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Comparative Constitutional Law. German Constitution Class 11: Sept 24, 2008. Basic Rights. BASIC RIGHTS- Grundrechte What are basic rights and where are they found in the Basic Law?. Basic Rights. BASIC RIGHTS- Grundrechte

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Comparative constitutional law

Comparative Constitutional Law

German Constitution

Class 11: Sept 24, 2008


Basic rights
Basic Rights

  • BASIC RIGHTS- Grundrechte

  • What are basic rights and where are they found in the Basic Law?


Basic rights1
Basic Rights

  • BASIC RIGHTS- Grundrechte

  • They are rules protecting against unlawful acts or omissions by the state. They ensure that human rights are respected.


Basic rights2
Basic Rights

  • What basic rights are there in the Basic Law?


Basic rights3
Basic Rights

  • The main basic rights are in Arts 1-19GG though there are also some grundrechtsgleiche Rechte, e.g. Art. 38, 33 (political participation), 103, 104 GG (rights of fair trial, due process)


History of basic rights provisions in german constitutions
History of Basic Rights Provisions in German Constitutions

  • 1848 Constitution had basic rights

  • 1871 Reichsverfassung did not

  • 1919 Weimar Constitution had basic rights, but these were suppressed in the Third Reich


Menschenrechte vs deutschenrechte
Menschenrechte vs. Deutschenrechte

  • Some of the basic rights apply only to German citizens. Which are these?


Menschenrechte vs deutschenrechte1
Menschenrechte vs. Deutschenrechte

  • Some of the basic rights apply only to German citizens (e.g Art. 8, 9, 11, 12, 16).

  • Should this be changed now that many (to the surprise of the drafters of the Basic Law, probably) seek to immigrate to Germany


Limitations
Limitations

  • Can the Basic Rights Be Restricted or Are they Absolute?


Limitations1
Limitations

  • Can the Basic Rights Be Restricted or Are They Absolute?

  • See Art. 19(1) which requires that any restrictions be pursuant to a generally applicable law, and also provides judicial recourse for violations of the Basic Law.

  • Some specific limitations in rights e.g. 8(1) right to assemble ‘peacefully’

  • Art 18 provides that certain basic rights can be abused and forfeited (Art. 5(1), and (3), Art. 8, Art. 9, Art. 10, Art. 14, Art. 16(a)) if the Federal Constitutional Court declares the forefeiture temporary or permanent.

  • Principle of proportionality


Basic law language of duties as well as rights
Basic Law: Language of Duties as well as rights

  • What are some examples of basic rights that impose duties?


Judicial interpretation
Judicial Interpretation

  • Compare the German view of constitutional interpretation with the American and Canadian


Basic law objective order of values objektive wertordnung
Basic Law: Objective Order of Values “Objektive Wertordnung”

  • What is an objective value norm?


Hierarchy of basic values
Hierarchy of Basic Values

  • Which is the highest objective value norm in the Basic Law?

  • What other values are ranked high?


Basic law human dignity
Basic Law – human dignity

  • Article 1 [Human dignity]

  • For the the the (1) Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.

  • (2) The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world.

  • (3) The following basic rights shall bind the legislature, the executive, and the judiciary as directly applicable law.


Conflict of rights and values
Conflict of Rights and Values

  • How did the FCC resolve the clash of rights and values at issue in the Lebach case, 35 BVerfGE 202 (1973) [C p. 181]


Lebach
Lebach

  • Balanced freedom of expression against right to free development and erspect of personality/in conjunction with value of

  • Compare to Time, Inc. v. Hill (1967) (false light privacy)


Lebach 2 1999 http www bundesverfassungsgericht de entscheidungen rk19991125 1bvr034898 html
Lebach 2 (1999) http://www.bundesverfassungsgericht.de/entscheidungen/rk19991125_1bvr034898.html

  • TV station SAT.1 planned to show a show in docutainment format about the famous Lebach murders

  • Did not reveal the identities of those involved in the crime

  • 1BvR 348/98


Negative and positive rights
Negative and Positive Rights

  • Under German Constitutional theory, rights are negative and positive

  • Rights are also subjective and objective

  • Use the Lüth case as an example of these concepts (see pp. 184-85)



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