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1 Rationality as the Guiding Principle of Modern Constitutional Law

1 Rationality as the Guiding Principle of Modern Constitutional Law

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4 Rationality Requirements on Parliamentary Legislation


have the force to form the law and, thus, to fulfil the expectation that public authorities

are rational institutions.

Again and again, the requirements of the rule of law are therefore the starting

point for attempts to import concepts of specific rational obligations of the legislator

into the law. In German constitutional law this tendency is evident, too. In the 1970s

and 1980s discussion about the system of equity (Systemgerechtigkeit) of the law

was mostly limited to science,8 and the rule of law-based principle of the consistency of the legal order was introduced into the jurisprudence of the Federal

Constitutional Court (BVerfG) towards the end of the 90s; as a rule, however, this

development has remained limited to the federal distribution of competences.9

In recent years the courts seem, however, to have abandoned their previous

restraint. In addition to judgments which are in line with well-known constitutional

requirements, the constitutional courts of a number of countries, the German Federal

Constitutional Court and the European Court of Justice are increasingly making

decisions in which they actively develop general constitutional requirements on parliamentary legislation. These requirements go beyond known constitutional commitments to the rule of law, they relate to various matters,10 and their scope and

intensity reach so far that they can be understood as a paradigm shift towards a

comprehensive duty to rational and consistent legislation.11

According to the courts, the legislator must now consistently implement and

design its own self-imposed main decisions12; justify exceptions to the basic decision with a specific objective reason13; correctly and accurately determine the current situation requiring a careful weighing of the relevant facts14; introduce less

intrusive alternatives into the legislative procedure15; and demonstrate that proposed

new rules serve to achieve the intended goal in a coherent and systematic manner.16


See on this Degenhart (1976); Peine (1985); both with further references. Substantively echoed in

jurisprudence, first and foremost, in BVerfGE 13, 331 (340); 34, 103 (115).


BVerfGE 98, 83 (97); 98, 106 (118–19, 125 ff.); 108, 169 (181–82).


For a survey see Payandeh (2011: 593 ff.).


Bumke (2010: 80); in principle agreeing Cornils (2011: 1054).


BVerfGE 99, 88 (95); 99, 280 (290); 105, 73 (125–26); 107, 27 (46–47); 116, 164 (180–81); 117,

1 (30–31); 121, 317 (362, 367–68); 122, 210 (231); 123, 111 (120); 126, 400 (417); BVerfG, judgment of 5 November 2014, 1 BvF 3/11, para 41.


On this BVerfGE 122, 210 (231).


State Court of Lower Saxony, Judgment of 6 December 2007, StGH 1/06, NdsVBl.

(Niedersächsische Verwaltungsblätter) 2008, 37 (41); also available at: www.rechtsprechung.niedersachsen.de


Constitutional Court of the State of Mecklenburg-Vorpommern, Judgment of 6 July 2007,

LVerfG 9 – 17/06, NordƯR (Zeitschrift für ưffentliches Recht in Norddeutschland) 2007, 353 (358,

361–62); also available at: www.landesverfassungsgericht-mv.de.


ECJ Case C-67/98, Zenatti, Judgment of 21 October 1999 (ECR I-7289), para 35–36; Case

C-243/01, Gambelli and Others, Judgment of 6 November 2003 (ECR I-13031), para 67; Case

C-372/04, Watts, Judgment of 16 May 2006 (ECR I-4325); Joined cases C-338/04, C-359/04 and

C-360/04, Placanica, Palazzese and Sorricchio, Judgment of 6 March 2007 (ECR I-1891), para

53, 58; Case C-169/07, Hartlauer, Judgment of 10 March 2009 (ECR I-1721), para 55 ff.; Joined

cases C-159/10 and C-160/10, Fuchs and Köhler, Judgment of 21 July 2011 (ECR I-6919),


B. Grzeszick

In addition the legislature must integrate all relevant aspects of the matter in question

into a transparent and appropriate procedure as when it, for example, specified an

entitlement to benefits resulting from the constitution.17

A transparent and appropriate legislative process means that the advantages and

disadvantages of a regulation can be properly surveyed. This process contains the

requirements of producing logical, coherent and realistic laws; of consisting of clear

norms; and having a recognizable, coherent and viable justification. Within these

requirements, moreover, the facts and rationes decidendi are comprehensively and

verifiably specified and are in general less invasive than the alternatives. With these

requirements, the ideal of the modern, rational constitutional state seems to have

been reached. What objections, we must then ask, could be raised against these

legislative obligations?

