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1 The Duty to Give Reasons: Concept and History

1 The Duty to Give Reasons: Concept and History

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6



On Constitutional Duties to Give Reasons for Legislative Acts



131



question of justifying a legal norm in terms of its moral desirability. It can, thirdly,

also describe the process of deducing norms from superior norms, i.e. discussing the

normative validity of a given legal norm. This chapter is primarily concerned with

the first question only, namely whether parliament is under a constitutional obligation to give reasons for and when passing new statutory legislation. It will be argued,

however, that although these questions should be distinguished from one another,

one can hardly be answered without having due regard to the other. So, discussion

about procedural duties to give reasons must also take into account the other dimension of “begründen”, i.e. the normative justification of the law.

From the middle ages to the times of late absolutism, reasons were given for

legislative acts,2 mostly in the form of preambles and commencement clauses.3 With

the rise of modern parliamentary legislation this legislative technique of providing

reasons within the statutory document itself has almost completely fallen out of use,

at least within the German-speaking legal sphere. During the time of National

Socialism and later under the regime of the German Democratic Republic, however,

legislative preambles saw a remarkable renaissance. In some cases, their reasoning

was even given preference over the actual imperative text of the statute.4 Over the

past decades, claims have once more been raised, partly de constitutione lata and

partly de constitutione ferenda, for a general constitutional duty to give reasons to

be equally imposed on all branches of government which would therefore also

apply to the legislature.5 More often than not, these claims are fostered by general

scepticism towards the directive force and regulatory effect of statutory law.6 These

claims have emerged under various guises and in different theoretical contexts such

as in the context of discussions about “New Public Management” or the “aktivierender Staat” (activating state).7 Some writings even conceive legislation to be no

more than a “service” provided by the legislature to the “customer-citizen”.8

Considering the widely noted and often lamented “decline of legislation”9 and the

“tide of norms”10 floating from national and European legislators, a constitutional

duty to give reasons for new legislative acts is thought by some to be an effective

means to rationalise the process of legislation.11

Technically, there would be several and equally feasible ways to implement such

a constitutional duty to give reasons when enacting new statutory law.12 Possible

techniques comprise among others: a duty to insert specific clauses into legislative

2



Immel (1976: 3, 26); Kischel (2003: 35 sqq.).

Rethorn (1976: 298 sqq.); Immel (1976: 26); Lücke (1987: 11).

4

Nunius (1975: 115).

5

Kischel (2003: 260 sq.).

6

Lepsius (1999a).

7

Köck (2002: 12).

8

Pestalozza (1981: 2086).

9

Müller and Uhlmann (2013: para 62); Tipke (1988: 865).

10

Ossenbühl (1996: para 55 sqq.).

11

For an early proponent of this view cf. Dürig (1973: para 316).

12

Schulze-Fielitz (2004: 867); cf Skouris (2002: 121).

3



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C. Waldhoff



measures, which would require the legislature to state the purpose of the statute

(these are sometimes termed “principle paragraphs”13); a modern form of a preamble14;

or even attachments to the statute, which would be promulgated with the actual

statute in the Federal Law Gazette (Bundesgesetzblatt).15



6.2



The Jurisprudence of the Federal Constitutional Court



“All the legislature owes to the public is legislation”.16 Compared with this famous

dictum of former judge Willi Geiger, the jurisprudence of the Federal Constitutional

Court on constitutional duties to give reasons for legislative acts appears to be at

least ambivalent.

In its judgment on the inter-state fiscal adjustment (Länderfinanzausgleich) from

1992, the Court strictly denied any constitutional obligation of the legislature to

give reasons: “The legislature is not obliged to state its reasons [for adopting a

specific economic model on which the inter-state fiscal adjustment is based]; in

designing the inter-state fiscal adjustment, the legislature is not exercising statutory

discretion like an administrative authority.”17 To deduce from this reasoning that the

Federal Constitutional Court generally “does not appreciate”18 claims for a constitutional duty to give reasons would, however, mean leaping to a conclusion all too

hastily. In its subsequent judgment on the inter-state fiscal adjustment from 1999,

the Court provided an explanation that could not seem more contradictory: “If the

federal legislature decides to co-finance special expenses of federal states by way of

an additional allocation of federal funds, such funds may in effect lead to the federal

state’s financial resources rising above average [without violating the constitution],

if and as long as exceptional circumstances demand such funds to be allocated to the

federal state. These circumstances must be stated by the legislature and reasons

must be given which prove the exceptional character of such circumstances.”19

In one of the most recent judgment on constitutional limitations upon taxation, in

which the Court rejected the principle that the amount of taxes to be paid must not

total more than half of the income so taxed (Halbteilungsgrundsatz), the Court

stated that the legislature may under certain circumstances be under a constitutional

duty to give reasons to justify why the tax under scrutiny is still appropriate although

being exceptionally high.20



13



Müller (1968: 37, 140 sqq.).

