The subject of the article is the issue of the political nature of the constitution and its scientific description from the point of view of pure Kelsen’s theory of law. We propose in it the thesis that although politics is not an object of legal knowledge, it is a necessary condition of the ontology of constitution. According to this theory, the cognition and description of the constitution (metaphorically speaking: its epistemology) relate to the content of valid norms, while its ontology consists of two elements: legal authorization and political will. The ontology of the constitution has a two-fold character: first, its creation and effectiveness is based primarily on the will of the constitution’s creator and on the will of entities applying the constitution (political aspect); secondly, its objectively validity presupposes that the creator of the constitution has a normative authorization to establish it (legal aspect). The inclusion by pure theory of law of the political at the ontological level is concomitant with its complete removal from the epistemological field. the consequence of such a cleansing of the cognitive field is, firstly, the dependence of the description on the condition of efficacy, i.e. ultimately on the acts of will of the subjects performing the functions of state organs, and, secondly, the ‘defencelessness’ in the event that the legal researcher finds a content incompatibility between the constitution and the acts of its application.
Access to a sports stadium is subject to the requirement of equal treatment under the Article 3(1) of the Basic Law. The indirect horizontal effectiveness of this provision results from the specific nature of the relationship between the stadium operator and the spectator in that one of the parties has the one-sided power to decide on access to a socially important event. Exclusion from participation in events opened by private entities for the general public cannot be arbitrary. Civil courts have a duty to assess whether the exercise of the property right does not infringe the principle of equal treatment. In particular, it is necessary to examine whether a person affected by a stadium ban has had the opportunity to express his or her views beforehand 3 .The decision concerned in this gloss ends a nearly 10-year-long court battle before the civil courts and the Federal Court of Justice (FCJ) of Germany.
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