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ISSN 1727-3781
STATE DUTIES OF PROTECTION AND FUNDAMENTAL RIGHTS
2000 VOLUME 3 No 1
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STATE DUTIES OF PROTECTION AND FUNDAMENTAL RIGHTS
Professor Dr Christian Starck, University of Göttingen
1 State Duties of Protection in the Constitutional State
1.1 The Concept of Duties of Protection
Duties of protection are duties of the state to protect certain legal interests of its citizens.
In particular, they cover the interests of life, health, freedom and property; they do,
however, also protect some other interests and certain constitutionally recognised
institutions. These duties of protection appear in various guises: as obligations on
federal and Länder legislatures, as executive duties to give effect to protective laws
(including those which check the exercise of executive discretion), and as guidelines,
both for the (constitutional) judicial control of various legislative
and executive acts and omissions1 and for judicial decision-making in cases at civil law.
The relationship between duties of protection and fundamental rights requires closer
examination.
(a) The text of the Basic Law grants a fundamental right of claim - a personal right on a
constitutional level in respect of those fundamental rights which the state must not only
respect, but which it is explicitly required to protect.
(b) If, on the other hand, we look at fundamental rights as objective values of the legal
system in order to create constitutional duties of protection, we should be content to
understand them simply as functions of the state, rather than legal duties, which do not
give rise to corresponding civil rights. We would need to do this to preserve the
difference between the objective aspects of fundamental
1 Alexy Theorie der Grundrechte 410 ff; Robbers Sicherheit als Menschenrecht 125; Stern Das
Staatsrecht der Bundesrepublik Deutschland 950 ff; in detail Dietlein Die Lehre von den
grundrechtlichen Schutzpflichten 70 ff; Unruh Dogmatik der grundrechtlichen Schutzpflichten 20 ff.
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rights and the explicitly established, constitutionally protected fundamental right of
claim.
(c) Nevertheless, individual rights have been created as a completion of the objective
dimension of fundamental rights through reference to the "primary significance" of
fundamental rights as individual rights.2 The Federal Constitutional Court's Second
Senate decided in a case concerning the protection of human life that:
… a failure to heed these duties of protection automatically infringe the
fundamental right in Art. 2 II 1 GG. The injured party can protect himself
against this with the Constitutional Complaint.
The first senate has followed this judgment.3
The fact that state duties of protection have been considered in connection with
fundamental rights and have found their legal anchor there can only be explained by the
fact that fundamental rights have, over time, become the fulcrum of German
constitutional law. Fundamental rights with their various functions have cast their spell
over all remaining constitutional law - and, indeed, over almost all of the remainder of
the law. They illuminate, saturate and mould the law. In Germany, fundamental rights
play a role that they play in no other country, and one can justifiably claim that these
rights are central to the entire theory and practice of the law.
1.2 Historical aspects of the constitutional state
A short reminder of the foundations of modern constitutionalism and attendant
constitutional procedures is essential if we are to develop guidelines for a constructive
critique of the jurisprudence of the Constitutional Court. No development in the
2 BVerfGE 50, 290, 337.
3 BVerfGE 77, 170, 214 (2nd Senat) - Stockpiling of chemical weapons; 79, 174, 201 ff (1st Senate) -
Traffic noise.
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doctrine of fundamental rights should occur without a glance at the recent history of our
European neighbours.
1.2.1 France
The 1789 French declaration of human and civil rights describes the goal of every
political organisation (i.e. the purpose of the state) as the maintenance of the natural
and inalienable rights of man. The rights listed are the rights to freedom, property,
security and resistance to oppression (Art. 2).4 The French declaration is a traditional
formulation of fundamental rights. According to Montesquieu,5 civil political freedom is
the peace of mind that grows from the assurance of one's own security. To achieve this
freedom, government must be so arranged that no citizen has cause to fear another. In
other words, security is the factual prerequisite of freedom.6 Montesquieu's theory found
echo in the French constitution of 1793, which made it plain that security is not only a
right which obtains against the state: instead, it consists in the protection which the
state (la société) gives to all its members for the maintenance of their persons, rights
and property.7 At the end of the declaration of 1789, the guarantee of rights against third
parties is again referred to along with the
separation of powers as one of the preconditions for a constitutional state.8
As we know, the Declaration of Human Rights and its reiteration in the French
constitutions9 which succeeded it was, until our own times, treated only as a legislative
programme. Only since 1971 has the Conseil Constitutionnel, prompted by the
preambles to the 1958 and 1946 constitutions, derived fundamental rights from
4 On the significance of "sûreté" in the development of the declaration cf Isensee Das Grundrecht auf
Sicherheit 14 f; on its significance in present French constitutional law: Luchaire La protection
constitutionnelle des droits et des libertés 42 f, 341 ff.
5 Montesquieu De l'esprit des lois chap 6, cited analog to edition Gonzague Truc (Classiques Garnier),
"La liberté politique dans un citoyen est cette tranquillité d'esprit qui provient de l'opinion que chacun
a de sa sûreté; et pour qu'on ait cette liberté, il faut que le gouvernement soit tel qu'un citoyen ne
puisse pas craindre un autre citoyen."
6 Thus, Isensee Das Grundrecht auf Sicherheit 7: "Locke's philosophy of freedom does not replace
Hobbes' philosophy of security. Rather, it builds on it and develops it."
7 Art 8. Thus, later, Part VIII of the Preamble to the Constitution of the Second French Republic (1848):
" La République doit protéger le citoyen dans sa personne, sa famille, sa religion, sa propriété, son
travail, ...".
8 Art 16.
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9 In connection with security cf art 8 of 1793 Constitution, art 4 of 1795 Constitution, Preamble Sec VIII
of 1848 Constitution.
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the Declaration. Since these are used as guidelines for the preventive control of
legislation,10 the Conseil has not needed to answer the question whether these
fundamental rights should be characterised as individual rights in contradiction of the
tradition of French droit public. The Conseil Constitutionnel treats the protection of
personal security and property as a constitutional principle, not a right. In recent French
writings, the maintenance of security as against third parties is regarded as a state
duty,11 and the jurisprudence of the Conseil Constitutionnel is summarised thus: not only
does the court assess whether the statute has achieved the necessary balance between
security and freedom, but it also examines whether the legislature has gone too far in
limiting freedom. The rules which the constitution permits the legislature to pass in order
to maintain public order may not be more restrictive than is necessary to guarantee the
exercise of any one freedom. The preeminence of security, which is referred to first, is
noticeable; only secondarily is the (relatively new) question raised as to the necessity of
the infringement of freedom -in German terms, whether the infringement is proportional.
The French tradition of expressing droit public solely in terms of objective principles
makes an account of the function of the state in preserving public security
straightforward.12
1.2.2 Germany
Through the mid-19th century and beyond, freedom and security were also regarded as
state objectives in Germany. This was prompted by the rationalist philosophy and legal
theory of the time. According to Kant, the state had to preserve security through the
creation of laws. In the Metaphysic of Morals,13 he states:
10 Cf with further references Starck 1988 Archiv des öffentlichen Rechts 632, 633 f. Regard must be
paid to the fact that the Conseil Constitutionnel can only decide if it has a draft statute before it. A
legislative omission can be considered, however, if a statutory regulation is repealed, and the
repealing statute is laid before it.
11 Luchaire La protection constitutionnelle des droits et des libertés 341 f, 367 ff, also on the whole
topic, citing the decisions of the Conseil Constitutionnel of 27 July 1982 and 3 September 1986,
where the balance between freedom and security is expressly tied to art 4 of the 1789 Declaration.
Cf Recueil des Décisions 1986, 135, 138.
12 Cf Classen 1987 Jahrbuch des öffentlichen Rechts 29 ff; Schlette Die verwaltungsgerichtliche
Kontrolle von Ermessensakten 61.
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13 Vorländer (ed) Metaphysik der Sitten 186.
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… the state of peace is simply the secured existence under law of Mine and
Yours in a group of contiguous people, who are thereby bound by a
constitution. The rules of this constitution are not drawn from the experience
of those who have so far found them most suitable as norms for others, but
through the rational a priori from the ideal of a legal association of human
beings under public laws.
According to the General Law for the Prussian States (1794),
… each inhabitant of the state is entitled to demand the protection of the
same for his person and property.14
The law protected the natural human freedom
… to be able to secure and maintain his own well-being without
disturbing the rights of others.15
In part IV of the constitution for the Kingdom of Bavaria (1818), entitled "of general
rights and duties", we read that "the state grants each inhabitant security of his person,
property and rights".16
German liberal constitutionalism of the 19th century is rooted in the thought of Kant
and the ideas of the Prussian General Law. This is particularly apparent in the article
on freedom that Karl von Rotteck wrote for his lexicon in 1847:17
The law will only grant me the freedom it grants to others. Law is none other
"than the rationally regulated external freedom, i.e. a freedom protected from
internal contradictions, a concept which therefore cannot be separated from
the idea of (rational or true) law."
14 General Law for the Prussian States (Intro § 76).
15 General Law for the Prussian States (Intro § 83).
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16 § 8 sec 1. Similar clauses can be found in the Constitution of Baden (1818) § 13, Württemberg
(1819) § 24 and Braunschweig (1832) § 32.
17 Von Rotteck and Welcker (eds) Das Staats-Lexicon 183 f.
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This consideration gives rise to the following function of the state:
As a legal institution, the state must recognise and protect the freedom of its
dependents, as a right intrinsic to them as people in every sphere of human
activity. It need not, therefore, grant them these rights initially.
If the state has
… reserved for itself the infringement of the rights of its dependents, it is also
obligated to protect these from each other where those rights might be
threatened.18
Among others, Von Rotteck gives the following example: the state must
… govern the ever-present threats to citizens' freedom with wise laws and
their careful administration. These threats arise from the abuse of personal
and societal power in the home, the family, the local community, the church
etc. Similarly, the state must check the specifically criminal threats to freedom
represented by kidnapping, abduction, false imprisonment and by deceit and
violence of every kind.
Von Rotteck calls this function
… the duty of the state or of the legislature and executive in connection
with personal rights, that is, the freedom of the citizenry.19
It is fulfilled through the creation and application of civil, criminal and procedural law.
This state duty corresponds to a civil claim to justice which is fleshed out by procedural
law.
18 Von Rotteck and Welcker (eds) Das Staats-Lexicon 186. 19 Von Rotteck and
Welcker (eds) Das Staats-Lexicon 185.
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In 19th century Germany, the guarantee of security through the protection of life and
limb, freedom and property was generally conceived as a mere state function.20 This
function was only matched by individual rights to the extent that the legislature had
created such rights, which could then generally be enforced before the courts. The fact
that certain authors derived these functions of the state from fundamental rights did not
affect their character as bare duties. This is particularly clear from Rönne and
Zorn's authoritative work on Prussian constitutional law.21 They deny the supremacy of
fundamental rights over statute; instead, they mention "so-called" fundamental rights.
Nevertheless, state duties are derived from these rights (for example the elimination of
serfdom and the protection of citizens from the unjust infringement of their freedom by
others). The older concept of state functions is thus maintained, although subsumed by
some authors under programmatic ("so-called") fundamental rights.