Well, there are several objections, a number of which relate to the paradigm shift

heralded by the case law. It is assumed that the rules established by jurisprudence do

not find a sufficient basis in the existing law.18 With the dynamic generation of general requirements, the courts have undermined basic decisions of constitutional

law19 and European law,20 and placed their own conceptions of rationality above the

decisions of the competent legislator.21 Consequently, they have increased the risk

of paternalism,22 shifted the balance from the legislature towards the judiciary,23 and

threatened the capacity of politics to enact reforms.24 In addition it is feared that in

the sphere of EU law, the national competency of Member States for areas not falling under EU competence is overridden by a Europeanization following from the

requirement of coherence.25

para 85; Case C-42/07, Liga Portugesa, Judgment of 8 September 2009, para 61; Case C-153/08,

Kommission/Spanien, Judgment of 6 October 2009, ZfWG (Zeitschrift für Wett- und

Glücksspielrecht) 2009, 336, para 38; Case C-169/08, Regione Sardegna, Judgment of 17

November 2009, EWS (Europäisches Wirtschafts- und Steuerrecht) 2009, 522, para 42; Case

C-544/11, Petersen, Judgment of 28 February 2013, para 53, 61; Case C-46/08, Carmen Media,

Judgment of 8 September 2010 (ECR I-08015), para 55, 63 ff.; Case C-316/07, Markus Stoß and

Others, Judgment of 8 September 2010, DÖV (Die Öffentliche Verwaltung) 2010, 940 (LS 906),

para 98; Case C-409/06, Winner Wetten, Judgment of 8 September 2010; Case C-470/11, SIA

Garkalns, Judgment of 19 July 2012, para 37; Joined cases C-186/11 and C-209/11, Stanleybet

International Ltd, Judgment of 24 January 2013, NVwZ (Neue Zeitschrift für Verwaltungsrecht)

2013, 785, para 27; Case C-476/11 HK Danmark, Judgment of 26 September 2013, para 67; Joined

Cases C-184/13 to C-187/13, C-194/13, C-195/13 and C-208/13, Anonima Petroli Italiana and

Others, Judgment of 4 September 2014, para 53.


BVerfGE 125, 175 (225), with further references.


Bumke (2010: 93 ff.) with regard to consistency, but only as an example.


Lepsius (2009: 262).


Axer (2010: 137 ff. and 140–41).


Dann (2010: 638).


Dissenting Opinion J. Masing BVerfGE 121, 317, 381 (384 ff.).


Dann (2010: 638).


Dissenting Opinion B.-O. Bryde BVerfGE 121, 317, 378 (380–81).


Axer (2010: 141, top of the page).

4 Rationality Requirements on Parliamentary Legislation


Is this criticism justified? Does the promise of salvation that lies in rule of

law-based rationality actually lead to a judicial state that overrides positive law

when generally applied to the legislature?26 Or are these new juridical requirements

generally appropriate implementations of the rule of law-based paradigm of rational

legislation27 that provides laws with the level of evaluative and justificatory rationality28

that is necessary from the perspective of the citizen,29 and that simply require careful integration with the traditional doctrine of constitutional and European law?30

In the following these questions will be examined in a step by step approach and

the extent to which general rule of law requirements on parliamentary legislation

can be justified under constitutional and EU law will be set out. First, the characteristics of the rule of law are established using the requirement of consistency as an

example31 and thereafter its relation to the principle of democracy is outlined.

Finally, it is discussed whether the insights obtained are also applicable to the coherence requirement of European Union law.


Aspects Concerning the Rule of Law

Let us take aspects of the rule of law first. These aspects can be explained using the

requirement of consistency as an example. The requirement of consistency that has

been developed by the courts obliges the legislator to consistently implement and

flesh out its main decisions, and its exceptions to the main decisions must be justified with objective reason.

This requirement is intended as a rule of law-based containment of parliamentary

legislation but criticisms may already be raised; it is said, first and foremost, that the

gains with regard to the rule of law are opposed by corresponding losses, so that on

balance the effects of the rule of law were significantly less favourable than thought.


