Zur Kollision von Grundrechtsfunktionen Ein zentrales Problem der Grundrechtsdogmatik

Constitutional rights under the Basic Law do not only guarantee civil liberties, but they also constitute public duties to protect citizens from harm, threat or even terrorism. The idea or aspect of constitutional rights as civil liberties may be older than that of their protective function, but nonetheless has the former no principal priority over the latter. The prevailing doctrine according to which the state may only fulfil a duty to protect when the same duty has become the subject of a parliamentary statute cannot be approved without some important exceptions. Furthermore: the otherwise widely accepted dichotomy of »the statutes and the law« (Art. 20 section 3 of the Basic Law) that asserts that the contents of positive statutes are not necessarily to be identified with lawfulness does not only refer to subconstitutional statutes, but to the constitution (Basic Law) as well, which is basically nothing but a statute (the constitutional statute, as Forsthoff put it). This implies that unconstitutional action (especially in averting unforeseen dangers or catastrophes) can still be lawful.