New Directions in Comparative Law
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New Directions in Comparative Law

Edited by Antonina Bakardjieva Engelbrekt and Joakim Nergelius

This in-depth book explores the changing role of comparative law in an era of Europeanisation and globalisation. It explains how national law coexists and interacts with supranational and international law and how legal rules are produced by a variety of institutions alongside and beyond the nation-state. The book combines both theoretical and practically oriented contributions in the areas of law and development, comparative constitutional law, as well as comparative private and economic law.
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Chapter 10: Comparative Aspects of Fundamental Rights in Germany and Central and Eastern Europe: The Example of Ukraine

Kateryna Karpova


Kateryna Karpova I. FUNDAMENTAL RIGHTS IN GERMANY: GENERAL CHARACTERISTICS The German Constitution of 1949, the Basic Law, as one of the first post-war Constitutions, has realised a new orientation which has contributed to the further development of constitutionalism in Europe: it has placed the individual at the centre of constitutional law by recognising that the dignity and liberty of man are the highest values.1 Therefore, the Basic Law has adopted a charter of fundamental rights as the first part of the Constitution which constitutes a comprehensive value order with impact on each branch of internal law, on public as well as on private law. Fundamental rights in Germany are conceived as subjective rights,2 which means that the individual as such is the holder of these rights and entitled to invoke them directly before the courts. Thus, the fundamental rights are not only objective principles which must be implemented by the legislator to be effective. The German Basic Law has the intention of giving directly applicable rights to the individual and of avoiding programmatic norms which outline a constitutional programme but do not give direct rights under the Constitution.3 For historical reasons constitutional programmes as foreseen by the Weimar Constitution (see Anschütz, 1933: 507–510, 511, 513–514) were considered inefficient and intentionally not introduced into the 1949 Constitution. The subjective character of the Fundamental Rights corresponds to their classic function: the defence of the individual against state,4 or more generally stated, against intervention of public power. The...

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