The material Constitution

A view of the Constitution as a system ofsubstantive values ‘commands the general support of German constitutional theorists, notwithstanding the intense controversy, on and off the bench, over the application of the the­ory to specific situations’.^[383] Again and again, the Bundesverfassungsgericht has confirmed the value-based nature of the Basic Law, while academic commentators have incessantly stressed the dependency of the German constitutional framework on ‘inhaltliche Legitimation - substan­tive legitimization.^[384] This constitutional ‘value order’, or the ‘material’ Constitution, is one of two elements that make up the idea of the ‘perfect constitutional order’.^[385] That idea, in turn, as claimed at the outset of this chapter, captures much of what is salient about the ‘German' meaning of balancing during the late 1950s and the 1960s.

The relationship between material constitutionalism and balancing is of a dual nature. On the one hand, as will be argued in this section, a material understanding of the Constitution informs much of the Bundesverfassungsgericht's balancing discourse. This means that the Court's use of balancing can only really be understood against this par­ticular background. ^[386] At the same time, the discourse of balancing itself is one of the primary manifestations and instruments of material con­stitutionalism. That means, in turn, that an account of one of the dom­inant strands in modern German constitutional legal thought would be incomplete without an examination of balancing discourse.

1. Weimar origins: freedom of expression and the ‘allgemeine Gesetze'

There is an intimate historical connection between the very foundations of material constitutionalism generally and the Bundesverfassungsgericht’s turn to balancing in Luth specifically. To begin to explore that connection, it may be helpful to recall that Art.

The wording of Art. 5, acknowledged early on as among the most com­plicated and controversial provisions of the Basic Law,^[388] was taken from the corresponding article on freedom of expression in the Constitution of the Weimar Republic. That earlier provision, Art. 118 of the Weimarer Reichsverfassung (WRV), had itself already occasioned ‘many scholarly controversies' during the life of the Republic.^[389] There were two main approaches in the literature of the time to the meaning of the allgemeine Gesetze clause. The contribution on Art. 118 WRV by Kurt Hantzschel to the authoritative Anschutz-Thoma Handbuch des Deutschen Staatsrechts is representative of the reigning view.^[390] 'That position was powerfully chal­lenged in a 1927 address by Rudolf Smend, then professor in Berlin.^[391]

This section returns to what at first glance may appear as a narrow debate on an arcane issue of Weimar constitutional law. But, for all its technicality, this was also a debate that perhaps more than any other cap­tured the state of constitutional legal thinking right up to ‘the moment when darkness came over German thought'.^[392] It was to these discussions that the Bundesverfassungsgericht turned for inspiration in the Luth deci­sion, where it quoted both Smend and Hantzschel at length. The ‘ Smend- Hantzschel debate', therefore remains indispensable to any exploration of the foundations of material constitutionalism, and of its deep imprint on postwar legal thinking.

(a) The reigning view: definitional, categorical, formal

The dominant approach to the interpretation of the allgemeine Gesetze clause during the Weimar era was definitional, categorical and, in a sense, absolute.

Starting from a subtly different angle, Kurt Hantzschel came to a very similar result with regard to the scope of protection of Art. 118 WRV. Hantzschel began, not with a definition of the limitations - the allgemeine Gesetze - as other mainstream writers had done, but of the right itself: ‘das Recht der freien Meinungsdufierung’ (‘the right of freedom of expres­sion'). For Hantzschel, the general laws could limit the right to freedom of expression to that which was ‘begriffsnotwendig’ (‘conceptually indis­pensable’) for an expression of opinion even to exist.^[396] The essence of this freedom was to ‘work spiritually’, by convincing others of the rightness of one’s views.^[397] The core objective of Art. 118 WRV, then, had to be to ensure that ‘the spiritual should not be repressed because of its mere spir­itual effects’.^[398]

Any form of expression that went beyond this spiritual essence, would assume the character of a ‘Handlung’ (‘act’) rather than a mere ‘Aufierung’ (‘expression’).

