Lüth and the ‘Objective System of Values’: From ‘Limited Government’ towards an Autonomy-based Conception of Constitutional Rights

Forthcoming in S. Choudhry, M. Hailbronner & M. Kumm, eds., Global Canons in an Age of Uncertainty: Debating Foundational Texts of Constitutional Democracy and Human Rights (Oxford University Press, 2022)

LSE Legal Studies Working Paper No. 04/2022

14 Pages Posted: 8 Apr 2022 Last revised: 9 Apr 2022

See all articles by Kai Möller

Kai Möller

London School of Economics - Law School

Date Written: March 20, 2022

Abstract

In its Lüth judgment of 1958, the German Federal Constitutional Court famously claimed that the German Basic Law erects an ‘objective system of values’ (objektive Wertordnung) in its section on rights. This paper shows that Lüth was the birth hour of the now globally dominant conception of constitutional rights, according to which rights are not primarily concerned with the limitation of the power of the state (or ‘limited government’) but rather with the adequate protection of the right-holder’s personal autonomy. As an exception to this trend, the paper considers and discusses the U.S. Supreme Court’s judgment in DeShaney v. Winnebago County of Social Services. It concludes by spelling out some of the implications of the commitment to an autonomy-based conception of rights and outlines how these have been addressed in the theoretical literature in the decades since Lüth was decided, including in the theories of rights as principles (Robert Alexy), judicial review as Socratic contestation and as giving effect to the fundamental right to justification (Mattias Kumm), the culture of justification (Moshe Cohen- Eliya and Iddo Porat, among others), and the global model of constitutional rights (in my own work).

Keywords: constitutional rights, limited government, autonomy, rights as principles, Socratic contestation, right to justification, culture of justification, global model

Suggested Citation

Möller, Kai, Lüth and the ‘Objective System of Values’: From ‘Limited Government’ towards an Autonomy-based Conception of Constitutional Rights (March 20, 2022). Forthcoming in S. Choudhry, M. Hailbronner & M. Kumm, eds., Global Canons in an Age of Uncertainty: Debating Foundational Texts of Constitutional Democracy and Human Rights (Oxford University Press, 2022), LSE Legal Studies Working Paper No. 04/2022, Available at SSRN: https://ssrn.com/abstract=4062206 or http://dx.doi.org/10.2139/ssrn.4062206

Kai Möller (Contact Author)

London School of Economics - Law School ( email )

Houghton Street
London, WC2A 2AE
United Kingdom

HOME PAGE: http://www.lse.ac.uk/collections/law/staff/kai-moller.htm

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