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1 Rationality as the Guiding Principle of Modern Constitutional Law
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),
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
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.
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
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.
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.).
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
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
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.
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: