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Ernst-Wolfgang Böckenförde, Mirjam Künkler, and Tine Stein

Print publication date: 2017

Print ISBN-13: 9780198714965

Published to Oxford Scholarship Online: March 2017

DOI: 10.1093/acprof:oso/9780198714965.001.0001

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Fundamental RightsTheory and Interpretation [1974]

Fundamental RightsTheory and Interpretation [1974]

(p.266) XI Fundamental RightsTheory and Interpretation [1974]*
Constitutional and Political Theory

Mirjam Künkler

Tine Stein

Oxford University Press

The chapter provides an introduction to five different theoretical approaches of interpreting fundamental rights: the liberal (civic-Rechtsstaat) theory, the institutional theory, the value theory, the democratic-functional theory, and the welfare-state theory of fundamental rights. Considering the totalitarian experience of Nazi Germany as a background for the drafters of the Basic Law, it is obvious for Böckenförde that the liberal theory with its clear understanding of rights that are anterior to the state represents the starting point for interpreting the Basic Law. Yet, the principles to be found in the Basic Law itself have to be taken into account, too, in particular its self-definition as a social state (Art. 20(1)). Böckenförde concludes that both the liberal and the social theory of fundamental rights need to be applied when interpreting the Basic Law’s fundamental rights.

Keywords:   Fundamental rights theory, fundamental rights interpretation, liberal (civic-Rechtsstaat) theory, institutional theory, value theory, democratic-functional theory, welfare-state theory, human dignity, social state

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