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3 The Constitutional and Epistemological Framework of Parliamentary Legislation

3 The Constitutional and Epistemological Framework of Parliamentary Legislation

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6



On Constitutional Duties to Give Reasons for Legislative Acts



135



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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C. Waldhoff



generally applicable to all branches is not even discussed. The particular legislative

procedure and its close relation with the political process is so specific as to make it

inappropriate to treat the legislature in just the same way as the other two branches.

Over the last decades, constitutional scholars have witnessed and described the general phenomenon that legal devices and constitutional arguments which were originally designed to control executive authorities, notably police forces (e.g. a rigidly

applied test of proportionality), have been transformed into constitutional restraints

imposed on the legislature.39 Instead of neglecting fundamental differences between

the different branches of government by applying purportedly general principles

regardless of their original meaning, it is therefore necessary to stress the separation

of powers in this particular respect and emphasise functional and procedural specifics of each branch. Indeed, any such argument from administrative law contexts

must strictly be proven to be constitutional law and it must be shown that the legal

principle evoked actually applies to the legislative process and binds the legislature.

Functional differences between the three branches become particularly evident and

relevant considering procedural and formal rules. Objective procedural rules, for

instance, must therefore not be reinterpreted so as to eventually impose personal

obligations on office-holders.40

Bearing these general considerations in mind, the first question to be answered is

whether it is factually and theoretically possible to impose a general duty on the

legislature to give reasons for legislative acts. It is scarcely convincing to dispute

such a duty exists for the sole reason that the particular way in which the legislative

will is formed, namely through collective formal and informal interactions between

different members of the legislature, precludes any unified account of the reasons

which eventually informed their decision.41 Some state courts resorted to this kind

of argument by pointing to the “potentially various and diverse motives of the individual members of a legislative body voting for the same legislative measure”.42

Following this argument, any duty to give reasons for collegial bodies consisting of

more than one member would have to be rejected. The everyday experience that

collegial bodies do successfully issue such statements of reasons proves this objection to be factually wrong.43 Even if any comparison between elected members of

legislative assemblies and office-holders of the other two branches remains inappropriate in so far as it does not take into account the particular representative function of members of parliament, it has to be noted that neither executive authorities

nor collective bodies have a will in the ordinary psychological sense of the word.44

For the question of the constitutional duty to give reasons does not so much concern

the actual will of the particular office-holder or individual elected member of

39



Groß (2006: 856 sqq.).

Cornils (2005: 659).

41

Rixecker (1999: 131); Koch and Rüßmann (1982: 211 sq.).

42

StGH Baden-Württemberg 1975 NJW 1205 at 1214 (GR 11/74); 12 BVerwGE 20 at 27 (II C

129.59); cf. Dolzer (1985: 17 sq.).

43

Kischel (2003: 360); Müller-Ibold (1990: 222).

44

Forsthoff (1973: 207); Kelsen (1929: 34 sq.; 1911: 97 sqq.; and 1925; 65 sqq.).

40



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On Constitutional Duties to Give Reasons for Legislative Acts



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parliament, but rather the objective meaning conveyed by their collective action.45

As Kelsen has noted, “the objective norm is only the constructive result of an intellectual process of objectification”, of which the “real basis” is “the will of the

individual”.46 Given that talking about the “will” of the legislature and other state

organs is in one sense nothing more than a fiction, it would well be possible to also

construe a fictitious will of parliament as a collective body. The problem would still

remain, however, that members of the legislature technically do not vote on their

mutual motives for passing a certain legislative act during the legislative process.

Even if the fact is conceded that motives of members of parliament can be made

public (and are in fact commonly published), nothing has been said, however, to

answer the question whether such publicly accessible motives of parliamentarians

or even parliament as a collective body are in fact a statement of reasons in the formal and technical sense. There is a fundamental and important difference between

motives and statements of reasons which cannot easily be shrugged off as being

no more than an “anachronism of scientific theory”.47 Whereas for something to

serve as a motive for something else, it is sufficient that a statement (or series of

statements) (s1) cause someone to accept a particular statement (s2), the notion of

something being the reason for something else is inseparably connected to, but not

identical with the idea of a logical conclusion.48 A statement of “reasons” in the

legal context as well as in other contexts thus implies the idea to justify something

in the normative sense of deducing a result from given normative premises.49 It is

this very relation between the formal duty to give reasons and the substantive idea

to justify something in normative terms that renders the notion of a constitutional

duty to give reasons conceptually inappropriate for the legislature. The parliamentary legislature does not “deduce” its legislation either from the Constitution or

from any superior normative premise.50 Despite – or rather because of – being

strictly bound by the Basic Law, the legislature does not simply “execute” the

Constitution.51 The Constitution does not determine the legislative process other

than by imposing ultimate limits.52 Legislation cannot properly be understood as a

process of “balancing conflicting constitutional principles”,53 which would see the

legislature effectively caught between the requirement to act proportionally, i.e. not

to exceed what is necessary under given circumstances (Übermaßverbot), and the

requirement to set minimum standards to protect fundamental rights

(Untermaßverbot). Some even argue that being subject to these two requirements of

not intervening too much and not intervening too little, there is only one right

45



Dolzer (1985: 16); cf. Forsthoff (1973: 207).

