[Editors’ Note: Prof. Brugger's article will appear in German Law Journal in two parts, the first in this month's issue and the second in Vol. 4, No. 1 (1 January 2003). The article originally appeared in Stocktaking in German Public Law 117 (Bullinger and Starck eds., 2002). It is republished here with the kind permission of NOMOS Verlag, Baden-Baden.]

The way legal systems should deal with hate speech is a contested matter. The term “hate speech” itself suggests that it is a form of speech, and speech is generally protected in liberal states. However, this “speech” is either motivated by hatred or expresses hate, and such communication might not rise to the level of discourse that merits constitutional protection at all.

The law must correspond with human nature and be based on criteria equal to all human beings. Many schools of legal philosophy agree on these points. However, many of them tend to disagree as soon as more detailed criteria for “humanity” and the “nature of man” are suggested. This is where the empirical understandings of basic needs clash with loftier concepts such as “reason” and “spirit” over what the actual indicators of humanity are. Relativistic schools point skeptically to the plurality and historicity of many legal convictions. Proceduralists look for a way out of the vagueness and controversy of appropriate indicators of humanity and human law by relying on concretization processes. Such processes are expected to exclude at least violence and in the best case include as much integration as possible of all those affected by legal provisions. This paper proposes that the most important insights into good and human law can be discovered by analyzing the character of human agency (Handeln). All life forms usually act in a functional manner, doing what is required to preserve themselves; many animals are able to learn and communicate to a certain extent. By contrast, humans not only “behave”, rather, they “act” - they sense, interpret, evaluate, articulate and decide. As trivial as that sounds, using “human action” as an indicator of what aspects a good legal system should represent is an illuminating starting point. This is especially true concerning hard cases in the law that, in spite of being typically contested, lead to legally binding decisions. They are burdened by the “anthropological cross of decision-making” or, as one could also say, the “decisional cross”. The question we will turn to is the meaning of the decisional cross.

As pointed out by the Federal Constitutional Court, a specific determination of the appropriateness of hate speech prohibitions can be based only on the circumstances of individual cases. Some particularly prominent cases are now reviewed.