Parental Responsibility as Fundamental Right and Obligation. A reconstruction of Art. 6 Abs. 2 Basic Law

• Applicant: Dr. Michael von Landenberg-Roberg
• Subject Area: Public Law
• Term: from 2020 to 2021
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 450143255

With my reconstruction of Art. 6 sec. 2 Basic Law I have pursued the goal of regaining a viable conceptual starting point from which the current problems of the application of the parental fundamental right can be address with a level of complexity appropriate to the current diversity of its regulatory subject-matter. The starting point of the study was the manifold ambivalences and open questions, to which the dominant interpretation of the fundamental parental right as a right in the best interest of the child on the one hand, and a methodical neglect of the time dimension of fundamental right dogmatical operationalization on the other hand, gave rise (I. part).On the basis of the genesis of the fundamental right in the constitutional assembly (Part II), I have reconstructed in the two central parts of my thesis the intricate ways of its interpretation and application in constitutional jurisprudence. In a first line of development, I have investigated the question of how the problem of the content and temporal limits of the power of determination granted to parents by Article 6(2) of the Basic Law is reflected in the light of the child's independent fundamental right status (Part III). With a second line of development, I then followed up on how the operationalisation of fundamental rights has been dealt with regards to the challenges of the plurality of fundamental rights and the consequences of pluralized family forms (Part IV). On the basis of these lines of development, it is now possible for the first time to understand in depth how constitutional law reacts to social change and how it constructively adapts to it through a changing interpretation of fundamental rights.The reconstruction of its history of application drew attention to the factual problems a convincing interpretation of the parental fundamental right must address. In this way, an adequate awareness of the temporal contextual dependence of certain legal solutions as well as of the social conditions of their respective problem-solving plausibility could be gained.Building on this, I was then able to design a systematic reconstruction of Article 6(2) of the Basic Law (V. Part), which, through a more precise separation of the perspectives of the interests of the child and the parents, not only succeeds in taking better account of the legitimate parental interest at the conceptual level, but also to raise awareness more clearly of the fundamental rights positions of the child. The reconstruction responds to the challenges posed by pluralized family forms and multi-parent constellations by advocation of a further transition from an institution-oriented to an individual-oriented paradigm of interpretation.

• DFG Programme: Publication Grants