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Kombinationsgrundrechte: Die Verkoppelung von Grundrechtstatbeständen als Herausforderung für die Grundrechtsdogmatik

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Recent decisions by the Federal Constitutional Court suggest an – at least partially – novel approach: The Court combines two (or more) fundamental rights, thus intensifying their existing protection or even creating new rights not incorporated in the Constitution itself. This technique of recreating what may be referred to as "combined fundamental rights" could be appreciated as a step towards an even subtler and more precise attempt to grasp life's infinite variety with constitutional means and as an example of the "learning law's" ability to adapt itself to the conditions of an increasingly complex society. However, the prima facie intriguing concept deserves closer attention and a critical analysis. Not only do the relevant decisions exhibit some inherent inconsistencies, but the concept itself proves to be problematical. From a sociological perspective the combinatory method undermines the fundamental rights' function to guarantee the differentiation of society in several relatively autonomous social sub-systems. Moreover, seen from a dogmatic point of view, these combined fundamental rights may promote current tendencies towards a judicial dominance only limited by the rather ambigious appreciation of values principle.

Document Type: Research Article

DOI: http://dx.doi.org/10.1628/000389107783477349

Publication date: October 1, 2007

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