The Standard-Setting Power

This chapter chronicles the proliferation of doctrinal standards over time and underscores the bizarre lengths to which that proliferation has recently extended. It shows how the Federal Constitutional Court makes use of a distinctive technique for reaching and justifying decisions, which it elaborated over many years, and which today it habitually applies. The Court regularly divides the reasoning of a decision into two blocks. The first block identifies general statements on the interpretation of the constitution. In such general terms, the Court establishes the legal standard, which will lie at the foundation of the case. The application of the standard to the determinative set of facts follows. The facts of the specific case first enter the reasoning in the second part, the “subsumption section.” The standard already formed in general-abstract terms is now applied to the specific issue the Court has to decide. Finally, the chapter warns that the era of bold new standards is probably gone for good.

The Karlsruhe Phenomenon

This chapter stresses that nothing in the Federal Constitutional Court’s growth was preordained. It depicts the Court’s initially fraught relations with political actors, ordinary judges, and legal academics, scrutinizing the institutional peculiarities that have made the Court what it is. The manner and direction in which the Court developed was recognizable merely in outline in the fundamental decision by the constitution’s founders for an institutionally independent constitutional adjudication, which according to the size and extent of its jurisdiction would be powerful. This was due to the fact that the Federal Constitutional Court in its totality was unprecedented both in terms of constitutional history and comparative constitutional development: during the deliberations on the Basic Law and Federal Constitutional Court Act, there were repeated specific references to the Staatsgerichtshof in Weimar and the U.S. Supreme Court. But both in its numerous distinctive details and even in the overall concept, the constitutional court of the Basic Law represents a new creation.

Karlsruhe

This chapter charts the Federal Constitutional Court’s historical development, with a nuanced attention to the motley preconditions—and the irreducible contingency—of its remarkable rise. It begins with the rise of the Court, which adroitly used the opportunities offered by the uncharted situation of postwar West Germany. Especially by way of its extensive human rights jurisprudence, the Court worked toward a fundamental liberalization of the German legal system and shook up the traditional judiciary. The Federal Constitutional Court thus became the midwife of the second German democracy. However, owing to its successes and the eventual stability and prosperity of the Federal Republic, which was now a liberal society with a solidified democratic culture, the country came to depend less and less on the Court and its initiatives. The Court thus became a victim of its own success. Other factors involved in the Court’s fading importance are the loss of charisma through routinization and the increasing Europeanization and internationalization of the German legal system.

Legality, Legitimacy, and Legitimation of the Federal Constitutional Court

This chapter takes up the daunting question of the Federal Constitutional Court’s legitimacy. It scrutinizes possible bases of such legitimacy, carefully assesses each one, and shows them all to be problematic. The investigation approaches the topic with a three-part distinction. It begins with the legality of the Court and, therefore, the question to what extent the assumption that the Court is bound to law, and merely applies the law, appropriately describes its actual practice. After that it takes a look at the legitimacy of the Court in terms of the factual social acceptance of its decision-making practice. Finally, and most extensively, the investigation turns to the normative justification of the Court by asking about good reasons for its present institutional configuration. In a concluding reflection, the chapter examines the interrelation of the above-mentioned elements.