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3 The Constitutional and Epistemological Framework of Parliamentary Legislation
On Constitutional Duties to Give Reasons for Legislative Acts
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
von Buch (1973: 64); Blum (2004: 85 sqq.).
Stettner (2006: para 16); Troßmann (1977: para 4); Schürmann (1987: 41).
Lücke (1987) 13, 146 sq.; Meßerschmidt (2000: 920 sq.); Lücke (2001: 32).
Waldhoff (2013b); Lücke (1987: 13); Baden (1976: 389); Mengel (1984: 159).
Rixecker (1999: 128).
See in greater detail Sect. 6.4; Kischel (2003: 63 sqq.); Lücke (1987: 37 sqq.).
For the opposite view cf. Lücke (1987: 214 sqq.); Pestalozza (1981: 2086); Dörner (1999: 38.).
For a typical example cf. Köck (2002), for an early critique of this view Schlaich (1981: 109 sq.).
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
Groß (2006: 856 sqq.).
Cornils (2005: 659).
Rixecker (1999: 131); Koch and Rüßmann (1982: 211 sq.).
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.).
Kischel (2003: 360); Müller-Ibold (1990: 222).
Forsthoff (1973: 207); Kelsen (1929: 34 sq.; 1911: 97 sqq.; and 1925; 65 sqq.).
On Constitutional Duties to Give Reasons for Legislative Acts
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
Dolzer (1985: 16); cf. Forsthoff (1973: 207).
Kelsen (1911: 24).
Kischel (2003: 8).
Alexy (2003: 11).
Christensen and Kudlich (2001: 41).
Merten (1991: 55); Müller and Uhlmann (2013: para 54).
Hesse (1995: para 30); Merschmidt (2000); but cf. Kelsen (1960: 237).
Bưckenfưrde (1981: 402); Kischel (2003: 4 sq); Müller and Uhlmann (2013: para 61).
Schwerdtfeger (1977: 179).
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
Epping (2005: para 85 sq.); Lenz and Leydecker (2005: 849).
Maihofer (1981: 25); cf. von Rotteck (1840: 328 sq.).
Husserl (1955: 42 sqq.); Möllers (2005: 90 sqq.).
Lepsius (1999b: 160).
Lepsius (1999b: 168), arguing against Kelsen (1929: 35 sq.).
Lepsius (1999b: 152 sqq.)
Kelsen (1960: 415).
Kelsen (Kelsen 1925: 152).
Gusy (1985: 298); Jestaedt (1999: 229 ff.).
Lepsius (1999a: 12).
Lepsius (1999b: 154, 167); Baden (1976).
Lepsius (1999b: 123).
Sieckmann (1994: 242).
Albert (1991: 13, 15 sqq.).
On Constitutional Duties to Give Reasons for Legislative Acts
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
Kelsen (1929: 98 sqq.).
Kischel (2003: 36); Gagnér (1960: 107 sqq.); Schulze-Fielitz (1988: 184 sqq.).
Aquinas (1882: 594).
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
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
Kischel (2003: 8); Horak (1974: 2 sq.).
Lepsius (1999b: 26 sq.).
Reimer (2001: 306, 445 sqq.).
Schulze-Fielitz (1983: 712).
Meßerschmidt (2000: 921); Cornils (2005: 659).
36 BVerfGE 321 at 330 (1 BvR 712/68).
Hill (1982: 62 sqq. and 82 sqq.).
On Constitutional Duties to Give Reasons for Legislative Acts
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.
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
Cornils (2005: 659).
Kischel (2003: 300 sqq.); see in greater detail Sect. 6.4.
Bröhmer (2004: 98); Kissler (1989: para 16).
Hesse (1995: para 138).
Kant (1912: 381).
Lepsius (1999b: 161).
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
Kischel (2003: 10); Christensen and Kudlich (2001: 41); cf. also Hocks (2004) and Waldhoff
Laband (1911: 178).
Montesquieu (1956: 149).
Popper (1982: 6 sq.).
Brüggemann (1981: 70 sq.)
Lepsius (1999b: 155).
Redeker and Karpenstein (2001: 2825 sqq.); Hill (1982: 79); Fliedner (1988: 18 sq.).