(b) Smend’s challenge: ‘materiale Allgemeinheit’

In his 1927 address, Smend launched a comprehensive assault on the reigning views. He rejected these as being ‘individualistic’ and absolu- tistic because of their attempts to compartmentalize social relations into distinct, absolute ‘spheres of will’ (‘Willenssphdren’).^[400] Smend, instead, proposed an understanding of the allgemeine Gesetze clause that was in important ways ‘material’ and ‘relative’. This proposal emanated from Smend’s broader ‘integration’ theory of the Constitution, described most comprehensively in Verfassung und Verfassungsrecht (1928).^[401] That the­ory held that the ‘essence’ of the State is the constant integration of indi­viduals into a community.^[402] The very existence of the State has to be found in the permanent, repeated ‘actualization’ of the values of such a community, in what Smend called an ‘actualization of meaning'.^[403] Smend was very clear that there could be no question of ‘integration' in this sense ‘without a substantive community of values'.^[404]

This value-based conception of the State had important implications for constitutional interpretation generally, and for the meaning of con­stitutional rights in particular. First, as constitutional law has as its object ‘the totality of the State and the totality of its process of integration' all its particulars ‘are to be understood not as isolated, by themselves, but only as elements in a universe of meaning'.^[405] The task for constitutional interpretation then becomes what Smend called the ‘geisteswissenschaftli- che Entwicklung dieses Systems als die eines geschichtlich begrundeten und bedingten geistigen Ganzen (‘the humanities-inspired, not legal­istic-technical, development of the culture system as a historically con­tingent intellectual whole').^[406] Constitutional rights, on this view, should be understood as primarily constitutive of the State and of a particular ‘Kultursystem’, rather than as mere limitations on State authority, as in the liberal tradition.^[407] They embody the ‘cultural and moral value judgments of an era'.^[408]

In his lecture on freedom of expression Smend argued that terms in constitutional rights clauses such as ‘allgemein ' and its opposite ‘ besonder, should not be interpreted in a ‘formalistic-technical’ way, as ‘reciprocally empty negations', but rather as interrelated elements reflective of the underlying value-system.^[409] The word ‘allgemein was, he argued, mere shorthand for these underlying values.

the substantive universality of the Enlightenment: the values of society, public order and security, the competing rights and freedoms of others [...] ‘General’ laws in the sense of Art. 118 are those laws that have prece­dence over Art. 118 because the societal good they protect is more import­ant than the freedom of expression.^[410]

WhatcountedforSmend,wasthe‘ materiale Uberwertigkeit ’, the greater substantive value, of a particular ‘Rechtsgut’ in relation to the freedom of expression.^[411] In one example from the lecture, the ‘Unkritisiertheit der Regierung’, allowing the government to forbid criticism, was, in the early twentieth century, simply no longer a value that deserved prece­dence over the freedom of expression.^[412] Smend acknowledged that this way of looking at the limitations of freedom of expression could seem unorthodox from the perspective of the prevalent ‘habitual formalistic mode of thought’.^[413] He even admitted that there was an element of cir­cularity to his approach: ‘Rechtsguter’ receive priority over the freedom of expression because they ‘deserve’ this precedence.¹³³ For Smend how­ever, this conscious, explicit, ‘taking position’ with regard to the ‘value constellations’ of public life, was precisely what fundamental rights were all about.¹³⁴

2. Guterabwagung and Interessenabwagung: dissecting the Weimar background to Luth 's balancing approach

In the Luth case, the Bundesverfassungsgericht referred to Smend’s for­mula of a ‘Rechtsgut [... ] dessen Schutzgegenuber der Meinungsfreiheit den Vorrang verdient’ (‘a value the protection of which deserves precedence over the freedom of expression’) just before drawing its seminal con­clusion that a ‘balancing of values’ would be necessary.¹³⁵ This manifest judicial reliance on Smend’s interpretation invites a more detailed exam­ination of his thesis through a ‘balancing lens’.

(a) ‘Balancing’ in Smend’s work

There is no direct mention of either ‘Guterabwagung’ or of ‘Interessenabwagung’ in the 1927 address or in Verfassung und Verfassungsrecht. Equally, however, Smend’s approach clearly differed from the methodologies of his contemporaries in his insistence on the necessity, and possibility, of carrying out value trade-offs between fun­damental rights and other societal goods. Smend's interpretation of the limitations to freedom of expression hinged on the idea that some values are ‘wichtiger (‘more important') than this freedom.^[414] Although Smend relied more on the imagery of ‘importance' and ‘precedence' than on that of ‘weight', it is undeniable that his approach involves the search for some sort of accommodation or equilibrium between com­peting goods, ‘gegenuberstehende Werte',^[415] of the kind that character­izes most approaches covered by balancing discourse. And Smend does in fact resort to this type of discourse at least once, where he uses the term ‘Abwdgungsverhdltnisse’ (‘relations of relative weight') to describe the relevant relationships between values.^[416] Although there is little expli­cit discussion in Smend's work of how these trade-offs are to be effectu­ated, or by whom, a picture emerges of a form of evaluation to be carried out by ‘juridical' means, between ‘public' goods, in a more or less durable fashion.

