The Constitution As an Objective Order of Values

Abstract

This article examines the interpretation of constitutions in terms of underlying values, focusing on the theory of the German Federal Constitutional Court that the German Basic Law incorporates an ‘objective order of values’. The article describes the Court’s theory as well as its reception by constitutional scholarship. It also provides a critical evaluation. The article argues that the theory – although understandable in light of Germany’s particular historical and political circumstances – is both unnecessary and undesirable. The theory is unnecessary because the most salient implications of the Court’s assumption of the existence of an objective value order – positive state obligations, third party effect of basic rights and entrenchment of the core of the constitution – can also be based on provisions of the written constitution. The theory is undesirable because it has the potential to undermine the democratic nature of the constitution and could lead to the moralisation of constitutional law and constitutional discourse. It is not advisable, therefore, to transplant the Court’s theory to other jurisdictions.

Keywords: constitutional values, constitutional interpretation, objective value order, German Basic Law, German Federal Constitutional Court