1.2.3 England
The guarantee of security was one duty of the English monarch.22 If he or she did not
fulfill this duty, there was a natural right of resistance. But there was no corresponding
personal right which could be enforced as a claim against the sovereign. Essentially,
the right of resistance was a compensating right which could only be justified as a
natural right. The transfer of sovereignty to the King in Parliament (1660-1688) placed
the duty to preserve security on Parliament. Since no citizen has any individual rights
against Parliament, the right to security is respected through statutes passed solely in
the discretion of Parliament, and through the case law developed by the courts. The net
result is a situation which mirrors that of France and Germany, albeit with a
strengthened judiciary. The quasi natural law foundation of the courts' jurisdiction
produces a claim to the administration of justice and a guarantee of the application of
the laws within the rule of law.23 As in France there is
20 Zachariä Deutsches Staats- und Bundesrecht 46 f: "Accordingly, the 'rule of law', 'maintenace of a
legal state of peace', 'preservation of the legal order', 'prevention of all illegality', 'protection of natural
and acquired rights' are to be the sole and exclusive, or at least the main function of the state." For
further references see Hermes Schutz von Leben und Gesundheit 159-165; Robbers Sicherheit als
Menschenrecht 97 ff.
21 Rönne and Zorn Das Staatsrecht der Preußischen Monarchie 37, 38 f.
22 See Robbers Sicherheit als Menschenrecht 36-50.
23 Dicey Study of the Law of the Constitution 183 ff.
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no individual right to security enforceable by the citizen against the legislature in
England.
1.3 Constitutional theory
The above historical excursus reveals that, despite their very different evolution, a single
theory underlies the variety of constitutional states. The development of the
constitutional state in the battle with monarchical absolutism gave rise to the
overwhelming significance of the preservation of freedom through the maintenance of
law and the separation of powers which Article 16 of the 1789 French Declaration
described as the precondition for the existence of a constitution. This has given rise to
various legal devices, based also in part on experience with moderate rule24 and
earlier theories of the imperium limitatum.25
1.3.1 The separation of powers
The separation of powers presupposes constitutional regulation of the creation,
functions, jurisdiction and procedures of the highest organs of the state. According to
constitutional theory, this regulation must be such that it creates checks and balances
and effectively secures freedom. Independent courts are essential. But the hindrance
and control of state power must not be taken so far as to prevent the state from fulfilling
its functions of securing peace, both internal and external, and social justice. Rather, in
organising the state for the promotion and protection of freedom, we must
seek the right balance of the separation and connection of powers.26
1.3.2 The guarantee of rights
The first classical fundamental rights were civil and human rights intended to protect
citizens against the state, and claims not to be disadvantaged by certain state violations.
These rights are either collected in a written code or developed by the
24 Link Herrschaftsordnung und bürgerliche Freiheit 36 ff, 89 ff; Stolleis Geschichte des
öffentlichen Rechts 90 ff.
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25 Von Wolff Jus Naturae methodo scientifica pertractatum 1764 §§ 72 ff.
26 Kägi Dreiteilung zur umfassenden Gewaltenteilung 151 ff.
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courts. For the sake of making freedom mutually bearable and to preserve the internal
peace of states, these rights can and must be limited. This occurs regularly through
state legislation, which might be justified either by explicit constitutional limitation of
these rights or by the fundamental function of the state of preserving peace and security.
In some codes this is expressed as a right to security. As long as the legislature was
seen as the sole guarantor of rights27 - in France well into the second half of this
century28 - it was sufficient that independent courts could ensure that statutes were
correctly - that is, fairly - enforced. But the inner logic of constitutionally-guaranteed
rights forces us to conclude that these rights must also be protected against the
legislature. The Supreme Court of the USA derived this doctrine
in 1803 from the supremacy of the constitution.29 This led over a century later to the
introduction of special constitutional courts in some European states with jurisdiction to
control statutes, thereby protecting individual rights. We must return to this point shortly.
1.3.3 State functions
The separation of powers and the protection of rights are the two main features and
tools of the constitutional state in the direct and indirect protection of the freedom of the
citizen from unjustified infringement by the state. However, the guarantee of freedom
must be seen in the light of other state functions, for these give it meaning and practical
significance.30 We should take especial note of the protection of internal security
(peace) and the guarantee of social justice.31 While freedom is enshrined in numerous
rules governing the separation of powers and the enforcement of rights, these other
state functions have not been reflected in specific legal techniques at a constitutional
level. They undergird the constitution as important aspects of the
27 Thus, overwhelmingly in 19th century Germany; cf Starck Verfassungsgerichtsbarkeit 11, 32 f;
Starck Der demokratische Verfassungsstaat 33, 50.
28 Thus also Duverger and Sfez Die staatsbürgerlichen Rechte in Frankreich 543 ff, 636: Statutes
themselves may not be challenged. In practice this is not a serious problem, at least as regards civil
liberties, for the National Assembly, as representative of the people, only rarely passes statutes
inimical to freedom.
29 Marbury vs. Madison, 2 Law Ed. U.S. 60, 73 (1803).
30 Isensee Das Grundrecht auf Sicherheit 19: fundamental freedom would be valueless, if it was not
grounded in security. See further pp 21 ff.
31 Starck Frieden als Staatsziel 867, 868 ff; Starck Der demokratische Verfassungsstaat 231, 232 ff.
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legitimation of the state,32 but references to them in the text of the constitution are,
where they exist at all, rather fleeting and unsystematic. They are generally found in
such places as the preamble, in clauses concerning constitutional foundations, in the
programmatic statements which commonly accompany fundamental rights, in explicit
limitations of fundamental rights and in the organisational part of the constitution.33 This
is particularly true for the primary state function of preserving security and
peace,34 which is the foundation of the state's criminal jurisdiction and for the state's civil
justice system, through which life, limb, property and reputation are protected.
1.3.4 Constitutional jurisdiction
The review of statutes by a constitutional court for their consistency with the constitution,
and, more specifically, the review of fundamental rights which interests us here, is a
later development of the constitutional state, at any rate in Europe.35 The introduction of
judicial control of statutes is historically connected with a conception of fundamental
rights as limits to the power of the state, which is made particularly plain by the
Amendments to the US constitution (1791): "Congress shall make no law...abridging
freedom of speech...".36 In Europe, judicial review of statutes was either introduced
alongside a catalogue of primarily defensive fundamental rights37 or was explicitly limited
by a recognition that these classical fundamental rights alone
were the only appropriate standard for review.38
The court exercising control can decide, using legal techniques, whether a statute
violates a classical individual right of freedom and is thus unconstitutional or whether it
limits the right in a constitutionally acceptable manner. The court examines whether the
statute advances a common interest in a suitable, necessary and appropriate manner or
- in the words of the US Supreme Court - by responding to a
32 Isensee Das Grundrecht auf Sicherheit 17.
33 Eg art 35 II, and some of the regulations of arts 73 and 74 GG.
34 Isensee Das Grundrecht auf Sicherheit 16; Starck Frieden als Staatsziel 867 ff; Götz Innere
Sicherheit 1008 f. For evidences see Hermes Schutz von Leben und Gesundheit 171 ff; Sachs in
Stern Das Staatsrecht der Bundesrepublik Deutschland l733; Klein 1989 NJurW 1633, 1636.
35 Starck Verfassungsgerichtsbarkeit 33.
36 Art 1 etc. 37 Thus in West Germany 1949/1951.
38 See art 18 I Portuguese Constitution; art 53 I, II Spanish Constitution; cf Starck Europas
Grundrechte im neuesten Gewand 467, 480.
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clear and present danger. In the process, the assumptions of fact and the predictions of
the legislature must also be examined, taking into account a certain degree of
discretion.39
Thus, the structure of the classical fundamental rights as defensive rights which limit the
power of the state corresponds to the constitutional review of statutes, for judicial review
of Acts of Parliament restricts itself to the enforcement of the constitutional limits of
political activity. Adjudication remains distinct from politics; the separation of powers is
observed. More precisely, what is maintained is the division of function between
constitutional court and Parliament, which is grounded in their differing
organisation and procedures.40
2 Duties of Protection in the Basic Law and according to the Jurisprudence of
the Federal Constitutional Court
Fundamental duties of protection do not conform to the structure of fundamental rights
as it has so far been expounded. They require the state, not to refrain from acting, but
to take positive action. In the following account we must consider (1) whether and how
the Basic Law expressly creates duties of protection, (2) the duties that have been
discovered by the Federal Constitutional Court in the Basic Law, (3) the justification for
such duties, which is of particular interest, and finally (4) the constitutional control of the
manner of protection.
2.1 Textual analysis of the Basic Law
2.1.1 Protection
The concept of protection can be found explicitly or by necessary implication in the
following fundamental rights of the Basic Law:
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39 See on this Ossenbühl Tatsachenfeststellungen und Prognoseentscheidungen 458 ff.
40 Cf Röllecke and Starck Bindung des Richters 43, 65 ff; Starck Der demokratische
(a) Article 1 I contains the duty of all state power to protect human dignity.
(b) The protection of youth limits the freedom of communication in article 5 II. Freedom
of movement may be limited to protect the young from neglect (article 11 II);
infringements of the integrity of the home are permitted for the protection of youth
(article 13 VII).
(c) Article 5 II speaks of a right to personal reputation in the sense of the protection of
reputation parallel to the protection of youth. The right to personal reputation as a limit
on the freedom of communication thus refers to state protection from injuries to one's
reputation by third parties.
(d) The protection of internal security is expressed in article 8 I in that the right granted is
the freedom to assemble "peacefully and without weapons". This protection is
specifically referred to in the limitations on the freedom of association (article 9 II), on
freedom of movement (article 11 II) and on the inviolability of the dwelling (article 13 II -
VII).
(e) According to article 6 I, marriage and the family enjoy the particular protection of the
state order.
(f) The state's supervision over the parental right of upbringing ought to protect the child
from the abuse of this right (article 6 II).
(g) Article 6 IV states that every mother has a claim to the protection and care of the
community.
2.1.2 Guarantee
When the Basic Law "guarantees" the undisturbed exercise of religion (article 4 II), the
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freedom of the press and so forth (article 5 I 2) along with property and inheritance
(article 14 I), or when it is stated that art and science are "free", it is
Verfassungsstaat 58, 76 ff; Böckenförde 1990 Der Staat 1, 24 ff.
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possible to read the constitution as providing a general, all-round protection. It could be
taken as a guarantee against infringements by third parties, and thus a duty of
protection could hide behind the guarantee. But we must be careful to not strain the text
of the Basic law, particularly since the freedom of private education, for example, is
"guaranteed". The expression is generally used to mark the protection of fundamental
rights and does not necessarily imply the existence of an immanent duty
of protection.41
2.1.3 Inviolability
Freedom of the person (article 2 II 2), freedom of belief and conscience (article 4 I), the
privacy of mail and so forth (article 10 I) and the dwelling (article 13 I) are declared
"inviolable". This classical manner of expressing fundamental rights does not imply
duties of protection either, however.
2.1.4 Conclusions
The text confirms that constitutional duties of protection seldom correspond to an
individual right to protection. To the extent that duties of protection are named as
limitations on fundamental rights, they simply represent a power of the state to limit
those fundamental rights to protect the named interests. Since such expressions are
subsidiary and rather unsystematic, appearing as they do in traditional formulations, we
must conclude that duties of protection -certain explicit exceptions notwithstanding -
belong to those functions of the state which are a precondition of the constitution and
not part of it.
