Just a few years after it was established in 1951, the Federal Constitutional Court decided that the principles of Germany’s new Basic Law needed to be considered in adjudicating public and private action alike. In many ways, the Court’s judgment in the landmark Lüth case simply mirrored the constitutional drafters’ urgency to protect the constitutional order against the future rise of authoritarianism and rights abuses. Such a project arguably required some ability to reach a wider expanse of society in the way horizontal application (Drittwirkung) permitted. Following Lüth’s paradigmatic account of the need for a kind of parity across spheres, much of the content of subsequent court decisions and the language of other constitutional actors may be read as tracking a republican mode of discourse. The protection of individual rights remained essential in a postwar world. However, rights were often discussed in terms of broader ends, ends which a range of actors within the community were called upon to uphold.

This reorientation to secure an “objective order of values,” to use the words of the Court deciding Lüth, might be viewed as compatible with other aspects of German political tradition as well. The statist and welfarist orientation of German public law, for example, may also be described as establishing the larger political community’s role in securing certain positive ends. In addition, while social welfare is often pursued through means different from horizontal application, a state already charged with such positive objectives might easily regulate private behavior in parallel fashion to horizontality. Winfried Brugger offers a communitarian account of German constitutionalism that makes clear how there is space for such objectives. Ultimately, he describes the German constitutional order in terms of “liberal communitarianism,”Footnote ¹ attempting to balance individual rights and collective goals. In Brugger’s telling, the communitarianism of German constitutionalism does not require foregoing individual rights, as some might conclude from the term “communitarianism,” but does comprehend certain collective goals of the community to which individual rights may give way, despite the typical priorities of liberal constitutionalism.

This dual liberal-communitarian portrait that Brugger paints portends a place for both horizontal application and certain countervailing factors in German constitutional debates. Horizontal application was adopted early on, but only after serious debates and institutional tensions. Indeed, although German governance is often understood to have statist proclivities, other aspects of German politics have roots in liberalism and, at least in the nineteenth century, a kind of libertarian liberalism at that.Footnote ² Taking a cue from Louis Hartz,Footnote ³ legal scholar Peter Quint explains that the German Basic Law reflects a similar concern with classical liberal rights to what we find in American constitutional-political history.Footnote ⁴ An insistence on maintaining the integrity of private law as separate pervades the civil law tradition and, in certain ways, the Basic Law’s own codification of autonomy and other classical liberal rights.Footnote ⁵ However, while regard for a robust private sphere maintains some hold in German legal history, the new constitutional order enshrined a set of values that such actors as the Constitutional Court would understand as governing increasingly more sectors of German society.

In the terms of this book, the practice of horizontal application, rooted in the language of an objective order of values, tended to a republican interpretation, presupposing a common constitutional morality for which even private actors were understood to be on the hook. While quickly incorporated into legal practice, however, horizontality was also limited in the German Constitutional Court’s jurisprudence in that it was not generally applied in such areas as antidiscrimination and equality. In arguments for autonomy, republican interpretations encountered obstacles around these issues into the twenty-first century. In contrast with discourses about a larger constitutional moral order articulating certain ends and the possibility of duties for private actors, cases concerning antidiscrimination and equality engendered discourses much more centered on individual rights, and particularly rights that might run up against broad commitments to equality. Thus, in developing horizontal application, constitutional actors would allocate duties in such a way that insulated private actors from duties related to equality. Instead, the Court primarily applied classical political and civil rights horizontally, couched in language that conceptualized them as common ends, requiring parity across spheres and triggering duties of citizens.

In this way, the discourses employed on the topic of horizontality have gradually made constitutional commitments over into a kind of common good, obliging more actors and spaces in what has traditionally been understood as the private sphere. Jacobsohn and Roznai explain how the adoption of the Basic Law “signals the moment when the foundation for achieving a new identity in that country was established.”Footnote ⁶ Horizontal application has served as an instrument to ensure this new identity is realized in toto.Footnote ⁷ The reorientation toward an objective order of values and, by extension, certain common ends precipitated by the Basic Law thus offers ground for a republican interpretation of horizontal application in this context.

This chapter begins by describing the pedigree and commitments underlying Germany’s civil law tradition and how interpretations of this tradition interact with interpretations of new commitments assumed under the Basic Law. The chapter proceeds with a discussion of horizontal application, centering on its treatment in German legal scholarship and practice. In particular, theoretical and institutional understandings related to Germany’s civil law tradition sometimes run up against newer constitutional aspirations, in general and when applied horizontally. For several decades, discourses pointing toward the pursuit of parity and recognition of private actors’ duties in horizontal application only extended to more traditional constitutional commitments, as described above. This came to a head and began to shift in 2005 and 2006, when the German Parliament attempted to pass antidiscrimination legislation to fulfill directives from the EU. The controversy surrounding this antidiscrimination legislation, particularly from certain corners of industry and religious groups, evinced an enduring liberal ethos in the discourse, still occasionally in tension with the incremental efforts toward greater societal cohesion that underlie the practice of horizontality. More recently, in the Stadium Ban case,Footnote ⁸ among other cases, the Constitutional Court took up the question of the horizontal application of equality and began to speak about this constitutional value in language that may be interpreted in republican terms.

The Public–Private Divide in Germany’s Legal Tradition

Certain corners of German law long maintained presuppositions of individualism and autonomy, both in the structure of the legal system and in the content of the law itself. As was the case in many European countries in the nineteenth century, the German system comprised two distinct categories of law and, corresponding to those categories, independent systems of courts.Footnote ⁹ The Civil Code constituted the private law, “the body of rules that seeks to do justice between private individuals and which does not ordinarily concern the state as a party,”Footnote ¹⁰ while the public law pertains to “obligations or regulations of the political organs of the state.”Footnote ¹¹ These systems of law originally operated independently of one another and, in general, did not intersect.

German jurists located the Civil Code in the ancient tradition of Roman law, thus endowing private law and its practitioners with great prestige. On the other hand, the public law was relatively new and primarily concerned with the administration of social insurance and welfare programs following Bismarck’s 1890 reforms.Footnote ¹² Public law thus lacked the same storied history and reputation for rigor that came to be associated with the Civil Code. Nevertheless, jurists understood the distinction as indispensable. Indeed, by separating the rules governing the state from those governing private relations, the law both delineated a separate sphere of private life and outlined ostensibly neutral rules of engagement for private interchange.Footnote ¹³ Quint explains:

Thus, the Civil Code reflected what Philip Pettit calls freedom as noninterference.Footnote ¹⁵ Though both public and private law were necessary to governance, it was the Civil Code, the private law, that jurists credited with preserving freedom for Germany. In contrast, even when the Weimar Constitution later adopted a long list of rights, these rights were deemed judicially unenforceableFootnote ¹⁶ and still failed to occupy the same position as did the Civil Code in the German imagination.

Apart from the systemic structure that allowed for the referee of private relationships separately from the constraints of public law, the substantive content of law and belief in the Civil Code’s neutrality shows liberal predilections of a certain kind in the contemporaneous legal world. In particular, the rules of private law “were thought to enhance a more general freedom of individuals not to be interfered with by the state – particularly in commercial relationships but also in other areas of everyday life.”Footnote ¹⁷ Thus the Civil Code promised order and protection in such areas of private interchange as contracts, torts, inheritance, and family relationships. Indeed, some continue to point to the Civil Code as an essential source of freedom for the German people, even after the adoption of the Basic Law.Footnote ¹⁸ Moreover, such guarantees as those of private autonomy (Privatautonomie) were “highly cherished” for their role in securing a new middle class seeking economic freedom in the nineteenth century.Footnote ¹⁹ Thus, notwithstanding a few exceptions,Footnote ²⁰ the bourgeois idea “that contracting parties are formally free and equal”Footnote ²¹ and that private transactions ought not to be hindered defined much of the substance of German law until the early twentieth century, when certain elements of such precepts were called into question.

