The comprehensive constitutional order

1. Introduction

Analysing the Weimar-era background to the Luth Court's balanc­ing leaves an intriguing question unanswered. If ‘Interessenabwagung’ formed no part of material constitutionalism, at least not as espoused by its main early propagator, why did the Bundesverfassungsgericht, without so much as acknowledging any potential issues of compatibility or con­flict, resort to both ‘value balancing' and ‘balancing of interests in light of all the circumstances of the case' in its early free speech decisions?

That question is especially interesting because doing so exposed the Court to criticism from all directions.

I argue in this section that understanding the Court's continued joint invocation of both value- and interest-balancing requires drawing on a second strand of perfectionist constitutional legal thought; the idea of the comprehensive constitutional order.

The dogma that the Constitution was, or should be, an ‘absolut voll- standige Oberrechtsordnung’ (‘a fully comprehensive overarching legal order') dominated German constitutional thought of the late 1950s and the 1960s.^[436] As the Bundesverfassungsgericht put it in a 1965 decision, the Basic Law stood for ‘a unified ordering of the political and social life of State and society'.^[437] This ideal of constitutional ‘comprehensiveness’ can be divided into the two components of the ‘complete’ constitution and the ‘perfect fit' constitution.

2. The ‘complete' Constitution

Constitutional case law and commentary of the 1950s and 1960s commonly depicted the Basic Law as instituting, or as aspiring to insti­tute (the anthromorphism itself being characteristic), a comprehensive arrangement without gaps or openings and without internal contradic- tions.^[438] On this view, there are no ‘value-less' domains or constitutional black holes. Constitutional rights and values are never entirely absent from any given case. They will merely be more or less demanding depend­ing on the circumstances. Constitutional rights bind all organs of the State in all their activities, and their sphere of influence extends right into the domain of private relations.^[439] Indeed, German scholars of the 1960s spoke, not always affectionately, of the Allgegenwart des Verfassungsrechts’ (‘the omnipresence of constitutional law’).^[440]

This conception of complete coverage rested on a particular prevalent image of the constitutional order of the Basic Law. That image held that this order was composed of values, organized into a gapless value ‘system’, and dedicated to the aim of unifying and harmonizing conflicting values and interests within society.

(a) The Constitution as a value system

Notwithstanding widespread scholarly scepticism, and occasional fierce criticism,^[441] the general notion of the Constitution as a value system was ‘standige facon de parler (‘the habitual way of framing matters’) in Bundesverfassungsgericht case law of the 1960s.^[442] As such, it was tre­mendously influential within German constitutional discourse during the period when constitutional balancing came to the fore.^[443] While the traditional liberal vision of constitutional rights as protective of ‘spheres of freedom’ for individuals remained important, the main innovation of German postwar constitutionalism was to acknowledge, as the Court did in Luth, that the Basic Law embodied an objective value system that ‘should count as a foundational constitutional resolution for all domains of law'.^[444]

One way in which this notion of the Constitution as value system was used to promote complete constitutional coverage was through the ele­vation of certain values to a primordial status from which they could ‘radiate' throughout this order, filling in any potential gaps that might exist between specific provisions.^[445] This strategy was pursued principally through the conceptions of ‘Menschenwurde (‘human dignity') and ‘das Recht auffreie Entfaltung seiner Personlichkeit’ (a general ‘personality' right) as overarching constitutional principles.

The Court's early freedom of expression case law offers numerous examples of the use of human dignity or the personality right of Art. 2 as ‘oberste Werte’ (‘supreme values'). In some cases these rights are presented as standing at the apex of the rights order, as in the ‘Mephisto' case of 1971, where the Court spoke of the value of human dignity as ‘a supreme value, which controls the entirety of the value system of constitutional rights'.^[449] At other times, as in the Luth case for example, these values are presented as constituting the core, the ‘Mittelpunkt of the constitutional order.^[450] These ‘supreme value' or ‘core value' approaches were one impor­tant component of a vision of the constitution as embodying a rights order in which every constitutional right would always be interpreted in light of an overarching general principle, lending the whole a measure of structural integrity that might otherwise have been unavailable.^[451] They allowed interpreters and commentators to go beyond the confines of a historically contingent catalogue of rights and of liberalism's one-dimen­sional, formal insistence on rights as boundaries for governmental power.