Bumke (2010: 95).

Bumke (2010: 95, bottom of the page).


Osterloh and Nußberger (2014: mn. 98).


On this with regard to the principle of consistency in tax law, Kirchhof (2007: § 118 mn. 178–79;

2000: 322; 2003: 44–45).


Bumke (2010: 105), however, excludes the possibility of a differentiation of standards that is

necessary for this integration into traditional doctrine, and he thus argues in favour of a change in

the system towards a duty of the legislature to enact consistent sets of regulations.


The question of the extent to which general rationality requirements with regards to the rule of

law can be based on constitutional law and EU law, can be considered from different perspectives.

Given that general rationality requirements on the legislator are expressions of the idea of the rule

of law, it is appropriate to descriptively systematise the different aspects according to their relation

to the precept of the rule of law. Accordingly, there is a distinction to be made between, on the one

hand, aspects that raise questions in respect of the rule of law and fundamental rights and, on the

other hand, aspects that touch upon the relationship of democratic legitimation to the legislature.




B. Grzeszick

Anchorage in Positive Law

One reason for the negative effect of the rule of law is held to be the fact that the

requirement of consistency is not sufficiently embodied in positive law.32 When put

this way, however, this criticism is not convincing. There may be only limited evidence of the requirement of consistency in the legal texts of Federal State constitutions, the Basic Law and the treaties of the European Union but this equally applies

to almost all general requirements of the rule of law. Thus, principles on the protection of legitimate expectations and on non-retroactivity, and requirements as to legal

certainty as well as the principle of proportionality are at most marginally embodied

in the relevant legal texts. Nevertheless, these principles and requirements have

reached the status of recognized legal propositions and remain unaffected by recent

case law. Therefore, the principal constitutional embodiment of the requirement of

consistency does not pose the real problem.33


Hierarchies of Norms

The criticism that the requirement of consistency undermines gradations in the hierarchy of norms34 does not apply either. The reasoning but also the spuriousness of

this criticism becomes obvious in the decision of the Federal Constitutional Court

concerning the commuter tax allowance.35 This judgment concerned an amendment

to the Income Tax Law. According to the amendment the costs for travelling between

home and one’s place of work would in the future be treated like income-related

expenses on distances of 21 km and above and would no longer be tax deductible

from the first kilometer, as had been in the past. According to the Federal

Constitutional Court, past decisions concerning tax burdens must be consistently

implemented in order to reach the goal of equality of burden, and exceptions to

implementation require a specific objective reason.36

The income tax law is said to contain the basic decision of the legislator that

financial performance will be measured in line with a main principle according to

which professional expenses and existence-securing expenses are deductible from

tax.37 The new amendment was considered to contain a deviation from this principle38


Likewise – with regard to the principle of consistency, but generalisable – Dann (2010: 633,



Cf. also Bumke (2010: 93, also on 95: “appropriate manifestation of the model of rational



Dann (2010: 633–34).


BVerfGE 122, 210 ff.


BVerfGE 122, 210 (230–31)


BVerfGE 122, 210 (233).


BVerfGE 122, 210 (236).

4 Rationality Requirements on Parliamentary Legislation


and the passing of it was therefore held to need a specific objective reason, which

had not been provided.39 Hence, the amendment was held to be incompatible with

the Constitution.40

In this argument critics have spotted an unacceptable blurring41 of the distinction

between statutory and constitutional law. The basic legal regulation of the tax burden decision, namely the assessment of performance according to the main principle, was used to shape a constitutional review of the law.42 The law was not measured

according to the Constitution but it itself provided the framework for the substantive

examination. The question, thus, was not whether the legislature had sufficiently

considered the Constitution, but whether it had consistently implemented its own

decisions since the ultimate result of the court’s control was that a sub-constitutional

decision became part of constitutional law.43

When evaluating this criticism it must be acknowledged that the argumentative

recourse of the court to basic statutory law within the framework of the requirement

for consistent laws is not without problems. However, it only becomes a constitutionally impermissible blurring or reversal of the distinction of statutory law and the

Constitution if constitutional law contains no requirement for consistency. Since in

this regard requirements for consistency can be drawn from fundamental rights and,

moreover, from the principle of the rule of law, this criticism cannot be sustained.44


Impacts on Fundamental Rights

In another respect, however, the obligation of consistency with regard to the rule

of law accounts for negative aspects. This becomes clear when looking at the

impact of consistency on fundamental rights. The corresponding effects can be

illustrated by the decision of the Constitutional Court concerning the protection of


This decision concerned a law that prohibited smoking in restaurants and

allowed a limited number of exemptions, one of which concerned adjoining but


BVerfGE 122, 210 (235 ff.).

