Abwehrrechte

Abwehrrechte, or defensive rights, are a category of fundamental rights (Grundrechte) in the German Basic Law that protect individuals against interference by the state. They are typically described as negative rights, obliging authorities to refrain from certain actions rather than to provide benefits. Their core function is to secure personal autonomy and legal safety by limiting state power.

The Abwehrrechte cover a broad set of guarantees, including the right to life and bodily integrity; freedom of movement and residence; privacy of correspondence, post and telecommunications; freedom of faith, conscience and religion; freedom of expression, information and the arts; freedom of assembly and association; and the freedom to choose occupation and to work. Property rights (Art. 14) are likewise treated as Abwehrrechte, protecting owners against unjust state interference, subject to constitutionally defined limits. The list is not necessarily exhaustive and evolves with constitutional interpretation.

Limitations on Abwehrrechte may be imposed only through law and to the extent justified by legitimate aims, with due regard paid to proportionality and the principle of necessity. In concrete disputes, the Federal Constitutional Court can review and strike down laws or administrative actions that infringe these rights, ensuring that state power remains bound by constitutional protections. The balance between Abwehrrechte and competing public interests is a central aspect of constitutional adjudication, including questions about emergency powers, policing, and national security.

In relation to Gestaltungsrechte (positive or enabling rights), Abwehrrechte provide the structural counterweight that limits state action, while Gestaltungsrechte empower individuals to seek active state action or to shape certain legal outcomes. Together, they form the framework for individual protection and state responsibility in the German constitutional order.