The written Constitution, on the system-of-values view, might be incom­plete and the catalogue of rights haphazard, but the ‘ hinter der Verfassung stehende Wertordnung’ (‘the value order behind the Constitution') could still be comprehensive.^[452]

A related approach to fostering complete constitutional coverage was by way of emphasis on the systematic character of the value order.^[453] Conceiving of the constitutional value order as a system, rather than as a mere collection of assorted rights and principles further helped imbue this order with a degree of integrity and coherence; ‘ innere Zusammenhang’.^[454] Alexander Hollerbach eloquently described the way this might work in constitutional jurisprudence: ‘The discourse of the value system, first and foremost, has the following meaning: to overcome individualization, to strengthen and make visible connections and relationships that exist between the manifold individual provisions of the Constitution and the legal order as a whole.

The systematic quality of the ‘Wertsystem’ was itself to a large extent dependent on the Bundesverfassungsgericht’s interpretation of human dignity as an overarching constitutional principle. By investing each indi­vidual constitutional right with a degree of ‘Menschenwurdegehaltby relating the content of each specific right to the ultimate right of human dignity, this perspective assisted in viewing the constitutional order as a unity within which a presumption of gaplessness could reign.^[456]

(b) The unitary, harmonizing Constitution

From its earliest decisions onwards the Bundesverfassungsgericht took great pains to emphasize the unitary character and harmonizing func­tion of the constitutional order. In its 1951 ‘ Southwest ’ decision, the Court held that individual constitutional provisions could not be interpreted in isolation, but had to be read in light of other constitutional commands and on the basis of a general principle of the ‘Einheit der Verfassung’ (‘the unity of the Constitution’).^[457]

Often, the effort to promote the image of the constitutional order as a unity took the form of a command to interpret individual norms in light of certain overarching foundational norms and resolutions to which all other constitutional provisions were subordinated. Constitutional law, as the Court held, did not consist merely of individual clauses, but also of ‘cer­tain unifying principles and guiding ideas' tying all provisions together. ¹⁸³ Constitutional doctrine, in a telling phrase that is difficult to translate, insisted on Auslegung der Einzelnorm aus der Totalnorm' (‘interpretation of every individual norm by reference to the Constitution's normative whole').¹⁸⁴

But the significance of these ideas of unity in German constitutional doctrine of the 1950s and 1960s went beyond an understanding of the Constitution as an organized whole.

The idea of the Constitution as a vehicle for harmonization and uni­fication found expression on all levels of constitutional legal theory. The Basic Law as a whole was seen as a grand compromise between philosoph­ical tenets of liberalism, socialism and Christian-Democracy.¹⁸⁶ In case law and theoretical writing, relationships between specific values, rights and interests were given emphasis over potential conflicts. A particularly popular figure of speech was the idea of ‘dialectical' relations between opposing constitutional values.¹⁸⁷ Law and freedom, or individuals and

a ‘sinnvoll zusammengehorige, materiell aufeinander beziehbare Ordnung’. See Muller (1966), p. 227. On the contrast with the largely ‘clause-bound’ nature of constitutional interpretation in the US, see Chapter 5, Section B.2.

¹⁸³ BVerfGE2, 380; 403 (‘Haftentschadigung’) [1953].

¹⁸⁴ Von Pestalozza (1963), p. 438, with references. For an example, see BVerfGE 30, 173; 192 (‘Mephisto’) [1971] (‘need to uphold the unity of [the] foundational value system' in con­flict between personality right and artistic freedom).

¹⁸⁵ See, e.g., Haberle (1962), p. 6; Hesse (1975), p. 5 (both citing Smend). See also Ehmke (1963), p. 77.

¹⁸⁶ See, e.g., D urig (1958), no. 47 (individualism and collectivism). Critical: Zippelius (1962), p. 157.

¹⁸⁷ Cf. Schneider (1963), pp. 33ff. For another use of the term ‘dialectical’ see Chapter 3, Section C.3.

society, commentators would argue, were indissolubly linked, in the form of communicating vessels.^[458] The Bundesverfassungsgericht itself gave expression to this idea several years before the Luth decision. The image of human identity to which the Basic Law adheres, the Court held, ‘is not that of an isolated, sovereign, individual. Instead, with regard to the tension individual/society, the Basic Law is committed to the com­munity-embedded and community-bound nature of persons - “der Gemeinschaftsbezogenheit und Gemeinschaftsgebundenheit der Person” - without however diminishing their inherent independent value'.^[459] ‘Competing constitutional values', Peter H aberle argued in the early 1960s using very similar vocabulary, ‘are not related in terms of superiority and inferiority, in the sense that they might be “played out” against each other. They are, rather, matched so that each influences the other.'^[460]

(c) The judicial role (I): optimization

These views of the nature of the constitutional order of the Basic Law - its systematic, integrated and integrating character - came with a particular conception of the task of courts in deciding constitutional rights cases. Two suggestions were particularly prominent in this respect.