2.2 Duties of protection adopted by the Federal Constitutional Court
41 Art 4 II GG is connected with art 135 II Weimar Reich Constitution which explicitly
mentioned the protective duty: "The unhindered exercise of religion is guaranteed
by the Constitution and rests under state protection. Cf Von Mangoldt Klein and
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Starck Das Bonner Grundgesetz art 4 marg no 19, 121; in similar fashion art 142
Weimar Reich Constitution required the state to protect art and science.
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The Federal Constitutional Court has now developed state duties of protection in the
fields listed below. These duties exist especially, although not exclusively, to protect
individuals from each other.
(a) human life, including unborn life; human health (article 2 II 1)
(b) personal freedom (article 2 II 2)
(c) the right of personal development (article 2 I)
(d) the freedom of science, research and teaching (article 5 III)
(e) marriage and the family (article 6 I)
(f) children (article 6 II 2)
(g) mothers (article 6 IV)
(h) the freedom of occupation (article 12 I)
(i) property (article 14 I)
2.2.1 The protection of human life and health
The Federal Constitutional Court derives the function of the state in protecting human
life directly from article 2 II 1. In addition, it relies on the guarantee of human dignity in
article 1 I 2.42 In deciding on the constitutionality of life imprisonment, the Court
emphasized the connection between the protective duty of the state and the general
deterrent effect of the criminal law. The elements of murder and the threat of
punishment were directly related to the fundamental duty of the state to protect life.43 A
total separation from the outside world for particularly dangerous prisoners is justified by
the need to protect life,44 and, in the case of terrorist attacks, the Court has indicated
that the duty of protection extends, not only to the individual, but also to the population in
general.45 In its second decision on the separation of prisoners, the Court relied on an
argument concerning the self-preservation of the state, recognising the security of the
state as a constituted power for peace and order along with the
security of its population which it had a duty to preserve as constitutional values.46
42 BVerfGE 45, 187, 254 f.
43 BVerfGE 45, 187, 256; cf also BVerfGE 64, 261, 275 (leave from detention).
44 BVerfGE 46, 1, 13; 49, 24, 53.
45 BVerfGE 46, 160, 164.
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The state protects life and health through the law relating to the liability of the medical
profession47 and its enforcement,48 as well as through the restriction of night labour.49
Life and limb must also be protected from the dangers of new technology, as the Court
has established in many decisions concerning nuclear plants,50 the health-threatening
consequences of aircraft noise,51 the stockpiling of chemical weapons52 and air
pollution.53
According to both of the Federal Constitutional Court's Abortion Judgments, the state is
obliged to protect unborn human life (article 2 II 1, 1 I 2) from unlawful harm, including
that inflicted by the mother.54 In connection with the protection of life, the Court has
commented that the degree to which the duty of the state is to be taken seriously
depends on the rank of the relevant legal interest in the Basic Law's hierarchy of
values.55
2.2.2 The protection of personal freedom
The state's duty to protect personal freedom (article 2 II 2) from third-party attacks was
at issue in a case concerning private liability. While the case could have been resolved
constitutionally by applying article 2 I in conjunction with article 20 III on the basis of a
breach of the judicial duty to follow the relevant law,56 four of the eight judges relied
directly on the state's duty to protect personal freedom and came to the conclusion that
this had to be achieved constitutionally through the application of private liability.57
46 BVerfGE 49, 24, 53, 56.
47 BVerfGE 52, 131, 167.
48 Cf on this the decision on the enforced clearing of residences BVerfGE 52, 214, 220; 84, 345 ff;
BVerfG, 1991 NJurW 3207.
49 BVerfGE 85, 191, 212 f; 87, 363, 386 f.
50 BVerfGE 49, 89, 140 - Kalkar; 53, 30, 56 f -Mülheim-Kärlich; 402 f - Interim atomic waste depot
Gorleben.
51 BVerfGE 56, 54, 78; 79, 174, 201 f.
52 BVerfGE 77, 170, 214 f.
53 BVerfG 14 Sept. 1983 - 1 BvR 920/83, Bayer 1984 Verwaltungsblätter 14; air pollution can also
infringe property rights.
54 Thus BVerfGE 39, 1, 42; 46, 160, 164; 49, 24, 53; 86, 390, 395.
55 BVerfGE 39, 1, 42; 46, 160, 164; 49, 24, 53; 86, 390, 395.
56 § 823 BGB. Thus BVerfGE 49, 304, 324 (4 judges).
57 Thus BVerfGE 49, 304, 323 (4 judges); Schwabe 1979 Deutsches Verwaltungsblatt 667 f.
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2.2.3 The protection of the right to autonomous development of one's personality
In the Lebach judgment, the Court enunciated the state duty to protect the right to
personality of an ex-criminal who was being rehabilitated against media freedom.58 A
state duty to protect against the private processing of personal information can be found
in embryonic form in the Data Protection judgment of 1983:
A society and a corresponding legal order in which a citizen could no longer know why
and who knew what about him would be inconsistent
with the right to informational self-determination.59
There are many other decisions in third-party effect (Drittwirkung) cases concerning
the duty of the state to protect personal development.60
2.2.4 The protection of the freedom of science, research and teaching
The Federal Constitutional Court has developed the value enshrined in article 5 III into
… a right to such state measures, including organisational measures, as are
indispensible for the protection of an area of freedom guaranteed by
fundamental rights. It is these measures that make free scientific activity
possible at all.
The state must commit itself to the idea of free research and out of this commitment
grows a duty "to prevent the disintegration of this freedom by protecting and supporting
it".61 So, for example, individual lectures are to be protected from active
boycotts by audiences or from third parties who attend simply to disrupt.62
58 BVerfGE 35, 202, 221, 233.
59 BVerfGE 65, 1, 43.
60 References in Von Mangoldt Klein and Starck Das Bonner Grundgesetz art 1 marg no 99-106,
art 2 marg no 158-170; Götz Verwirklichung der Grundrechte 35, 58 ff.
61 BVerfGE 35, 79, 114, 116; 43, 242, 267 f; 47, 327, 386; 51, 369, 378; 55, 37, 58 f; 66, 155, 177; 67,
202, 207.
62 BVerfGE 55, 37, 68.
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2.2.5 The protection of marriage and the family
The text of article 6 I explicitly requires the protection of marriage and family through the
state order. The protection is twofold:
… positively, the duty of the state not only to protect marriage and the family
from harm by other forces but also to support them through suitable
measures; negatively, the prohibition on the state from damaging
or otherwise affecting marriage.63
2.2.6 The protection of children
The recognition of parental responsibility and the rights connected therewith
are ... justified in that children need protection and help to develop a
responsible personality within society ... . The state must oversee this process
and in case of emergency protect the child, which is not yet capable of
protecting itself, from damage caused by the abuse or
neglect of parental rights.64
In the final analysis, this concerns the protection of human dignity, as the Court has
specifically emphasized.65
2.2.7 The protection of mothers
The claim of mothers to the protection and support of society (article 6 IV) is
… an expression of a constitutional value judgment which is normative
for the whole field of private and public law.66
2.2.8 The protection of professional freedom
63 BVerfGE 6, 55, 76; 24, 104, 109; 55, 114, 126; 87, 1, 35 ff.
64 BVerfGE 24, 119, 144.
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65 BVerfGE 24, 119, 144; 72, 155, 170 ff, 174; cf Von Mangoldt Klein and Starck Das Bonner
Grundgesetz art 1 marg no 98.
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The Court has derived from article 12 I a legislative duty to create civil protection against
the contractual limitation of professional freedom. If the relevant social forces are not
equally matched, then state regulations must equalise the situation to secure the
protection of the fundamental right.67
2.2.9 The protection of property
The concept of protection also plays a role in decisions relating to property. The leading
case is a 1962 judgment68 where the right of minority shareholders to a part of the
corporate property had to be protected through procedural law from abusive conversion
by the majority. In a more recent decision,69 a lessee's right of occupation was treated
as property for the purposes of article 14 I, so that the legislature was obligated to
balance the now conflicting property claims of lessee and lessor, having regard to the
protectable interests of both parties.
2.2.10 The protection of German nationals against foreign states
The organs of the Federal Republic, in particular the Federal government, have a
constitutional duty to protect German nationals and their interests from foreign states.70
Courts have mentioned the following interests: property,71 life and health,72 family73 and
nationality.74
2.3 The justification of protective duties by the Federal Constitutional Court
2.3.1 Protective Duties as Commissions
66 BVerfGE 32, 273, 277; 52, 357, 365; 55, 154, 157; 84, 133, 156; 85, 167, 175.
67 BVerfGE 81, 242, 254 f; cf also BVerfGE 84, 212, 226.
68 BVerfGE 14, 263, 279.
69 BVerfGE 89, 1, 5; on insufficient regard for the property right of the owner cf BVerfGE 37,
132, 140 ff; 49, 244, 248 ff; 53, 352, 356 ff; 68, 361, 367 ff; 79, 283, 289 ff; see also
BVerfGE 7, 230, 234; 71, 230, 246 ff.
70 BVerfGE 55, 349, 364; cf the explicit constitutional regulation in art 3 VI Reich Constitution of
1871 and art 112 II Weimar Reich Constitution.
71 BVerfGE 6, 290, 299; 40, 141, 166; 41, 126, 150, 157 ff, 182.
72 BVerfGE 66, 39, 57 ff; 77, 170, 214 ff.
73 BVerfGE 40, 141, 175.
74 BVerfGE 40, 141, 170.
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The duty of the state to protect human life was expressed for the first time in the First
Abortion Judgment, where it was also extended to unborn life. That the right to life
extended to the protection of embryonic life was derived from the legislative history of
the Basic Law.75-76 From then on, article 2 II 1 was understood not merely as a defensive
right, setting boundaries to state activity and requiring respect for human life, but also as
a commission to protect human existence from the attacks of third
parties. The Court adapted this summary formulation:77
For these reasons, the duty of the state to protect every human life can be
directly derived from Art. 2 II 1 Basic Law.
This sentence is cited repeatedly in later decisions.78
Even before the First Abortion Judgment, the idea of protective duties had been
expressed in connection with fundamental civil rights. Conscription was justified by the
need of the state to protect the fundamental rights of its citizens.79 Later, in
another decision concerning military defence,80 human dignity, life, freedom and
property were named as fundamental rights which the state was required to recognise
and protect. Of course, the primary concern here is the threat posed to these rights by
external powers, but the duty is formulated in such wide terms that it embraces
infringement by third parties within the state, avoiding bringing into play article 87 a IV
GG (which covers the rare occasions on which the Federal troops can be mobilised
inside the state).
The First Abortion Judgment also uses a second argument, which relies on human
dignity, to analyse the state's duty to protect life.81 The duty of the state to protect every
human life is derived, "additionally, from the explicit [!] requirement of Art. 1 I
75 Cf Von Mangoldt Grundrechte 7 Anlage zum stenographischen Bericht der 9. Sitzung, where he
states that "the protection of the right to life extends also to embryonic life".
76 BVerfGE 39, 1, 38 f.
77 BVerfGE 39, 1, 41.
78 BVerfGE 46, 160, 164; 53, 30, 57; 56, 54, 73, 80; 77, 170, 214.
79 BVerfGE 38, 154, 167; repeated in BVerfGE 57, 250, 284.
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80 BVerfGE 48, 127, 161; 69, 1, 22.
