Revista da EMERJ - V. 21 - N. 3 - Setembro/Dezembro - 2019 - Tomo 1

69  R. EMERJ, Rio de Janeiro, v. 21, n. 3, t. 1, p. 55-71, set.-dez., 2019  TOMO 1 German Court: what the utmost effect is cannot be ascertained without knowledge about the segment of social reality in which the constitutional provision is to take effect. Legal norms are formulated in the context of a certain state of social reality. Next to text and purpose this context is constitutive for the meaning of the legal norm. But different from the text and the purpose, which are determined by the legislature and remain the same as long as the norm is in force, the context is subject to social change. As a consequence, an interpretation that served the purpose best under certain conditions may cease to do so under changed conditions. If this is so, sticking to the original interpretation can lead to suboptimal results. It can evenmiss the function of the norm completely and produce dysfunctional results. The Court’s jurisprudence takes social reality into account in order to ensure that the law keeps up with new challenges and retains its normative force vis-à-vis new problems. The Court even goes one step further and asks for the probable consequences of alternative interpretations in the real world and then chooses the interpretation whose consequences are closer to the normative purpose. In this way, it reacts in particular to new threats to constitutionally protected liberties that arise from scientific and technological developments and their commercial use and thus broadens the protective scope of fundamental rights. In sum, this method endows the constitution with high practical relevance. Anumber of important doctrinal innovations owe their existence to this approach, such as the principle of proportionality, the horizontal effect of human rights, and the constitutional obligation of the legislature to protect fundamental rights against menaces from private actors or societal forces. They have since been adopted in many new constitutions or in the jurisprudence of many constitutional courts. Yet, it is just this dynamic interpretation of the Court that returns us to the question of the law-politics divide. At what point does a new interpretation amount to an amendment of the constitution? Of course, in a formal sense an amendment requires a textual change of the constitution. This cannot be done by a court. In a more substantive sense, however, changes in the meaning of given text may have a bigger impact than textual changes. In sixty years, the Basic Law has been formally amended 52 times. Yet, the changes by way of interpretation, particularly in the field of fundamental rights, are certainly of a similar if not greater impact. Is there