From Neutral Rights to Constitutional Ends

The perception of neutrality of the Civil Code was disputed in the early twentieth century as scholars and political actors observed that political choices undergirded decisions pertaining to both the code’s legislation and interpretation. Severe economic crisis also generated a new urgency to modify the private law to meet the escalating needs of the country.Footnote ²² Later, in the wake of the Second World War, the realization that the Weimar Constitution could be so easily leveraged to serve odious political ends further exposed the problems of striving for value neutrality in the law.Footnote ²³ As political and constitutional reformers moved to amend Germany’s Civil Code and adopt a new Basic Law, the country’s constitutive principles underwent a kind of transformation. To be sure, the Weimar Constitution was a significant influence on the new constitution, and the Civil Code was initially imported into the new regime unamended. Nevertheless, new commitments and historical memory imbued the law with new meanings. Most notably, dignity figured prominently in the new constitution. The very first provision of the Basic Law states, “Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.”Footnote ²⁴ Such an emphasis on dignity is consistent with liberalism’s concern for the individual and even expands on Kantian strands some scholars identify in earlier instantiations of German law.Footnote ²⁵ In his book Human Dignity, Aharon Barak states that there is “no other constitution in which human dignity has such a central role.”Footnote ²⁶ Indeed, that dignity is enshrined as Germany’s supreme constitutional value, never to be amended, reflects its uncompromising rejection of the abuses of human dignity inflicted by the Third Reich.

While this new commitment to dignity certainly comports with the more liberal threads of Germany’s legal tradition, it depends less on a conception of separate public and private spheres, even as it continues to operate in a civil law system. Indeed, with this and other additions to the Basic Law, the content and very purpose of fundamental law expands.Footnote ²⁷ Barak explains that most approaches to understanding the role of dignity in German constitutionalism employ the context of “the framework of society. Human dignity is not the human dignity of a person on a desert island.”Footnote ²⁸ In this way, we see a shift from the individualism and aspiration to value neutrality of the nineteenth century to something of a moral proposition for how the individual ought to be treated in German society and, by extension, what society itself ought to look like. Returning to the provision of the Basic Law, the second clause reads: “To respect and protect [dignity] shall be the duty of all state authority.”Footnote ²⁹ Barak explains that this provision has the potential to make both negative and positive demands of government.Footnote ³⁰ The duty to respect requires that the state not do anything to offend human dignity, a principle that seems to grow fairly naturally out of the liberal threads of the German legal tradition. The duty to protect, on the other hand, seems to require that the state take some positive action in pursuance of human dignity, though the text itself does not specify what this ought to entail. Almost a decade after the adoption of the Basic Law, the Federal Constitutional Court offered additional meaning and clarity on this duty to protect, interpreting it to require the defense of human dignity against violations by private actors.Footnote ³¹

In this way, human dignity emerges as both a value, or an end, of the German constitution and a right. As a value, it constitutes the basis of the German polity and, to this extent, engenders a kind of “common good.” The important distinction between subjective and objective rights, explained in Chapter 2, further illuminates this development. To reiterate, subjective rights align with the typical conception of rights as justiciable and as giving rise to claims against particular parties, usually the state. In contrast, objective rights comprise the broader values or ends of a given constitutional order.Footnote ³² Objective rights are not immediately justiciable, though sometimes judges may decide cases in ways that derive duties from them. Discussing this shift to extract some understanding of values, of a common good, out of what formerly would have been mere rights claims, Habermas discusses the now-recurring commitment to human dignity in national constitutions today. He states:

If a constitution proposes an encompassing principle to guide a polity, a “seismograph” as Habermas puts it, then it is no longer a stretch to argue that citizens, too, will have some duties in conformity with this standard. Put differently, human dignity begins to clear the normative jungle formerly occupied by the nineteenth-century commitments to neutrality and individualism, thereby preparing German constitutional ground for the kind of parity across spheres and duties of private actors that horizontal application would ultimately actuate.Footnote ³⁴

This concept of objective rights thus serves as an intellectual bridge in constitutionalism, expanding the meaning of rights to encompass a kind of public morality. In the terms of this book, this move to conceive of dignity as the moral basis for the constitutional order gestures toward a new paradigm of parity, governing and creating duties for actors across spheres according to a common standard. While the Basic Law does not explicitly take this step, dominant accounts of its vision as well as its specific content have laid groundwork for such an interpretation. We get one such glimpse into the expanse of the German constitutional project from Jorg Fedtke’s explanation of the years during the Third Reich, of the “climate of fear, terror and oppression, which went far beyond the many single instances of human rights infringements by the regime.”Footnote ³⁵ He states:

As the pathologies and abuses had transcended spheres of life, the reconstituted German law had to be adequately equipped to effect change across spheres as well. Specific provisions in the original text of the Basic Law suggest as much. In addition to the commitment to human dignity, Article 1 Section 3’s statement that rights bind the judiciary “as directly applicable law” begins to challenge the understanding of the role of courts in the civil law tradition, that the judiciary’s role was simply to administer the Civil Code amid private transactions.Footnote ³⁷ Indeed, the idea that rights bind the judiciary could be interpreted as a charge that judges continued to remain accountable to constitutional rights and values in the very process of applying the Civil Code.

On such questions, Article 9 Section 3 guarantees the “right to form associations to safeguard and improve working and economic conditions” against all actors, regardless of occupation or profession.Footnote ³⁸ Thus, the constitutional drafters left little guesswork about the extent of this provision’s application. Though this and the aforementioned provisions in the Basic Law in some sense signaled a certain capaciousness of the constitutional project, their presence also seemed to cut in the opposite direction. Specifically, the act of stating when private actors were implicated by the commitments of the Basic Law was construed as implying that the remainder of the text obligated only state actors. And indeed, it was not long after the Basic Law was adopted that jurists and legal scholars began wrestling with these questions.

Debating Horizontality in the New Constitutional Order

Although the apex courts of the German legal system had already been charged with ensuring consistency within each branch of civil law,Footnote ³⁹ the prospect of horizontal application suggested for the first time the possibility of consistency, or parity, across areas of law. While some of the content of the Basic Law set the stage to break from the old paradigm and to adopt some version of horizontal application, it did not necessarily entail horizontal application by itself.Footnote ⁴⁰ Indeed, the reconstituted law provoked more questions than it answered with respect to the relationship between private law and public law and the obligations of private actors with respect to public law. And it certainly did not settle the question of German constitutional identity, particularly respecting the weight the civil law’s values would maintain in light of the evidently transformative additions to German fundamental law. Much was unsettled regarding horizontal application in the ensuing years as the twentieth century progressed.

Given Germany’s plural court system, these questions were as much about constitutional identity as they were about institutional power. Indeed, jurists from every area of law weighed in. Many legal scholars and jurists initially reacted by falling back on the orthodoxy of civil law systems, namely, that public law, now the Basic Law, had no influence on private disputes.Footnote ⁴¹ Some argued that the council responsible for the Basic Law simply was not authorized to adopt a constitution that affected private relationships, even if it had wanted to. Public law was, by definition, meant to give protection against government institutions insofar as they possessed more power, in contrast with private law that was framed to govern relationships among equals.Footnote ⁴² Still others argued against horizontal application in terms drawn from the Basic Law itself. As explained earlier, a few specific provisions suggest that the state has a duty to protect against private abuses (Article 1, Sections 1, 3) or that certain private relationships are, in fact, held to a constitutional standard (Article 9, Section 3). The presence of such provisions could imply that other parts of the Basic Law were not intended to bear on private relationships.