BVerfGE 122, 210 (245).


Going even further, in the sense of a reversal Lepsius (2009: 262). Leisner-Egensperger (2013:

538) tries to prevent this risk through a restricted understanding of consistency.


Lepsius (2009: 262).


Dann (2010: 633).


In agreement, Dieterich (2014: 262). It is entirely possible and even common to preform constitutional control utilizing non-constitutional decisions of the legislature, if and insofar as the

Constitution contains a basis for doing so; the prime example for this is the general principle of

equality pursuant to Art. 3 para. 1 Basic Law. When applying this principle, non-constitutional

legislation serves as a starting point for the comparison that is necessary to establish the equality

or inequality of treatment.


BVerfGE 121, 317 ff.



B. Grzeszick

partitioned rooms.46 In the opinion of the Court the significant encroachment on the

professional freedom of innkeepers was opposed by an exceedingly important public

welfare concern, namely the health of the citizens. When determining the level of

protection the legislature therefore enjoyed a margin of assessment, appreciation

and discretion so that, as a consequence, it was left to the legislator to establish a

concept of protection.47 Hence it was held that the legislature was entitled to impose

a total smoking ban. Since a strict smoking ban was justified in the name of important public welfare concerns, the legislature did not have to accept exemptions even

in cases where small food and drink establishments were likely to be threatened.48

In the case of a relative ban, i.e. a smoking ban with exemptions, however, the

situation was different. When balancing legally protected interests the burdens on

small food and drink establishments received greater emphasis due to the planned

exemptions from the ban.49 The protection of non-smokers that was weakened by

separate rooms for smokers, therefore, had to be balanced with the interests of those

establishments likely to be affected by the ban. Since the law had not done this, it

was declared unconstitutional.

From the perspective of the freedom of occupation, the decision delivers a

remarkable result50: an absolute smoking ban that constitutes a comprehensive

interference is constitutional, while a relative and thus milder smoking ban is


This result is not an atypical case of exception but is, in principle, inherent to the

requirement of consistency. For the requirement of consistency differs from the

traditional doctrine of fundamental rights, and therefore it cannot only lead to results

that strengthen, but also to results that weaken the protection of fundamental rights

in comparison to the standard of protection offered by the traditional doctrine.51

The reason for this lies in the procedure peculiar to the requirement of consistency, namely to consider a specific provision of the law as a basic decision or systematic decision which has to be consistently implemented and fleshed out in the

further provisions of the law. That is why deviations from the basic decision require

a justifying reason.


There were further specific exception clauses for discotheques as well as for beer, wine and party



BVerfGE 121, 317 (356–57).


BVerfGE 121, 317 (357–59).


BVerfGE 121, 317 (359–60, 363).


Dissenting Opinion J. Masing BVerfGE 121, 317, 381 (384 ff.); Gröschner (2008: 405–06).


Contrary to this, however, Osterloh (2013: 440–41) states that “the control of consistency blends

in seamlessly with the general equality control with regard to the legislature”; Payandeh (2011:

605 ff.) considers the outlined effects to be a “logical consequence of the construction of the principle of proportionality”; and according to Thiemann (2011: 211) “The requirement of consistency

is […] in accord with the structure of the equality principle”.

4 Rationality Requirements on Parliamentary Legislation


This approach focusses on the justification for the deviation, and not on the

justification of the basic decision. This can strengthen the protection of fundamental

rights. In this vein, the Federal Constitutional Court in its decision on the commuter

tax allowance criticized the lack of a justifying reason for the exemption of the first

20 km, as required by the principle of consistency. In this case the additional burden

of justification considerably enhances the fundamental rights-based protection of


The requirement of consistency can also strengthen the protection of basic rights,

when the deviations are understood as part of the basic decision. This is evident in

the case concerning the protection of non-smokers. Due to the exceptions of the

prohibition, the Federal Constitutional Court held that the basic decision of the legislature was not, in principle, a strict prohibition with exceptions but only a relative

prohibition, with the result that the necessary justification for partial strict prohibitions was missing. Also in this instance the precept of consistency leads to greater

protection of fundamental rights.