81 BVerfGE 39, 1, 41.
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2 GG".82 "Where human life exists, it enjoys human dignity." In later decisions this
twofold justification is partially maintained, but by way of a new and rather vague
formulation: "Art. 2 II 1 in connection with Art. 1 I 2 obliges the state to protect
every human life."83
The diversity of justifications demonstrates that there are stricter and more generous
approaches within the Court to the development of fundamental protective duties. The
stricter approach relies on article 1 I 2, which explicitly speaks of the state's duty to
protect. Insofar as a fundamental right embraces human dignity, a fundamental
protective duty must arise. This is easy to establish in the case of the right to life, since
it represents the existential foundation of human dignity. The more generous approach,
which does not require human dignity as an argumentative bridge, can be seen in the
First Abortion Judgment. The decision on conscription is particularly noticeable, for it
names human dignity, life, freedom and property alongside each other as fundamental
rights which the state must protect. According to this wide approach, a protective duty
can be derived from every fundamental right. We see this, for example, in the decision
on competition between trade representatives:
Art. 12 I GG can require the legislature to create provisions protecting the
freedom of profession from contractual incursions, namely when a rough
equality of bargaining power is lacking.84
At this point, the Federal Constitutional Court considers it necessary that fundamental
values of the Basic Law "and thus at the same time the fundamental principle of the
social state" be realised through suitable laws.
2.3.2 Individual rights which correlate with protective duties
One question which is closely tied to the source and justification of protective duties is
whether they are purely objective legal functions of the state or whether they have
corresponding individual rights. It is at least conceivable that these personal rights
82 Thus also BVerfGE 45, 187, 254 f.
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83 BVerfGE 46, 160, 164 f; 49, 24, 53.
84 BVerfGE 81, 242, 254 f.
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are narrower in scope than their closest protective duties.85 There is clearly an individual
right to protection, where the protection of fundamental (or similar) rights is expressly to
be found in the text of the Basic Law. This applies especially to the right of human
dignity and thus to the core of each right if it is a part of that dignity. It also applies to the
special state duties of protection contained in article 6.
Apart from these provisions, the question is quite simply where these individual rights
originate. The Court derives them from the objective values which underlie the
fundamental rights and which apply to the whole legal order. The Court maintains86 -
without plausibly justifying its opinion - that these objective state duties of protection
must correspond to individual rights of the citizen. The Court's reference to the primary
significance of fundamental rights is insufficient, because this is to be found
in the notion of defensive rights against the state.87
The refashioning undertaken by the Court, whereby the objective legal functions of the
state to protect security and internal peace are transformed into a collection of individual
rights at constitutional level, represents a far-reaching innovation that influences the
whole constitutional system, and not least, the separation of powers.
Nonetheless, attempts have been made to characterise this innovation as a rediscovery.88 This is clearly
wrong. As regards the function of the state in preserving peace and security, there was nothing to
rediscover. It was always present in private, criminal and administrative law; it has always been a purpose
of the state, exceptionally expressed in programmatic statements (in the Weimar Constitution) or
85 Thus Isensee Das Grundrecht auf Sicherheit 50; Götz Innere Sicherheit 1007, 1016; differently Klein
1994 Deutsches Verwaltungsblatt 489, 495.
86 Eg BVerfGE 49, 89,141 f - Kalkar; 53, 30, 57 - Mülheim-Kärlich; 77, 180, 214; 77, 281, 402 f; 79,
174, 201 f; see also BVerfGE 48, 127, 161; 69, 1, 22: "Within the democratic constitutional order of
the Basic Law, the individual fundamental right to protection corresponds with the duty of the citizen
to contribute to the securing of this order." See the attemps of motivation by Klein 1994 Deutsches
Verwaltungsblatt 491, 493; Unruh Zur Dogmatik der grundrechtlichen Schutzpflichten 58 ff.
87 In his comments on the Kalkar Judgment, Rauschning 1980 Deutsches Verwaltungsblatt 831 ff
speaks critically of the reconversion of an objective protective duty to an individual fundamental right;
Böckenförde 1990 Der Staat 18 f, is also critical.
88 Isensee Das Grundrecht auf Sicherheit 33; idem, Isensee Grundrecht als Abwehrrecht 148, 201 ff,
211 ff; Hermes Schutz von Leben und Gesundheit 147 f; Stern Das Staatsrecht der Bundesrepublik
Deutschland 946.
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preserved as a limiting factor to fundamental rights. But, a few exceptions aside, it was
quite rightly never a fundamental right itself. Where there is truly an innovation, it is in
the concept of individual rights derived from protective duties which can be enforced
through the courts against the legislature.
This innovation, which has no roots in the text of the Basic law, emanates from the
central role which fundamental rights play in German constitutional thought. The
institutional reasons for this are many; they can be located specifically in the creation of
a constitutional court and the introduction of the constitutional complaint. Admittedly,
many innovations in other areas of law owe their existence to judgments which have
decided particular cases, clarified existing rules and thereby created something new. Of
course, the legislature is entitled to restrain the courts, if necessary by constitutional
amendment. But this is hardly a political reality when the courts are establishing
legislative duties and citizens' rights.
This innovation is not rooted in the most recent decisions such as those concerning the
protection of life and limb against the dangers of atomic energy or noise pollution (see
above II 2 c). Nor did it start within the 1973 decision of the Court concerning the
rehabilitation of ex-criminals and rights of reportage on television. Rather, one must look
right back to the 1956 Lüth Judgment to see the source of the development. Ostensibly,
this judgment did not concern protective duties of the legislature, but dealt only with the
judicial interpretation of a statute. In reality, however, it did concern the duty of the state
to protect a plaintiff from violations of rights by third parties, and it is often forgotten that
even then this protective duty corresponds to an individual right of the plaintiff seeking
protection.89 E.-W. Böckenförde convincingly established that "the Lüth Judgment itself
has already moved into the second phase of the discovery of the objective value
element of fundamental rights",90 because at this point the unjustified transformation of
objective law into individual right had already been carried out. If we had a Supreme
Court which simultaneously fulfilled constitutional as well as other judicial functions, as
in the USA or Switzerland, this transformation would not have been necessary. In the
process of a legitimate civil
89 BVerfGE 7, 198, 206 f; see on this Rüfner Drittwirkung der Grundrechte 226 f.
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90 Böckenförde 1990 Der Staat 6; cf also Klein 1994 Deutsches Verwaltungsblatt 489.
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action, the fundamental values of the constitution could have influenced the
development of private law at the highest level. But in order to appeal to the Federal
Constitutional Court, one must establish the violation of an individual constitutional
right.91
2.3.3 Protective duties and the third-party effect of fundamental rights
There is an interesting, effectively underground connection requiring exposure between
the concept of protective duties which give rise to individual rights and the third-party
effect of fundamental rights.
In the case of direct third-party effect of fundamental rights, the third-party is bound by
constitutional law in the normal manner. An example of this is article 9 III 2 GG, which,
without interposition of a statute, declares void private arrangements which restrict the
right to form associations for the advancement and preservation of
economic conditions and labour relations.92 There is no legislative duty here, since the
constitution itself creates the necessary duty, although the legislature is naturally free to
repeat the constitutional regulation in statute if it so chooses. On the other hand, if the
Basic Law read differently, calling upon the legislature to protect the right of everyone
and every profession to form associations for the advancement and preservation of
economic conditions and labour relations, then this would be a protective duty requiring
the legislature to act. The legislature would have to regulate the invalidity of such
arrangements, or perhaps create other consequences at civil law, to fulfil the state's
protective duty.
Indirect third-party effect requires that general rules of private law be applied within the
margin of permissible interpretation in a way which enables binding constitutional
91 BVerfGE 7, 198, 206 f: "According to the requirement of the constitution, the judge must examine
whether the private law regulations he is applying are influenced by fundamental rights in the way
described. If he ignores these standards and bases his judgment on the omission of this
constitutional influence on civil norms, he is not only infringing objective constitutional law by ignoring
the objective aspect of constitutional norms, but he - as a holder of public office - is more significantly
violating by his judgment the fundamental right which the citizen has even against the judiciary. A
constitutional complaint can be raised before the Federal Constitutional Court against such a
judgment, regardless of the right to amend the legal error in the civil courts."
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92 Scholz Koalititionsfreiheit 1160.
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values to be taken into consideration wherever necessary. This is required because
the state has a corresponding protective duty93 which the legislature has fulfilled by a
general clause to the extent that the judge can interpret and apply the statute in
accordance with the Basic Law. The indirect third-party effect of fundamental rights is
thus a specific instance of the concept of protective duties, in terms of which the judge
must interpret statutes in the light of various protective duties. In other words, a case of
indirect third-party effect is present if the legislature enables the state to fulfill a
protective duty by passing a general rule of private law which the judge must apply
having regard to that protective duty.
This relationship is evident in the 1990 Trade Representative Judgment of the Federal
Constitutional Court:94
Even when the legislature omits to create regulative contract law for particular
areas of life or types of contract, it does not at all follow that the formation of
contracts is vulnerable to the free play of social forces. Rather, the general
clauses of private law, above all §§ 138, 242 and 315 BGB, become relevant
and operate to prevent disproportionality. Regard must be had to the
fundamental rights precisely when these clauses are being made more
specific and being applied (BVerfGE 7, 198, 206). The relevant protective
function of the constitution is directed in this case at the judge, who realises
the basic choices of fundamental rights in situations of disturbed contractual
parity using the means available within the private law. This function can be
fulfilled in many different ways.
This connection between the concept of protective duties and the third-party effect of
fundamental rights has been the subject of comment in the literature for some time.95 It
means that fundamental duties of protection are directed in the first instance at the
93 Dürig 1956 Archiv des öffentlichen Rechts 117, 118 f, drew attention to this early on; idem, in
Maunz ea Grundgesetz Art 1 marg no 131.
94 BVerfGE 81, 242, 256.
95 Starck 1981 Juristische Schulung 237, 245; correspondingly, Von Mangoldt Klein and Starck
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Das Bonner Grundgesetz art 1 marg no 270, 272; similarly Badura Persönlichkeitsrechtliche
Schutzpflichten 1 ff; Klein 1994 Deutsches Verwaltungsblatt 1640; Unruh Dogmatik der
grundrechtlichen Schutzpflichten 71 ff.
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legislature, but secondarily at the judiciary in the course of statutory interpretation
and application.96
Isensee97 overlooks this internal connection because he understands third-party effect
literally as the validity of fundamental rights between private individuals. But the theory
of indirect third-party effect, correctly understood, simply states that the civil law, which
regulates the relationships between individuals, must have regard to the values
expressed in the Constitution.98 While it is true that life and limb, freedom, reputation
and property in relationships between legal subjects must be respected, this does not
follow from the obligatory force of fundamental rights. Nonetheless, the civil law
regulations which protect the interests just listed (for example §§ 823, 1004
BGB) do indeed rest on the same values,99 producing the picture of human nature which
forms not only the foundation of fundamental rights in the relationship between citizen
and state but also the basis of private law (and, naturally, of the criminal law as well).
Indirect third-party effect refers to the influence of basic value choices, also evident in
the catalogue of fundamental rights, on private law through the legislature. These value
choices also form the foundation of particular protective duties.
2.4 Constitutional control of the manner of protection
In most decisions concerning the fulfilment of protective duties, the Federal
Constitutional Court emphasizes that the legislature enjoys a wide margin of discretion.