The first of these was the idea that courts should, in every case, ‘opti­mize' all competing values involved. If constitutional interpretation should take account of the harmonizing and integrating character of the Constitution, then the ideal solution for any conflict between values would be a ‘nach beide Seiten hin schonendsten Ausgleich’ (‘an accommodation that would do optimal justice to both values in play').^[461] ‘The principle of the unity of the Constitution', Konrad Hesse wrote, invests constitutional interpretation with ‘a task of optimization : both values must be limited in such a way that both may be optimally effective'.^[462]

The early freedom of expression case law shows several examples of these ideas of principled compromise, ‘adjustment’ and optimization. In Luth itself, for example, the Court spoke of a ‘Wechselwirkung’, and of a ‘verfassungsrechtlich gewollten Ausgleich’ (‘an adjustment demanded by the Constitution') between the ‘mutually contradictory expanding and limiting tendencies of the right to freedom of expression and the compet­ing constitutional goods protected by the general laws'.^[463] The Luth Court also referred in more general terms to the necessity of an ‘equilibration' and ‘balancing' of rights wherever large numbers of people had to live together in harmony.^[464]

(d) The judicial role (II): overcoming conflicts

A second set of techniques for enhancing the harmonizing qualities of the Basic Law rested on the understanding that many apparent conflicts between opposing values and interests could be reframed so as to lessen their impact, or even so as to overcome them entirely.

This view had a distinguished pedigree in German legal thought. Within constitutional law one important forerunner was, again, Smend's integration theory, and more specifically in the context of constitutional rights, his insistence that the right to freedom of expression not only pro­tected individuals, but had a clear ‘social function'.^[465] Other sources of inspiration were the writings of Erich Kaufmann on constitutional the­ory, and of Otto von Gierke on private law.^[466]

In the 1960s, prominent scholars propounding these ideas included Eike von Hippel and, especially, Peter Haberle. Von Hippel invoked Smend and Kaufmann to argue that any constitutional-rights-norm could be ‘valid only to the extent that the interests it protects are not opposed by higher ranking legal goods'.^[467] Individual, isolated, absolute rights were a conceptual impossibility, von Hippel argued. This was something that Carl Schmitt, Smend's contemporary adversary, had failed to under­stand.^[468] Adjustment to countervailing values, instead, formed part of the very essence of constitutional rights. ^[469] For his part, Peter H aberle claimed that constitutional rights were ‘equally constitutive' for both individuals and society.²⁰⁰ Individual and collective interests would always be inter­twined in the exercise and the limitation of constitutional rights. Right and limitation were inextricable linked. Society as a whole would always be affected by an infringement of a fundamental right of any individ­ual.²⁰¹ But also, limitations to individual rights were in fact in the interest of the concerned individuals themselves, as much as they served the pub­lic interest.^[470]

Again, contemporary Bundesverfassungsgericht case law furnishes numerous examples of efforts at overcoming antinomies in this way; between individuals and society, individuals and the State or individuals inter se. On a most general level, there was the Court's vision of society as a ‘community of free individuals', in which ‘the opportunity for indi­vidual development' would itself be ‘a community-building value'.^[471] In the context of freedom of expression, a striking instance of this type of view can be found in the Spiegel case. Recall that this case concerned the publication in the magazine Der Spiegel of secret material and critical commentary on the readiness of West Germany's defence forces.^[472] After reciting Luth's demand for a balancing of opposing values in case of con­flict, the Court went on to deny the existence of such a conflict altogether. The security of the State and freedom of the press were not in fact contra­dictory propositions. The two values instead had to be seen as connected to each other, and united in their common higher goal of preserving the Federal Republic and its basic order of freedom and democracy.^[473] Without freedom of the press no Republic worth saving; without a secure Republic no freedom of the press, the Court could be read as saying.