However, the requirement of consistency can also weaken the protection of

fundamental rights. In the framework of the equality assessment, as commonly

practiced by the Federal Constitutional Court, all features of a regulation that have

an impact on equality are to be identified and their relevance as reasons for the

differential treatment is to be determined; furthermore, in an intensive examination,

the differences and impacts are to be balanced against the weight of the considered

justificatory reasons. The precept of consistency leads to the fact that, first and foremost, deviations from the basic decision require justification. The shift that is inherent in the precept of consistency and that moves the burden of justification from the

main decision to the exceptions can entail the consequence that the main decision is

protected52 from being called into question by the substantive reasons underlying

the further individual legal provisions and that it is, thus, constitutionally justified.

This effect is also evident in the decision concerning the protection of non-smokers:

according to the Federal Constitutional Court, by enacting a strict ban on smoking

the legislature can emphasize the importance of the protected legal interest to such

an extent that a total ban would be constitutional, whereas the relative smoking ban

was unconstitutional due to its narrow and therefore inconsistently designed


With regard to basic rights it must therefore be noted that the shift of the burden

of justification from the basic decision to exceptions caused by the precept of consistency not only complicates differentiated solutions and thus impedes legislative

compromises but also has a tendency to favour all-or-nothing solutions. In addition,

the constitutional protection of the citizens against state interference and their freedom from unequal treatment by the state is partly strengthened, but also weakened

to some extent.


Cornils (2011: 1056 ff.).



B. Grzeszick

Selection and Creation of the Standard of Review

A comparison of the judgments on the commuter tax allowance and the protection

of non-smokers leads to another fundamental problem of the precept of consistency:

constitutionally, the choice and creation of the standard of review are only very

weakly determined.

The main point of the precept of consistency is the assumption that there is a

basic decision of the legislature, which is to be consistently and coherently implemented in the law. The aformentioned judicial decisions, however, do not provide

any generalizable criteria as to how to determine basic decisions and exceptions.53

This is not a coincidence since fundamental rights provisions do not contain any

reliable criteria guiding how to determine a basic decision of the legislature; by

means of fundamental rights the precept of consistency can only be very weakly

outlined.54 As has been shown, the corresponding doctrine differs from the traditional fundamental rights doctrine and cannot be underpinned by it.55 This uncertainty also precludes a coupling with the doctrine of fundamental rights; since it is

not sufficiently certain whether the requirement of consistency strengthens or

weakens the protection of fundamental rights, the requirement cannot be integrated

into the current fundamental rights’ doctrine.


Enhancement of Judicial Powers in Relation

to the Legislature

The precept of consistency turns out to be problematic from the perspective of the

rule of law for a number of reasons that include: inadequate doctrinal compatibility;

an insufficient outline of the standard of review; and divergent effects on the protection of fundamental rights. Overall, the uncertainties that arise are considerable to

such an extent that they have repercussions for the institutional relationship between

the legislature and the judiciary. The judicial review of legislative activities exercised

by means of the precept of consistency is so weakly determined that the courts have

considerable substantive discretion in the choice, creation and use of the standard of

review. Thus, the precept of consistency, at least potentially,56 leads to a significant

enhancement of the courts’ powers in relation to the legislature.57


Cf. Thiemann (2011: 191); also on this problem Payandeh (2011: 590).

Dann (2010: 633).


Analysis at Cornils (2011: 1056 ff.); Dieterich (2014: 403 ff.).


Insofar as courts make use of this margin.


Dieterich (2014: 277–78, 281–82); Lepsius (2009: 262); Payandeh (2011: 612–13); differently,

however, Petersen (2013: 133).