Rethorn (1976: 315).

15

Hill (1982: 73); von Buch (1973: 64).

16

Geiger (1979: 141).

17

86 BVerfGE 148 at 241 (2 BvF 1/88). Unless otherwise indicated, all translations are mine.

18

That is the conclusion of Meßerschmidt (2000: 923).

19

101 BVerfGE 158 at 224 sq. and 234 sq. (2 BvF 2/98).

20

115 BVerfGE 97 (2 BvR 2194/99).

14



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On Constitutional Duties to Give Reasons for Legislative Acts



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As early as 1958 and its famous judgment on concessions for pharmacies

(Apothekenurteil), the Federal Constitutional Court held that “this Court will not be

satisfied if the object and purpose of legislation challenged in this Court are only

stated in general terms and keywords by the legislature”. Rather, it continued, “the

relevant and decisive reasons must be analysed specifically and in some detail.”21

The Court itself, however, assumed the task of ascertaining these reasons “if necessary with the help of expert witness”.22 Similar dicta can be found in many other

judgments of the Federal Constitutional Court23 without giving a clear answer to

our question of whether or not the legislature is under a constitutional duty to give

such reasons.

Concerning taxes which seek to influence people’s behaviour (Lenkungssteuer),

the Court held that the purpose of such taxes must go back to a clear and identifiable

decision of the legislature.24 Thus, the Court concluded, the purpose of such taxes

must be stated within the text of the statute with appropriate clarity.25 This, however,

is only a specified application of the general principle that norms must be sufficiently clear, certain and understandable. The question this article seeks to answer,

however, is concerned with reasons that are given outside the text of the norm.

In contrast, the reasoning of the Court in its judgment on the limitations imposed

on government debt by Art. 115 of the Grundgesetz (GG) provides helpful insights

on how to approach the question. In the interpretation given by the Court, this provision of the Basic Law shifts the burden of proof onto the legislature to produce

sufficient evidence within the legislative process as to why and how it is exercising

the right under Art. 115 GG to incur national debt.26 The Federal Constitutional

Court conceptualises this burden as a so-called secondary obligation (Obliegenheit).27

To discharge this secondary obligation no specific conduct of the legislature is prescribed by the constitution. Rather the necessary statement can, in the view of the

Court, be given by any of the institutions which take part in the legislative process

of enacting the budget, for example during plenary sessions of either the Bundestag

or the Bundesrat, as long as it becomes evident from the process that the parliamentary majority ultimately voting in favour of the budget also takes full responsibility

for the reasons given to specifically justify the amount of debt proposed by the



21



7 BVerfGE 377 at 411 sq. (1 BvR 596/56).

BVerfGE 7, 377, 412.

23

cf. Skouris (2002: 119 sqq.).

24

108 BVerfGE 1 at 19 (2 BvL 9/98).

25

93 BVerfGE 121 at 148 (2 BvL 37/91); 99 BVerfGE 280 at 296 (2 BvL 10/95); 101 BVerfGE 1

at 18 (2 BvF 3/90); 105 BVerfGE 73 at 112 (2 BvL 17/99).

26

79 BVerfGE 311 at 344 (2 BvF 1/82).

27

Ibid. In general, secondary obligations are such obligations that cannot be enforced directly (be

it specifically or in the form of damages), but which, if not met, will lead to the party being under

such secondary obligations as to find its own rights diminished. For example, a party having suffered damages is under a secondary obligation to mitigate its loss in order to remain entitled to

claim full compensation.

22



134



C. Waldhoff



budget under Art. 115 GG.28 It appears from the reasoning of the judgment that the

Court cautiously seeks to refrain from adjudicating on the potentially highly controversial matter of how much money precisely the government is entitled to borrow.

Another area of law in which the Court has resorted to the technique of imposing

secondary procedural duties to elicit evidence that standards of rational decisionmaking were met during the process of legislation, concerns the demarcation of

legislative competences between the federal government and the federal states. In

certain areas the federal legislature needs to establish under Art. 72(2) GG that it is

legally or economically necessary to regulate an issue on the federal level. In its

fundamental judgment from 2002 (Altenpflege)29 on how to interpret this provision

the Court held that the legislature, in order to demonstrate that something is legally

or economically “necessary” as required by Art. 72(2) GG, is obliged to sufficiently

demonstrate that rational methods were employed to assess the economic or legal

matters involved. More specifically, the Court held it necessary that such methods

of rational decision-making either became apparent during the process of legislation

or could potentially become evident in court. It is clear that although this bears

some resemblance to primary procedural duties to give reasons, it is in fact a slightly

distinct legal concept.

