Introduction

• Author: Matthias Mahlmann
• Pages: 14-16

14

INTRODUCTION

The national legal system

The constitution of Germany, the Basic Law (Grundgesetz) (GG),26 is, unlike some other

constitutions, directly binding on all public authorities. Legislation i s passed subject to the

constitutional order, and the executive and the judiciary are b ound by law and justice. 27

Fundamental rights are part of this directly effective constitutional order. They are binding

on the legislature, executive, and judiciary as directly valid law.28 The individual in Germany

has comparatively wide access to judicial review on the ground of violations of his or her

fundamental rights, especially through the constitutional complaint mechanism

(Verfassungsbeschwerde).29 Under the Basi c Law, fundamental rights have become the

material core of the legal order in general. They are therefore not only relevant in public

law,30 but permeate other legal spheres as well, such as criminal and private law.

There are several constitutional provisions that protect human equality. Most important is

the guarantee of human dignity.31 The core of this guarantee is the respect for any human

being as an individual, simply by virtue of his or her humanity, irrespective of other

characteristics. In accordance with this view, case law of the German Federal Constitutional

Court (Bundesverfassungsgericht) (BVerfG) consistently states that each individual should

be treated not only as an object of state action, but be respected as a subject and thus as

an end in itself.32 He or she is, in addition, protected against degrading or humiliating

treatment.33 In consequence, it is an important reference point for anti-discrimination law

in Germany, especially as it guides interpretation of the constitutional guarantee of equality

and provides normative yardsticks for other areas of law. The only question that arises

therefore, is by which concrete legal means the overarching value of human dignity can be

adequately protected in various spheres of life.34 Other important constitutional guarantees

are the guarantee of equality35 and special constitutional equality rights concerning children

born outside of marriage,36 equality of status and office37 and equality of electoral rights.38

Germany is a democratic and social federal state under the rule of law.39 Given that it is a

constitutional principle that Germany is a social state, Germany is obliged to promote the

welfare of its citizens. In the field of anti -discrimination, the principle of the social state is

26 GG, 23 April 1949.

27 Article 20(3) GG. Justice (Recht) refers according to a prevailing interpretation of general principles of

legitimate law.

28 Article 1(3) GG.

29 Article 93(1)(4a) GG.

30 Here understood in the narrow sense, excluding criminal law.

31 Article 1(1) GG: ‘Human dignity is inviolable. To respect and protect it is the duty of all state authority.’

32 Settled case law, see e.g. Federal Constitutional Court, 1BvR 357/05, 15 February 2006,

ECLI:DE:BVerfG:2006:rs20060215.1bvr035705.

33 Federal Constitutional Court, 1BvR 357/05, 15 February 2006,

ECLI:DE:BVerfG:2006:rs20060215.1bvr035705.

34 For background see Mahlmann, M. (2008), Elemente einer ethischen Grundrechtstheorie, Baden-Baden,

Nomos Verlag, p. 97ff, p. 412ff. On the relationship between equality and dignity, see Mahlmann, M. (2012),

‘Human dignity and autonomy in modern constitutional orders’, in: Rosenfeld, M. and Sajó, A. (eds.), The

Oxford handbook of comparative constitutional law, Oxford, Oxford University Press, pp. 370-396.

35 Article 3 GG.

36 Article 6(5) GG: ‘Children born outside of marriage shall be provided by legislation with the same

opportunities for physical and mental development and for their position in society as are enjoyed by those

born within marriage.’

37 Article 33(1) GG: ‘Every German shall have in every State (Land) the same political rights and duties.’

Article 33(2) GG: ‘Every German shall be equally eligible for any public office according to his aptitude,

qualifications and professional achievements.’

Article 33(3) GG: ‘Neither the enjoyment of civil and political rights, nor eligibility for public office, nor rights

acquired in the public service shall be independent on religious affiliation. No one may be disadvantaged by

reason of adherence or non-adherence to a particular religious denomination or philosophical creed.’

Article 140 GG in conjunction with Articles 136(1) and 136(2) of the Weimar Constitution, reiterates the

equality of status and office independent of religious denomination.

38 Article 38(1) (first sentence), and Article 38(2) GG.

39 Articles 20(1), 20(3) and 28(1) GG.