4 Rationality Requirements on Parliamentary Legislation



No Change from a Procedural Understanding

This effect will remain unchanged, if the precept of consistency is primarily

understood as a procedural requirement.58 Although the precept of consistency can

certainly be seen as a justification obligation (Begründungsobliegenheit) as it does

not strictly exclude the legislator from making exceptions to the basic decision, but

only requires a specific objective reason for doing so. From this perspective the

precept of consistency contains requirements particularly relating to the justifiability

of laws,59 and not directly with regard to the content of laws.60


On this Mehde and Hanke (2010: 381 ff.); Hebeler (2010: 754 ff.); Schwarz and Bravidor (2011:

653 ff.); Petersen (2013: 110, 114 ff.). According to this opinion the new or increased procedural

obligations (Pflichten and Obliegenheiten) are only weakly embodied in positive constitutional law

(Waldhoff 2007: 329 ff., 336–37; Mehde and Hanke 2010: 384); this is why on this basis, too, the

choice and formation of the respective standard of review cannot be sufficiently deduced from

constitutional law.


For a comprehensive account on this see Kischel (2003: in particular 63 ff., 303). The assumption

that there is a general obligation under constitutional law to state reasons for legislative enactments

(in this vein Pestalozza 1981: 2081 ff.; Lücke 1987: 214 ff.; Lücke 2001: 1 ff.; Redeker and

Karpenstein 2001: 2825 ff.) is not convincing. The process of democratic legislation as it is outlined in the Constitution and further specified in the respective rules of procedure is one in which

different eligible participants take part and in which they take on different roles; the interplay of

their contributions as well as their effects on the final law is, with regard to the procedural positions

and procedural steps, arranged as a political-democratic will formation (Mehde and Hanke 2010:

383–84; Dann 2010: 640 ff.; Cornils 2011: 1058; differentiating between the rule of law-related or

administrative process of concretisation of a guiding principle – that is generally predetermined –

and a system of rules, Waldhoff 2007: 329, 330 ff.; differentiating from a process that produces a

specific substantive and “correct” knowledge, Dann 2010: 640–41); as a general and future-oriented legal provision the law is therefore based on its justifiability, and not on its historically

influenced, heterogeneous and contingent reasoning. These arguments also preclude the assumption that it is incumbent on the legislature to state reasons (Begründungsobliegenheit). Even if it

were merely incumbent on the legislature to give reasons, the law would not become unconstitutional on the sole ground that a statement of reasons is lacking. In the case of judicial review,

however, the fact that it is incumbent on the legislature to give reasons is tantamount to there being

an obligation. The reason for this is that in judicial review proceedings the law needs to be justified,

so that it also will be held unconstitutional if it lacks a convincing reasoning. Due to this effect a

situation in which it is generally incumbent on the legislature to give reasons is to be equated with

the – unconvincing – general obligation to state reasons; on this approach, Höfling (1993:



Pestalozza (1981: 2086), Lücke (1987: 98), and Redeker and Karpenstein (2001: 2827) go even

further and assume that obligations to state reasons are consistent with the principle of democracy

and that therefore there is the possibility that the respective obligations enhance democratic rationality, too. Explicitly dissenting, see Schwarz and Bravidor (2011: 659). Furthermore it has to be

taken into account that the procedural obligations postulated in more recent jurisprudence emphasize the commitment of the legislature to the rule of law. The various requirements do not refer to

the formation or the composition of the majorities that support the law, instead they obligate the

legislator to state specific substantive reasons. While this may indeed have effects on the formation

of a majority from the perspective of democratic rationality, however, it is not fundamentally different from material requirements like that of consistency, as both refer to the content of laws.


B. Grzeszick

However, this does not reduce the effects of the precept and the resulting enhancement of the authority of the courts in relation to the legislature. Even as a procedural

obligation (Obliegenheit) the precept of consistency is binding on the legislature

and shifts the balance between courts and legislature in the shown manner; this is

why the precept of consistency at least potentially leads to a considerable enhancement of the courts’ powers in relation to the legislature.


Principle of Democracy

This finding marks the transition to questions relating to the principle of democracy.

The seemingly triumphant advance of the rule of law appears to leave the legislature

behind as the underdog since the various judicially-developed requirements involve

a closer scrutiny of the legislature through the courts. By drawing on general provisions such as, e.g. the rule of law, fundamental rights and freedoms, courts have

dynamically widened the scope of their supervisory powers and reduced the discretion of the legislature.

