[Due to its large size, the HTML version of this article [this version] is split into two parts. This is part II/II]

D. Who’s Afraid of the Total Constitution?

Conceptually then, private law, like any law in Germany, qualifies as a branch of applied constitutional law. If, like in Germany, the constitutional court recognizes a general constitutional right to liberty and private law is about determining the limits of the respective spheres of liberty in the interest of all, then private law is in effect applied constitutional law. It implements the constitution with regard to the concerns it addresses. It works out the implications of a general commitment to a constitutional right to liberty that citizens enjoy equally in their relationship with each other. As the hypothetical illustrates, civil litigation could always be conceived as litigation about competing constitutional rights, the specific contours of which private law attempts to define.

This may be a conclusion that even many constitutional lawyers find unfamiliar and are hesitant to embrace, even when they embrace the doctrine of “mittelbare Drittiwrkung” and support the generally expansive understanding of rights that informs the FCC’s jurisprudence. But for private law jurists the challenge is greater still. Such an understanding of private law goes against some deeply engrained ideas that still resonate in the intellectual universe that German jurists inhabit. Is the German Civil Code (BGB), originally thought of as the crowning glory of the legal system and the work product of centuries of civil law scholarship, merely an implementing device for constitutional commitments? The idea that private law is merely worked out constitutional law is deeply insulting to private law jurists, who, since the heyday of 19th century codification debates have suffered a comparative status loss in the academy as public law increasingly took center stage in the 20th century. It also seems incompatible with the idea that there is a deep significance to the distinction between public and private law. In Germany you are either...