Kelsen (1911: 24).

47

Kischel (2003: 8).

48

Alexy (2003: 11).

49

Christensen and Kudlich (2001: 41).

50

Merten (1991: 55); Müller and Uhlmann (2013: para 54).

51

Hesse (1995: para 30); Merschmidt (2000); but cf. Kelsen (1960: 237).

52

Bưckenfưrde (1981: 402); Kischel (2003: 4 sq); Müller and Uhlmann (2013: para 61).

53

Schwerdtfeger (1977: 179).

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C. Waldhoff



answer left for the legislature.54 The legislative process is, however, not the same as

the judicial process. The legislature does not subsume facts under pre-existing rules

of law, but anticipates facts of life to establish rules of law.55 The legislature thereby

proves to be the branch of government that is genuinely orientated towards the

future.56 From these particular characteristics of the legislative process certain

epistemological consequences follow. Legislation appears as a process that “not so

much seeks to depict an object of reality, but rather constructs an abstract, but

consensual new object out of multiple real phenomena.”57 From this epistemological

point of view, legislation is an “inter-subjective process of constructing notions”.58

The legislative process, therefore, operates inductively and can be distinguished

from the generally deductive proceedings of the other two branches of government.

Legislating, on the one hand, and applying the law through the judicial or administrative processes, on the other hand, rest on fundamentally different epistemological

footings.59 Legislation is no cognitive act, but rather determines the “cognitive

principles” that are relevant for a particular area of life.60 Legislating is “a volitional

function, not a cognitive one”61; a means “to voluntarily and wilfully shape the

social order”.62 Legislation thus ultimately thwarts any rational justification: the

legislative process cannot be reformulated and reinterpreted as a cognitive process

of deducing norms from superior norms.63

The argument put forward in this chapter, however, must not be mistaken as one

that contributes to the mysterious vision of an “omniscient and almighty legislature”.64

Under the realm of democratic constitutionalism, statutes are no more, but also no

less, than the technical means to reach the end of political compromise.65

Parliamentary statutes thereby guarantee the democratically necessary link between

the ultimate sovereign, the people, and any exercise of public power.66

To ask for further justification of statute law would inevitably lead into an infinite

regress, or into circular or axiomatic arguments to cut off the chain of reasoning.67

This problem, famously known as the Münchhausen trilemma,68 makes obvious

why the two meanings of “begründen”, namely justifying a result in normative

54



Epping (2005: para 85 sq.); Lenz and Leydecker (2005: 849).

Maihofer (1981: 25); cf. von Rotteck (1840: 328 sq.).

56

Husserl (1955: 42 sqq.); Möllers (2005: 90 sqq.).

57

Lepsius (1999b: 160).

58

Ibid.

59

Lepsius (1999b: 168), arguing against Kelsen (1929: 35 sq.).

60

Lepsius (1999b: 152 sqq.)

61

Kelsen (1960: 415).

62

Kelsen (Kelsen 1925: 152).

63

Gusy (1985: 298); Jestaedt (1999: 229 ff.).

64

Lepsius (1999a: 12).

65

Lepsius (1999b: 154, 167); Baden (1976).

66

Lepsius (1999b: 123).

67

Sieckmann (1994: 242).

68

Albert (1991: 13, 15 sqq.).

55



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On Constitutional Duties to Give Reasons for Legislative Acts



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terms on the one hand and formally stating reasons on the other, ultimately correlate

with one another. Both semantic dimensions of “begründen”, justifying as well as

stating reasons, potentially lead into infinite regress: imposing a constitutional duty

to give reasons on the legislature when enacting new statutory law inevitably begs

the question how such a constitutional duty can be justified, and which reasons can

and must be given for it.

To postulate a constitutional duty to give reasons to be imposed on the legislature

does not only methodologically lead into infinite regress. The practical ramifications of this claim become apparent when, as some proponents of this view claim,

the very normative principles that should guide legislation, for instance the principle

of clarity and intelligibility of norms, are said to equally apply to the statement of

reasons itself. The duty to give reasons is imposed on the legislature in the first place

to safeguard these very principles, which must then serve again to critically assess

the statement of reason, and so on ad infinitum.

