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1 Symbolic Laws: A Litmus Test for Rational Standards of Law-Making

1 Symbolic Laws: A Litmus Test for Rational Standards of Law-Making

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13 Symbolic Legislation Under Judicial Review



317



legislature holds on to it for motives that lie beyond the law itself.5 Thus, these laws

appear to be irrational in the light of an ‘optimal impact’ (“Wirkungsoptimalität”) if

compared to the alleged legislative intent.6 For instance, in 2005 the German

legislature amended the law of assembly7 to prohibit the gathering of neo-Nazis at

certain places in order to send a message to right-wing extremists. But because of

the fact that freedom of assembly is granted in Art. 8 of the German Basic Law the

scope of application of the new rules is much more limited than it might seem at first

glance and is, consequently, mainly of symbolic value.8

The same can be said for penal laws that purport to fight crime and enhance

security but that in reality only enhance the feeling of security and have a minimal

impact in terms of the factual safety situation. These laws represent a new tendency

to ‘subjectify’ the thinking about security.9 However, doubts about the

constitutionality of such laws arise when they serve to restrict personal liberty, for

example, prolonging the length of time that an offender may be held in preventive

detention.10 Is the legislator really free to address with his laws either the real,

objective security situation or the mere perception of security in the populace, even

if this perception is not supported by facts? Should legislative restraints on liberty

not rather be based on objective necessity instead of feeding on the fear of crime

which, by its very nature, cannot effectively be targeted through laws?

If we rely on Kant’s notion of law (Rechtsbegriff) there can be no doubt about the

answer to these questions: From the ultimate value of freedom Kant derives the

universal principle of justice (Recht) whereupon an action is right if on its maxim

the freedom of choice of each can coexist with everyone’s freedom in accordance

with a universal law. Duties of right can appropriately be enforced by means of the

public, juridical use of coercion.11 Since for Kant freedom is the chief value,

coercion is permitted only where it is both necessary to preserve freedom and

possible for it to do so. Only then coercion as a “hindrance to a hindrance of

freedom” is itself a means to freedom that stands up to human reason. But coercive

legislation that does not prevent a hindrance to freedom because such a hindrance

5



Noll (1981: 353, 355–356).

See Voß (1989: 25).

7

Amendatory Act, 24.3.2005, Bundesgesetzblatt I (Federal Law Gazette of Germany), 969.

8

See Enders and Lange (2006: 105 et seq).

9

See Gusy (2004: 159 et seq), Kötter (2004: 371–373 et seq), both with further references.

10

The German Federal Constitutional Court (BVerfG) seems to approve this development. In a

decision of 5 February 2004, 2 BvR 2029/01, 109 BVerfGE 133 at 157–158 the Court states:

“Whether the tightening of the law of preventive detention was triggered by an actual increase of

violent crime or simply by an enhanced feeling of threat among the population is not for this Court

to decide.” A similar development could be observed in the United States in the 1990s during

which time crime rates decreased but rates of imprisonment continued to soar. As Zimring (2001:

163, 165) points out, for “most members of the public the symbolic functions of penal legislation

are the most important aspect of new legislation” which causes the “incarceration boom.”

11

See on this and the following Kant (1797/1983, vol 7, “Einleitung in die Rechtslehre”, § B, § E:

337, 339–340, “Einleitung in die Metaphysik der Sitten”: 331 et seq), and Kant (1793/1983, vol 9,

II. Vom Verhältnis der Theorie zur Praxis im Staatsrecht [Gegen Hobbes]: 144–148).

6



318



A. Siehr



does not even exist, would be unnecessary and therefore entirely unjustified. Thus,

symbolic legislation that addresses the mere feeling of security is from this

perspective irrational.

However, this is only one side of the coin; the other side is that law is,

concomitantly, a “solid aggregate state of politics” which is temporarily binding.12

And politics has its own rules and dynamics that also influence the legislative

process. Representatives naturally react to the wishes and (sometimes irrational)

fears of the electorate, partly in view of their own re-election. Therefore, the key

question in this context is whether the principle of democracy aims at the people in

an empirical sense with their real and perhaps occasionally irrational fears, or

whether the mode of representation operates on the basis of a fictitious and purely

reasonable will of the people (as Kant suggested). Whilst symbolic laws are passed

on the basis of democratic majority rule and the democratic legislator reacts to the

empirical demands of the people there is, nonetheless, a conflict with the claim of

the law to rationality. In fact, if the legislator ignores the objective facts and uses the

law as a sedative to calm the irrational fears of the people, he betrays or negates the

idea of self-legislation of the reasonable subject.



