Verfassungshorizont und Taburaum

A number of recent decisions by the Federal Constitutional Court (such as on the freedom of opinion for neo-Nazis and on incest among siblings) demonstrates that in the system of law the demand of how to deal with issues that are out of the question keeps coming up. Each legal system comprises an imagined horizon (the »constitutional horizon«) beyond which the space of behavior in violation of order (the »taboo space«) begins. The behaviors concerned are a priori outside of what is protected by the system of law. Genuine legislative decisions regarding the lawfulness of this or that behavior therefore are taken within the constitutional horizon only; wrongdoing that is outside the constitutional horizon is eventually just declared wrong by the bodies representing the system of law. Viewed dogmatically from the perspective of the fundamental rights, the solution for such constellations can be found in determining the scope protected by fundamental rights that does not appear to be opened in these cases: areas protected as fundamental rights always extend to the horizon set by a constitution only. Measures by legislators or authorities to ban such behavior, therefore, do not intervene with the fundamental rights to freedom of the people affected; the intervention in fundamental rights is in this event limited to the sanction that may be associated with it. The constitutional standards thus refer to the sanction and not to the ban. Such a teaching of »constitutional horizon and taboo space« will also have to be considered in non-constitutional fields of law, for example in purpose of punishment teachings in criminal law, the distinction between discretion of intervention and selection discretion in police law, and application of the public order reservation in Private International Law. In this respect, all government agencies must contribute to excluding the taboo space; the instance that makes major decisions in this respect within national legislation is the Federal Constitutional Court.