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3 Different Conceptions and Standards of Rationality Under the German Basic Law
13 Symbolic Legislation Under Judicial Review
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
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).
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).
Spinner (1986: 923, esp 925 et seq).
Grundsatzvernunft (Principle-Based Rationality)
and Gelegenheitsvernunft (Occasional Rationality)
Generally speaking, Grundsatzvernunft (principle-based rationality) is omnipresent
in the legal order as a disciplining, rationalizing force. Grundsatzvernunft is taken
to mean the principal rationality of human action that adheres to general, abstract
standards that are independent of people or circumstances.50
This description indicates a nexus between principle-based rationality and the
idea of objectivity, a term that can also be used in connection to truth51 and which is
mirrored in its antonym ‘subjectivity’. Therefore, we will start with an outline of
conceptions of objectivity, viewed in relation to conceptions of rationality on one
side and to the idea of law as well as the process of law-making on the other side.
Epistemologically speaking ‘objectivity’52 – which became the foundation of all
science – stands for the supra-individual truth of a certain object or issue that exists
independently of the subject. It contrasts sheer belief, subjective persuasion, and
assumed truths with a radically secular and purely rational concentration on
verifiable facts and causal relationships. In science and research, objectivity serves
as a criterion for the inter-subjective validity of scientific methods, findings, and
their depiction. We assign to objectivity attributes such as strictly ‘fact-based’,
‘neutral’, ‘impartial’, ‘void of emotions, biases, prejudices, and self-interest’, or we
use the term to mean that a conclusion has been derived from an empirically reliable
basis of knowledge. Different sciences draw on different aspects of objectivity and,
in fact, there is not one monolithic and immutable concept of objectivity53 but
various conceptions of objectivity – as indeed there are different conceptions of
rationality.54 Lorraine Daston identifies – without any claim to completeness – at
least three different forms of objectivity: mechanical objectivity, aperspectival
objectivity, and ontological objectivity.55 In the present context of a depiction of
‘Grundsatzvernunft’ we will only deal with the first two forms of objectivity; its
ontological aspect (which is about the fit between theory and the world) shall be
omitted. Although conceptions of objectivity have changed in the course of history
due to changing scientific ideals and practices, these conceptions all show a common
pattern: they are all negatively defined, in opposition to specific aspects of
subjectivity that, at a certain point of history, came to be seen as ‘dangerously
Spinner (1986: 923–924, esp 925 et seq).
See on the relationship between law and truth Decker (1992: 43); Patterson (1996); Poscher
(2003: 200); Moore (2004).
See for a profound analysis Daston (1992: on the following esp. 597–98) and Daston and Galison
From a history of science perspective see Daston (1992: 597–98) who points out that for a long
time it has been assumed that objectivity is and has been a monolithic and immutable concept.
See with respect to rationality Schulze-Fielitz (1988: 454 et seq, 459 et seq); Meßerschmidt
(2000: 777 et seq); Engel (2001b: 28); Grzeszick (2012: 51 et seq, 76). See from a philosophical
perspective also Putnam (1981).
Daston (1992: 599).
13 Symbolic Legislation Under Judicial Review
subjective’. As Daston and Galison put it: “Objectivity is related to subjectivity as
wax to seal, as hollow imprint to the bolder and more solid features of subjectivity.
Each of the several components of objectivity opposes a distinct form of subjectivity;
each is defined by censuring some (by no means all) aspects of the personal.”56
The ideal of mechanical objectivity was developed under the influence of the
technical innovation of photography. Until the middle of the nineteenth century
scholars as, for instance, scientific atlas makers had believed that for a ‘true to
nature’ portrait of an object a scientist would have to capture its essence, relying on
his cumulated experience on the basis of series of observations and his skilled
ability to judge.57 But in the second half of the nineteenth century drawings were
replaced by photographs due to technical progress and the rise of the ideal of
mechanical objectivity which attempted to eliminate the presence and all the more
aestheticizing judgments and interpretations of the observer. By 1900, the
photograph exercised a powerful ideological force as the very symbol of neutral,
exquisitely detailed truth – a rather delusive ‘image’, at least in the digital age.
Aperspectival objectivity first made its appearance in the moral and aesthetic
philosophy of the latter half of the eighteenth century; it targeted the subjectivity of
idiosyncrasies, biases, one-sided approaches, and affections of individuals or
groups.58 Only in the middle decades of the nineteenth century aperspectival
objectivity became part of the ethos of the natural sciences, “as a result of a
reorganization of scientific life that multiplied professional contacts at every level”
and fostered communications across “boundaries of nationality, training and skill.
Indeed, the essence of aperspectival objectivity is communicability, narrowing the
range of genuine knowledge to coincide with that of public knowledge”59 and
transcending the individual viewpoint in deliberation and action. The idea of
aperspectival objectivity dominates contemporary notions of objectivity: it is omnipresent in our everyday speech in phrases like ‘seeing something from another
angle’ or ‘point of view’, ‘climb[ing] outside of our own minds’ or ‘taking a bird’s
eye view’. Thomas Nagel introduced the brilliant oxymoron “view from nowhere”60
and, of course, we also think of John Rawls’ “veil of ignorance”.61
But to what extent can we draw a line between these two forms of objectivity and
the concept of law, the question of its legitimacy or the process of law-making?
Mechanical objectivity not only stands for the ideal of truthfulness and the
Daston and Galison (1992: 82).