Other scholars challenged the conventional wisdom that the civil law system required a strict separation between public and private law. Quint explains the argument made by some that earlier conceptions of basic rights did not in fact distinguish between public and private offenders.Footnote ⁴³ Presumably, too, recent events had demonstrated the ways in which private entities could inflict great harm, whether in consort with state authorities or independently. Hans Carl Nipperdey, chief judge of the Federal Labor Court from 1954 to 1963, believed as much and led the Labor Court in arguing for a conception not merely of horizontal application but of direct horizontal application, meaning the Constitution itself could create duties of private individuals rather than simply influence private interchanges through private law.Footnote ⁴⁴ In a series of cases, before and even after the Constitutional Court decided Lüth, the Labor Court adopted this position that basic rights, and particularly those rights that are most constitutive to the German project, could be deployed directly against private individuals. Indeed, these rights were so important as to constitute “general rules for the governance of all of society.”Footnote ⁴⁵ Nipperdey and other advocates of direct horizontal application cited elements of the Basic Law itself in support of their position. For example, Article 20 Section 1’s description of the polity as “a democratic and social federal state” suggests that some intervention of the state in private affairs was permitted “to ameliorate various forms of societal, rather than governmental, oppression.”Footnote ⁴⁶

The Labor Court certainly had strategic incentives to argue in favor of direct horizontal application, insofar as this move allowed the Labor Court to touch what was previously beyond its reach – the Basic Law. Indeed, this approach would effectively place the Labor Court alongside the Constitutional Court as “an alternative source of constitutional adjudication.”Footnote ⁴⁷ Other jurists and scholars of private law came to opposite conclusions, however, fearing that the ultimate result of horizontal application would be not to expand the domain of the private law courts, such as the Labor Court, but to expand the role of the Constitutional Court as overseer of private law. Arguably, such jurists and scholars had reason to resist horizontal application also, to ensure their status as experts and final arbiters in their respective areas of law.Footnote ⁴⁸

Within these strategic considerations one may interpret a real intellectual disagreement, a clash of visions, about the identity of the new German constitution and how seemingly competing values would relate in the future. Some scholars understood the system of law to be essentially the same as before. Human dignity and other values that gained expression in the Basic Law certainly changed the landscape of constitutional law but, such arguments maintained, bore neither on the essential civil law framework nor on the governance of private relations. Others, most notably Nipperdey, took the new content of German fundamental law to be more transformative, to include a new charge to order civil society according to the principles of the Basic Law.Footnote ⁴⁹ Many parties had a stake in these questions and found support for their preferred answers in the particular factors they chose to emphasize out of the seeming disharmonyFootnote ⁵⁰ – whether they found an institutional separation built into the civil law, which was thought also to support individual autonomy, or perceived an expanded social character the Basic Law introduced to the constitutional-legal schema. Such interpretations appear in particular decisions of the civil courts leading up to the Constitutional Court’s decision in Lüth.

In 1954, the Federal Court of Justice first held that personality rights (i.e., the right to freely develop one’s personality under Article 2) could be applied horizontally in the Schacht case.Footnote ⁵¹ Just six months later, the Labor Court would argue for direct horizontal application, declaring that certain rights were so constitutive to the Basic Law that they ought to apply to public and private actors alike.Footnote ⁵² The case involved an employee who was fired for distributing pamphlets in support of the Communist Party at his workplace, thus implicating Article 3 Section 3 (prohibiting discrimination on the basis of political views) and Article 5 Section 1 (guaranteeing the freedom of expression).Footnote ⁵³ Though the Court decided in this particular case that the employer had dismissed the employee for reasons not related to political censorship, they took the opportunity to declare that the Basic Law did create rights obligations for employers and other private actors. Quint translates part of the opinion, that certain fundamental values “entered into [the basic legal] framework, and neither the organization of a workplace nor agreements nor acts of legal peers should be allowed to contradict those values … Thus these basic rights affect not only the relationship of the individual citizen to the state, but also the interrelationship of the citizens as legal equals.”Footnote ⁵⁴

The Labor Court thus staked its territory in the debate over the nature of the Basic Law and its ability to reach private relationships. The Basic Law, the Court argued, furnished guidelines (or an ordre public) for organizing the larger German society. While the catalog of individual rights in the Basic LawFootnote ⁵⁵ certainly featured in these decisions and continued to form the content of German law, the Court also drew from the idea of social justice (Sozialstaatsprinzip) present in Articles 20 and 28 to justify their broader view of what the Basic Law aimed to accomplish.Footnote ⁵⁶ Moreover, although the Labor Court’s reasoning was grounded in a conception of freedom, it was a more expansive conception that sought to account for the realities of power relationships and discrepancies in bargaining positions.Footnote ⁵⁷ One might say, in the terms of this book’s republican framework, that it transcended freedom as noninterference in favor of something akin to freedom as nondomination.

The Labor Court would continue in this vein a few years later in the ZölibatFootnote ⁵⁸ decision. In this case, a woman was dismissed from her job at a hospital when she got married, as she had violated a term of employment requiring that workers remain single. The Court considered deciding the case on the basis of certain potentially relevant provisions of the Civil Code.Footnote ⁵⁹ However, it instead opted to continue developing the concept of direct horizontal effect of constitutional rights, deciding the case on the basis of Article 6 Section 1 (protecting marriage and the family) as well as Article 2 Section 1 (guaranteeing free development of personality).Footnote ⁶⁰ The Court doubled down on the claim of its previous decisions that private relationships and transactions ought not to contradict the ordre public established by the Basic Law. Nipperdey argued:

The immediate result of this line of argument was to expand the protections offered by constitutional rights by recognizing employers and other private actors as themselves having constitutional duties. Nevertheless, Nipperdey’s reasoning reveals an additional innovation that constitutional rights mandate a particular social order. What in one sense was an expansion of rights protections was in another sense a directive that private actors “uphold the public order and the common good.”Footnote ⁶² In this way, the Labor Court argued for a constitution that weighted parity in applying the Basic Law greater than the prior distinctions of the civil law system, and that weighted constitutional ends and their corresponding duties greater than certain exercises of rights.

In arguing specifically for direct horizontal application, moreover, the Labor Court showed some readiness to dismantle the distinction between public and private, previously thought essential in guaranteeing individual freedom.Footnote ⁶³ Jud Mathews suggests that the constitutional theory underlying such decisions in the Labor Court had an “anti-individualistic and antiliberal” bent.Footnote ⁶⁴ In fact, some German scholars find enough in these decisions to argue that “this orientation toward the priority of collective interests over individual interests reflects a holdover from the labor law doctrines of the Third Reich.”Footnote ⁶⁵ Nipperdey’s interpretations track the pre-Basic Law version of private law, which was “a very value-laden, not liberal, national socialist private law.”Footnote ⁶⁶ The “national socialist, anti-liberal … way of doing politics” informed the private law so that it almost always privileged the objective order over the subjectivity we find in liberalism.Footnote ⁶⁷ Put differently, Nipperdey “domesticizes, civilizes, constitutionalizes that idea [of prioritizing the objective] into German labor law.”Footnote ⁶⁸ The Labor Court’s judgments put much weight on the capacity of rights to dictate social goods and thereby expressed much confidence in restructuring institutions that were previously thought necessary to protect freedom in the German constitutional order. Put differently, the discourses coming out of the Labor Court at this time suggest a readiness, indeed an eagerness, to adopt a conception of the common good in labor law, governing even private sectors according to objective public values.