It is
… generally a highly complex question how the state's duty to act and protect, derived
from the interpretation of basic choices encapsulated in
96 Thus, clearly, Hesse Grundzüge des Verfassungsrechts marg no 355; Rüfner Drittwirkung der
Grundrechte 215, 219 with further references; Hermes 1990 NJurW 1764, 1767; Klein 1994
Deutsches Verwaltungsblatt 492.
97 Isensee Das Grundrecht auf Sicherheit 35 f; appropriately, in contradiction Böckenförde 1990 Der
Staat 3 ff.
98 Cf Von Mangoldt Klein and Starck Das Bonner Grundgesetz art 1 marg no 271 f with further
references.
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99 Thus also Rüfner Drittwirkung der Grundrechte 224, in connection with the function of legislation in
private law.
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the fundamental rights, is to be realised in particular legislative
measures.100
The Court has decided that the situation must be evaluated, goals and priorities set and
conceivable ways and means examined before a legislative solution can be determined.
The principles of the separation of powers and democracy require that the final decision,
which is often a matter of compromise, be taken by the legislature, since only the
legislature is directly legitimated by the people. Its solution can only be assessed to a
limited degree by the Court, at any rate when the most valuable legal interests are not
relevant. If the case concerns the prevention of specific types of danger, the Court
emphasizes the freedom of the legislature (or relevant executive organ)101 to decide on
the appropriate remedy according to the type, proximity,
degree and circumstances of the danger in question.102
In its decision relating to the Mülheim-Kärlich nuclear plant,103 the Federal Constitutional
Court adopted a quite different approach. Having regard to the extraordinary potential
for disaster which a nuclear plant represents, and given that it is in the common interest
to supply energy, the Court held that the state assumed a partial responsibility for its
safety and continued,
… it would accordingly seem necessary that, when assessing the substantive
and procedural requirements for the approval of nuclear plants, the
constitutional standards should be no less strict than in the case of statutes
that infringe fundamental rights.
In the Second Abortion Judgment, which concerned the protection of a particularly
significant legal interest, we read,104
100 BVerfGE 56, 54, 80 f, also on what follows; similarly already BVerfGE 39, 1, 44, 51; compare
also BVerfG, 1987 Europäische Grundrechte-Zeitschrift 353 f.
101 BVerfGE 46, 160, 164.
102 BVerfGE 49, 89, 141 f - Kalkar.
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103 BVerfGE 53, 30, 58; similarly already BVerfGE 49, 89, 143.
104 BVerfGE 88, 203, 254.
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The Constitution states protection as a goal, but it does not determine its
precise formulation. Nevertheless, the legislature must have regard to the
principle of prohibition of insufficiency ...; to this extent it is subject to the
control of the Court.
The Traffic Noise Judgment of 1988 states that a protective duty is only infringed where
the legislature completely omits to adopt protective measures, or if it has chosen clearly
unsuitable or inadequate ones.105 A certain flexibility in the intensity of examination
makes the Court dependent on prevailing circumstances and the significance of the
relevant legal interests.106 As regards the circumstances, the most
significant factor is the establishment of an adequately argued judgment.107
These quotations enable the Court to judge more or less generously from case to case.
Every case is liable to raise new aspects of the requisite degree of control, which can
lead to considerable variation in the Court's judgments. But the general picture one gets
of the current jurisprudence is that the Court makes every effort to leave the legislature
sufficient discretion and to sanction its manner of protection. In particular, the Court
generally makes no requirements as to whether the constitutionally required protection
must be achieved by criminal, civil or administrative means.108 There are, however, two
exceptions. In the First Abortion Judgment, the use of criminal sanctions was required if
other means of achieving the effective protection of life were unsuccessful.109 Further, in
a decision concerning the negligent causation of losses of liberty through expert opinion,
four of the judges derived the requirement
that the law relating to civil liability should apply directly from article 2 II 2 GG.110 But this
article would only actually be infringed if it imposed civil liability on all negligent
infringements of freedom, and this was hard to establish. The other four judges argued
more elegantly from the obligation of judges to apply the law and complained about the
uncontrolled use of § 823 (1) BGB.
105 BVerfGE 79, 174, 201 f.
106 BVerfGE 56, 54, 80 f.
107 BVerfGE 77, 170, 214 f.
108 Cf Götz Verwirklichung der Grundrechte 61 f.
109 BVerfGE 39, 1, 46 ff; cf Müller-Dietz Verfassungsrechtlicher Pönalisierungsgebote 97, 108 ff.
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3 Critique of the Judgments
3.1 The justification and nature of protective duties
3.1.1 Two doctrinally acceptable ways of deriving protective duties from
fundamental rights
(a) Whenever the Basic Law expressly speaks of "protection" within a fundamental
right, as in article 1 I 2 and article 6, the individual right to protection is enshrined
in the text of the Basic Law. This fact makes it correspondingly more difficult to
find protective duties when such protection is not expressly required or only
features in a limitation of a right. This explains the frequent attempt of the
Federal Constitutional Court to establish protective duties with correlative
individual rights by using the concept of human dignity. This works particularly
well in the case of human life, which, as we had said, forms the existential basis
for the enjoyment of human dignity, but it is more awkward in the case of other
fundamental rights. Here, one must isolate the core of each right which the
concept of dignity requires, for it is only with regard to this core that an individual
right corresponds to a protective duty. This is an exercise which the Court must
be qualified to undertake because it is required to examine constitutional
amendments to determine whether they accord with article 1, the guarantee of
human dignity (compare article 79 III GG).
(b) A parallel approach holds that fundamental rights incorporate the duty of the state
to protect them from violation by third parties. This is the main rationale given in
numerous decisions and referred to in others (for example the Conscription
Judgment). It is unobjectionable to derive this function of the state from the
protective aspect of the classical fundamental rights. The interpretation has a
close affinity to historical declarations of such rights, including the catalogue of
the Weimar Constitution,111 and is tied to the state's
110 BVerfGE 49, 304, 323; cf for criticism Starck Praxis der Verfassungsauslegung 218, 220 ff.
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111 This contained the following express protective duties: Marriage as the foundation of family and
maternity (art 119), youth (art 122 I), undisturbed exercise of religion (art 135), art and science (art
142), memorials to art, history, nature and the landscape (art 150 I), the labour force (art 157), mental
work, the rights of the producer, discoverer and artist (art 158), health, the ability to
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duty to preserve the security of its citizens. But this only amounts to a legal
function of the state which, depending on its formulation, content and position in the
legal order, could either be a specific constitutional function or a mere
programmatic statement.
Thus, there are only two doctrinally acceptable methods of deriving protective duties
from fundamental rights:
(a) From article 1 I 2 individual rights to protective duties within the ambit of the
protection of human dignity in a narrow sense, along with article 6.
(b) Generally from the fundamental rights, which apart from an individual defensive
character have an objective character requiring the state to protect certain legal
interests from violations by third parties, without a corresponding individual right.
3.1.2 The more extensive practice of the Federal Constitutional Court
The Court has gone beyond both of these acceptable methods.
(a) The method which relies on the protection of human dignity has been extended, as
we see from the Second Abortion Judgment in the context of the protection of life.
There we read,112
This protective duty is rooted in Art. 1 I GG, which expressly obliges the
state to respect and protect human dignity; the content and thus the
extent of the protective duty is made more precise by Art. 2 II GG.
Life is not considered as the essential precondition for the enjoyment of human
dignity, which would have been an acceptable solution using the protection of
human dignity. Rather, the sentence is formulated in a way that enables one to
work, motherhood (art 161), the independent middle classes (art 164).
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insert any fundamental right in place of article 2 II GG. Human dignity is just a
vehicle for the protection of other fundamentally guaranteed legal interests and
thus gives rise to an individual right to protection.113
(b) Without appealing to human dignity, both senates of the Court, in decisions of 1987
and 1988 which relate to the protection of life,114 have derived a constitutional duty
of protection for all areas of the legal system from the objective value choice of
article 2 II GG. They have blatantly maintained that the neglect of any area of law
by the state can be questioned by way of a constitutional complaint and treated as
a violation of the plaintiff's right in article 2 II 1 GG. This amounts to an unjustified
mutation of an objective legal value into a personal legal claim.
Both approaches betray weaknesses. Starting with the idea of human dignity as a
vehicle, why should the basis of all protective duties be found in one article and the
content in some other fundamental right? If the concept of protection appears in article
1 I GG, but not in others, an explanation is owing as to why that protective duty has so
much work to do, especially since that article is immune to constitutional amendment
and should, therefore, be given a restrictive interpretation. As regards the mutation
argument, proof is wholly lacking as to why the value aspect of a fundamental right,
which is secondary to its prime significance as a personal (defensive) right, should again
give rise to a further personal right. Because this is so completely unconvincing, the
Court returns to the vehicle-argument. But if the vehicle-argument had ever been
convincing, it would never have developed the mutation-argument. Two bad arguments
taken together are no better than one; rather, taken together, they expose the
weakness of the argumentation when used in conjunction.115
112 BVerfGE 88, 203, 251.
113 The vehicle-construct can be found in Isensee Das Grundrecht auf Sicherheit 33, who derives the
duty actively to protect fundamental rights from art 1 I 2 GG. Bleckmann 1988 Deutsches
Verwaltungsblatt 938, 942; Robbers Sicherheit als Menschenrecht 187 f; similarly based on the
purpose of the protective duty and the free development of the individual protected by the Basic Law
Alexy Theorie der Grundrechte 415 ff; Klein 1989 NJurW 1637.
114 BVerfGE 77, 170, 214 f; 77, 381, 402 f; 79, 174, 201 f.
115 Stern Das Staatsrecht der Bundesrepublik Deutschland 945, also writes of a deficit of justification.
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3.1.3 The defensive route
Some writers have attempted to seek a way out of these difficulties by denying
protective duties any independent standing and interpreting them as a sub-category
within the personal defensive function of fundamental rights. The decision on the
Mülheim-Kärlich nuclear plant points in this direction. The state, in failing to protect
fundamental rights from third-party violation, is itself violating them. One person must
suffer what the state does not forbid another from doing. The justification of
this position has above all been attempted by Murswiek.116 He establishes the
necessary connection between classical defensive fundamental rights and fundamental
claims to protection from third parties by interpreting protective duties as duties of
guarantee which are complementary to fundamental defensive rights.
The state must guarantee the same interests against third parties as
fundamental rights guarantee against the state.
Numerous objections to the defensive solution of this problem have been raised.117 The
most important of these are the following:
(a) Where a specific public law ban on private violations is lacking, it does not follow that
there is a duty to tolerate third-party infringements. Within private law there is a general
prohibition of harm caused by parties infringing the rights
of others.118 § 823 I BGB contains interests also protected by the Constitution: life, bodly
integrity, health, freedom and property.
(b) The defensive solution is also methodologically objectionable. The identification of
permission or refused prevention of private violations with
116 Murswiek Risiken der Technik 107 ff; short and clear also idem, Murswiek 1986
Wirtschaftsverwaltung 179 ff, 182 f; earlier Schwabe Probleme der Grundrechtsdogmatik 213 ff.
117 Cf Alexy Theorie der Grundrechte 415 ff; Klein 1994 Deutsches Verwaltungsblatt 496; Unruh
Dogmatik der grundrechtlichen Schutzpflichten 44 ff..
