Courts and legislation in a ‘constitutionalised’ private law: Insights from recent German practice for strengthening the democratic side of constitutionalism

Abstract In the perpetual debate about the legitimate role of courts in a democratic state, constitutional rights have become increasingly relevant. In Germany, the doctrine of ‘horizontal effect’ of those rights has reinforced judicial creativity. The civil courts are called to interpret vague clauses of the Bürgerliches Gesetzbuch (BGB) in a way that fully implements constitutional rights. In consequence, they often balance conflicting rights rather than applying specific statutory rules. But legislation does not only co-exist as a way to resolve rights conflicts. It is also possible to articulate a second, democratic side of constitutionalism that vindicates the primary role of legislation. In German constitutionalism, this has always been an important aspect of rights protection in public and criminal law. In its more recent jurisprudence, the constitutional court has started to strengthen the democratic side of constitutionalism even in private law by establishing constitutional limits to judicial developments of the law. The courts must obey legislative decisions, and they may not develop obligations that put heavy burdens on constitutional rights of one party without a sufficiently detailed statutory basis. At the same time, the constitutional court insists that reserving decision-making powers to parliament should not go to the detriment of substantive rights protection. In consequence, the necessary role of legislation will depend on the strength of the constitutional rights in question.