Verfassungshorizont und Taburaum
Author: Haack, Stefan
Source: Archiv des oeffentlichen Rechts, Volume 136, Number 3, July 2011 , pp. 365-401(37)
Publisher: Mohr Siebeck
Abstract:A number of recent decisions by the Federal Constitutional Court (such as on the freedom of opinion for neo-Nazis and on incest among siblings) demonstrates that in the system of law the demand of how to deal with issues that are out of the question keeps coming up. Each legal system comprises an imagined horizon (the ,,constitutional horizon“) beyond which the space of behavior in violation of order (the ,,taboo space“) begins. The behaviors concerned are a priori outside of what is protected by the system of law. Genuine legislative decisions regarding the lawfulness of this or that behavior therefore are taken within the constitutional horizon only; wrongdoing that is outside the constitutional horizon is eventually just declared wrong by the bodies representing the system of law. Viewed dogmatically from the perspective of the fundamental rights, the solution for such constellations can be found in determining the scope protected by fundamental rights that does not appear to be opened in these cases: areas protected as fundamental rights always extend to the horizon set by a constitution only. Measures by legislators or authorities to ban such behavior, therefore, do not intervene with the fundamental rights to freedom of the people affected; the intervention in fundamental rights is in this event limited to the sanction that may be associated with it. The constitutional standards thus refer to the sanction and not to the ban. Such a teaching of ,,constitutional horizon and taboo space“ will also have to be considered in non-constitutional fields of law, for example in purpose of punishment teachings in criminal law, the distinction between discretion of intervention and selection discretion in police law, and application of the public order reservation in Private International Law. In this respect, all government agencies must contribute to excluding the taboo space; the instance that makes major decisions in this respect within national legislation is the Federal Constitutional Court.
Document Type: Research Article
Publication date: July 2011
- Founded in 1886. Dealing with all aspects of public law (mainly German).
Seit 1886. Das Archiv des öffentlichen Rechts (AöR) behandelt alle Probleme und Aspekte des öffentlichen Rechts (hauptsächlich der Bundesrepublik Deutschland). Es erscheint vierteljährlich.
- Editorial Board
- Information for Authors
- Subscribe to this Title
- Information for Advertisers
- Terms & Conditions
- Jus Publicum
- Studien und Beitrage zum offentlichen Recht
- Jahrbuch des offentlichen Rechts der Gegenwart
- ingentaconnect is not responsible for the content or availability of external websites