118 Cf Dietlein Die Lehre von den grundrechtlichen Schutzpflichten 46, 50.
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state violations of fundamental interests assumes what is to be proved.119 The
answer to the question whether the state must be credited with the behaviour of a
private individual as its own violation of a right logically presupposes not only a duty
on the state to act, but also a right against the state of the individual harmed which
corresponds to that duty. This requires proof of the degree to which there is a right
to state protection from the violations of others. And this is precisely what cannot
be derived from fundamental rights, which set limits to state activity, excepting of
course those rights - such as article 1 I 2 GG - which
do oblige the state to protect and create a corresponding personal claim.120
3.1.4 Reasons for restricting the judgments to the two acceptable approaches
The Federal Constitutional Court should decide at once whether it is going to hold to the
extensive solution in the future or whether it will rely more closely on the text and system
of the Constitution and limit the personal right to protection to cases involving human
dignity and the core of each fundamental right preserved by dignity. In the latter case, it
must be largely satisfied with mere legal functions of the state which do not correspond
to personal rights on a constitutional level.
Such an interpretation would conform closely to the Basic Law, and is required by
textual, systematic and historical considerations.
(a) Text
(b)
Apart from named exceptions, the fundamental rights do not speak of personal
rights to protection.
System
The nature of fundamental rights as "directly binding law" which also binds
the legislature (article 1 III GG), necessitates a narrow catalogue of classical defensive
rights, (constitutional) judicial review of legislation, and concepts appropriate to legal
argument such as those found in the principle of proportionality. Additional functions of
fundamental rights result in a corresponding reduction in the legislature's political
freedom. This is
119 Stern Das Staatsrecht der Bundesrepublik Deutschland 947 with further references.
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120 On the characterisation of art 1 I GG as a fundamental right cf Von Mangoldt Klein Starck Das
Bonner Grundgesetz art 1 marg no 24 f with further references.
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particularly significant when the constitutional standards associated with a
particular widening of function are vague and unpredictable, as is to a large extent
the case with the question of what is to be protected. These uncertainties could
work back into the legal nature of the constitution, and the classical defensive
aspect of fundamental rights become undermined, if the opinion that defensive
rights and protective rights are governed by the same regime became widespread.
(c) History
… the committee decided ... not to adopt a set of fundamental rights in
the wide and legally imprecise formulation of Weimar, but rather to
attempt to make them clearer and more concrete. A mixture of
statements made up for the one part of directly binding law and for the
other of legislative programmes, goals in need of statutory regulation, or
not simply rights to freedom but the preservation of particular institutions,
legal or otherwise, as could be found in the second division of the
Weimar Constitution, has led to considerable legal difficulties. As far as
possible, these difficulties should be avoided. The intention was,
therefore, to formulate the fundamental rights so that they can be seen as
directly binding law [emphasis in original], exactly as Art. 1 III expresses
it. This law binds the legislature, the administration and the judiciary, and
indeed the federation and the Länder in exactly the same manner.
The strength of feeling in the Parliamentary Council that a catalogue of
classical fundamental rights should be created must never be forgotten. The
reporter Hermann von Mangoldt commented at the end of the consultations that,121
The two articles concerning marriage and family, and the school system
and religious education (Art. 6 & 7) fall to a certain extent outside this
framework. Besides containing statements without direct legal effect,
they also contain programmatic statements and directions to the
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legislature that cannot be realised, at least in part, without prior detailed
regulation. This fault in the structure of the rights catalogue can only be
explained by its legislative history. The articles in question were only
introduced during the consultations of the main committee, which was not
as attentive to the principles governing the construction of this part of the
Basic Law.
This quotation clearly demonstrates that the claims to protection in article 6 represent
an exception within the catalogue of fundamental rights, which therefore need not be
considered further.
The conclusions reached by considering the classical canons of construction is
reinforced by a purpose-based approach, deepening the systematic interpretation of the
constitution.
The protection of most of the legal interests represented by fundamental rights against
third-party incursions is the basic function of the state. It is the preservation of peace in
wider sense, and should not be treated as one of many similar purposes. Rather, it is
the fundamental function, to the fulfilment of which the state owes its existence.122 If it
fails to fulfil this function, it will, given time, cease to exist. Anarchy and civil war will
break out. The obviously essential nature of the preservation of internal security weighs
against the establishment of this function in fundamental rules containing personal
rights.123
A further state function is the securing of freedom. This is conditional on the securing of
internal peace (security). For particular historical reasons, the instrument of the
fundamental right, which normally protects the individual from violations by the state,
has been developed to guarantee this freedom.124 It is only occasionally that
fundamental rights specifically require the state to protect the citizen from third
121 See Von Mangoldt Grundrechte 5 and 6.
122 Starck Frieden als Staatsziel 868 ff, also on what follows; in particular, see further Isensee
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Grundrecht als Abwehrrecht 148 ff; Götz Innere Sicherheit 1026.
123 Thus, correctly Sachs, in Stern Das Staatsrecht der Bundesrepublik Deutschland 732 f.
124 Link Staatszwecke im Verfassungsstaat 7, 11, refers appropriately to the origin of state goals. See
also Böckenförde 1990 Der Staat 34.
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parties. The connection between the protection of freedom and the guarantee of peace
and security is expressed in declarations of fundamental rights, in particular in those
limitations to the rights which name these legal interests.
The inherent connection between the securing of freedom and keeping the peace does
not mean that the citizen has an unwritten fundamental right to peace and security.125
This consequence does not flow from the Basic Law precisely because the fundamental
rights as individual rights are "hard" constitutional law. They can be enforced before the
courts against the administration and indeed against the legislature before constitutional
courts. In the same way as claims to social security, rights to peace and security could
not be directly enforced at a constitutional level as the classical defensive rights are,
simply by virtue of their structure. The infringement of a classical fundamental right must
comply formally with the requirement of statutory authority and substantively satisfy the
requirement of proportionality. Freedom is already legally valid unless it is limited, but
protection must be guaranteed and realised through statute, administration and
adjudication. (Of course, it is true that the constitution might protect directly by declaring
certain legal acts invalid.) If the protection involves an infringement of another's rights,
statutory authority is required; there is no protection where the statute is lacking. To
this extent, a fundamental right to protection cannot normally be directly binding, since it
is the statute itself which gives rise to the protection.126 If there is a valid statute which
can be interpreted so that it has a protective effect - as a protective norm in
administrative law for example, or the so-called third-party effect in private law - then the
fundamental right can have influence through the medium of this statute.
Even if earlier catalogues of fundamental rights did include aspects of security, we must
not forget that they - above all the French declaration of 1789 - did not contain personal
rights which could be enforced before the courts. Rather, these rights, which functioned
as guarantees both of freedom and of security, were programmatic statements in the
service of general state goals.127 At best, statutory rights could be
125 Otherwise Isensee Grundrecht als Abwehrrecht 187.
126 Thus also Isensee Grundrecht als Abwehrrecht 189; Klein 1994 Deutsches Verwaltungsblatt
491, 494 f; Unruh Dogmatik der grundrechtlichen Schutzpflichten 23 f.
127 Thus, appropriately Böckenförde 1990 Der Staat 23, note 92; Unruh Dogmatik der
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enforced before courts against the administration. For this reason, the use of
fundamental rights - insofar as they represent classical defensive rights against the state
- as a standard for the judicial assessment of statutes must be seen as a far-reaching
innovation.
3.1.5 The consequences of reducing the judgments to the two acceptable
approaches
If the Federal Constitutional Court were to restrict itself to recognising a personal right to
protection only in those few cases involving the guarantee of human dignity, and spoke
in other cases of mere protective functions of the state, this would restrict the admissible
constitutional complaints to those where an infringement of human diginity could
reasonably be alleged. Whether this would lead to a reduction in the numbers of
complaints seeking to establish protection would remain to be seen, particularly since
efforts would be made to expand the concept of dignity and the Court would have to
justify drawing narrower boundaries to this concept than plaintiffs would like. But there is
no doubt that clarity would emerge over time.
Another factor must be taken into consideration. Even if it became unnecessary for the
Court to hear many of the complaints concerning statutory protection because they
would not impinge on the protection of dignity, one could not avoid considering whether
the legislature had conformed to the objective requirements of fundamental rights in the
context of norm-review procedures.128 The protective functions of the state would then
have to be divided into those which represented clearly defined commissions at a
constitutional level and those which were mere programmatic statements. The latter are
not suitable standards by which a constitutional court can establish unconstitutional
legislative omissions.129 Constitutional legislative
grundrechtlichen Schutzpflichten 41.
128 For personal rights see Klein 1994 Deutsches Verwaltungsblatt 493; Unruh Dogmatik der
grundrechtlichen Schutzpflichten 65. State protective duties without corresponding personal rights
ought generally to exclude the specific norm control whenever the court referring the matter considers
a legislative omission to be unconstitutional. This is because art 100 I GG presupposes the existence
of a statute. The situation would be different if the court considers an existing statute to be
insufficiently protective, and considers this relative omission to be unconstitutional. (Cf Benda and
Klein Lehrbuch des Verfassungsprozeßrechts marg no 726 f).
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129 Benda and Klein Lehrbuch des Verfassungsprozeßrechts marg no 428; on what follows marg no 430
ff.
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commissions and the degree of their precision must be demonstrated on a case to case
basis. One can point by way of comparison to rights to financial support which the Court
has (still?) been very hesitant to derive from particular constitutional and factual
constellations. The claim to the financing of private schools is an example of
this.130
The restriction of the jurisprudence in this whole area of protective duties would return
greater discretion to the legislature, so that it could once again fulfil its responsibility in
shaping of society within the framework of classical rights. A demonstration of the need
for this can be found in the Court's 26 May 1993
decision,131 in which a lessee was granted a right to protection against a lessor on the
basis of article 14 I 1 GG. According to the judgment, the legislature,
to fulfill its duty arising from Art. 14 I 2 GG, must fashion, delimit and
define the conflicting property interests so that both are suitably protected.
The Court had justified the lessee's rights as recently as 1989 by reference to the social
state in the light of the lessor's fundamental right of property.132 In 1993, by application
of the doctrine of duties of protection, the lessee's rights were upgraded to a matter of
fundamental rights which must be balanced with the rights of the lessor. The
consequence of this - unnoticed at the time - is that every reduction in the standard of
lessee protection is an infringement of fundamental rights requiring
constitutional justification.133 But the protection of lessees really raises questions of
social justice which fall within the competence of the legislature according to article 14 II
and 20 I GG. Parliament must be free to decide on these matters within the framework
of the protection of property, because only it is politically accountable for the fashioning
of society and, among other matters, for the statutory regulation of private building for
the purposes of letting.
130 BVerfGE 75, 40, 65; on this problem Von Mangoldt Klein and Starck Das Bonner Grundgesetz
art 1 marg no 119.
131 BVerfGE 89, 1, 5.
132 BVerfGE 79, 292, 302 f; 68, 361, 368.
133 Depenheuer 1993 NJurW 2561, 2564, refers appropriately to this. Hesse Verfassungsrecht und
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Privatrecht 23 ff, is generally critical.
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Parliament could be restored to this position, if only the Court would restrict personal
rights to protection to the narrow boundaries of article 1 I GG and more thoroughly justify
those obligatory protective functions of the legislature which go beyond mere
programmatic statements. The divisional courts would recover a higher degree of power
in the interpretation and application of statutes which protect legal interests - sometimes,
indeed, in favour of that protection.
