Synthesizer of Constitutional Theory, 1958–1963 75
been violated by the lower court decision prohibiting the boycott.
The Court overturned the judgment of the Hamburg court as an
unconstitutional infringement of Lüth’s basic right to freedom of
opinion (Meinungsfreiheit). The first sentence of the Lüth judgment
is its most famous. It reads:
The basic rights are in the first place defensive rights of the citizen
against the state; in the basic rights determinations of the Basic Law
are also however an objective value-order, which, as a fundamental
constitutional decision is valid and binding on all realms of the law.^69
Here was outlined for the first time the principle that values
embodied in constitutional law henceforth would have a “radiating
effect” (Ausstrahlung) or “third party effect” (Drittwirkung) on areas
hitherto governed by private law. Prior to this case, civil rights were
considered “vertical”; that is, they protected citizens from their
infringement or encroachment by the government. The new dimen-
sion opened by the Lüth judgment was that fundamental rights were
held to have “horizontal” application, that is, that civil or private
law (the provisions of the Bürgerlichen Gesetzbuches) had to be modi-
fied by the basic rights. The Court determined that fundamental
rights were at the same time “subjective rights” against government
intrusion – that is, rights held by individual citizens – and “objective
values” with a “radiating effect” on private law. Wherever the appli-
cation of a private law limits a fundamental right, this fundamental
right has to be taken into account in the interpretation and applica-
tion of that law. The Hamburg Superior Court thereby erred in its
failure to consider Harlan’s constitutional right to free expression.
Lüth was the first in a line of jurisprudence that claimed to protect
citizens from both vertical and horizontal risks to their fundamen-
tal rights. The “pivotal importance” of Lüth, as summarized by one
leading authority, is that the decision
... emphasizes the individual and social dimensions of speech....
Speech, like other basic rights, is both negative and positive in char-
acter. Its negativity protects the individual against official restraints
on speech; its positivity obliges the state and its agents to establish
the conditions necessary for the effective exercise of speech rights.^70
(^69) Cited in BVe r f G E 7:198: “Objective value-order” is the translation of “objec-
tive Wertordnung.”
(^70) Kommers, Jurisprudence, 376.