13.1.2



The Response of Legislative Theory



The tension between the claim of law to rationality on the one hand and the

democratic principle on the other hand, of course, also exists with respect to laws

other than so-called ‘symbolic laws’; in fact, complaints about the ‘deluge of laws’,

their inconsistency, incomprehensibility, poor drafting and respective legislative

shortcomings are hardly new and nor are attempts to fix these problems.13 Legislative

theory seeks to lower this tension and to enhance the standards of rationality in the

law-making process. Scholars of constitutional law, sociology of law and legal

theory have all tried in different ways to explore the question of proper law-making.

As a result there is, firstly, a procedural approach; secondly, a substantial

constitutional law approach; thirdly, a legal sociology approach; and, fourthly, a

legal theory approach.14

The discussion of questions of the legislative procedure is rather common for it

is assumed (and rightly so) that the proper organization of the legislative process

creates a rational distance and may thereby improve the rationality of legislation.15

Or, in other words, that “a structured procedure enhances the chances for a high

12



Schulze-Fielitz (1988: 378).

See Siehr (2008: 271–271).

14

These four approaches, of course, are also relevant outside the context of legislative theory; many

scholars would not even bring the commonly accepted ‘constitutional law approach’ into line with

‘legislative theory’.

15

Schulze-Fielitz (1988: 457–458). See for a specification which kind of ‘distance’ is meant below

n 66.

13



13 Symbolic Legislation Under Judicial Review



319



quality statute”.16 The second approach concentrates on the substantial constitutionality of a law: the Basic Law postulates the primacy of the Constitution over all

other laws and, at the same time, provides for a very strong Federal Constitutional

Court (Bundesverfassungsgericht). In order to avoid situations where a law is

declared incompatible with the Basic Law or even null and void, the constitutionality of a law has to be examined during the legislative process which will help to

produce ‘better laws’, too. Both approaches17 are commonly accepted in Germany –

which cannot be said about the following approaches.18

The legal sociology approach underlines that the quality of a law depends on a

thorough compilation and appropriate assessment of the underlying factual material.

Therefore, it focuses on a scientific analysis of the factual material, an estimation of

the consequences of a law, an evaluation of the effects of a law, and monitoring

compliance with a law. Nevertheless, there will be laws that have already passed the

‘filter’ of the first three approaches but that are still far from being ‘good’ laws.19 At

this point we enter the realm of ‘legisprudence’ which seeks to improve law-making

by applying a systematic and theoretically demanding approach to legislating from

a legal theory perspective.20 This approach formulates ‘internal standards of

legislation’21 that do not decide the question of constitutionality of a law but which

are relevant for its quality such as, for example, a certain level of doctrinal

coherence.22

16



Blum (2004: 22, 29 et seq). For further references on the procedural approach see Emmenegger

(2006: 300, n 9).

17

For a detailed analysis and the relation between these two approaches see Meßerschmidt in this

volume.

18

However, different countries with a continental law tradition put emphasis on different aspects of

legislative theory. For instance, Austrian legal scholars seem to be considerably more open to the

sociological approach (see Winkler and Schilcher [1981] and Schäffer and Triffterer [1984]) than

German legal scholars. Yet, the substantial constitutional law approach is less powerful in Austria

than in Germany, also because the Austrian Constitutional Court (Verfassungsgerichtshof) uses the

instrument of abrogation of laws in accordance with Art. 140(3) Bundes-Verfassungsgesetz more

restrictively. The Swiss Federal Court (Bundesgericht) – although it de facto reviews federal laws

for their constitutionality – has to apply laws even if it finds them to be unconstitutional, cf Art. 190

of the Bundesverfassung (Federal Constitution).

19

As Blum (2004: 9) stated at the German Lawyers’ Conference: “Not every botched law is necessarily unconstitutional.”

20

Wintgens (2006: 1).

21

This distinction between the external legislative process, i.e. the proceedings as set out in the

Constitution (for Germany see Art. 76–78 and 82 of the Basic Law), and the internal legislative

process which encompasses the preparation of bills as well as the method and certain standards of

decision-making, was first made by Schwerdtfeger (1977: 173 et seq). See also Hölscheidt and

Menzenbach (2008: 139–140). Schwerdtfeger (1977: 173 et seq) also postulated a constitutional

duty for optimal legislation. See for the opposing view Gusy (1985: 298). Schlaich and Korioth

(2007: margin note 529–530) put it bluntly: “The legislator does not owe anything but the law”.