Comparing these decisions of the Federal Constitutional Court (on limitations of

taxation, of government debt, and on the allocation of legislative powers between

the federal government and the federal states), they all feature certain common characteristics. They all concern politically controversial issues and areas of constitutional law which lack clear and settled legal standards. This particularly pertains to

cases in which the Court would, in fact, have to critically assess the economic and

social policies of the government of the day. It is still not settled law whether this

idea of secondary procedural obligations is a specific requirement applying only to

the question of constitutional limitations upon government debt30 and others areas

of law discussed above, or whether it is a general requirement applicable to all statutes passed by the legislature. The rationale of these decisions, however, clearly

points towards the former interpretation.



6.3



The Constitutional and Epistemological Framework

of Parliamentary Legislation



Apart from the political discussion and the, as some scholars suggest, potentially

inconsistent jurisdiction of the Federal Constitutional Court, the question still

remains for constitutional lawyers whether the legislature is under a constitutional

duty to give reasons when passing statutes.



28



Ibid. 345.

106 BVerfGE 62 at 152 sq. (2 BvF 1/01); cf. now the latest judgment of 21 July 2015 (BvF 2/13).

30

Isensee (1996: 716); Blum (2004: 124).

29



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On Constitutional Duties to Give Reasons for Legislative Acts



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To begin with, the German Constitution does not explicitly provide for a constitutional duty of the legislature, neither in the Basic Law itself nor in the rules of

procedure (Geschäftsordnung) of the Bundestag. The fact that reasons must be

given when draft legislation is introduced into the parliamentary process is a separate matter.31 For this particular case the rules of procedure of the Bundestag (GOBT)

require that reasons are to be given for new legislative measures (§ 76 (2), § 96 (3)

GOBT, § 43 GGO). Apart from the question of whether these obligations stated in

the rules of procedure of the Bundestag comply with the superior norms of the Basic

Law,32 they are of little relevance to us and the question at hand. First, draft legislation is often fundamentally altered during the legislative process. Second, there is

no reason to assume that the legislature necessarily subscribes to the reasons given

for a draft introduced by the government. These statements, therefore, lack the relevant legislative “authenticity”.33 Like most other legislative materials these statements of reason are primarily addressed to other institutions involved in the process

of legislation and thus remain an “instrument of internal control within the state”.34

They refer to the initial state of the legislative process rather than to the final outcome.35 That does not, of course, prevent judges and commentators from resorting

to these materials when interpreting the law, which occasionally may in fact indicate

what the legislature actually intended.

Even if, as we have seen, there is no explicit constitutional duty to give reasons

for the legislative measure passed, the question still remains whether such a duty

may be inferred from broader constitutional principles. It is safe constitutional

knowledge, on which the argument can advance, that a number of constitutional

principles, prominently the rule of law (Rechtsstaatsprinzip), the principle of

democracy, and fundamental rights point towards a constitutional duty to give reasons.36 This is at least true for executive and judicial acts. Concerning these two

branches an obligation can, therefore, be deduced from the named constitutional

principles to state the reasons on which a particular decision was based.

That such a general duty is imposed on the executive and the judiciary, must not,

however, lead to the conclusion that it equally applies to the case of statutory legislation.37 It simply does not follow that what is a constitutionally valid argument for

executive and judicial acts is necessarily also true for the legislature. Based on this

doubtful and misleading assumption, arguments from administrative law contexts

have frequently been transferred to constitutional law without due consideration

being given to the administrative specifics from which these arguments originally

stem.38 More often than not, the question of whether or not such arguments are

31



von Buch (1973: 64); Blum (2004: 85 sqq.).

Stettner (2006: para 16); Troßmann (1977: para 4); Schürmann (1987: 41).

33

Lücke (1987) 13, 146 sq.; Meßerschmidt (2000: 920 sq.); Lücke (2001: 32).

34

Waldhoff (2013b); Lücke (1987: 13); Baden (1976: 389); Mengel (1984: 159).

35

Rixecker (1999: 128).

36

See in greater detail Sect. 6.4; Kischel (2003: 63 sqq.); Lücke (1987: 37 sqq.).

37

For the opposite view cf. Lücke (1987: 214 sqq.); Pestalozza (1981: 2086); Dörner (1999: 38.).

38

For a typical example cf. Köck (2002), for an early critique of this view Schlaich (1981: 109 sq.).

32



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