The state as mediator – From fundamental rights as defensive rights to a strengthening of the objective dimension of fundamental rights

Workshop and publication

Project managers: Prof. Dr. Klaus Günther and Prof. Dr. Stefan Kadelbach

Project description

While the dogma that fundamental rights are primarily defensive rights against the state still seemed unchallenged in constitutional court rulings and literature, fundamental rights have undergone a shift in meaning. For some time now, the focus has been on other dimensions resulting from the changed role of fundamental rights in society. The main reasons for this are an increased willingness of private individuals to enter into conflict with one another, the withdrawal of the state from many of its former tasks and an increasing abandonment of public spaces. The constitutionalization of private law may also have had an impact. In the current debate on the constitutionalization of criminal law, there is talk of the state’s duty to protect and its responsibility to protect fundamental rights against violations by third parties, including through criminal law.
This transformation has become most apparent in the area of the former secrecy of correspondence, post and telecommunications (Art. 10 GG). Formerly directed primarily against the inspection of private communications, the transmission and potential control of which were equally in the hands of the state, the primary concern today is the responsibility of intermediaries (telecommunications companies) to protect the users of their services from each other or from private third parties.

This observation can be transferred from the area of Article 10 of the Basic Law, for which it is not new, to almost all fundamental rights. The general right of personality requires protection not only against state access, which has been made subject to strict legal requirements – certainly induced by fundamental rights – but also against participants in the so-called social media and other players in the big data industry. The fundamental rights to freedom of expression and artistic freedom have long since ceased to be about protection against state censorship, but rather only about weighing up disputes between private individuals in which these rights are juxtaposed with personal rights and the civil courts have to arbitrate. In the freedom of religion, disputes are conducted between members of different religions and world views, and the constitutional courts use school administrations as arbitration bodies. Even freedom of assembly (Article 8 of the Basic Law) is today less a right that has to be defended against the state than the arena of police mediation strategies with regard to conflicts between demonstrators and counter-demonstrators or between demonstrators and companies.

Even if the observation that the meanings of the individual protective functions of fundamental rights have shifted is no longer entirely new, the developments described above as examples have given them increased significance, the consequences of which are not yet foreseeable in terms of state and constitutional law.

The central hypothesis of the project is that this is no longer a selective and area-specific shift in meaning, but a widespread one, and that the state is increasingly assuming a new function as arbitrator and mediator in conflicts between holders of fundamental rights. As a first step, the project will examine whether these observations are correct and whether the claimed generalization is accurate. It may also be possible to extend the examples mentioned and place them in a comparative or international perspective (then of human rights). Frequently, the private actors against whom fundamental rights would have to be positioned will be foreign or multinational companies. Individual sector-specific contributions on these topics would be of interest, which could be brought together in a joint workshop. It would then be clearer whether the project has a future.

In addition, the question arises as to what follows from the observations outlined above. For while the legal consequences of violations of the fundamental right to respect vis-à-vis the state are clearly identifiable (an unjustified act of sovereignty must be annulled), the state’s duties to act with regard to its role as arbitrator are less canonized, therefore more difficult to describe and also not justiciable to the same extent. However, it is also possible that a narrowing of the connection between the state’s duty to protect and the judicial standard of review is taking place. In any case, the most challenging of the questions that arise would be what effects all this has on the theory of the state and the constitution.