Immediate binding effect
The direct binding effect of the fundamental rights means that the fundamental rights contained in the Basic Law are not just a declaration of intent, but that they apply directly. Therefore, the term binding of fundamental rights is often only spoken of briefly .
The expression is therefore the name or substantiation of what Article 1, Paragraph 3 of the Basic Law determines in verbal grammatical form: "The following basic rights bind legislation, executive power and jurisdiction as directly applicable law."
Anyone can take legal action on the basis of direct law without having to refer to a law , because direct law does not require implementation in law.
The provision is a reaction to the fact that at the time of the Weimar Republic some of the basic rights , especially the social, were declared by some of the teaching and jurisprudence to be mere program sentences. Art. 1, Para. 3 of the Basic Law is therefore seen by many as a great step in constitutional policy, but this disregards the fact that the basic social rights, which were controversial during the Weimar period, were not included in the Basic Law.
For most of the classic civil liberties , however, it was largely undisputed that they were directly applicable law. Their endangerment came less from a possible devaluation of program sentences than from the emergency ordinance Article 48 II of the Weimar Constitution, which was widely used , especially in the transition period from the Weimar presidential dictatorship to National Socialism , which stipulated: "The Reich President can if in the German Reich the public safety and order is seriously disturbed or endangered, take the necessary to restore law and order measures necessary to intervene with the help of the armed forces. For this purpose he may temporarily suspend the fundamental rights set out in Articles 114, 115, 117, 118, 123, 124 and 153 in whole or in part. "
The direct binding effect of the fundamental rights (also vis-à-vis the legislature) of course only extends as far as the respective fundamental right extends. If the Basic Law stipulates in Article 2, Paragraph 2 of the Basic Law: “Everyone has the right to life and physical integrity. The freedom of a person is inviolable. These rights may only be interfered with on the basis of a law ”, then the fundamental rights binding of the legislature according to Article 1, Paragraph 3 of the Basic Law does not prevent such laws from being passed. A limit may only be offered by the guarantee of the essential content of Article 19, Paragraph 2 of the Basic Law: "In no case may a fundamental right be affected in its essential content."
It should also be noted that Article 1, Paragraph 3 of the Basic Law speaks of the “following fundamental rights”. For the value regulation case law of the BVerfG , on the other hand, the preceding Article 1, Paragraph 1 of the Basic Law also plays a major role.
Individual evidence
- ↑ See u. a. Wolfram Höfling, Art. 1 [Protection of human dignity, human rights, binding of fundamental rights] , in: Michael Sachs (Ed.): Basic Law . Commentary, Beck, Munich, 5th ed. 2009, pp. 75–110 (p. 102, marginal number 80): "This 'key norm' of the Basic Law marks a decisive constitutional progress in the development of fundamental rights in Germany."
- ↑ Christian Starck, [Commentary on] Article 1 , in: Hermann v. Mangoldt, Friedrich Klein, Christian Starck (eds.): Commentary on the Basic Law. Vahlen, Munich, 6th edition: 2010, pp. 25–173 (p. 94, marginal number 52): “The fundamental rights of the Basic Law are more effective than the fundamental rights of the Weimar Constitution , […]. This is mainly due to the fact that they do not make promises that are difficult to keep or that cannot be kept, e.g. B. basic social rights. "
- ↑ Art. 48 para. 2 WRV
- ↑ Cf. Friedhelm Hase , "Bonn and" Weimar " . Comments on the development from "occasional" to "ideological" state protection ", in: Dieter Deiseroth / Friedhelm Hase / Karl-Heinz Ladeur (eds.), Ordnungsmacht? About the relationship between legality, consensus and rule. Dedicated to Helmut Ridder on the occasion of his 60th birthday, EVA, Frankfurt am Main, 1981, pp. 69–84.