3.2 Controlling the manner of protection
The following considerations regarding the manner of protection and its regulation by the
judiciary are significant in two ways.
First, constitutional standards for the manner of protection must be developed for the
small group of personal rights to protection in articles 1 I and 6 GG and for the legal
protective duties which can be derived from fundamental rights. To establish that the
state is obliged to protect, or even that there is a right to protection, is only half the story:
the other half is the manner of protection. Fundamental protective duties do not contain
detailed directions on this matter,134 but we must still consider whether they contain at
least a minimum standard of protection, for a right to protection without any criteria for
the manner of its fulfilment would be empty and a cheap opportunity for the legislature to
pass statutory propaganda while claiming to protect some interest.
Secondly, the difficulty one encounters in trying to find constitutional standards for the
control of the manner of protection further supports the critique of the unhindered
acceptance of fundamental protective duties by the Federal Constitutional Court.
3.2.1 Criteria for the manner of protection
In its judgments concerning the state's protective duties, the Court has emphasised the
legislative discretion to determine the manner of protection. But, despite all attempts at
judicial restraint, the various formulae adopted and the practice so far (see above 2.4)
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reveal a certain degree of unpredictability. This need not be intrinsic to the issue: it may
well flow from the undeveloped state of suitable criteria offered by Court. It is probably
also connected with the experimental and ever-expanding nature of the jurisprudence in
this area. A number of possible criteria can be listed, some of which flow from what has
already been mentioned, others of which need further justification.
(a) Seen as a whole, the manner of protection must not render the requirement of
protection illusory.135
(b) The legislature is not constitutionally obliged to provide optimal protection, for
this would raise the standards of protection ever higher136 and subject the manner
of protection totally to constitutional review.
(c) Protection must respect the principles of the rule of law,137 that is infringements of
third-party rights must have statutory authority.138
(d) The legislature, engaged in protection, is bound to the principle of proportionality.
Since protection from third parties regularly infringes their fundamental rights, the
principle of proportionality which must be respected in that case also influences
the mode of protection.
3.2.2 The significance of the principle of proportionality
The principle of proportionality (or the prohibition of excess) has proved a reasonable
standard of examination for the constitutionality of state infringements of civil rights.
Along with its sub-principles - suitability, necessity and proportionality in strict sense
- it produces comprehensible solutions. Of course, there are still obscurities which
134 Thus also Klein 1994 Deutsches Verwaltungsblatt 495.
135 See Starck Praxis der Verfassungsauslegung 86 ff.
136 On this point Böckenförde 1990 Der Staat 13, 29, is quite rightly critical.
137 On this see generally Sachs, in Stern Das Staatsrecht der Bundesrepublik Deutschland 738.
138 See on this above all Wahl and Masing 1990 Juristenzeitung 553, 555 ff; see also Klein 1994
Deutsches Verwaltungsblatt 491, 494 f; Unruh Dogmatik der grundrechtlichen Schutzpflichten
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restrict legislative freedom (for example, whenever the Court examines factual
assessments and predictions).139
How can the prohibition of excess be used as a standard for the manner of protection?
Some writers have matched the prohibition of excess to a prohibition of insufficiency
which should govern the statutory expression of protective duties,140 and this has been
adopted by the Court with their approval.141 It seems at first sight as though the
prohibition of insufficiency limits the freedom of the legislature from the opposite side
from the prohibition of excess, trapping the legislature between these two prohibitions. If
one examines the relationship between the prohibition of excess as the boundary of
permissible infringement and the prohibition of insufficiency as minimum protection more
closely, however, the following points emerge.142
(a) As regards the legal interest to be protected, each limitation of a fundamental right
presupposes the existence of a legal interest worthy of protection. In the case of a
protective duty, the protection of a legal interest is constitutionally necessary.
(b) The means adopted by the legislature must be suitable to the protection. Unsuitable
means contravene not only the prohibition of excess, since they limit freedom without
protecting a legal interest, but also infringe the prohibition of insufficiency, since for the
same reason they do not fulfill the protective duties of the state.
(c) The infringement of fundamental rights must be necessary, that is the legislature
must be satisfied with the mildest means that are effective. As far as protection is
concerned, every excessive measure restrictive of freedom must be avoided.
23 f.
139 See in particular BVerfGE 50, 290, 333 with further references.
140 Canaris 1984 Archiv für die civilistische Praxis 201, 223 ff; idem "Grundrechtswirkungen und
Verhältnismäßigkeitsprinzip in der richterlichen Anwendung und Fortbildung des Privatrechts", in
Canaris 1989 Juristische Schulung 161, 163 f; Götz Innere Sicherheit 1025 ff; Isensee Grundrecht
als Abwehrrecht 191.
141 Cf BVerfGE 88, 203, 254.
142 See on this Starck Praxis der Verfassungsauslegung 88 f; cf also Hain 1993 Deutsches
Verwaltungsblatt 982 ff; Unruh Dogmatik der grundrechtlichen Schutzpflichten 83 ff.
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(d) Proportionality in the strict sense, or the reasonableness of the infringement,
means that protection reaches its limits when it requires an infringement that is no
longer reasonable, that is, where the protection of the relevant legal interest no
longer justifies the infringement of freedom.
These thoughts on the reverse of the principle of proportionality demonstrate the
strength of reasoning which is required by the necessity to have regard to the possible
infringement of third-party rights for the corresponding manner of protection.
There is, therefore, an internal connection between the prohibition of excess in the case
of a limitation of fundamental rights and the prohibition of insufficiency in the case of the
required manner of protection. Is it then correct to say that the degree of controlling
power exercised by the constitution and the corresponding legislative freedom are
similar in both cases? If a regulation is unsuited to the protection of legal interest, it may
not limit freedom. Thus far the preconditions are identical. As regards necessity, we
also begin by looking at the relevant legal interest, asking whether a measure less
restrictive of freedom would suffice for its protection. It is often hard to judge whether a
measure is suitable and necessary, since that involves the assessment of empirical data
and predictions. These uncertainties are identical whether one seeks to establish that
protection is sufficient or an infringement is too excessive. If we want to know whether a
particular infringement is necessary and imagine other less restrictive infringements, we
must examine these in turn for their appropriateness in protecting whatever legal interest
the legislature had in mind. The uncertainties surrounding empirical data increase the
legislative freedom, which is as wide in the case of infringements as it is in the case of
protection. The constitutional protective duties of the legislature and the judicial
application of statutes, both of which carry responsibility for the stability of society, draw
attention to the limits of fundamental rights. The principle of proportionality in the strict
sense establishes a relationship between the value of protection and the hindrance of
freedom. The reasonability of protection is determined by considering the infringement
of freedom, which may mean that the protection of a legal interest must be neglected if
there is no reasonable infringement that will do the protecting. But even here the state's
duty to protect must be taken seriously.
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3.2.3 Legislative omissions
Where a statute infringes the rights of third parties in order to protect individual legal
interests, the Federal Constitutional Court can examine it to determine whether the
protection is sufficient with regard to the criteria of the principle of proportionality. It
need not state positively how the state is to do the job of protecting. But, if a statute is
lacking, the court cannot examine the manner of protection. The legislature must decide
whether and how it will protect, whether by infringement or other measures. The Court
can establish only that a protective duty exists, and, where appropriate, identify a
corresponding right in the plaintiff, but it cannot go into further detail. Thus, the claim to
protection is a fundamental right which does not bind directly, and which lies outside the
structure of the Basic Law. In fields which have not yet been the subject of statutory
regulation, it is also insufficient to point to the power of the Court to pass protective
regulations as a matter of enforcement (§ 35 BVerfG) in order to prove the directness of
an obligation. If this were to happen, the Court would move to the heart of legislative
political discretion, for it would develop novel regulations for a particular issue involving
protection.
The Federal Constitutional Court has no choice but to urge the legislature to fulfil its duty
of protection. As regards the manner of protection, the Court must restrict itself to
general comments along the lines of the above standards. It is only when a legislative
attempt to protect some interest lies before the Court that its
constitutionality can be examined.143
3.3 Conclusions
Contrary to article 1 III GG, claims to protection cannot be directly binding law. They
presuppose legislation.
143 Cf also Klein 1994 Deutsches Verwaltungsblatt 496: "Was, um der Schutzpflicht zu genügen, zu tun
ist, läßt sich allerdings desto genauer beschreiben, je dichter das Netz bereits vorhandener
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If statutory protection is connected with infringements of third-party fundamental rights,
the principle of proportionality can be adopted to test whether the protection is effective.
Insofar as protection can be achieved without infringements of rights, one must attempt
to test the effectiveness of protection by some other means.
Where the legislature omits to protect at all, the Constitutional Court must limit itself to
establishing the existence of a duty and to querying its non-fulfilment. It may not pass
protective regulations or impose a duty to pass specific regulations.
Where general statutory norms apply, protective duties can be realised through the so-
called indirect third-party effect of fundamental rights. In its reaching its decision, the
Federal Constitutional Court is responsible for:
(a) preserving the political discretion of the legislature in protecting interests, and
(b) remembering the structural distinction between "hard" defensive rights and "soft"
protective duties in order to prevent the erosion of the directly binding nature of
defensive rights.
Normierungen gewoben ist."
