German High Court Has More Power Over Legislature, Grimm Says

March 9, 2006
Dieter Grimm, Humboldt University law professor

Although the U.S. Supreme Court and the Federal Constitutional Court of Germany follow many similar principles, they differ in that the U.S. court determines what Congress may do, while the German court dictates what Parliament must do, said Humboldt University law professor Dieter Grimm at a lecture co-sponsored by the Law School and the American Constitution Society March 1.

Grimm, who is also the director of the Institute for Advanced Study in Berlin, served as a justice of the Federal Constitutional Court of Germany from 1987 to 1999. In his talk he addressed the historical and ideological differences between the legal systems in the United States and Germany.

Both courts had similar findings regarding whether broadcasters are obligated to give reply time to persons who have been attacked on station programs, Grimm explained, noting that the cases reveal key differences among the two systems. The Supreme Court found that because the purpose of the First Amendment is to create an educated public that can conduct its own affairs, the rights of the viewers and listeners are paramount to the rights of the broadcasters. The German decision used very similar language and "even went so far as to call freedom of broadcasting a serving freedom, namely a freedom that serves the free formation of opinions of the individual and society as a whole as well." But the courts came to different conclusions. The Supreme Court found that Congress had the power to regulate broadcasting, while the German court determined that Parliament must regulate broadcasting.

The deviation may be seen even more clearly in pairing the first German abortion case and the U.S. DeShaney case, Grimm said. In 1975 the German court determined the state's obligation to furnish the protection of free rights is comprehensive and includes the protection and promotion of developing life, such as fetuses. In contrast, in 1989 the Supreme Court ruled in DeShaney that nothing in the due process clause requires the state to protect life, liberty, and property against the action of private actors. Instead, the purpose of the 14th Amendment is just to protect people from the state. In other words, the U.S. Bill of Rights only has negative rights, which restrict the government from encroaching on individuals' fundamental rights, whereas Germany also has positive rights, which requires the government to safeguard the rights of the people.

"'What is the explanation for this difference?' is, I think, the question to be asked," Grimm said.

The answer is rooted in the ways fundamental rights developed historically, he explained. Although both American and European laws are rooted in enlightenment theory, they diverged in the "circumstances to which the bills or rights applied at the time of their origin."

In the late 18th century, the American colonies were under English law, which was considered very liberal at the time. When Americans felt their fundamental rights regarding taxation were being violated, they learned that under British rule their fundamental rights were not supreme because "supremacy belonged to parliament." One purpose of the American Revolution, therefore, was to strengthen and protect the people's fundamental rights. Consequently, fundamental rights "could from the very beginning be negative rights" that served primarily to protect individuals from the government.

In contrast, although Germany did not have a revolution during the same period, the monarchs of many German states granted the enactment of constitutions with bills of rights to "attempt self-preservation of the dynasty." The old feudal laws remained in place and could not be overridden by the new constitutions. The bills of rights "were interpreted as obligations of the legislature to do what these fundamental rights promised, reform the old feudal systems and turn them into a legal order." The reforms largely failed, though, because they had to be approved by a majority vote in parliament in addition to receiving the consent of the monarch and the non-elected chamber.

The inclusion of positive rights in German law can be traced to the fact that European constitutions, unlike the U.S. Constitution, did not establish an entirely new political entity because the nation-state existed before the constitutions emerged. This meant "they never changed the tradition of the state," and part of this saved tradition, especially in Germany, was that "the state always retained the role of being the representative of the higher aspirations of society." Thus, Grimm said he views the embracement of the duty to protect in 1975 as a "revival of tradition," rather than as something new.

This revival began and was rooted in the 1958 Lüth decision, which Grimm considers the landmark case in German constitutional history. The case, which originated in civil law, was sparked by an individual who advocated for a boycott against movie theaters that were showing a movie directed by a man who had made anti-Semitic films during the Nazi era. The movie companies won in civil court due to a German civil code that legislates that if someone causes damage to another party in an immoral way, he is liable for the damages. After the civil decision, the boycott advocate appealed to the Constitutional Court on the grounds that the state had an obligation to protect his freedom of speech. Prior to this case, civil rights were considered vertical, meaning they only applied to the government's encroachment on civil rights.

"So the question that was at stake was the question, 'Is there horizontal application of fundamental rights?'"

The court determined that fundamental rights are both subjective rights against government intrusion and "objective values." Values that society finds extremely important "are entrenched in the constitution" and are not limited to public law.

"The solution of the court is that wherever the application of a private law affects in a limiting way a fundamental right, this fundamental right has to be taken into account in the interpretation and application of that law," Grimm said.

The sole addressee of fundamental rights remains the state, but the state has to uphold them in private law through its courts. Lüth was the first in a constructive line of jurisprudence that culminated in the duty to protect.

"It was… the long forgotten other side of fundamental rights," Grimm said.

The state draws a lot of its legitimacy from how well it protects citizens from both vertical and horizontal risks to their fundamental rights, according to Grimm, and it accomplishes this protection through legislation.

"The purpose is not to limit liberty and freedom, to create an overall freedom," he said, noting that curtailing one person's freedom may be necessary to enable another person to make use of his freedom. "The 'if' decision is decided by the constitution. The 'how' question is left to the legislature."

Although some might see the interaction between the German court and legislature as a problematic separation of powers, Grimm dismissed such concerns because the legislature should not be free to not comply with court decisions. And, the court's justices realize that forcing legislative acts increases their vulnerability, so self-interest keeps them from being too aggressive.

"Legislature loses the power to be inactive or it loses the power when it legislates to grossly disadvantage one constitutionally protected interest in favor of another," Grimm said.

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