Despite the Labor Court’s argument that the Basic Law established a new ordre public, the question of horizontal application was by no means settled. In its decisions, the Labor Court had identified one possible equilibrium amid the disharmony in German law as it had been reconstituted, choosing to emphasize the principles of the Basic Law as obligating a wider expanse of German society and even obligating private actors directly. This was in contrast with the legal orthodoxy that still persisted even after 1949 when the Basic Law was adopted, that separation between public and private spheres and systems of law was essential and served such values as Privatautonomie. The Federal Constitutional Court would refer to these positions as two “extreme” views,Footnote ⁶⁹ suggesting that there could be another, intermediate interpretation of the German constitutional order and, moreover, that such an alternative may be preferable. And indeed, just a few months after the Labor Court decided the Zölibat case, the Constitutional Court offered its own take on the question of horizontal effect as the supreme authority responsible for interpreting the Basic Law.

The Lüth Case: Challenging and Preserving Civil Law

In 1958, the Constitutional Court handed down the Lüth decision,Footnote ⁷⁰ a case that continually features in scholarship as foundational for the practice of horizontal application. The facts of the case appear in Chapter 2, but I present them again here for the sake of a thorough analysis. After being acquitted of war crimes for producing an anti-Semitic film during the war, former Nazi propagandist Veit Harlan directed a new film in 1950, the title of which translates to Immortal Beloved. In response, journalist Erich Lüth called for a boycott of the film. Harlan, in turn, called for an injunction against Lüth on the grounds that he intended to harm Harlan’s economic prospects. The district court in Hamburg granted the injunction, only for it to be overturned in 1958 when the Federal Constitutional Court finally weighed in. As explained in Chapter 2, the Constitutional Court took issue with the fact that the lower court had not properly accounted for the Basic Law’s “order of objective moral and legal principles” – that is, the fact that the Basic Law establishes not only subjective rights (that create rights obligations between particular parties) but also principles to guide the life of the broader polity. These principles had a “radiating effect” on all sectors of German law for which all courts had to account. The lower court had consequently erred when it held that the Civil Code alone governed the case’s outcome without considering how the values of the Basic Law might intervene in the calculus. The Constitutional Court was careful to stipulate that this was still ultimately a dispute between private persons and, as such, ultimately governed by the Civil Code. Nevertheless, Lüth’s right to the freedom of expression (guaranteed under Article 5 Section 1) was also relevant to the question at hand as a commitment of the Basic Law. Moreover, though all provisions of the Basic Law were potentially relevant to such calculations, the right to freedom of expression was of particular import insofar as it was “absolutely constitutive” (schlechthin konstituierend) in a liberal constitutional order.Footnote ⁷¹ The fact that this was a dispute between private actors did not exempt the courts from considering how the relevant provisions of the Civil Code comported with the commitments of the Basic Law and particularly such foremost guarantees as the freedom of expression.

That the Constitutional Court’s decision in Lüth employed a doctrine of horizontal effect would seem to follow from the Labor Court’s preceding decisions. Indeed, both Courts conceive of rights as objective values aiming toward a common good of society. Moreover, both grounded their decisions in a concession that such values could be abused in the context of private relationships and interactions with the state alike. Crucial, however, was the difference in mechanisms employed by each court. In Lüth the Constitutional Court struck a kind of middle ground in deciding that the values of the Basic Law applied to private actors only indirectly, that is, by way of their influence on private law. Thus, government actors across branches were charged with ensuring the compatibility of law with constitutional values, from the initial processes of legislation to the interpretation of law in courts. In so reasoning, the Constitutional Court charted a middle path between two “extremes,” departing from a strict understanding of the separation between public and private law as well as from the Labor Court’s argument that the Basic Law itself creates duties of private actors. First proposed by eminent law professor Günter Dürig, this intermediate position of indirect horizontal effect was quickly accepted, even praised, by scholars and jurists alike.Footnote ⁷²

The decision in Lüth and the particular way in which the Constitutional Court developed horizontal effect for the German polity marked a sort of moment of truth with respect to both the larger architecture of law and courts, as well as the actual content of law. With respect to the architecture of law and courts, some legal scholars have questioned whether the indirect effect that Lüth introduces actually produces outcomes different from those that would be produced under direct horizontal effect. Both ultimately entail the balancing of rights, the argument goes, even if the indirect method involves the intermediate translation into private law.Footnote ⁷³ While this is an important point and perhaps true in some cases, it does not fully appreciate the theoretic difference between these methods of horizontal application given the particularities of the German system, or the practical fact that constitutional actors themselves view them as meaningfully different. In its formulation, the Constitutional Court arguably found a balance between competing narratives associated with the old civil law system and the primacy of new constitutional values. More than a mere symbolic difference, moreover, the adoption of indirect horizontal effect has the practical result of keeping the civil law, and all its attendant discourses, relevant in such balancing considerations. The Constitutional Court did not decide that the Basic Law controlled all outcomes, just that it had to be considered against the existing rules of the civil law.Footnote ⁷⁴ In this way, the Court preserved the potential of the Civil Code, and its attendant discourses, to factor into cases as a separate source of content and values.

In navigating old and new legal traditions in this way, moreover, the compromise in Lüth had the practical effect of preserving largely intact and distinct systems of law and courts. As Michelman explains, horizontal application in Germany is limited by the very fact that it operates in a dualist system of civil law and constitutional law.Footnote ⁷⁵ Following Lüth, the Constitutional Court did expand its power to hold civil law questions up to a constitutional standard.Footnote ⁷⁶ Nevertheless, even after Lüth, the Court spoke of “honoring this restriction of its competence”Footnote ⁷⁷ and of not using this new power to encroach on the interpretive role of its counterpart apex courts. It insisted that courts at every level and even the legislature show due consideration for the principles of the Basic Law, but did not insist on any particular interpretation of these principles, so long as the ordinary courts’ balancing was not egregiously off.Footnote ⁷⁸ Furthermore, the private law courts remained the final interpreters in their respective areas of law wherein the Constitutional Court largely refrained from interfering. Indeed, beginning in Lüth and continuing in subsequent horizontality cases, the Basic Law’s influence reaches only to a couple of specific provisions in the Civil Code known as the “general clauses.” One of the most important of these, Section 826 of the Civil Code, states: “Whoever intentionally causes injury to another person in a manner contrary to good morals has the duty of compensating for that injury.”Footnote ⁷⁹ The Civil Code’s reference to “good morals” seems to admit some external standard of evaluation,Footnote ⁸⁰ and the Constitutional Court exploited this opening to bring the principles of the Basic Law to bear on private law. In so doing, however, it effectively limited its own interpretive authority to these particular provisions so as not to fashion itself as a “super ordinary court”Footnote ⁸¹ that can reinterpret any provision of the Code as it wishes. In those instances when the Constitutional Court cannot reach a “constitutionally satisfactory solution” without breaching jurisdictional divides, it actually looks to the legislature to revise the law.Footnote ⁸² Thus, “simultaneous, colliding commitments”Footnote ⁸³ persist in Germany’s practice of indirect horizontal effect, as separate systems of law and courts persist alongside the idea that the Basic Law sets the standard across spheres.