(e) The complete Constitution and balancing

In case law and literature of the 1950s and 1960s, the idea of the Constitution as a comprehensive value system was used to bring all domains of public life, including famously that regulated by private law, within the sphere of influence of fundamental rights. The idea of this value-based Constitution as a framework for harmonization and unifica­tion - or integration, in Smend's terminology - served as the foundation for a range of attempts to overcome basic antinomies within the Basic Law's ‘freiheitliche demokratische Grundordnung’.^[474]

This idea of the complete constitutional order informed the meaning of the discourse of balancing, which, in turn, was one of the prime mani­festations and operationalizations of ‘complete’ constitutionalism itself. Contemporary constitutional rights jurisprudence furnishes abundant evidence for the connection between these two themes, both in endorse­ment and in critique. Peter Haberle, who was broadly supportive of the Bundesverfassungsgericht’s approach, saw the Luth Court’s balancing exactly in these terms. ‘The balancing of values’, he wrote, ‘produces an equilibration [Ausgleich] between colliding values, through which both are given a place within the constitutional whole’.^[475] ‘Seen this way’, Haberle concluded, ‘balancing is both equilibration and ordering within an overarching whole’.^[476] Peter Lerche, who was much more critical, used very similar language. ‘The balancing of values’, he noted sceptically, is now touted as a catch-all solution [Patentlosung] for the clash between the principle of the ‘ Sozialstaat ’ and the sphere of constitutional rights’.^[477]

3. The ‘perfect-fit’ Constitution

A second dimension of the comprehensive constitutional order was the ideal of a ‘perfect fit’ between constitutional normativity and social reality. As Peter H aberle argued in his influential 1962 book: ‘Every constitutional right wants to be “rule”. Law is rule-conform reality. The Constitution intends, through its guarantees of constitutional rights, to make sure that normativity and normality run “parallel”’.^[478]

In this section, I look in more detail at this ideal of ‘perfect fit’ and at its relationship to constitutional balancing. In a very general sense, the dis­course of ‘perfect fit’ constitutionalism pervades literature and case law of the late 1950s and early 1960s. Here, two of its more concrete manifes­tations are singled out. They concern the aforementioned ideal of legal interpretation as ‘actualization’, and the idea of the Basic Law as an ‘aspir­ational’ constitution.

(a) Interpretation as ‘actualization'

The idea of the ‘actualization' or ‘concretization' of norms as an interpret­ative ideal has been encountered before in this chapter, in a discussion of dialectical reasoning - the newer theories of legal interpretation that gained prominence during the late 1950s and early 1960s.^[479] This striving for the ‘ Ziel der Aktualitat\‘the goal of actuality') in the interpretation of norms is particularly closely related to the ‘perfect fit' ideal. In contradis­tinction to classical models of interpretation, from an actualization per­spective ‘there is no separation between the meaning of a norm and its application'.^[480] Writers such as Christian von Pestalozza went so far as to suggest that the choice of interpretative method should be dependent on the circumstances: ‘That method of interpretation should be chosen [...] that most accurately captures the meaning of the relevant constitutional norm in the concrete case.'^[481] The objectivism - some might say circu­larity - evident from this quotation, is revealing for the attraction of an approach to constitutional rights adjudication that adhered to the idea of a ‘meaning before interpretation', and that imposed a duty on interpret­ers to seek out that precise meaning - the one interpretation that would ensure a perfect fit between abstract meaning and application in the individual case.

German writers were keenly aware of the possibly anti-democratic nature of this approach. Specifically, the charge that more respect should be shown for meanings intended at the time of the framing of the Basic Law, could have been a potent one. But instead of deference to a consti­tutional founders' moment along ‘originalist' lines familiar in American jurisprudence, they would point out that any ‘original meaning' approach would tie the meaning of the Basic Law to the ‘highly contingent situ­ation' of its birth in a way that would not be legitimate.^[482] Instead, both drafting and application had to be seen as equally constitutive moments for the meaning of constitutional norms, and interpretation should con­sist of a ‘continuous dialectic' between general statements and concrete situations.^[483] What this mode of interpretation sought to achieve, then, was an elimination of any possible clash between the potentially con­flicting ideas of the meaning of norms at the time of their drafting, their abstract meaning at the time of their operation and their concrete mean­ing in any given case.

