Family law in the Federal Republik of Germany's basic law

The significance of constitutional law for private law in general lies in its grant of selective guarantees. Moreover, it contains guidelines and provides impulses. Family law is no exception since in its case, too, the Basic Law contains a set of rules which traces out the crucial, guiding principles merely to be fleshed out and concretized by the legislator. Nevertheless, there is no doubt that through its fundamental declarations the Basic Law (influences family law or attempts to influence it. 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 with a certain constitutional fervour. This accords with the clear recognition that ordinary statute law too can only direct social behaviour within very narrow limits. Family law is a mirror of social reality; it shapes that reality only slightly. This may disappoint the family law judge. The merits of the Constitution — or more precisely, the jurisdiction of the Constitutional Court — are to be found in the manner in which it concretises 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 lead to an increase in sensitivity towards those basic rights, to a change in values and to rationalisation. Problems are created by the almost total lack of acceptance of standarizing legal rules. This is part of a general development for which the Federal Constitutional Court is certainly not responsible. However, the Court ought to resist this development, expressed in legislation by the use of blanket — and hardship clauses and in the courts through decisions based on principles of fairness, more strongly at least where family law is concerned.Digitalizacja i deponowanie archiwalnych zeszytów RPEiS sfinansowane przez MNiSW w ramach realizacji umowy nr 541/P-DUN/201