The Fundamental Right as a Right of Defence and a State Duty to Protect

In his contribution “The fundamental right as a right of defence and a state duty to protect”, published in the Handbook of Constitutional Law of the Federal Republic of Germany, Josef Isensee takes a closer look at the fundamental rights of the German constitution and their functions. This issue is of particular relevance because the canon of fundamental rights builds the identity-forming core of liberal constitutionalism. They are of outstanding importance for the situation of the individual citizen in the dualism of a powerful state and a pluralist society. However, fundamental rights have different functions. Isensee’s contribution sheds light on the distinction between the defensive effect of fundamental rights and the state obligation to protect them.

Starting point of that distinction is the liberal design of the constitution and its idea to protect the private interests from outside interventions. While the fundamental right as a right of defence protects the citizen from intervention by the state, the state obligation to protect rather serves to protect the citizen from intervention by other private individuals or corporate bodies. Based on this premise, Isensee describes the function of rights of defence as status negativus, since they presuppose that the state will refrain from action, and the state obligations to protect as status positivus, since they require state intervention. However, this also determines that the state is the addressee of both dimensions of fundamental rights.

In light of the dogmatics described above, it becomes clear that obligations to protect are not always as evident in their applicability as the rights of defence. However, the are recognised by the jurisdiction of the Federal Constitutional Court of Germany and their existence is not disputed. Rather, they have experienced a “Renaissance” (Isensee), for example in terms of environmental protection.

All fundamental rights formally have the same structure. They specify the bearer and the addressee, determine the respective substantive content and the possibility and criteria for an interference in the guaranteed right. Starting point of any examination of fundamental rights is the scope of protection. It is its scope of protection that defines the importance of a right. It should be borne in mind that fundamental rights are formulated quite openly; they only have a “framework character” (Isensee) and therefore need to be filled by legal practice and scholarly discourse. At the same time, most of the fundamental rights that can be found in the German constitution already provide the possibility of their restriction. But even if that is not the case, a “constitutionally immanent” restriction by other fundamental rights is possible.

Considering the definition of interference in a fundamental right, the understanding has changed. While in the past only those actions by the state, which were final, direct, legal and enforceable by compulsion were understood as state interventions, the modern understanding of intervention goes much further and regards every restriction of freedom by the state as an intervention. But such interventions do not per se constitute violations of fundamental rights. It is possible that it may appear to be constitutionally justified. This requires in particular the proportionality of the intervention.

The structure of the obligation to protect, which has been decisively shaped by the Federal Constitutional Court of Germany, differs from the above because the threat of intervention in fundamental rights does not originate from the state. Therefore, a threat to fundamental rights must initially be determined and – in consideration of the protection guaranteed by the rights – appropriate protective measures must be taken. Accordingly, it is the task of the state to prevent interference by “disruptive” third parties. Here too, however, the measures taken by the state must be proportionate and, in particular, consider the fundamental rights of the “interferer”. In these cases, it is the task of the state to establish a concordance between the fundamental rights of the parties involved. This contribution by Isensee substantially explains the systematics of the different functions of fundamental rights and is thus essential to understand the Basic Law as a liberal constitution that protects the freedom of the individual.