To overcome this twofold dilemma of infinite regress, i.e. the substantial one of

asking for further and further normative justification of norms and the procedural

(formal) one of requiring the legislature to give reasons, it is necessary to resort to

the principle of democracy itself and the normative idea embodied in the notion of

popular sovereignty. Democracy, all the more so in its parliamentary and representative form, is the ultimate answer to the question of normative validity, and more

particularly to the absence of any pre-existing and uncontested normativity that has

become the defining characteristic of modern societies.69 Under the reign of modern, secular constitutionalism, popular sovereignty is the ultimate justification, from

which any statute passed by the legislature lends its normative force. The sovereign

people and its constituent power do not disappear once the constitution has been

established. It remains the normative anchor and ultimate point of attribution, from

which all constituted power flows.

The epistemological and constitutional framework of legislation, as it has been

outlined so far, also marks the fundamental difference between modern legislation

and “legislation” as it was understood in the middle ages and early modern times.

During this period, “legislation” served to “apply and enforce the law, to codify and,

at the most to cure defects of the law”.70 Legislating was not about building intersubjective consent inductively, but was meant to deduce “statutory” norms from the

superior legal order of divine or secular natural law. Any alteration of the law had

therefore to be strictly justified: “quod semel est lex, semper debet esse lex”.71

In the narrow legal sense the parliamentary legislature cannot be subject to a duty

to give reasons when enacting new statutory law. Only through employing a wide

notion of “reason”, which would also include the account of different motives,

could a duty to give “reasons” be imposed on the legislature. The obligation to give

reasons would then in effect be restricted to a duty on the legislature to provide an

69



Kelsen (1929: 98 sqq.).

Kischel (2003: 36); Gagnér (1960: 107 sqq.); Schulze-Fielitz (1988: 184 sqq.).

71

Aquinas (1882: 594).

70



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C. Waldhoff



explanation as to why it acted in a particular manner and passed a particular statute.72

Even this rather unspecific and wide notion of a duty to give reasons would, however, run the risk of undermining the sophisticated and differentiated concept of the

separation of powers enshrined in the Basic Law, which not only attributes different

functions but also different cognitive procedures to the different branches of

government.73

Even though the constitutional rights and duties of constitutional actors may in

general be inferred from broader constitutional principles, this can only be done

with caution lest the constitution be subverted by its own principles. As long as the

constitution provides explicitly for a specific legal question, these norms therefore

need to be regarded as conclusive.74 Converse arguments are therefore of particular

relevance in this respect.

For our purpose, it is necessary to examine whether the specific procedural rules

provided in the Basic Law for the process of legislation preclude inferring additional procedural requirements from broader constitutional principles. At a first

glance, the procedural rules of the Basic Law concerning the process of legislation

may indeed seem inchoate and even fragmentary.75 It has to be taken into account,

however, that to postulate a general duty to give reasons would effectively amount

to claiming ideal methods of legislation.76 Such claims, however, contradict the

procedural autonomy to regulate internal parliamentary proceedings, which the

German Parliament enjoys under Art. 40(1) GG. Following the tradition of many

other parliamentary democracies, the German Constitution does not prescribe

specific methods as to how the legislature should operate, rather the legislature is

entitled to establish autonomous rules of procedure and standing orders. The Federal

Constitutional Court has summarised this position as follows: “It is for the legislature and the other organs of state participating in the process of legislation to specify

the legislative procedure within the boundaries set up by the Constitution”.77

Even if it were deemed possible to deduce rules from the Constitution for the

“inward process of legislation”,78 i.e. for the genuinely informal political process

that ultimately shapes the legislative agenda and decision-making, nothing would

follow for the question we are concerned with. Formal duties to give reasons concern the “outward process of legislation”, which is in fact subject to a set of comprehensive rules in the Basic Law which are more detailed than a first glance might

suggest. There is not even the slightest textual evidence for a duty to give reasons.

Rather Art. 19(2) GG, which prescribes that a statute interfering with a particular

constitutional right has to cite the respective article of the Constitution, points



72



Kischel (2003: 8); Horak (1974: 2 sq.).

Lepsius (1999b: 26 sq.).

74

Reimer (2001: 306, 445 sqq.).

75

Schulze-Fielitz (1983: 712).

76

Meßerschmidt (2000: 921); Cornils (2005: 659).

77

36 BVerfGE 321 at 330 (1 BvR 712/68).

78

Hill (1982: 62 sqq. and 82 sqq.).