22

See for a subtle analysis of the question of coherence Wintgens (2006: 15 et seq); Bumke (2010);

id in this volume. The addressees of internal standards of legislation are mainly the bureaucracies

that entrust their lawyers with the preparation of bills. Though, if the application of particular

internal standards of legislation does not presuppose specific legal knowledge – as is the case with



320



A. Siehr



Of course, the efforts of scholars to spell out the principles of law-making as well

as the practice of judicial review have to respect the broad discretion of the legislature

and the dynamics of the political process, too. It will always be a challenge to strike

the right balance between the principle of democracy and the rule of law

(Rechtsstaatsprinzip), between the competences of the German Federal Parliament

(Deutscher Bundestag) and the German Federal Constitutional Court

(Bundesverfassungsgericht), and between the claim of law to rationality and its

function as a political instrument. Still, symbolic laws push this tension, which is

inherent in the law-making process in general, to its limits. But against this

background it may become clearer what the appropriate means are to cope with the

problem and to what extent judicial review is able to deal with it. In this sense, the

(alleged) ‘irrationality’ of symbolic laws serves as a litmus test for rational standards

of law-making and the possibilities and the limits of judicial review.



13.2

13.2.1



The Symbolic Dimension of Law and Legislation

The Concept of Law and the Notion of Symbol:

An Ambiguous Relationship



On closer inspection the conflict examined here is not merely caused by a bipolar

tension between the rational potential of the law, based on the idea of self-legislation

of the autonomous, reasonable subject on the one hand, and its symbolic dimension

on the other. Rather, there are many different aspects to the notions of ‘rationality in

law’ and ‘symbol’, and their refractions, reflections and entanglements create a

multi-faceted image. Law in the modern state has a dual character: corresponding to

the idea, inherent in the concept of law, of giving systematically and in a rational

manner a structure to society and other areas of life (natural environment etc.), it

establishes an order of life (Lebensordnung), but it also serves as a governmental

instrument for political purposes.23 It is particularly when law is used as a political

instrument that symbols are employed deliberately. However, the notion of ‘symbol’

is equally complex and ambiguous.



symbolic laws – the respective standards also aim to enhance the sensitivity of the representatives

and of the Federal Council of Germany (Bundesrat).

23

See Hofmann (1995: 264–265) who refers to Ulrich Scheuner.



13 Symbolic Legislation Under Judicial Review



13.2.2



321



The Broad Notion of Symbol



In a broader sense, which extends beyond the narrow definition given by Noll and

Blankenburg, every law has a symbolic dimension because it refers to the

interpretative construction of our shared world, plays a role in processes of social

interaction, and expresses common values.24 Such a broad notion of the term

‘symbol’ includes every human action, every object or system that carries or

mediates meaning25; and “(e)very symbol contains cognitive, affective, and

evaluative elements” (Alexander Blankenagel).26 In politics – and therefore also in

the political act of law-making – so-called “condensation symbolism” most notably

plays a significant role. The term describes a form of symbolism that evokes

emotions by condensing patriotic pride, fear, recollections of fame, defeat or myths

surrounding the foundation of a state to a symbolic sign or a symbolic action.27

Between the law’s claim to rationality and the affective aspects of these symbols

there is a tension which may be more present or less present but that, ultimately, is

unresolvable. Collective identity can even be defined as the permanence of symbols

of a group despite fluctuation of its members,28 and thus the use of symbols is

indispensable for any community. This is equally true for the idea of a

Staatsbürgernation,29 i.e. a nation that constitutes itself through democratic practice,

for in this case the notions of ‘democracy’ and ‘liberty’ describe not only political

structures but also serve as symbols for the self-conception and identity of this

particular society – as the Statue of Liberty in New York City perfectly illustrates.

Starting off from this broad notion of symbol it becomes clear that the term

‘symbolic law’ is a comparative one: a law is more or less symbolic, not either symbolic or non-symbolic.30 Furthermore, this broad notion shows that apart from the

narrow definition of ‘symbolic law’ that follows a critical intent, there is a positive

symbolic dimension of law, too; one that conveys an additional meaning to law and

ensures its socio-integrative, stabilizing impact. Legal norms are part of our

cultural-intellectual reality. If we follow Ernst Cassirer this reality consists of

24



Voß (1989: 2, 40 et passim); regarding the Constitution also Lübbe-Wolff (2000b: 224–225). On

Blankenburg and Noll see above, n 4 and 5.