(b) An aspirational Constitution

In an influential 1929 commentary on the Weimar Constitution, Richard Thoma had at one point written that where traditional legal methods yielded multiple acceptable interpretations, ‘preference should be given to the meaning that gives maximal legal effectiveness [juris- tische Wirkungskraft] to the relevant norm'.^[484] Although the relevant passage concerned only one very specific question of Weimar-era con­stitutional law, some postwar writers broadened Thoma's maxim into a principle favouring optimal protection for individual rights under the Basic Law generally.^[485] This principle, variously known by terms such as ‘in dubio pro libertate, the ‘Freiheitsvermutung’ or the principle of ‘Grundrechtseffektivitat ’,^[486] was hotly contested, and never became a sta­ble part of Bundesverfassungsgericht doctrine.^[487] But these debates them­selves are one further manifestation of the contemporary attraction of an only vaguely circumscribed desire to make constitutional rights pro­tection as comprehensive as possible. They can be read, together with many of the tendencies discussed previously, as further contributions to a broader ideal; that of the Basic Law as an ‘aspirational’ constitution.^[488]

This aspirational quality was reflected, for example, in the Bundesverfassungsgericht’s insistence that the constitutional order of the Basic Law should not merely guarantee individual liberty in a nega­tive sense, but that it should actively aim to realize the conditions for the meaningful enjoyment of rights.^[489] Constitutional rights were understood to have a double character: as ‘Verbot’ (‘prohibition') on certain types of public action, but also as a ‘Gebot’ (‘a positive obligation, or injunction’) on the legislature to realize rights.^[490] More generally, in the legal litera­ture of the period there are numerous references to the idea that the con­stitutional order set out by the Basic Law demands action by the State, and to the Basic Law’s ambition to actively create desirable forms of social ordering.^[491]

(c) Balancing and the ‘perfect-fit’ Constitution

Balancing, in the Luth line of cases, comprised both a balancing of values and a balancing ofinterests. Simplifying somewhat, where weighing values was an expression principally of the idea of the material Constitution, the balancing of interests was particularly closely related to that of the ‘per­fect fit’ Constitution. It was through a heavily particularized balancing of interests in each individual case that the Bundesverfassungsgericht, and the courts it mandated to follow this approach, intended to make sure that social reality would always match the constitutional order as closely as possible. Constitutional doctrine, then, demanded not merely the dur­able constellations of values along Smendian lines, but also the precise and individualized adjustment of constitutional rights and obligations. As the dissenting opinion of Judge Stein in the ‘Mephisto’ case put it, the Bundesverfassungsgericht should not only be ‘the guardian of constitu­tional rights in all legal domains’ (the ideal of the complete Constitution) but should also make sure that each and every ‘concrete balancing of interests [...] should conform to the value judgments contained in the Constitution’.^[492] This idea of ‘perfect fit’ was reflected in, and supported by, a number of elements in German constitutional rights discourse of the late 1950s and early 1960s. Those elements (actualization, maximal effectiveness, and aspirational constitutionalism more broadly) in turn cast light on the meaning of balancing.

One striking aspect of the discourse of ‘perfect fit’ was its manda­tory tone. There are ceaseless references to obligations imposed, and to the achievement of goals demanded, by a Basic Law that is said, literally, to want certain things done. The ideal of ‘actualization’ as a method of interpretation could, at least in theory, be satisfied by only one particular outcome in any rights case. The principle of maximal effectiveness meant, again at least in theory, maximal effectiveness and nothing less. And aspi­rational constitutionalism in a more general sense made specific positive demands of public institutions that went beyond prohibitions on interfer­ences with individual rights.

This exacting character of ‘perfect fit' constitutionalism will figure again in Chapter 5. There, I will argue that this pervasive sense of com­pulsion or obligation is part of what enables German legal constitutional­ism to imbue even the most highly particularized, seemingly open-ended kind of balancing with a degree of legal formality, in ways not always appreciated.

Perhaps the clearest connection between the themes of balancing and of ‘perfect fit' constitutionalism in fact lies largely beyond the scope of this book. This is the development of the principle of proportionality in German constitutional law. That vast topic is left largely unexplored here, as this book focuses rather on the language of balancing in the Court's earlier rights jurisprudence; the value-balancing and interest-balancing of Luth and its progeny.^[493] What is salient about the principle of proportionality from the perspective of this study is merely the way in which it too can be read to express a desire for the seamless transposition of the abstract mean­ing of constitutional rights into particularized, individualized instances of rights protection. Proportionality, in a very basic sense, embodies the ideals of a State which goes no further than strictly necessary in limiting rights, and which goes as far as necessary in order to realize effective rights protection. To this extent certainly, the Court's value- and interest-balancing and its proportionality jurisprudence share the same core meaning.

