Between Facts and Norms - Contributions to a ... - Blogs Unpad

248Chapter 6transforming the content of individual, or "subjective," liberties(Freiheitsrechte) into the content of fundamental norms that penetrateand shape "objective" law, albeit in aconceptuallyunclarifiedmanner. This transformation finds its methodological correspondentsin "key concepts of constitutional law" (Denninger) , such asthe principle of proportionality, the possibility proviso ( Vorbehaltdes Moglichen) , the limitation of "immediately valid" fundamentalrights by a third party's fundamental rights, and the protection ofbasic rights through organizational and procedural provisions.16 Incases of collision, these concepts serve to interrelate various normswith a view to the "unity and consistency of the Constitution": "Withthe development of key relational concepts in the light of cases andproblems, the Federal Constitutional Court has acknowledged andunderlined the 'open' structure of the Basic Law, within limits thatmust be specified."17To some extent, one can understand these keyconcepts, which have grown out of the practice of decision makingitself, as procedural principles that mirror the operations of constructiveinterpretation as required by Dworkin, that is, the interpretationof the individual case in terms of the entirety of arationally reconstructed legal order. Thus despite his harsh criticismof details, Denninger, too, arrives a tan assessment that is quitepositive overall:In developing "key concepts," the Federal Constitutional Court hasmanaged to supplement the "classical" legal motifs of the written GermanConstitution with a highly sensitive instrument whose conceptual structureand degree of complexity appear adequate to the structure of theproblems at hand, especially those that demand a mediation between themicrolevel (of individual action) and the macrolevel (of the system) .... Itis precisely the relational structure of the key concepts that makes themsuitable for formulating problems of constitutional law at a level whereone can avoid one-sided fixations either on negative rights against thestate or on welfare-state planning. At this level one can successfully useoverarching constitutional categories to connect the welfare state, whichrelies on administrative law in its provision of "services" and "redistribution,"with the rule of law, which guarantees property [and freedom] .1R6.1.3Although he describes and diagnoses Federal Constitutional Courtadjudication in similar terms, Bockenforde arrives at an entirely