In addition to preserving a separation of public and private systems and structures, Lüth may be described as sustaining a kind of liberal, rights-centric discourse with respect to the content of the law. Of course, the Court endorsed the need to propagate a society committed to certain common norms – the freedom of expression was prioritized in Lüth in part for its public value and not solely for Lüth’s private interests and rights as an individual.Footnote ⁸⁴ At the same time, the particular right of freedom of expression, even while enforced as a societal norm, is familiar and valued as an individual right in the liberal tradition. In the terms of this book, then, should Lüth be understood to signify a primacy of liberal, and not republican, discourses? Recall Chapter 2’s account of horizontal application as a republican vein in liberal constitutionalism. The republican interpretation advanced here does not claim that liberal values are no longer present, but that horizontality engenders new modes of discussing and disseminating these (and other) values, such that they may be interpreted no longer merely as rights but often come to be discussed as ends. Freedom of expression is described in Lüth not only as a right but also as part of the content of an “objective moral order,” a kind of common good for which a wider range of actors becomes responsible. Also worth noting is the role dignity plays in Lüth’s defense of freedom of expression, as discussed earlier. Discourses of human dignity characterize much postwar constitutionalism and, in its common associations with social welfare, generally ask more of society than do older accounts of liberalism.

The Basic Law and Lüth’s interpretation of it thus marked a change in German law, turning the putative neutrality of Weimar toward a system of objective values. Nevertheless, the Constitutional Court preserved certain traditional understandings present in interpretations of the Civil Code and contrary to the Labor Court’s endorsement of direct horizontal application. Indeed, in one telling, the Constitutional Court adopted indirect horizontal effect in lieu of direct effect in an effort to preserve a particular conception of liberty and prevent it from turning into a duty, per se.Footnote ⁸⁵ In sum, while new language about the obligations of private individuals emerged with this new societal morality, older discourses emphasizing individual rights and such values as autonomy persisted. Perhaps illustrative of this, on the very same day the Court decided the Lüth case, it handed down another decision in which the right to freedom of expression itself gave way to “certain traditional property interests.”Footnote ⁸⁶ Various episodes in the years following Lüth evince persistent disharmony in constitutional discourses, efforts both to preserve old structures and understandings and to foster a common obligation to constitutional norms in society.

As the Court in Lüth preserved some domain for private law in settling on indirect horizontal application, some perceive the “reassertion of private law” in such subsequent decisions as the Mephisto case.Footnote ⁸⁷ This 1971 decision involved a novel, entitled Mephisto, whose main character was modeled on the life of German actor Gustaf Gründgens. Klauss Mann, the author, had formerly been friends with Gründgens. While Mann admitted that certain details of the character were based on the actor’s life, he insisted that he did not intend the novel to be a portrait of any particular person. Nevertheless, Gründgens’s heir filed an action against Mann under the Civil Code’s general clause 823(l), providing a civil remedy against infringement on “the life, body, health, freedom, property” of Gründgens.Footnote ⁸⁸ In its judgment, the Constitutional Court interpreted the constitutional rights of human dignity and free development of personality (Articles 1 and 2, respectively) to encompass – that is, elevate to constitutional status – these rights formulated in the Civil Code.Footnote ⁸⁹ In other words, the Civil Code actually gave content to the Basic Law, insofar as the Court incorporated these traditional formulations into its understanding of human dignity and personality. In this way, these rights could be balanced against and even take precedence over such rights as to artistic endeavor (Article 5 Section 3) that occur in the Basic Law explicitly.Footnote ⁹⁰ One might speculate how Mephisto and other cases might have differed had the Labor Court’s approach of direct horizontal application gained traction. Specifically, constitutional rights obligations would have applied to private actors directly. Thus, private law would not serve as a necessary intermediary or enjoy the same opportunity to bear on decisions as a unique source of values.

While Mephisto goes further than many cases in the extent to which the Civil Code informs constitutional interpretations, it is not unique in putting into dialogue private law and the Basic Law and, more to the point, holding up the private law as a source of values in its own right. The earlier Blinkfüer case also translated the Civil Code into constitutional terms, finding that the freedom of the press (Article 5 Section 1) supported claims under the aforementioned clause 823(1) of the Civil Code. In this case, the leftist magazine Blinkfüer won against the freedom of expression of a conservative publisher calling for a political boycott of the magazine.Footnote ⁹¹ Moreover, in the 1973 Soraya case, the Constitutional Court leveraged the constitutional right to personality in order to compel a remedy corresponding to the Civil Code’s protection of personality rights. On the one hand, some argue this step constitutes a rewriting of the Civil Code to align it with the Basic Law, insofar as the Code expressly states that “intangible and nonpecuniary harms” could not be rewarded for damages.Footnote ⁹² However, with the introduction of horizontal application, even its indirect form, we would expect that constitutional values bear on private law in such ways. What is unique in the German jurisprudence, and what we see in such cases as Blinkfüer, is the way the Civil Code maintains a certain stature in argumentation and is put into dialogue with the Basic Law, in spite of the primacy and “radiating effect” of the latter.Footnote ⁹³ That this maintenance of traditional structures is not universal will come into sharper relief in Chapter 6’s discussion of the common law of South Africa, which, after some institutional and doctrinal struggles, is more completely beholden to the South African Constitution and which, importantly, falls entirely within the jurisdiction of the South African Constitutional Court to uphold or modify.

Initial Limits and Persisting Tensions in Horizontality

The tensions that accompanied the move toward horizontality continued not only in institutional and legal divisions between the private law and public law but also arguably in understandings of the Basic Law itself. As the previous section explained, the Basic Law’s commitment to such values as human dignity revised more traditional understandings of rights, the public–private distinction, and other liberal values. Still, Jorg Fedtke interprets the catalog of rights in the Basic Law as having continuity with prior understandings and as basically “classical-liberal in character.”Footnote ⁹⁴ Following human dignity as the foundational value come “an extensive range of individual freedoms,” including,

In addition to these enumerated rights, the right to “free development of personality” has since been interpreted by the Constitutional Court as a kind of “catch-all right,” protecting a vast range of liberty interests so as to make the Bill of Rights essentially comprehensive.Footnote ⁹⁶ After a couple of decades, the priority of these rights seems to have settled into the popular imagination. Jud Mathews explains that 1959–1974 constituted “the high phase of liberalization in Germany.”Footnote ⁹⁷ Mathews cites as evidence a series of public opinion polls conducted in Germany between 1949 and 1963 that asked respondents to rank different rights in order of importance. In 1949, 35 percent of respondents identified freedom from want as most important, in contrast with 26 percent who selected freedom of expression. By 1963, in contrast, only 15 percent of respondents selected freedom from want, while 56 percent identified freedom of expression as most important. Moreover, in a 1964 poll, German voters ranked freedom as a more important value than either order or prosperity.Footnote ⁹⁸

This apparent surge in liberal values also tracks the sorts of rights that tended to be applied horizontally, in this particular era and in general. The aforementioned cases illustrate the prevalence of such rights as freedom of expression, freedom of the press, and free development of personality in Germany’s earliest and most foundational horizontality cases.Footnote ⁹⁹ It was in this rights context and larger milieu that horizontality developed and came to be accepted in German legal practice. The “objective system of values,” propagated with horizontality, engendered discourses among constitutional actors concerning the need for parity across spheres of life. As the above cases illustrate, however, such arguments for parity remained tied to a particular catalog of rights and liberties and yielded to separate systems of law and courts. And so, it was in this context that the civil courts also adopted the practice of horizontality, particularly after a few cycles of judges had the chance to complete clerkships at the Constitutional Court and return home to their primary court appointments in the ensuing years.Footnote ¹⁰⁰ Moreover, with the adoption of the additional feature of the individual constitutional complaint, by which individual citizens could directly raise claims of constitutional violations, horizontal application became part of the “daily job” of the Federal Constitutional Court.Footnote ¹⁰¹