25

Cf Gusfield and Michalowics (1984: 419 et seq). Alexander Blankenagel cites language as an

example, see Blankenagel (1987: 358). From the point of view of the social working approach see

also Griffiths (2004: 151). For a profound elaboration on language as a symbolic form see Cassirer

(1923: 12–13, 18–25, 44 et passim); Cassirer (1925/1959: 71–79).

26

Blankenagel (1987: 360; see also 361 et seq, with further references).

27

The distinction between “referential symbolism” and “condensation symbolism” was first made

by Sapir (1934: 493), and was taken up esp by Edelmann (1964: 5 et seq, 119, 175 et passim). On

the symbolic dimension of politics see also Gusfield (1963); Gusfield and Michalowics (1984:

423–424 et passim). On other forms of symbolism see Voß (1989: 41–42).

28

See Blankenagel (1987: 350 et seq) who cites Erikson’s definition of collective identity, for further details Blankenagel (1987: 345, 348 et seq, 361); Voß (1989: 40–41).

29

For the idea of a Staatsbürgernation see Siehr (2001: 237–238, 240 et seq).

30

Hassemer (1989: 555–556); Lübbe-Wolff (2000a: 27). On the symbolic working of law as well

as of legislation see also van Klink (2005: 113, 128 et seq) and other contributions in this book.



322



A. Siehr



various “worlds of images” (Bildwelten).31 Their symbolic forms32 – he distinguishes between language, scientific knowledge, myth, art, and religion – are an

“autonomous (…) creation of the mind”33 that shapes appearances so that they

become the world as an objective and coherent ensemble of meanings

(Sinnzusammenhang)34; symbols, according to Cassirer, are “mirrors of life”. Legal

norms participate in this process in a special way: as products of human action, and

like all meaningful action, they rely on symbolic mediation.35 But, moreover, they

are part of an order that is only able to enter our consciousness and to provide for

orientation because it is, concomitantly, a symbolic representation as well as an

institutionalized idea.

The law as a means of governance employs the entire scale of symbols from

broad to narrow and uses them not only to meaningfully shape the social environment,

as an offer for integration and identification, but also to reach political strategy

goals. Consequently, the question is not whether symbolic laws are in general

permissible or not, but rather in what respect (and up to what extent) they are

legitimate. Since the broad notion of the term ‘symbol’ lacks any critical potential

in this respect, this question has to be answered on the basis of the narrow notion of

‘symbol’ and ‘symbolic law’.



13.2.3



Symbolic Law and Symbolic Legislation in a Narrower

Sense



Among symbolic laws the following categories exist with reference to the genesis

or effects of these laws: the legislative affirmation of certain values (e.g. in the field

of abortion), laws with the character of a moral appeal (e.g. in the field of

environmental law), laws that serve as an ‘alibi’ (as with some of the laws that aim

to address a crisis, e.g. anti-terrorism laws), and laws that contain entirely undefined,

contradictory statements or that lack means of implementation.36 Only the last two

categories are clearly symbolic laws in the narrower sense since the affirmation of

values and the expression of moral appeals may oscillate between positive moments

of social integration and the support of certain strategic goals. More often, the

problem is a result of the combination with elements of the other aforementioned

categories, for instance, if in the case of an environmental law the moral appeal

stands alone because of a lack of implementation.37

31



Cassirer (1923: 5 et seq, esp 9, 19 et seq, 47, 50 and passim).

Cassirer (1923: 9, 12–13, 22, 24 et seq, 31, 41–42, 48, 50–50). See also Vandenberghe (2001:

484 et seq).

33

Cassirer (1923: 47). See also Cassirer (1923: 23): “an original and autonomous achievement”.

34

Cassirer (1923: 6 et seq, 10–11 and passim).

35

Cassirer (1923: 6): “All objectivation […] is in reality mediation and [must] remain mediation.”

36

On these different categories of symbolic statutes see Voß (1989: 26–34). Cf for different aspects

of symbolic laws also Griffiths (2004: 150 et seq).

37

See for a closer examination Lübbe-Wolff (2000a: 28 et seq).