This is where the fundamental criticism comes in: the development described

above is said to unbalance the democratic balance of powers. The increasing adjustment of parliamentary decisions by rule of law-requirements is held to lead to a

superimposition of the principle of democracy by the rule of law.61 Democratic principles and the rule of law are considered to no longer enjoy equal status. By onesidedly stressing the obligation of the legislature to honour the rule of law, courts – so

it is said – have made themselves the sole guardian of legal rationality.62 This is held

to be wrong: courts should reduce the density of their control and should increase

their trust in the political and legislative process.63


Relationship Between the Rule of Law and Democracy

The question of how the relationship between the rule of law and democracy is to be

conceived is a key one. Both the rule of law and democracy can be traced back to

the common fundamental idea of the concept of self-determination.64 This concept

is implemented in different ways; while the rule of law with its close connection to

the idea of basic rights aims at individual self-determination, democracy is a form

of collective self-determination. The basic ratio of the latter is obvious; the opinion

of the majority is decisive. Thereby democratic rationality entails a direct link to

political rationalities. What from a rule of law-perspective appears to be arbitrariness


Dann (2010: 634); Dieterich (2014: 257).

Dann (2010: 642).


In this vein – with regard to the Federal Constitutional Court – Lepsius (2009: 261–62).


On this as well as on the following Möllers (2005: particularly 27 ff.).


4 Rationality Requirements on Parliamentary Legislation


guided by individual interests and not capable of universal justification, turns

into the irreducible will of the people when looked at from the perspective of


However, the fundamental idea of self-determination is realized in both the judicial and legislative types of legitimation.66 The pretension of the rule of law to set

limits on public authority coexists with the pretension of democratically legitimized

institutions to implement the will of the majority. In principle, both types of legitimation are fundamental principles of modern constitutions with equal status.

On the basis of this legitimation-based conception of the rule of law and democracy, the rule of law requirements developed in jurisprudence and the criticism

levelled against them can be regarded in a different way. The idea that the new or at

least strengthened demands of the rule of law are based on a mistrust towards the

capabilities of the political process can be translated into the assumption of a legitimacy deficit. From this perspective, the judicially developed rule of law requirements appear as an attempt to provide compensation for a supposed legitimacy

deficit through an increase in legitimation via the rule of law.

This explanatory approach is confirmed by the fact that the judiciary has developed

and applied the new rule of law requirements especially in areas in which, pursuant

to traditional doctrine, the rule of law sets only few limits on the legislature.67

However, the only reason why this state of affairs appears to be a shortcoming is that

the legitimation of the statutory provisions is, first and foremost, considered from

the perspective of a rule of law-based rationality.68

In that regard, the respective jurisprudence is founded on a restricted understanding of rationality and legitimation that tends to reduce those concepts to their rule of

law aspects; it loses sight of the specific democratic rationality and legitimation.


On this Kelsen (1929: 98 ff.).

Critics object that a rule of law-based review is not an instrument to increase the legitimation of

a decision. They claim that a decision that is democratically legitimised by having been taken by

the parliamentary legislator is delegitimised by subjecting it to a rule of law-based judicial review.

Inversely they argue that if objections with regard to the rule of law do not exist and if, as a consequence, the parliamentary decision remains in force, the decision does not draw any further legitimation from the fact that it has not been corrected by the judiciary; instead the lack of a judicial

correction is said to leave the legitimation of the decision unaffected, so that positive legitimation

could not possibly be a task of judicial control by rule of law standards. When put forward in these

terms, this objection is unconvincing. On the one hand it disregards the fact that the limits that the

rule of law places on state action are meant to influence the legislative decision and that, as a general rule, they actually do so; on the other hand, a decision that nullifies a law also has a shaping



In this vein with regard to tax law Lepsius (2009: 261, in the middle of the right column).


The one-sided orientation towards the rule of law also shapes the expectations with regard to the

law; the conception of law as a clear, systematic, consistent and coherent codification that is subject to the requirement of consistency is based on the ideals of codification of the 19th century, in

this vein Lepsius (2009: 262); Dann (2010: 639–40); however, this fails to recognize that in

democracies laws are neither necessarily nor mainly procedures that lead to technical and substantive insights, but are always procedures of political decision-making, in this vein, Dann (2010:



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1 Rationality as the Guiding Principle of Modern Constitutional Law

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