Harmonizing the German Civil Code of the Nineteenth Century with a Modern Constitution - The Lueth Revolution 50 Years Ago in Comparative Perspective
Tulane European and Civil Law Forum, Vol. 23, pp. 1-36, 2008
Posted: 12 Dec 2008
Date Written: December, 10 2008
The article explains the task of German law to bring a Civil Code that came into force in 1900 as a consequence of nineteenth century legal science in line with the German Constitution of 1949. In 1958, the highest German court solved this in Lueth and gave its most important decision about the reach of constitutional rights and the importance of free speech. The Lueth case, which is about a boycott against a film of a former director of a Nazi film, is not just a fascinating story of law. The German Federal Constitutional Court (Bundesverfassungsgericht [BVerfG]) also developed the indirect "horizontal" application of constitutional rights to private law. This represents a new concept of primacy of constitutional law that has been noticed and discussed around the world. Therefore, the constitutional and private law setting of the decision and its consequences will be explained in the following. This will be done by highlighting the differences and commonalties to the U.S. development and by using the general personality right as example of the indirect application of constitutional rights to private actors. The paper closes with more general observations regarding the effect of the Lueth decision on e.g. Canadian, South African, Greek and EU law.
Keywords: private law and constitutional rights, horizontal effect of fundamental rights, constitutional review, freedom of speech, personality rights, balancing process
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