First, Smend emphasizes that the question of ‘ranking' elements within constitutional law is a ‘legal question'.^[417] He also repeatedly uses legal terms of art, such as ‘juristische Begriffsbestimmung’.^[418] Equally, though, Smend was clear that these questions were not to be approached by way of ‘standard’ juridical methods. Repeated references to a need for a ‘geisteswissenschaftliche’ reading of constitutional texts make that point. On the second issue, the parameters to be evaluated and compared are consistently described as being of a ‘public’, or ‘social’, rather than of a private nature. Smend invariably uses terms such as ‘ Gemeinschaftswerte ' (‘communal values'), ‘Allgemeininteresse (‘the general interest') and ‘gesellschaftliches Gut' (‘a societal good').^[419] Even where the rights and freedoms of other individuals are referred to, it is clear that these are to be understood as reflections of underlying public goods.^[420] Smend also emphasizes the ‘social character' of the right to freedom of expres­sion itself.¹⁴³ In short, in Smend's conception, the scope the freedom of expression depends on a trade-off between competing public goods, rather than between (public and) private interests. Finally, on the third point, there are important indications that the required trade-offs are to be made, not from case to case, but rather in the form of more durable relationships (‘Verhdltnisse’) of precedence (‘Vorzug’). Smend’s key con­cept of the ‘Kultursystem’ is made up out of ‘Wertkonstellationen (‘con­stellations of values’) that, while historically contingent, consist of more or less stable complexes of value relations; ‘Wertrelationen ’.^[421] Smend’s writing suggests that the trade-offs between freedom of expression and competing social goods are to be determined, in principle, only once for each relationship between two values, and are supposed to be of a lasting nature, at least for as long as no major shifts in the political or cultural situation occur.

(b) ‘Balancing’ and Smend’s critics

The Bundesverfassungsgericht, in the Luth case, was not the first to read balancing ideas into the work of Rudolf Smend. His early critics, Kurt Hantzschel as well as Carl Schmitt, had done exactly the same. For the former, the key to Smend’s approach was the idea that the drafters of the Weimar Constitution had neglected their duty to ‘equilibrate the various competing legally protected interests’.^[422] They had left it, in Hantzschels’ depiction of Smend’s views, to the legislative and judicial authorities to determine ‘in specific cases, which of several legally protected inter­ests’ they would regard as more important.^[423] ‘Undeniably’, however, Hantzschel countered, such decisions would depend entirely on the ‘internal disposition and worldview’ of the deciders.¹⁴⁷ Instead, what had to be recognized was that although the problem was indeed one of finding the ‘the correct relationship between values’, this decision was not left to the ‘free discretion’ of judges and lawmakers, but had already been made by the Constitutional drafters.¹⁴⁸

Carl Schmitt’s critique of Smend used many of the same arguments. For Schmitt, Smend had mistakenly ‘introduced a balancing of interests’ into the question of the limitations to the freedom of expression. This was an innovation ‘that could easily relativize the absolute worth of the value of freedom of expression’, counter to the fundamental principle of the Rechtsstaat that individual freedom should be rule and limitation by the State the exception.^[424] ‘A fundamental liberty', such as the freedom of expression, Schmitt wrote, ‘is not a right or a value that can be weighed, in a balancing of interests, with other societal goods'.^[425]

That Schmitt and Hantzschel would describe and criticize Smend's theory in terms of a balancing of interests in individual cases is under­standable, but also problematic. It is understandable, first of all, in that Smend's rejection of the ‘begriffliche Formaljurisprudenz’ of the domin­ant approach closely tracked similar and contemporaneous attacks by the Interessenjurisprudenz scholars.^[426] And it should not be forgotten that Smend's call for an explicit judicial evaluation of competing legal goods and his terminology of Abwdgungsverhdltnisse ' and ‘ Wertrelationen ' were to a large extent novel at the time, in particular in the area of public law.^[427] It was only in 1927, the year of Smend's address, that the Weimar Supreme Court first used the term ‘Guterabwdgung’ to describe an explicit trade­off between values.^[428] It is understandable, therefore, that his critics would identify Smend's call for an explicit evaluation of competing legal goods with the closest matching model of the time. And, from their perspective, the theories of the Interessenjurisprudenz scholars may well have seemed a close parallel.