32



13 Symbolic Legislation Under Judicial Review



323



Albeit a consensus on a general definition for a symbolic law has not yet been

reached, there is agreement with respect to one point: the legal norm is not what it

pretends to be; it contains an element of deception.38 In this sense it contradicts the

notion of truthfulness of legal norms (Normenwahrheit).39 In particular, it is seen as

critical if the latent functions of a law dominate the manifest functions and if, at the

same time, the norm suggests a capacity to solve problems that it does not actually

have.40 The term ‘manifest function’ refers to the objective realization of the obvious

purpose of the norm, for example, to safeguard a legally protected interest as aimed

at in the wording of the law. The ‘latent functions’ of a law are to be seen in

connection to the law’s function as an instrument of governance.

In political dramaturgy the (latent) symbolic dimension of a law is used to

achieve political strategy goals. Apart from strengthening the feeling of security

among the population these latent functions include a demonstration of the political

competence and power of the government, especially in view of the threat of

terrorism or other potentially mortal perils. This latent message about the

government’s capacity to act may be combined with a substantive switch in policy,

as in the case of the German government’s reaction to the atomic disaster in

Fukushima in March 2011. In record-breaking speed the German government

decided in favor of Germany’s nuclear phase-out and parliament passed the relevant

law, despite the fact that the nuclear safety of German atomic plants did not urge

such an unprecedented acceleration of the decision-making process in a highly

complex as well as fundamental question. Even if one welcomes the decision itself

it has to be conceded that from the perspective of ‘good law-making’ it certainly

would have been better to take some time for deliberation and to search for a more

sustainable policy. Instead, the German law that regulates the nuclear phase-out was

hurriedly passed by parliament on 31 July 2011.41

Terrorist attacks, too, create enormous political pressure and often so-called

‘alibi’- or crisis-laws42 serve as vents. It is well known that the tightening of penal

laws does not help much in terms of decreasing crime rates and, yet, whenever a

horrific crime is committed this is followed by vehement calls for stricter laws. As

Tushnet and Yackle have shown with regards to the Antiterrorism and Effective

Death Penalty Act (AEDPA) and to the Prison Litigation Reform Act (PLRA),

38

See Hassemer (1989: 556); Lübbe-Wolff (2000a: esp 25, 28; 2000b: 218); Führ (2003: 6–7, 9

et seq, 19–20); Voß (1989: 72 et seq, 75–76); Newig (2003: 26; on ‘societal self-deception’: 276).

39

Concerning the issue of Normenwahrheit see S. Meyer (2009: 294–303); Drüen (2009) and

below in this text under Sect. 13.4.

40

Cf Hassemer (1989: esp 556); Voß (1989: 6, 63 et seq). See also Führ (2003: 5–6); Schmehl

(1991: 253) points out that the achieved sedative effect might even block the mobilization of potential for social action. Newig (2003: 277) argues in the same direction.

41

„Dreizehntes Gesetz zur Änderung des Atomgesetzes“ of 31 July 2011, Bundesgesetzblatt I

(Federal Law Gazette of Germany), 1704. See for further details Reyes y Ráfales (2013:

599–600).

42

Noll (1981: 361). The rapidly adopted German Anti-Terrorism Act of 2001 is a perfect example,

see Rublack (2002: 202). Dwyer (1990: 233) gives another example: legislation addressed to

exotic and particularly dreaded health threats.



324



A. Siehr



which were enacted in the United States in 1996, symbolic statutes of this sort are

unlikely to have large-scale, systematic effects on the outcomes in habeas corpus or

prison cases.43 Still, they are real laws and do affect individual liberty – unfortunately

in an essentially random way, and randomness itself is a constitutional concern

(even more so if the death penalty is involved!). However, the limitations of penal

laws are not only reached if and when the law itself poses a constitutional problem.

Symbolic laws are problematic whenever they are designed to regulate society on a

grand scale: if legally protected universal interests that are difficult to capture – e.g.

the environment or the operation of capital markets – are to be safeguarded it is no

surprise that issues such as accountability and liability for actions will be at stake.