Even still, the civil courts dispute how the Constitutional Court applies constitutional values to private law in certain instances, sometimes questioning the definitions of such terms as “property,” “takings,” and “freedom of contract” as employed in constitutional law.Footnote ¹⁰² Admittedly, any objections now come in the context of discrete cases rather than as wholesale challenges to horizontal application as a practice.Footnote ¹⁰³ That horizontal application has largely been accepted, though, is not to minimize the changes it brought to German civil law. For the first time, private lawyers had public lawyers telling them they interpreted the law incorrectly, and these private lawyers initially feared that the public lawyers would remake private orderings in the image of public law.Footnote ¹⁰⁴ In this book’s terms, their worries reflect how the Basic Law and, more specifically, the mechanism of horizontal application would bring a new parity across German systems of law and spheres of life. Meanwhile, the traditional, largely liberal ethos historically associated with private law lived on in such people as Werner Flume, a towering figure in German private law who emphasized freedom of contract throughout his decades-long career. Flume and others like him went so far as to argue that German constitutional law had become nothing less than an instrument by which “to objectify the private liberal free coordination of subjects through contract.”Footnote ¹⁰⁵

While Flume’s perspective was continually present, it remained a mere strand of German legal thought, as horizontal application was increasingly embedded in legal practice. Of course, the nature of the rights applied horizontally in early cases did not typically call for a deep change in German society or in the behavior of individual private actors. A kind of rights-centricity could coexist alongside the language of this new constitutional morality in discourses surrounding horizontal application. One might describe those duties with which private actors were charged as growing out of accepted orthodoxy and already part of the societal status quo. In contrast, when the conversation eventually turned to the horizontal application of equality rights and antidiscrimination, the tenor of the discourse shifted. Old anxieties seemed to be resurrected and new anxieties born as certain constitutional and private actors expressed concern over the impact of new applications of horizontality on individual liberty and autonomy. In the arguments and events of ensuing years, sectors of both the juristic and general populations seemed to treat these developments as a turn to ensconce certain constitutional rights as ends in themselves and to do so at greater expense to other rights than had previously characterized horizontality.

Equality in the Private Sphere

While the early questions surrounding horizontality largely subsided, constitutional actors rarely applied Article 3’s right to equality horizontally until recently. It seems to have taken the outside force of the EU to initiate such an expansion, when the European Council directed Member States to implement antidiscrimination measures in 2000.Footnote ¹⁰⁶ Only after these developments did the German Constitutional Court depart from its conservative approach to Article 3’s equality provisions to consider the possibility of their horizontal application.Footnote ¹⁰⁷ Scholars explain how the Court previously considered equality cases under the lower standard of “arbitrariness review as opposed to a more intensive proportionality review.”Footnote ¹⁰⁸ Laurie Ackermann, former justice of the South African Constitutional Court, tells a similar story of German constitutionalism:

Günter Dürig offers a coinciding account, seeing freedom under the Basic Law as “the primary manifestation” of human dignityFootnote ¹¹⁰ and, moreover, that “a preference for freedom as against equality has been established.”Footnote ¹¹¹

The few times that equality was applied horizontally before the EU introduced its directives occurred in the Labor Court, consistent with that court’s approach to horizontal effect since the 1950s.Footnote ¹¹² The Labor Court has been quicker to rely on the constitutional commitment to equality in adjudicating fair relations between employer and employee.Footnote ¹¹³ Insofar as the labor courts’ jurisdiction is circumscribed to labor law, the German legal community generally acknowledges that their area warrants more searching consideration of social power and even the continued application of direct horizontal effect.Footnote ¹¹⁴ In light of this tendency of the labor courts to give more weight to equality, it is not surprising that they largely allied with the European Court of Justice (ECJ) after the issuance of the 2000 antidiscrimination directives. The High Labor Court even asked the ECJ for preliminary references about the requirements of these new policies, while the Constitutional Court instead followed along only to the extent that was required.

Although equality was certainly present in the Basic Law, it did not feature prominently in the context of private relations, a fact arguably consistent with the emphasis on Privatautonomie in certain sectors of German law discussed earlier. While German politics long possessed a strong welfarist streak, the value of equality did not extend further, for example, to include principles of antidiscrimination vis-à-vis gender, race, national identity, and the like. It may be the case that provisions for social welfare were understood as the functional equivalent of these protections, rendering the latter superfluous. Indeed, people from various sectors of civil society argued that such protections against discrimination would amount only to costly “red tape” and higher burdens of proof for private actors.Footnote ¹¹⁵ Ultimately, the external force of the EU shifted this status quo and pushed for the stronger horizontal presence of equality principles in the form of antidiscrimination legislation. The two directives that the European Council required in national law included Council Directive 2000/43/EC (the Racial Equality Directive) and Council Directive 2000/78/EC (the Employment Equality Framework Directive). The former aimed to bring all public and private law into line with EU equality norms, specifically concerning racial and ethnic discrimination. The latter directive, in contrast, aimed only to influence employment law, but required equal treatment across a range of classifications, including “sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.”Footnote ¹¹⁶ The German Parliament first attempted to implement these directives in the Anti-Discrimination Act (ADG) of 2001.Footnote ¹¹⁷ The Act generated much controversy from all sectors of German society, as politicians, jurists, and many others in civil society argued the Act “would go too far in curtailing the principle of private autonomy.”Footnote ¹¹⁸ Others argued that it was in fact necessary not to exempt “predominant sectors of social life from scrutinization” in order to take nondiscrimination seriously.Footnote ¹¹⁹

In his contemporaneous analysis of the arguments surrounding the ADG, Georg Sommeregger recounts some scholars’ worries about the proposed legislation:

While preserving a private sphere permits diversity of views, abolishing the public–private divide, as the new legislation was understood to do, would entail “subjecting private action to the same moral yardstick (or values) as are valid for public agents.”Footnote ¹²¹ The argument continues that this would result in “crushing … the possibility of private choice by ‘public virtue.’”Footnote ¹²² The prospect of bringing the value of equality to bear on private spaces thus yielded strong reactions for the very reason that it would require individuals in the private sphere to adhere to a public formulation of a kind of common good. Sommeregger stipulates, however, that this parity (what he calls “value monism”) was only required in select areas and with respect to particular categories. The legislation did not entail a blanket requirement that all private choice conform to public standards, but only that some private choices conform. On this basis, he concludes that the legislation “did not introduce a new paradigm but shifted the line between uncensored and censored private behavior (too far for some), with the result that the private sphere is decimated without being liquidated conceptually.”Footnote ¹²³ The appropriateness of such shifting of the public moral yardstick into private spaces ultimately amounts to a political question, the answer to which likely depends on a given country’s particular history, commitments, and public opinion.

