An Objective Value Order

Philip Allott has called the Basic Law “the fine fleur, the ne plus ultra, of democratic rationalism, a pure distillation of long centuries of European constitutionalism.”557

Elmar Hucko echoes this when he writes: “the Basic Law has proved its worth. It is the fruit of a hundred years of German constitutional history,

555 _{Schlink, pp. 199-200.}

556 _{Christoph Möllers, 'Democracy and Human Dignity: Limits of a Moralized Conception of Rights in} German Constitutional Law', Israel Law Review, 42, (2009), 419.

557

Philip Allott, The Health of Nations : Society and Law Beyond The State, (Cambridge: Cambridge University Press, 2002).p.205.

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combining with it the merits of the three previous constitutions, and at the same time avoiding their weaknesses.”558 The assertive value orientation of the Basic Law and its interpretation by the Bundesverfassungsgericht shapes every aspect of the constitutional order including the structuring of the institutions, the force of basic rights, and the relationship between the individual and society. The Basic Law is not a constitution which only has relevance in a court room when transgressions occur. Institutional and administrative elements of the German state measure official actions against what fidelity to the Basic Law demands. The principle of legality (Gesetzmäßigkeit) is important in German administration and helps ensure that government actions conform to the law and the constitution.559

The BVerfG’s enunciation of the Basic Law’s objective value order declared that a hierarchy of norms existed, with some more important than others. Thus, the value order is not merely an interpretational or balancing tool for the Court; the concept also imposes obligations on all institutions within the state to ensure that government actions are carried out in accordance with the constitution and with law. In analysing this value order and its implications for German representative democracy, of central importance are human dignity and the free democratic basic order. The value of human dignity implies a focus on how individual rights can be protected and realised within a context which includes the state, society and other individuals; the free democratic basic order value implies a focus on how popular sovereignty can be constrained both to protect individual rights and preserve the existence of the structure itself.

Inevitably, these two values sometimes come into conflict when human dignity and liberty must be balanced against the security and preservation of the free democratic basic order.560 In interpretational terms, the ‘objective order of values’ can be seen a ranking of values in terms of their importance ― which the Court then uses as an interpretational framework when adjudicating cases. By identifying which values are at issue in a case and the relative weighting (in importance) of each value, the Court can use balancing principles such as ‘proportionality’ to come to a decision. The phrase ‘objective order of values’, like the word ‘proportionality’ does not actually occur in the Basic Law, yet according to the Court, those values exist as an objective reality in the

558 _{Hucko, p. 76.}

559 _{Writing in the 1960s, Friedrich noted that Germans are “notoriously willing” to appeal to the}

administrative courts; and since these legally trained bureaucrats are concerned that any decision against their actions might carry “the implication of illegality”, there is generally a good deal of compliance. Carl J. Friedrich, Trends of Federalism in Theory and Practice, (London: Pall Mall, 1968), pp. 132-33. 560 _{See for example Der Spiegel Case. See infra note 568.}

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constitution in the form of values such as the ‘free democratic basic order’ and ‘human dignity’. The BVerfG is the final arbiter on whether any constraints on democratic process may be justified by the state such as when the Court determines the constitutionality of political parties or other threats to the ‘free democratic basic order’. The BVerfG is due to deliver its verdict in January 2017 on whether the far right neo- Nazi party the NPD is unconstitutional and will be banned.561

Far from being a value neutral document, the Court has used the “objective value order” phraseology it created to interpret the Basic Law as being based on a particular vision of German society, a vision which the Court seeks to orient its rulings towards. The idea of the Court enunciating the existence of constitutional values of its own creation, which it then uses as a basis for further broad interpretations of the Basic Lawmay sound like a judicial tautology or constitutional chutzpah depending on one’s perspective. Carl Schmitt’s perspective, which will be assessed in Section 6.6, was even more hostile. As we will also see with some of the electoral threshold cases in Chapter 7 and its decisions in other areas, the BVerfG cites itself far more than it cites the Basic Law,562 potentially raising methodological and interpretational concerns. The larger concern is that the Court’s rulings become understandable only through its own case law and its value order―and sometimes not even then―rather than the text of the Basic Law itself.

In the first few years of its existence, the BVerfG enunciated a conception of the person where their individual rights were inextricably linked to their role within their community. This has been a much repeated phraseology in the Court’s case law.

The image of man in the Basic Law is not that of an isolated, sovereign individual; rather, the Basic Law has decided in favour of a relationship between individual and community in the sense of a person’s dependence on and commitment to the community, without infringing upon a person’s individual value.563

Striking the correct balance between these two poles of ‘individual autonomy’ and the ‘interests of the wider community’ will, of course, often come down to judicial interpretation of the written, unwritten and pre-constitutional principles within the

561 _{'Urteil im NPD-Verbotsverfahren Fällt im Januar', in Spiegel Online, (2016).} 562 _{Collings, p. 302. See infra note 632.}

563 _{Investment Aid I Case. Other important cases in which the Court has invokes its “image of man” idea} include Life Imprisonment Case; Mephisto Case, 30 BVerfGE 173 (1971). Kommers and Miller note that these words have been oft repeated in the Court’s jurisprudence and identify “a polity that reminds Americans of Lincoln’s image of a fraternal democracy.” See Kommers and Miller, p. 70.

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German constitutional order. Although the Court sees human dignity as the pre-eminent value of the Basic Law, it is a dignity which is realised most through the relationship between the individual and society. Most of the BVerfG’s jurisprudence and the effects of its pronouncements on German society arise out of the inter-relationship between the fundamental values of human dignity and the free democratic basic order.

There is a sense here of an older tradition of rights which is neither uniquely German, nor can it be said to be pre-political in a natural law sense. In the American tradition the preservation of individual autonomy through the imposition of rules on the state “presupposes that the planning and acting that are to be protected must take place in a social environment.”564 Similarly, Kommers writes that “any realisation of dignity implies a fusion of individual rights and social responsibilities.”565 As indicated in earlier chapters, the significant difference between how autonomy is shaped in the American and German contexts is the complete absence of a role for the state (at least originally) in the former, and the instrumental role of the state in the latter. As important as dignity is for one person, the achievement of this right cannot impinge on the dignity of others. This illustrates the extent to which the constitutionalism of the Karlsruhe justices implies a commitment on the part of individuals to see their own rights within a social and communitarian context which also considers the effect that the exercise of those rights will have on others. The effect of this emphasis on the social and communitarian context was profound, not least in how it reinforced the idea that democracy in the Basic Law could never be an end in itself. Democracy could only be legitimate if it respected fundamental rights.