Social Fundamental Rights – a Model of Personal Autonomy under the Basic Law

• Applicant: Dr. Jakob Schemmel
• Subject Area: Public Law
• Term: since 2022
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 503479199

Fundamental social rights are a recurrent issue under the Grundgesetz. While constitutional law scholarship has recently lost sight of them, the Federal Constitutional Court has developed fundamental social rights in different forms: from the right to a fair distribution of admission capacity of state-owned universities to the right to a guarantee of a decent subsistence minimum. The related constitutional changes, however, have not yet been analyzed and discussed in more detail. A theoretically guided “dogmatic” of fundamental social rights which can embed the court’s jurisprudence in the constitutional order and guide further developments is still missing. This project aims to remedy this. It will reconstruct the fundamental social rights of the Grundgesetz and develop a model of personal autonomy to close remaining conceptual and dogmatic gaps. This endeavor first requires an inventory of the basic social rights created by the Federal Constitutional Court and the consultation of social rights on the international and European level. This typology will be recreated as a concept of personal autonomy. Autonomy as a concept allows to rethink the conditions of freedom as guaranteed by the Basic Law. The aim is to find a concept for existing and future social rights that allows for a reconstruction of existing social fundamental rights and can guide the creation of future rights. The concept will be used to construct a right to adequate housing and to develop the contours of a new right to work. The continuation application serves to finalise the project, which has become more extensive due to conceptual refinements and extensions and has been delayed by special personal circumstances. The conceptual refinement concerns the typology of fundamental social rights under the Basic Law. It has been narrowed down by an expanded concept of fundamental social rights. The additions concern a stronger focus on how the claims dimension of fundamental rights is to be organised in terms of legal construction and doctrine. Secondly, it has proven necessary to take a closer look at the international law references of the social guarantees of fundamental rights established by the Federal Constitutional Court in order to guide the further shaping not only of rights-specific guarantees, but also the shaping of the claims dimension of fundamental rights. In particular, the promising concept of the minimum core of economic and social rights, which has not yet been widely recognised, should be considered.

• DFG Programme: Research Grants