Weighing of interests
The weighing of interests is a method of law and ethics . It is always used where two or more goods of equal value cannot be realized at the same time and there is therefore a collision .
Law
The fundamental rights listed in the Basic Law of the Federal Republic of Germany are equally important. Because of their equivalence, they may collide with one another in certain cases. Then the legal interests must be examined in comparison to determine which law is to be given priority in the individual case; Here, the value of the conflicting rights for the specific case and the pros and cons of restricting one of the fundamental rights must be weighed.
A classic case of equivalence of rights, which collide with each other and which made a decision of the Federal Constitutional Court (BVerfG) necessary in 1971 , were the artistic freedom of Article 5 paragraph 3 GG and the right to personal honor, which is reflected in Article 2 paragraph 1 GG ( Personality rights ). In the so-called Mephisto decision , the BVerfG decided that the freedom of art, which was actually granted without restrictions, had to subordinate the right to personal honor of the late director Gustaf Gründgens .
But even in cases in which the conflicting legal interests do not seem to be equivalent in terms of the constitutional wording, the Federal Constitutional Court is increasingly using the construct of weighing up interests. In its Mutzenbacher decision from 1990, it subsumed the protection of minors , which is constitutionally actually a barrier only in Article 5 paragraph 1 ( freedom of expression , freedom of information and freedom of the press ), under Article 2 paragraph 1 of the Basic Law as the right of children and young people to undisturbed personal rights Development that could also restrict artistic freedom in individual cases.
Quotes
"The rational weighing of interests and sensible decision-making in conflicting goals based on the aspects of self-interest, the common good and justice are among the primary achievements of an experience-oriented moral judgment."
Web links
Individual evidence
- ↑ Maximilian Forschner : Goods. In: Otfried Höffe : Lexicon of Ethics . 7th edition. Munich, Beck 2008, ISBN 978-3-406-56810-7