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4 Bibliography
Alexy Theorie der Grundrechte
Alexy R Theorie der Grundrechte (Nomos-Verlag Baden-Baden 1985) 548
Badura Persönlichkeitsrechtliche Schutzpflichten
Badura P "Persönlichkeitsrechtliche Schutzpflichten des Staates im Arbeitsrecht" in
Gamillscheg F (ed) Sozialpartnerschaft in der Bewährung: Festschrift für Karl
Molitor zum 60. Geburtstag (Beck München 1988) 418
Benda and Klein Lehrbuch des Verfassungsprozeßrechts
Benda E and Klein E Lehrbuch des Verfassungsprozeßrechts (Müller Heidelberg
1991)
Bleckmann 1988 Deutsches Verwaltungsblatt
Bleckmann A "Neue Aspekte der Drittwirkung der Grundrechte" 1988 Deutsches
Verwaltungsblatt 938-942
Böckenförde 1990 Der Staat
Böckenförde E-W "Grundrechte als Grundsatznormen" 1990 Der Staat 1-34
Canaris 1989 Juristische Schulung
Canaris CW "Grundrechtswirkungen und Verhältnismäßigkeitsprinzip in der
richterlichen Anwendung und Fortbildung des Privatrechts" 1989 Juristische
Schulung 161
Canaris 1984 Archiv für die civilistische Praxis
Canaris CW "Grundrechte und Privatrecht" 1984 Archiv für die civilistische Praxis
201-223
Starck C PER/PELJ 2000(3)1
85/120
Classen 1987 Jahrbuch des öffentlichen Rechts
Classen CD "Die Ableitung von Schutzpflichten des Gesetzgebers aus
Freiheitsrechten -ein Vergleich von deutschem und französischem
Verfassungsrecht sowie der Europäischen Menschenrechtskonvention" 1987
Jahrbuch des öffentlichen Rechts 29
Depenheuer 1993 NJurW
Depenheuer O "Der Mieter als Eigentümer?" 1993 Neue Juristische Wochenschrift 2561
Dicey Study of the Law of the Constitution
Dicey AV Introduction to the Study of the Law of the Constitution 10th ed
(Macmillan London 1959)
Dietlein Die Lehre von den grundrechtlichen Schutzpflichten
Dietlein J Die Lehre von den grundrechtlichen Schutzpflichten (Duncker & Humblot
Berlin 1992) 250
Dürig 1956 Archiv des öffentlichen Rechts
Dürig G "Der Grundrechtssatz von der Menschenwürde" 1956 Archiv des
öffentlichen Rechts 117
Duverger and Sfez Staatsbürgerlichen Rechte in Frankreich
Duverger M and Sfez L "Die staatsbürgerlichen Rechte in Frankreich" in
Bettermann KA Nipperdey HC and Scheuner (eds) Die Grundrechte: Handbuch der
Theorie und Praxis der Grundrechte vol I/2 (Duncker & Humblot Berlin 1967)
Götz Verwirklichung der Grundrechte
Götz V "Die Verwirklichung der Grundrechte durch die Gerichte im Zivilrecht" in
Heyde W and Starck C (eds) Vierzig Jahre Grundrechte in ihrer Verwirklichung
durch die Gerichte (Beck München 1990) 221
Starck C PER/PELJ 2000(3)1
86/120
Götz Innere Sicherheit
Götz V "Innere Sicherheit" in Isensee J and Kirchhof P (eds) Handbuch des
Staatsrechts (Müller Heidelberg 1988)
Hain 1993 Deutsches Verwaltungsblatt
Hain K-E "Der Gesetzgeber in der Klemme zwischen Übermaß- und
Untermaßverbot?" 1993 Deutsches Verwaltungsblatt 982
Hermes 1990 NJurW
Hermes G "Grundrechtsschutz durch Privatrecht auf neuer Grundlage?" 1990
NJurW 1764
Hermes Schutz von Leben und Gesundheit
Hermes G Das Grundrecht auf Schutz von Leben und Gesundheit: Schutzpflicht
und Schutzanspruch aus Art. 2 Abs. 2 Satz 1 GG (Müller Heidelberg 1987) 307
Hesse Grundzüge des Verfassungsrechts
Hesse K Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland 18th
ed (Müller Heidelberg 1991) 319
Hesse Verfassungsrecht und Privatrecht
Hesse K Verfassungsrecht und Privatrecht (Müller Heidelberg 1988) 44
Isensee Grundrecht als Abwehrrecht
Isensee "Das Grundrecht als Abwehrrecht und als staatliche Schutzpflicht" in
Isensee and Kirchhof (eds) Handbuch des Staatsrechts der Bundesrepublik
Deutschland (Müller Heidelberg 1992) 1315
Isensee Grundrecht auf Sicherheit
Isensee J Das Grundrecht auf Sicherheit (De Gruyter Berlin 1983) 60
Starck C PER/PELJ 2000(3)1
87/120
Kägi Dreiteilung zur umfassenden Gewaltenteilung
Kägi W "Von der klassischen Dreiteilung zur umfassenden Gewaltenteilung" in
Festschrift für Hans Huber (1961)
Klein 1989 NJurW
Klein E "Grundrechtliche Schutzpflichten des Staates" 1989 NJurW 1633-1636
Klein 1994 Deutsches Verwaltungsblatt
Klein HH "Die grundrechtliche Schutzpflicht" 1994 Deutsches Verwaltungsblatt 489-
495
Link Staatszwecke im Verfassungsstaat
Link C "Staatszwecke im Verfassungsstaat - nach 40 Jahren Grundgesetz:
Berichte und Diskussionen auf der Tagung der Vereinigung der Deutschen
Staatsrechtslehrer in Hannover vom 4. bis 7. Oktober 1989" in Veröffentlichungen
der Vereinigung der Deutschen Staatsrechtslehrer 48 (De Gruyter Berlin 1990) 363
Link Herrschaftsordnung und bürgerliche Freiheit
Link C Herrschaftsordnung und bürgerliche Freiheit: Grenzen der Staatsgewalt in
der älteren deutschen Staatslehre (Boehlau Wien 1979) 396
Luchaire La protection constitutionnelle des droits et des libertés
Luchaire F La protection constitutionnelle des droits et des libertés (Nebent France
1987)
Maunz ea Grundgesetz Art 1 marg no 131
Maunz T ea Grundgesetz: Kommentar (Beck München 1958)
Montesquieu De l'esprit des lois
Montesquieu C De l'esprit des lois XI (1748) (Gonzague Truc - Classiques Garnier
Paris sa)
Starck C PER/PELJ 2000(3)1
88/120
Müller-Dietz Verfassungsrechtlicher Pönalisierungsgebote
Müller-Dietz H "Zur Problematik verfassungsrechtlicher Pönalisierungsgebote" in
Jescheck H-H (ed) Festschrift für Eduard Dreher zum 70 Geburtstag am 29. April
1977 (De Gruyter Berlin 1977) 799
Murswiek 1986 Wirtschaftsverwaltung
Murswiek D "Zur Bedeutung der grundrechtlichen Schutzpflichten für den
Umweltschutz" 1986 Wirtschaftsverwaltung 179-182
Murswiek Risiken der Technik
Murswiek D Die staatliche Verantwortung für die Risiken der Technik:
verfassungsrechtliche Grundlagen und immissionsschutzrechtliche Ausformung
(Duncker & Humblot Berlin 1985) 428
Ossenbühl Tatsachenfeststellungen und Prognoseentscheidungen
Ossenbühl F "Die Kontrolle von Tatsachenfeststellungen und
Prognoseentscheidungen durch das Bundesverfassungsgericht" in Starck C (ed)
Bundesverfassungsgericht und Grundgesetz Festgabe aus Anlass des 25 jährigen
Bestehens des Bundesverfassungsgerichts I (Mohr Tübingen 1976)
Rauschning 1980 Deutsches Verwaltungsblatt
Rauschning D "Kalkar Judgement" 1980 Deutsches Verwaltungsblatt
Robbers Sicherheit als Menschenrecht
Robbers G Sicherheit als Menschenrecht: Aspekte der Geschichte, Begruendung
und Wirkung einer Grundrechtsfunktion (Nomos-Verlag Baden-Baden 1987) 292
Röllecke and Starck Bindung des Richters
Röllecke G and Starck C "Die Bindung des Richters an Gesetz und Verfassung" in
Veröffentlichungen der Vereinigung der deutschen Staatsrechtslehrer 34 (De
Gruyter Berlin 1976) 352
Starck C PER/PELJ 2000(3)1
89/120
Rönne and Zorn Das Staatsrecht der Preußischen Monarchie
Rönne L von and Zorn PKL Das Staatsrecht der Preußischen Monarchie 4th ed
(Brockhaus Leipzig 1882)
Rüfner Drittwirkung der Grundrechte
Rüfner W "Drittwirkung der Grundrechte" in Selmer P (ed) Gedächtnisschrift für
Wolfgang Martens (De Gruyter Berlin 1987) 909
Schlette Die verwaltungsgerichtliche Kontrolle von Ermessensakten
Schlette V Die verwaltungsgerichtliche Kontrolle von Ermessensakten in
Frankreich: eine Analyse der Rechtsprechung des Conseil d'Etat zu Inhalt und
Umfang des pouvoir discretionnaire der französischen Verwaltungsbehoerden,
unter besonderer Beruecksichtigung der neueren Entwicklungen (Nomos-Verlag
Baden-Baden 1991) 408
Scholz Koalititionsfreiheit
Scholz R "Koalititionsfreiheit" in Isensee J and Kirchhof P (eds) Handbuch des
Staatsrechts der Bundesrepublik Deutschland VI (Müller Heidelberg 1989)
Schwabe 1979 Deutsches Verwaltungsblatt
Schwabe J 1979 Deutsches Verwaltungsblatt 667
Schwabe Probleme der Grundrechtsdogmatik
Schwabe J Probleme der Grundrechtsdogmatik (Schadel Darmstadt 1977) 482
Starck 1988 Archiv des öffentlichen Rechts
Starck C "Der Schutz der Grundrechte durch den Verfassungsrat in Frankreich"
1988 Archiv des öffentlichen Rechts 632-633
Starck 1981 Juristische Schulung
Starck C "Die Grundrechte des Grundgesetzes" 1981 Juristische Schulung 237245
Starck C PER/PELJ 2000(3)1
90/120
Starck Europas Grundrechte im neuesten Gewand
Starck C "Europas Grundrechte im neuesten Gewand" in Festschrift für Hans
Huber (Stämpfli Bern 1981) 699
Starck Frieden als Staatsziel
Starck C "Frieden als Staatsziel" in Börner B (ed) Einigkeit und Recht und Freiheit:
Festschrift für Karl Carstens zum 70. Geburtstag am 14. Dezember 1984
(Heymann Köln 1984)
Starck Verfassungsgerichtsbarkeit
Starck C "Vorrang der Verfassung und Verfassungsgerichtsbarkeit" in Starck C and
Weber A (eds) Verfassungsgerichtsbarkeit in Westeuropa I (Nomos-Verlag Baden-
Baden 1986)
Starck Der demokratische Verfassungsstaat
Starck C Der demokratische Verfassungsstaat: Gestalt, Grundlagen,
Gefährdungen (Mohr Tübingen 1995) 439
Starck Praxis der Verfassungsauslegung
Starck C Praxis der Verfassungsauslegung (Nomos-Verlag Baden-Baden 1994)
320
Stern Das Staatsrecht der Bundesrepublik Deutschland
Stern K (ed) Das Staatsrecht der Bundesrepublik Deutschland (Beck München
1977)
Stolleis Geschichte des öffentlichen Rechts in Deutschland
Stolleis M Geschichte des öffentlichen Rechts in Deutschland (Beck München
1988)
Unruh Zur Dogmatik der grundrechtlichen Schutzpflichten
Unruh P Zur Dogmatik der grundrechtlichen Schutzpflichten (Duncker & Humblot
Berlin 1996) 120
Starck C PER/PELJ 2000(3)1
91/120
Von Mangoldt Grundrechte
Von Mangoldt H "Schriftlicher Bericht I. Die Grundrechte" in Parlamentarischer Rat
Anlage zum stenographischen Bericht der 9. Sitzung
Von Mangoldt Klein and Stark Das Bonner Grundgesetz
Von Mangoldt H Klein F and Starck C Das Bonner Grundgesetz 4th ed (Vahlen
München 1985)
Von Rotteck and Welcker (eds) Das Staats-Lexicon
Von Rotteck K and Welcker K (eds) Das Staats-Lexicon: Encyklopaedie der
sämmtlichen Staatswissenschaften für alle Stände; in Verbindung mit vielen der
angesehensten Publicisten Deutschlands vol V (Brockhaus Leipzig 1856-1866)
Von Wolff Jus Naturae methodo scientifica pertractatum
Von Wolff C "Jus Naturae methodo scientifica pertractatum" in Von Wolff C and
Von Ecole J (eds) Gesammelte Werke (Olms Hildesheim 1962) vol I 1764
Vorländer (ed) Metaphysik der Sitten
Vorländer K (ed) Metaphysik der Sitten, Rechtslehre 1797 4th ed (Meiner Leipzig
1922)
Wahl and Masing 1990 Juristenzeitung
Wahl R and Masing J "Schutz durch Eingriff" 1990 Juristenzeitung 553-555
Zachariä Deutsches Staats- und Bundesrecht
Zachariä HA Deutsches Staats- und Bundesrecht 3rd ed (Vandenhöck & Ruprecht
Göttingen 1865-1867)