In many ways, these fears about the consequences for autonomy echo those same fears articulated in the run-up to the Lüth case in the 1950s. Nevertheless, the antidiscrimination legislation stirring up those fears is different from the initial move to horizontality in Lüth in a couple of ways. First, the content of the rights in question is qualitatively different from those that had been given horizontal effect in prior decades.Footnote ¹²⁴ Sommeregger explains, “In the horizontalization of other fundamental rights the fundamental tension between liberty and equality is in the background, whereas in the case of the antidiscrimination legislation it comes to the fore because of the fact that equality itself is the object of horizontalization.”Footnote ¹²⁵ This book’s argument presumes that horizontal effect always entails parity, insofar as it always brings public values to bear in private spaces. Thus, even when more negative, classical rights are at issue in a case, one of the parties will still be required to conform to those attendant values of the Constitution – for example, the freedom to develop human personality in Mephisto, or the freedom of the press in Blinkfüer. To this extent, the EU directives and subsequent legislation of the German Parliament were not different, but simply added new rights to the catalog of those that would in some way be applied horizontally.

At the same time, the nature of the duties incurred is somewhat different in comparing negative classical rights with equality rights horizontally applied. The difference in duties is even more apparent in the potential positive duties of private actors considered in the context of South Africa in Chapter 6. Presumably, this heightened potential for the constitutional duties of private actors might be felt all the more in some corners given certain regnant elements of German legal history and tradition, such as the system of civil law, recounted earlier. Moreover, the consensus that such values inspired was in certain ways embodied in the liberal surge of the postwar years. In Sommeregger’s terms, a kind of “value monism” with respect to these more classical rights did not give rise to controversy. When the prospect of individual duties pertaining to antidiscrimination arose, however, many expressed anxiety that the consequent new duties would touch subjects that comprised a continued “value pluralism” in German society. Put differently, regarding the ADG, some private actors expressed that the content of those rights for which private actors would be held responsible would potentially conflict with their priors.Footnote ¹²⁶

Unlike the early judicial debates that preceded Lüth, the shift to apply equality and, more specifically, antidiscrimination horizontally occurred through legislation, first through the European Council and then the German Parliament.Footnote ¹²⁷ Whereas the practice of horizontal effect in courts applies rights obligations to private actors in single, isolated cases, the developments following the EU directives came through legislation and, therefore, amounted to a change in the very “base-line of private law.”Footnote ¹²⁸ Claims to autonomy, people feared, would no longer be balanced or weighed on a case-by-case basis, but would necessarily yield to equality. As Sommeregger puts it, “The moral standard (one and only) of the community trumps the individual moral standards (resting on personal choice) of the individuals in the specific fields.”Footnote ¹²⁹ While a common objection to horizontal application is that courts are not politically accountable in the same way as legislatures, the more typical objection to the ADG was less about the venue of decision than about “this move of public virtue into the private sphere” at all, regardless of origin.Footnote ¹³⁰

When it comes to the horizontal application of equality and the debates surrounding the ADG, the republican framework of this book amounts to more than an interpretive lens. Rather it captures and articulates how many political and private actors themselves interpreted these developments. Sommeregger’s account, for example, suggests that many recognized the reach of public values into more sectors of society as establishing a kind of common good, likely to entail more extensive duties of private actors and compromise of private interests. Again, this is in contrast with the kinds of rights that had previously been applied horizontally in German constitutional practice, such as freedom of expression and freedom of the press, that did not typically require extensive positive action on the part of private actors. On some level, the Basic Law and Lüth’s interpretation of it were always premised on a need to build a polity on certain common values after the Second World War; however, this commonality had only extended so far into the private sphere prior to the EU’s antidiscrimination directives. On this basis, perhaps it is unsurprising that the impetus to extend horizontal application further came from EU institutions, that is, sources external to Germany.

Ultimately the ADG failed under this political opposition to public mores in the private sphere. Moreover, the ensuing controversy led parliament to change the law actually to allow more discrimination, specifically in lessening protections for workers dismissed from their jobs on the basis of age.Footnote ¹³¹ Nevertheless, EU institutions stood their ground on the issues at stake when, in the 2005 Mangold case, the ECJ described antidiscrimination as one of the EU’s “general principles” that ran deeper than the recent directives, thereby insisting on German compliance. While the Constitutional Court, in response, might have reasserted “control over equality law in Germany,” it followed the ECJ and, indeed, the German Labor Court, so as not to appear an opponent of equality.Footnote ¹³²

In 2006, the German Parliament managed to pass the General Equal Treatment Act (AGG) in fulfillment of the EU directives. Most decisions related to this legislation have since been issued by the civil courts and labor courts rather than the Constitutional Court.Footnote ¹³³ Indeed, very few cases invoking the AGG have been litigated at the federal level. Scholars suggest a couple of different factors to explain this, such as the difficulty certain groups (and particularly vagrant populations) have in accessing the German courts, as well as the short, two-month timeline individuals have to file antidiscrimination suits.Footnote ¹³⁴ Moreover, certain aspects of the EU directives have long remained unimplemented, specifically those areas such as education that fall under the competencies of the Länder (German federal states). Several states have attempted to implement these aspects of the antidiscrimination directives, but have been largely unsuccessful. Indeed, the same concerns surrounding the ADG and AGG have resurfaced in these subnational arguments.Footnote ¹³⁵ Amid myriad other factors figuring into these debates, some more resistant arguments may be understood in historical terms. Specifically, antidiscrimination had not previously been emphasized in German legal culture as much as civil liberties, “having comparably weak roots in the tradition of fundamental rights (and their adjudication by the FCC) as well as in public perception.”Footnote ¹³⁶ In this light, the hesitance displayed in arguments from various corners of German society is not necessarily surprising.

Equality and the Future of Horizontal Effect

After the events surrounding the EU directives and the AGG, whether and when Article 3’s equality provisions might apply horizontally also became the subject of much debate. The arguments surrounding these later debates offer additional insight for interpreting horizontality in a republican light. The Constitutional Court finally took up the question of the horizontal application of Article 3 in 2018 in the Stadium Ban case. In this case, a sixteen-year-old fan of a German football club was permanently banned from a stadium for disorderly behavior.Footnote ¹³⁷ The individual filed a constitutional complaint, arguing that the ban violated his constitutional right to the free development of personality “in light of the paramount significance of football for social life and the importance attached to it by the general public and society.”Footnote ¹³⁸ Although the Constitutional Court agreed that the facts of the case did implicate questions of constitutional rights, they found the issue was not the youth’s right of personality but his right to equality under Article 3(1) insofar as he was treated differently from other stadium attendees. Thus, the task of the courts was to balance this protection against unequal treatment under Article 3(1) against the football club’s guarantee of private property under Article 14(1).

The Court was careful to stipulate, however, that Article 3(1) “does not give rise to an objective constitutional principle,” such that private actors would generally have a duty to uphold equality rights. Rather, the Court reiterated the liberal precept that “all persons have the freedom to choose – according to their own preferences – when, with whom, and under what circumstances they want to enter into contracts, and how they want to make use of their property in this context.” The young fan’s equality rights under Article 3(1) only applied to the football club, a private actor, in this instance because of the particular nature of the football club and the stadium. Specifically, these were institutions generally open to the public, forming a central part of social life, and maintaining a kind of monopoly over the sport of football. Even while subject to Article 3 requirements in this particular case, however, the Court determined that the football club had not acted arbitrarily in banning the young fan, but that the unequal treatment was justified by his conduct.

