FAMILY LAW AND THE FEDERAL REPUBLIC OF GERMANY'S BASIC LAW

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Abstract
In this article the author argues that the Basic Law does not contain a system of family law as such. The declarations of the Basic Law on marriage and the family have not provided impulses for the reforms in the post-war period which have transformed the whole of family law, at least not to the extent that is often assumed. This accords with the recognition that ordinary statute law can only direct social behaviour within very narrow limits. Family law is a mirror of social reality; it shapes that reality only slightly. The merits of the Constitution, or more precisely, the jurisdiction of the Constitutional Court, are to be found in the manner in which it concretizes basic rights in a binding way and, in view of the numerous reforms of the post-war period, in the possibility it presents for judicial review. Moreover, the decisions of the Federal Constitutional Court have enhanced sensitivity towards those basic rights, and promoted a change in values and rationalization. However, problems are created by the almost total lack of acceptance of standardizing legal rules. This is part of a general development for which the Federal Constitutional Court is certainly not responsible. However, especially in family law, the Court ought to resist this development, which is expressed in legislation through blanket and hardship clauses and in the courts through decisions based purely on principles of fairness.

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