The fundamental rights

This marks a significant departure from the German Constitution of 11 August 1919 (Weimar Constitution), in which the fundamental rights had only a programmatic function

The fundamental rights are defined in Articles 1 through 19, 20 (4), 33, 38, 101, 103 and 104 of Germany’s constitution, the Basic Law. The Federal Constitutional Court describes these articles as inalienable and essential to the constitutional structure of the Basic Law. The fundamental rights are that element of the constitution which most affects citizens in their daily lives; their experience of the Basic Law is primarily through these rights.

According to Federal Constitutional Court rulings, the fundamental rights are first of all intended to protect the freedom of the individual against interference by public authorities; they are citizens’ rights of defence against the state. This is derived from the historical development of the idea of fundamental rights and from past events which led individual states to include such rights in their constitutions. The fundamental rights are listed first in the Basic Law in order to stress the fact that the individual and human dignity take precedence over the power of the state.

According to Federal Constitutional Court rulings, the fundamental rights not only cover the individual’s rights with respect to the state, they also embody an objective system of values which applies as a fundamental constitutional decision to all areas of law and provides guidelines and inspiration for legislation, public administration and judicial decisions. Enhancing the fundamental rights aims at expanding their function. The keywords are fundamental rights as the right of performance and participation and as procedural safeguards. However, this does not imply a rejection or limitation of the defensive function of the fundamental rights, but is rather intended to add further functions.