Furthermore, the moral appeals embedded in these laws often mask the underlying

grave conflicts between different interest groups, which vigorously fight their

effective implementation. Ultimately, all these factors contribute to the abovementioned lack of implementation as, for instance, in the area of environmental

(penal) laws.44 As a result, hopes for solutions to (apparently addressed) societal

problems are – at least to a great extent – frustrated by symbolic laws in the narrower

sense. At the same time the law’s latent functions have to remain hidden. For this is

precisely the point: if the merely symbolic effect of a statute is detected, that statute

becomes ineffective with respect to its latent function. In other words: only the

‘deceptive’ character ensures its effectiveness. It is for this reason that such a law’s

expressive goals typically interfere with whatever instrumental goals it aims to

achieve; since the instrumental ends are beneath the surface and the ostensible ends

cannot be taken at face value, conflicts are foreseeable.45



13.3

13.3.1



Different Conceptions and Standards of Rationality

Under the German Basic Law

Rationality or Irrationality of Symbolic

Laws—A Matter of Perspective?



Branding symbolic laws (in the narrower sense)46 simply as ‘irrational’ does not

sufficiently tackle the relevant issues. The qualification of a law as ‘irrational’ is

often a question of perspective as it is not per se ‘irrational’ but only in relation to a



43

Tushnet and Yackle (1997: 1–86, conclusion: 85–86). As they point out the Supreme Court saw

the problem of randomness, too, and held that the freakish imposition of the death penalty violated

the Eighth Amendment’s ban on cruel and unusual punishment, cf McKoy v. North Carolina, 494

US 433, 454 (1990).

44

Hassemer (1989: 557 et seq); Seelmann (1992: 456 et seq); Lübbe-Wolff (2000a: 28 et seq);

Newig (2003: 40 et seq).

45

Cf Tushnet and Yackle (1997: 4); Dwyer (1990: 316).

46

Subsequently, the term “symbolic laws” is always meant in the narrower sense.



13 Symbolic Legislation Under Judicial Review



325



certain rational ‘benchmark’.47 For example, from a viewpoint concentrating on the

alleged objective of a statute – that is to say its manifest functions – it will seem

irrational if the latent functions of the statute in question actually dominate.

Concentrating on the latent functions of a statute the verdict of irrationality will

only be made if its latent functions cannot be realized; otherwise the statute would

be viewed as ‘rational’. Still, this does not necessarily mean that such a statute is

‘good law’. However, any evaluation – either of the quality or, more specifically, of

the constitutionality of symbolic laws – presupposes that we first understand the

way in which notions of rationality are operationalized under the German

Constitution.

The relationship between law and rationality is, as it turns out, a more complex

one: First of all, it is necessary to differentiate between different forms of rationality

in view of their adequacy regarding the law itself and the process of judicial review

on the one hand and the political process of law-making on the other hand. Referring

to Max Weber’s model of “occidental rationalism”48 one form of rationality may be

described as Grundsatzvernunft (principle-based rationality) in opposition to what

Helmut F. Spinner in his theory of rationality calls Gelegenheitsvernunft (occasional

rationality).49 These two forms of rationality are related to two basic constitutional

principles, i.e. to the Rechtsstaatsprinzip and its sub-principles on the one side and

to the democratic principle on the other side. As we will see, especially from the

linkage between the notion of Grundsatzvernunft and the Rechtsstaatsprinzip, other,

more specific standards of rationality can be derived that are of particular interest in

view of symbolic laws. Additionally, certain other procedural and substantive

elements of constitutional law can be identified that foster rationality in the legal

order (on this see Sect. 13.3.2). Against this background it will become clearer how

to put the problem of symbolic laws in a legal perspective and how to describe the

conflict with certain standards of rationality more precisely (Sect. 13.3.3).

Furthermore, since the process of law-making takes place in the realm of politics, a

well-balanced assessment of the phenomenon of symbolic laws demands a closer

examination of this process and of how the democratic principle has been elaborated

under the German Basic Law (Sect. 13.3.4). At the completion of this examination

we will be ready to approach the issue raised at the start of this paper, i.e. the

question of whether, and under which circumstances, symbolic laws that do not

meet these standards of rationality – and therefore are not ‘good law’ – may be

declared unconstitutional by the German Federal Constitutional Court (Sect. 13.4).



47



Spinner (1986: 924).

Weber (1921–1922/19725: 397, passim); Weber (1915/1946: 293 et seq, 299, passim, see other

essays in this volume, too). There is a perceived difference between modern and primitive societies: modern life is viewed as being dominated by a secular, matter-of-fact as well as rational culture. Max Weber’s view of a disenchanted, non-magical, rationalized world has been very

influential, see Gusfield and Michalowics (1984: 418). For a detailed account of Max Weber’s

occidental rationalism see Schluchter (1998: 181 et seq, 205 et seq with further references).

49

Spinner (1986: 923, esp 925 et seq).

48



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