Legal doctrine of basic rights

The fact that there are fundamental rights in the Basic Law is widely known even outside legal circles. The individual basic rights are at least roughly familiar to many people.

Less is known, however, about how the fundamental rights affect the legal system and how far they reach. This will be outlined in this short article.

First of all, it must be stated that practically every act and omission falls within the scope of a fundamental right. For many behaviors, there are very specific fundamental rights. But for everything else, the general freedom of action (Article 2 (1) of the Basic Law) applies.

Does that mean that everyone can do anything he wants? Of course that seems impossible.

All fundamental rights can be restricted by the state. All it needs for this is a law that forbids anything or stipulates the duty of the citizen.

Now one could say: If the state is allowed to prohibit everything anyway, why does it need fundamental rights at all?

As a general rule, the state may ban certain behaviour, but it must explicitly do so. If there is no statutory ban, the protection by constitutional law remains in force. In other words, everything that is not forbidden is allowed.

On the other hand, the state must also justify the encroachment on fundamental rights. It must pursue special goals with it, e.g. the protection of the fundamental rights of others or higher constitutional values.

This also explains why, in addition to the general freedom of action, you still need special fundamental rights. The general freedom of action can be restricted without special conditions, other fundamental rights, however, require a detailed balance of interests.

The fundamental rights must also be considered separately in the application and interpretation of the laws. An authority and, ultimately, a court must act in such a way that the fundamental rights are protected as much as possible.

If the fundamental rights intervention can not be justified, it is a violation of fundamental rights. This will result in the constitutional complaint being successful.

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