73



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On Constitutional Duties to Give Reasons for Legislative Acts



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toward a converse argument.79 Instead of requiring a formal statement of reasons,

legislation is publicly debated in the Bundestag (Art. 42(1)(1) GG) and within the

general political process before the legislative proposal is finally passed (Art. 77(1)

(1) GG). The public nature of the legislative process may also account for the fact

that duties to give reasons are generally imposed on the other branches of government, which typically do not have their decisions publicly debated before they have

actually been taken. Consequently it could be argued that statements of reasons

prove to be a kind of substitute for the non-public process in which decisions of

the judiciary and the executive are reached.80 The transparency that is ensured by

parliamentary public debate by far exceeds the transparency of any subsequent

statement of reasons, which are generally only concerned with results rather than

process.81 As former judge of the Federal Constitutional Court Konrad Hesse

remarked, parliamentary democracy “ensures rational decision making by the publicity that comes with the political process and that is embodied in parliamentary

proceedings. Democratic procedures […] do not leave the political process in the

dark of closed door agreements and political decisions in the hands of unfettered

rulers”.82 Kant famously expressed this nexus in what he describes as the “transcendental formula of public law”: “All actions relating to the right of other men are

unjust if their maxim is not consistent with publicity”.83 Yet even transparency is not

given unlimited precedence by the nuanced procedural rules of the Basic Law, as

Art. 77(2) GG makes obvious, which provides the possibility for the joint committee

of the Bundestag and Bundesrat to meet and work non-publicly.

To summarise the argument of this section: imposing an unlimited and general

duty to give reasons for legislative acts on the legislature when enacting statutory

law would not only conflict with the very notion of giving reasons, but would also

contradict the procedural rules of the Basic Law.



6.4



Comparison I: The Other Two Branches of Government



The constitutional and epistemological framework for the judiciary and executive

are fundamentally different to that of the legislature. Whereas the legislature is free

to politically shape the law, both the executive and judiciary are bound by the law.

The individual cognitive act, by which judicial and administrative decisions are

informed, is therefore always subject to an obligation to give reasons.84 The general

duty to gives reasons imposed on both the executive and the judiciary first and foremost serves to demonstrate that their findings have been reached in accordance with

79



Cornils (2005: 659).

Kischel (2003: 300 sqq.); see in greater detail Sect. 6.4.

81

Bröhmer (2004: 98); Kissler (1989: para 16).

82

Hesse (1995: para 138).

83

Kant (1912: 381).

84

Lepsius (1999b: 161).

80



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C. Waldhoff



the law. Citizens shall be assured that decisions of public authorities comply with

Art. 20(3) GG and the statement of reasons is supposed to demonstrate this compliance.85 To emphasise the functional, procedural and epistemological differences

between the legislature and the other two branches of government does not mean

subscribing to an out-dated understanding of statute law or to the methodological

atavism that regards judges as no more than a mere “viva vox legis”,86 “bouche de la

loi”87 or even as a “Subsumptionsautomat”88 (judicial robot). Even if, as it is often

correctly pointed out, any interpretation and application of the law necessarily

implies a certain degree of volitional decision-making and even creativity, there still

remains a fundamental difference to the political process and the political decisionmaking of the legislature. It is, of course, true that judicial decisions are not deductive strictly speaking. A variety of different factors, such as the prejudices of a

particular judge viewing the facts of a particular case, influence decisions taken by

individual judges. The duty to give reasons, however, is not concerned with the

actual process of reaching a conclusion and finding a decision, but with retrospectively stating the reasons that normatively should have lead to a particular decision.

The distinction of Karl Popper between context of discovery and context of

justification,89 which has become common knowledge in scientific theory, applies

here as well. Judicial and executive statements of reasons, the context of justification in Popper’s terminology, are not meant to disclose the entangled paths on which

a court or an administrative agency has actually reached a particular decision in

terms of their psychological motivations. Deciding individual cases with respect to

abstract norms and the artificial technique of legal reasoning both serve to ensure

that the judicial outcome of individual cases fits into the broader context of the

law.90 This clarifies the specific judicial and executive function, as opposed to the

legislative function, within the common process of making the law binding: judges

and executive decision-makers specify the law for particular cases of individual

citizens. “The individual and specific decision [by the judiciary and the executive]

thus epistemologically corresponds with the general, abstract and inter-subjective

consent of parliamentary statutes.”91 To claim a general duty to give reasons for the

legislature in order to facilitate the application of the law according to the will of the

legislator92 proves almost circular in this respect as long as one accepts, along with

most traditional theories of interpretation, other interpretative criteria besides

the fictitious “will of the legislator”. Judicial and executive bodies are particularly

85

Kischel (2003: 10); Christensen and Kudlich (2001: 41); cf. also Hocks (2004) and Waldhoff

(2013a).

86

Laband (1911: 178).

87

Montesquieu (1956: 149).

88

Ogorek (1986).

89

Popper (1982: 6 sq.).

90

Brüggemann (1981: 70 sq.)

91

Lepsius (1999b: 155).

92

Redeker and Karpenstein (2001: 2825 sqq.); Hill (1982: 79); Fliedner (1988: 18 sq.).



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