In many ways, the Stadium Ban case raised more questions than it answered. While on the one hand, it seemed equality rights might now apply horizontally, the extent to which this hinged on the particular facts of the individual case remained unclear. Legal scholars found a kind of ambivalence in the judgment and speculated that the Court may have had trouble reaching a consensus.Footnote ¹³⁹ Indeed, one could simultaneously read it as preparation for more to come or as a careful attempt to cabin the outcome to this single decision. The picture would only become murkier in the following year when the Court decided two additional cases concerning Article 3(1)’s equality guarantee. The first of these was simply a preliminary injunction that the Third Way, a far-right political party, filed against Facebook after the social media platform identified some of its posts as hate speech and temporarily restricted the party’s ability to post content.Footnote ¹⁴⁰ The facts raised questions about Facebook’s obligations with respect to equal treatment and whether social networks would be subject to Article 3 obligations, as was the football club in the Stadium Ban case. However, the Court decided only the question of injunction, granting the Third Way’s petition, rather than taking on the constitutional question at stake.Footnote ¹⁴¹

A few months later, the Constitutional Court confronted the possibility of the horizontal application of equality yet again when an official of the extremist right-wing National Democratic Party of Germany made a reservation for a wellness hotel. The hotel owner notified him that he could not stay, explaining that the official’s “political opinions were incompatible with the hotel’s mission to ensure that each and every guest could enjoy an excellent wellness experience.”Footnote ¹⁴² The Court reiterated the principle it articulated in the Stadium Ban case, that private actors were not subject to equality guidelines as a general principle, but only under specific circumstances. Ultimately, the Court decided that those specific circumstances simply were not present here; unlike the football club, the wellness hotel did not form a central part of social life and did not maintain a monopoly. Therefore, the party official could claim no right against which to balance the hotel owner’s right to property (Article 14(1)) and freedom to conduct a business (Article 12(1)). Moreover, the Court clarified that the prior Stadium Ban case had only treated the General Equality Clause of Article 3(1), rather than the Anti-Discrimination Provision of Article 3(3). While the Court explicitly left open the possibility that this provision might require something of private actors, it did not follow from the ruling that they are prohibited from discriminating on the basis of political opinion. Again, as Fabian Michl explains, private individuals “are free to decide who they favor or disadvantage, with whom to conclude contracts and to whom to grant access to their property, their pub or their hotel.”Footnote ¹⁴³ In this same spirit, the Court decided for the hotel in the name of freedom, once again not even reaching the question of balancing.

Where does this sequence of cases leave the question of equality’s horizontal application and, more specifically, a republican interpretation of horizontality? In many ways, the arguments of these judgments hinge on facts unique to the cases at hand – the cultural significance of football in Germany, for example, or historical experience with extreme parties. In Germany, a football stadium is not simply a sports arena but a public forum where citizens go to associate and participate in civic life. Full participation in society may be said to require admission in such a space, while the same cannot be said of the wellness hotel. Setting aside consideration of the factors that might explain the constitutional development itself, the arguments playing into these equality cases show an implicit hesitancy that is arguably relevant to a republican interpretation. Specifically, the judgments point toward a particular way of carving up the private sphere, as the Court understands certain private actors and spaces as contributing to (or detracting from) a kind of common good more than others. Insofar as certain private actors hold greater public import, they are more subject to constitutional values and accrue duties. Contextual particulars are crucial here, as football and a football stadium would not necessarily have the same meaning attached to them elsewhere and, consequently, would not be so relevant to a republican interpretation.

Rights and larger commitments related to equality in Germany thus bring to the fore discursive insights that bear on republican interpretations of horizontality. As explained previously and is true in other contexts, equality is often interpreted as requiring more of private actors than other rights commitments and, to this extent, shows the reach of a republican interpretation amid contextual particulars. Generally, discourses surrounding the horizontal application of equality have been weaker and more hesitant than, say, in the horizontal application of freedom of expression or freedom of the press in Germany. Considering the arguments that arose from the ADG/AGG saga and later debates focused on Article 3, the effect of constitutional values has not radiated so decisively when it comes to equality. However, later judgments have treated some spaces and actors in a way that suggests their heightened public significance or historical meaning and, on this basis, assign constitutional duties related even to equality.

Conclusion

In Lüth, the Constitutional Court declared that the Basic Law engendered an objective order of values and, thus, that the constitutional project aspired to influence broader reaches of society than had prior constitutions. In this way, the Court’s language signaled a transformative project for a reconstituted Germany. The idea that constitutional values should radiate beyond traditional bounds set a course for a project clearly more ambitious than traditional understandings of constitutionalism. Nevertheless, the fundamental structure of the legal system remained in place with Lüth, as the Court acknowledged that private law contributed to “the autonomy of the individual – and to the public good – and therefore should remain in effect … even when confronted by the countervailing objective and public values of constitutional law.”Footnote ¹⁴⁴ The Constitutional Court thereby reaffirmed the presuppositions of the civil law system so that the Basic Law could influence the private law but not supplant it.Footnote ¹⁴⁵ In pursuing this moderate course, the Constitutional Court in some sense nestled into the disharmony that had emerged between an enduring civil law tradition and the propagation of public values in private spaces.Footnote ¹⁴⁶

While horizontal application in some forms was broadly accepted and assumed into legal practice, a tension reminiscent of that latent in Lüth would surface in later debates surrounding the horizontal application of equality. In particular, the EU directives in 2000 aimed to add equality and antidiscrimination to the catalog of those commitments for which private actors would be responsible. As far as certain private actors and even some constitutional actors were concerned, this step to subject private spaces to constitutional ends went too far in encroaching on individual rights. While antidiscrimination legislation growing out of the EU directives ultimately passed the German Parliament, related questions about the horizontality of equality rights continue to be adjudicated in the Constitutional Court and other fora.

Describing the German constitutional project as transformativeFootnote ¹⁴⁷ can be helpful to understand what the constitutional drafters were up to in the wake of the Second World War, how the Constitutional Court interpreted that project in the following decade, and perhaps even later efforts to give greater effect to such values as equality. A transformative constitution makes clear space for something like horizontal application, which by definition extends constitutional commitments further into society than traditional understandings of constitutionalism would admit. Indeed, the history recounted in this chapter continually raises the question of what a transformative constitution might require in general and, more specifically, require of private actors. It is at this juncture that a republican interpretation becomes helpful.

This book’s republican framework does not necessarily provide normative answers to questions about what a transformative constitution should ask of private actors. Rather, it offers an interpretive lens to understand actors’ arguments around these questions. On the one hand, in debates about horizontal application in Germany, we might perceive an embrace of constitutional ends as a kind of common good and, consequently, an embrace of the corresponding duties that follow citizens. On the other hand, arguments in later debates surrounding equality suggest reservation concerning particular ends and the resulting “value monism,” to use Sommeregger’s phrase. Indeed, an easy embrace of ends and duties is not evident in the later sequence of events or in the arguments pertaining to antidiscrimination. Instead, the discourses emerging from later debates about equality favor more conventional understandings of rights, aligned with a conception of separate spheres, separate systems of law and courts, and so on. Put differently, this book’s theoretic lens evinces complexity in the German context, namely, a waning of republican-inflected language about constitutional ends or a common good and renewed emphasis on rights discourses.

In Chapter 6, similar insights emerge out of the South African context, arguably the paragon of transformative constitutionalism. Debates in both Germany and South Africa largely presuppose that public ends will bear on private spaces to some extent. Yet, how far and in what ways these public ends can reach vary across these constitutional contexts and even across institutions and individual actors within each context. Under the new dispensation in South Africa, debates have centered not so much on whether constitutional commitments may apply horizontally in one space or another but on what such commitments may require specifically of private actors, say, with respect to positive rights. As ever, factors countervailing against horizontal application also influence the debates; political interests rooted in the Apartheid era, as well as a kind of legal formalism, correlate with more traditional articulations of rights. At the same time, much of the constitutional discourse from a range of actors includes some basic admission that the South African constitutional project aims for and requires more of its citizens than other constitutional orders.