4. Explaining constitutional perfectionism

Although a fuller elaboration of the point will have to wait until after the American leg of this comparative project is in place, provisionally at least the label ‘constitutional legal perfectionism' seems apt to cover much of what has been discussed in this section. ^[494] With that label in mind, import­ant questions remain as to why the judges of the Bundesverfassungsgericht and so many of their observers felt that it was important to promote this particular understanding of their constitutional order. And there is also significant uncertainty as to whether and how prevailing social and pol­itical conditions in postwar (Western) Germany allowed them to be suc­cessful in this project.

While any kind of comprehensive answer to both these types of ques­tion would require a different kind of study than the one undertaken here, some of the basic contours appear reasonably clear. To take the latter point first; the German constitutional landscape of the late 1950s and early 1960s was in many ways much less polarized, or even simply politicized, than that in many other places, including notably the US - the main comparative reference in this book.^[495] The postwar years saw the disappearance, by and large, of the extremes of both ‘the nationalist Right and the Weimar left'.^[496] It is no surprise, then, that Ernst Forsthoff, the prominent critic of the Court's general approach to the Basic Law, in 1961 could lament the ‘far-reaching de-politicization of the era in which we live'.^[497] Such a qualification would have been absolutely unthinkable in the US of the early 1960s.

Forsthoff is also helpful on the first type of question: the ‘why' of com­prehensive constitutionalism. All discussions on the ‘correct' way of inter­preting the Basic Law, he wrote, had to be viewed in light of Germany's recent past: ‘The demise of the Weimar Constitution and the rise to power of National-Socialism have sharpened the sense of responsibility of con­stitutional jurists.'^[498] There was, in Gerd Roellecke's memorable phrase, a ‘rabbit-like fear' (‘kaninchenhaften Angst’) of a descent back into barbar­ity'.²³¹ In the eyes of many, if constitutional law was to erect a meaningful obstruction to totalitarianism, the Basic Law had to be similarly ‘total', or comprehensive, in its aspirations.^[499] All areas of social, political and, to a large extent, even private life, should be protected, against any pos­sible kind of encroachment. The case law of the Bundesverfassungsgericht, Forsthoff argued, showed how deeply its members were ‘conscious of its comprehensive responsibility for the constitution-conformity of legal life.^[500]

Of course in Forsthoff's view this overriding sense of responsibility prompted a deplorable degree of casuistry in the Court's case law. That, in turn, was one of the primary manifestations of a more general ‘defor­malization' of German constitutional law.^[501] As noted before, Chapter 5 will return to the relationship between balancing and ‘deformalization', to make the argument that the idea of a ‘comprehensive responsibility for the constitution-conformity of legal life' can also be read as imposing pre­cisely the kind of disciplinary constraint normally associated with legal formality.

It is impossible, within the confines of this study, to go much beyond these general statements. As in all forms of intellectual history, it is extremely difficult to attribute causality to ideas; to separate causes and effects, modalities and goals. The idea of the Constitution as a value order, for example, may have served contemporary anxieties especially well in the early postwar years. But it also found a ready model in theories elab­orated in a very different age, at a time when the Weimar Republic had already come under severe stress. It is literally impossible to tell, of course, what postwar constitutional jurisprudence would have looked like with­out Smend's ‘Das Recht der freien Meinungsduperung, or any of the other sources of inspiration for material constitutionalism. The same goes for assigning priority to any particular idea. Was the Luth Court, for example, first attracted to the idea of the value order because it wanted to accom­plish the extension of rights protection into the private sphere, or was that extension rather a (desirable) corollary of a value order idea introduced primarily for other reasons?^[502]

What is clear, though, is this. If the judges of the Bundesverfassungs­gericht, in January 1958, were at all motivated by a desire to contribute to ‘the rehabilitation of the moral stature of Germany in the world',^[503] then on the measure of showing that a perfectionist conception of constitu­tional law - and, therefore, of balancing - might be viable, they have been extraordinarily successful.

F.