But Schmitt and Hantzschel's alignment of Smend's thesis with the balancing of interests of the Interessenjurisprudenz also significantly misstated the nature of his views. The balancing of interests of Philipp Heck and others, as discussed in Chapter 2, was a legalistic-technical, value-neutral, private-law-oriented method, focused on private interests and designed primarily to effectuate the will of the legislature.^[429] Smend's interpretation of the limits to freedom of expression, by contrast, was a humanities-inspired, anti-positivist approach to limiting legislative dis­cretion that depended on taking an explicit position in relation to value choices concerning public goods. Differences between the two approaches, namely Smend's material constitutionalism and Interessenjurisprudenz, are visible on many levels. Smend turned to ‘Guter' and ‘Werte' as part of an anti-positivist effort of ‘opening-up’ constitutional law to a broader range of input than simply posited norms.^[430] The Interessenjurisprudenz scholars, on the other hand, relied on ‘interests' in order to be able to look behind, not beyond, these norms. The Interessenjurisprudenz saw itself as value neutral, whereas Smend was vocal in his affirmation of the essentially value-laden nature of constitutional law and constitutional interpretation. And the Interessenjurisprudenz aimed for interstitial, par­ticularistic judgments, whereas Smend was interested in durable ‘constel­lations of values'.

In short, while it is easy to see how Smend's work could be invoked in support of the Luth Court's ‘Guterabwdgung’, establishing connec­tions between Smend and a particularized balancing of interests is much more problematic. In Section E in this chapter, I will argue that Interessenabwdgung in Bundesverfassungsgericht case law is in fact best understood not as related to material constitutionalism, but to the idea of the ‘comprehensive' constitutional order.

3. ‘Material' constitutionalism and balancing

When the Bundesverfassungsgericht took up its duties, ‘it found before it a Constitution closely resembling the classical ideal-type of a liberal Rechtsstaat. It was only through the Court's case law that the Basic Law was transformed from this classical liberal framework to a substantive value order. The key to this transformation lies in the Luth decision'.^[431]

Although he is often less directly, or at least less polemically, visible than his contemporary, Carl Schmitt, Rudolf Smend's influence can be felt all throughout German postwar constitutional jurisprudence; from the Luth decision of 1958, to, say, the Lisbon decision of 2009 and beyond.^[432] In Luth itself, the Bundesverfassungsgericht built a bridge over the abyss of the Nazi-years to Smend's Weimar-era work on the freedom of expression. That connection, had it concerned the work of any other theorist, and had it been in any other decision, might have remained a mere footnote. Instead, the combination of Smend's stature, the nature of his work and the Luth Court's ambition meant that Smend's powerful comprehensive constitutional vision, within which his theory of this one particular constitutional right had been embedded, became emblematic for the whole of Bundesverfassungsgericht's constitutional rights jurispru­dence.^[433] And ‘Guterabwagung’, in turn, became emblematic for this, now officially sanctioned, constitutional understanding: the theory of mater­ial constitutionalism.

Balancing and material constitutionalism are intimately intertwined. Material constitutionalism is both dependent on and enables an explic­itly normative, value-oriented approach to constitutional questions. In a most basic sense, ‘balancing’ can simply be shorthand for the process of the mutual accommodation of values within this substantive frame­work. Once constitutional ordering is conceived in terms of substantive values, it becomes natural to understand the question of how demanding each value should be as a relative issue, to be decided in terms of optimi­zation. In addition, the explicitly substantive nature of material consti­tutionalism means that legitimacy is likely to become more dependent on both input, identifying the appropriate values, and output, achieving their appropriate mutual accommodation, rather than on process and on questions of institutional competence and boundary maintenance. The portrayal in German constitutional discourse of balancing as a ‘neces­sity’, and the comparative neglect of the question of who should do this weighing, prove an easy fit with these material-constitutionalist ideas.

E.