Art. 1 para. 3 Basic Law.Google Scholar

35 See sec. 138 para. 1 BGB: “Ein Rechtsgeschäft, dass gegen die guten Sitten verstsst ist nichtig.”Google Scholar

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37 See Campbell Soup Co. v. Wentz, 172 F.2d 80 (3d Cir. 1948). See also Section 2-302 UCC: “If the courts as a matter of law finds a contract or any clause of the contract to have been unconscionable at the time it was made, the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clauses as to avoid any unconscionable result.”Google Scholar

38 See e.g. EC Directive 13/93 addressing consumer protection against unfair practices. See also the Swedish “Act on the Prohibition of Unconscionable Contractual Terms” of 1971.Google Scholar

39 Art. 2 I Basic Law states: “Everyone has the right to freely develop their personality.” The FCC has interpreted this right expansively to mean that everyone is free to do or to abstain from doing whatever they like. See BVErfGE 6, 32 (Elfes).Google Scholar

40 This has propelled the FCC into the role of assessing, for example, the constitutionality of restrictions on feeding pigeons in public squares (see BVerfGE 54, 263) or riding horses through public woods (BVErfGE 80, 137).Google Scholar

41 In Ireland such constitutional tort actions are recognized. See Walsh, J. in the 1973 case of Meskell v. Coras Iompair Eireann: “If a person has suffered damage by virtue of a breach of a constitutional right … that person has the right to seek redress against the person or persons who infringed that rights.” I.R. 121, 133 (1973). Art. 40.3.1. of the Irish Constitution states that “the state guarantees in its laws to respect, and, so far as practicable, by its laws to defend and vindicate the personal rights of citizens.”Google Scholar

42 An exception is Art. 9 Sect. 2 GG, which provides that private agreements restricting the right of workers to organize collectively are unconstitutional and thus invalid.Google Scholar

43 BVErfGE 7, 198 (Lüth).Google Scholar

44 See BVerfGE 30, 173 (Mephisto).Google Scholar

45 Germany follows the Kelsenian model and establishes a constitutional court that has the monopoly for setting aside legislation on constitutional grounds.Google Scholar

46 For a general theory of deference see Marius Raabe, Grundrechte und Erkenntnis (1998).Google Scholar

47 For an account of the relationship between the FCC and the branches of the judiciary see Christian Starck, Verfassungsgerichtsbarkeit und Fachgerichte, 51 Juristenzeitung 1033 (1996).Google Scholar

48 See Hager, Johannes, Grundrechte im Privatrecht, 49 Juristenzeitung 374 (1994).Google Scholar

49 See BVerfGE 89, 214 (holding unconstitutional a civil court decision that failed to interpret the general clauses of the code as invalidating a contract between a bank and income- and asset-less relatives of bank debtors to assume high liability risks in case the debtor defaults on the grounds that it failed to take into account the parties’ constitutional liberty interests).Google Scholar

50 See BVerfGE 89, 1 (holding that both the interests of both the landlord and the tenant in a property are deemed property rights under the Constitution that need to be taken into account in the interpretation of landlord-tenant law).Google Scholar

51 BVerfGE 103, 89 (limiting the kind of prenuptials that can be enforced against the structurally weaker party).Google Scholar

52 BVerfGe 7, 198 (Lueth). It is certainly not an accurate description of the German case law at this point that the FCC's forays into private law disputes is mainly focused on freedom of speech issues as they relate to defamation law. For such a claim see Basil M. Merkesinis, Privacy, Freedom of Expression and the Horizontal Effect of the Human Rights Bill: Lessons from Germany, 115 L.Q.R. 47, 64 (1999).Google Scholar

53 BAG 47 (1984), 363 (Employer fired employee who, as a press operator, refused on grounds of conscience to print books he believed glorified war. The BAG interprets labor law requirement that decisions laying off workers have to be “socially justified” as requiring that weight has to be given to freedom of conscience. Under the circumstances of the case the BAG held in favor of employee).Google Scholar

54 See Art. 1 Sect. 3 Basic Law.Google Scholar

55 See TCR, 351.Google Scholar

56 For a more general discussion see M. Kumm, Constitutional Rights as Principles: On the Structure and Domain of Constitutional Justice, 2 Int'l J. Const. L. 584 (2004).Google Scholar

57 See the dissent by Grimm, J. in BVerfGE 6, 32 (Equestrian Case).Google Scholar

58 B. Schlink, Der Grundsatz der Verhältnismässigkeit, in Festschrift 50 Jahre Bundesverfassungsgericht Vol. 2, 445 (P. Badura & H. Dreier eds., 2001).Google Scholar

59 See Böckenförde, E.W., supra, note 6.Google Scholar

60 The debates about what the defining features of private law really are and what makes a dispute a dispute of private law is a significant practical issue in Germany, because it determines whether the administrative courts or the civil courts have jurisdiction to hear the case. Although there are a number of practical rules that are used in practice, a standard treatise describes the issue thus: “The dogmatic attempts to define the distinction between private law and public law have endured now for over a century, without any of the offered theories having gained general acceptance.” See Pitzner/Ronellenfitsch, Das Assessorexamen im Őffentlichen Recht 51 (9th ed. 1996).Google Scholar

61 For such an understanding of rights, see J. Habermas, Between facts and Norms 109 (1996).Google Scholar

62 See for example BVerfGE 86, 122 (taking a particular political view in a student journal is insufficient to justify a decision not to employ someone). According to BAG, NJW 84, 828, on the other hand, a doctor at a hospital run by the Catholic Church can be required to abstain from publicly advocating the right to abortion.Google Scholar

63 This is the generally accepted doctrine used by the FCC. See e.g. BVerfGE 43, 130 (137), BVerfGE 61, 1 (7).Google Scholar

64 Habermas, J., Popular Sovereignty as Procedure, in Between Facts and Norms 600 (1996).Google Scholar

65 This understanding of the purpose of rights is very similar to that proposed by J. Raz, The Morality of Freedom 180-92 (1986).Google Scholar

66 The reasons published by the Conseil Constitutionnel are, however, famously cryptic. For a discussion of this phenomenon see Mitch Lasser, Judicial Deliberations: A Comparative Analysis of Transparency and Legitimacy 25-35 (2004).Google Scholar

67 Pettit, Phillip, Republicanism: A Theory of Freedom and Government 230 (1997).Google Scholar

68 When Schmitt first wrote “total state” he meant to criticize the absorption and capture of the state by the pluralistic forces of civil society. When the vocabulary of the total state was affirmatively embraced by anti-liberals who advocated a totalitarian state, Schmitt distinguished between the total state out of weakness (Weimar) and the authentic total state out of strength, which he would later associate with the National Socialist movement. See C. Schmitt, Weiterentwicklung des totalen Staates in Deutschland, Europäische Revue 65 (1933) and C. Schmitt, Totaler Feind, totaler Krieg, totaler Staate, in Positionen und Begriffe im Kampf um Weimar 268 (3d ed. 1994).Google Scholar

69 The debate about the appropriateness of endowing courts with the authority to strike down acts of the legislature remains alive. See R. Dworkin, The Constitutional Conception of Democracy, in Freedom's Laws (1996), on the one hand, and J. Waldron, The Constitutional Conception of Democracy, in Law and Disagreement (1999), on the other.Google Scholar

70 See e.g. Alexy, supra, note 13, 394-25; D. Dyzenhaus, The Unity of Public Law 6-19 (2004), in the Canadian context. See also Y. Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (2002).Google Scholar