Daston and Galison (1992: 84–117). Accordingly, scientists had searched for the underlying
‘type’ (or even ‘archetype’) of a genus, an example which possesses all the leading characters of
that genus and represents a ‘true to nature’ abstraction from coincidental individual deviations – as
Goethe did when he drafted his ur-plant. See for references and for other exemplary illustrations
Daston and Galison (1992: 84–117).
Daston (1992: 597, 599, 607; see on the following, including the citation: 600).
Daston (1992: 600; see on the following 599). On the relation of objectivity to inter-subjectivity
see also Nagel (1986: 63 and passim).
Nagel (1986: esp. 5 et seq, 60 et seq: “centerless view”, passim). See on Nagel also Daston
Rawls (1971: 29, 36–37, 159 et seq, 228–229, 284, passim).
commitment to verified facts,62 it also shares with the social contract theories of the
Enlightenment a certain scientific ideal and, in particular, a trust in the laws of
mechanics as well as the assumption that their ‘objective’ character and rationalizing
force can be transferred to other sciences. As we know, those social contract theories
foster the idea of rationality of the law in its purest form – Kant’s notion of law as a
postulate of reason is a perfect example – and they focus mainly on the question of
the law’s and the government’s legitimacy. The common methodical starting point
of the different Enlightenment social contract theories is the methodic individualism.
This is very much in line with the ideal of science of the age, and was shaped by
Descartes’ – erroneous but very influential – equation of the laws of nature with the
laws of mechanics. Starting off with the individual as the smallest entity and
autonomous manufacturer of its historical lifeworld, situated in a hypothetical state
of nature, the theorists of the Enlightenment developed more geometrico a rationale
for legitimate political authority. The process of transformation from the state of
nature to the political state on the basis of a (likewise hypothetical) social contract
is described as a “mechanism of socializing”.63 This way of proceeding springs from
the same root as mechanical objectivity; both give weight to the rationality of
thinking in abstract, general laws – whether physical, mechanical or social – that are
universally valid or, at least, universally comprehensible. Since the latter is also
typical of the notion of ‘Grundsatzvernunft’ and its adherence to general, abstract
rules, this approach has proven to be very fruitful for the belief in the rationality of
the law and its role in the rule of law state.64
However, compliance with the standards of Grundsatzvernunft also ensures the
inter-subjective communicability, comprehensibility and accountability of actions
and results, thereby creating distance and fighting subjectivity in terms of
aperspectival objectivity. This is especially true for highly differentiated legal
orders: Different manifestations of the idea of Grundsatzvernunft like the orientation
towards certain principles, rules and methods of construction, the development of a
sophisticated legal doctrine as well as a theory of judicial reasoning65 all enhance
(aperspectival) objectivity in law. Since parliamentary norm-setting itself has to
observe certain constitutional norms – even though they only constitute a legal
framework for the legislative process and respect the wide discretion of the
legislator – these rationalizing elements in law also influence the creation of law.
More particularly – on a lower level of abstraction that corresponds to the
substantial constitutional law approach of legislative theory – we find constitutional
principles as well as constitutional precautions on the institutional level that help to
preserve rational standards in law. First of all the Rechtsstaatsprinzip laid down in
Of course, today we know that – contrary to the ideal of mechanical objectivity – value-judgements necessarily form part of the application of law. See on ethical/moral judgements Sieckmann
(2005: 284 et seq).
Hofmann (1986: 101–102); see also Siehr (2001: 80–81, 188–189, 262).
See Grawert (1975: 894–899); Hofmann (1995: 9, 23–24 with n 88).
See Alexy (1983).
13 Symbolic Legislation Under Judicial Review
Art. 20(3) of the German Basic Law virtually embodies the idea of Grundsatzvernunft66
and shapes it through a series of sub-principles such as the principle of legality of
all state action with the further sub-principles of the precedence of statutes and the
reservation of statutory powers (Gesetzesvorrang and Gesetzesvorbehalt). Likewise,
there are the postulates of the generality of law,67 transparency and publicity68 of all
state actions, and the necessity for clarity and certainty in legal norms, especially in
coercive laws. More recently, the requirement of truthfulness of legal norms
(Normenwahrheit) has been formulated, too.69 Normenwahrheit is of specific
relevance to the matter of symbolic laws; therefore we will come back to this issue.
Furthermore, of course, all the constitutional precautions to secure liberty, mainly
the principle of separation of powers, the guarantee of (justiciable!) fundamental
rights and the establishment of a powerful Federal Constitutional Court are important
in this context. Last not least, the notion of Zweckrationalität, i.e. purposive rationality, has to be mentioned. This type of rationality that, according to Max Weber,
is inherent in the principle of proportionality – the way in which the end, the means,
and the secondary results are all rationally taken into account and weighed –, is also
an expression of the idea of Grundsatzvernunft.
But rationalizing elements in the legal order and legal standards of rationality
that are relevant to the process of law-making are not only rooted in the
Rechtsstaatsprinzip. They can also be found in the principle of democracy as
established in Art. 20(2) of the German Basic Law. For instance, they are located in
the legal structure of the legislative process itself which creates, through procedural
means, a distance – as demanded by aperspectival objectivity – between political
needs and urges on the one hand, and legal obligations on the other hand.70 This
potential of rationality is of particular interest for the procedural approach within
legislative theory. Due to the participation of different constitutional bodies at
different procedural stages, the exercise of mutual influence, constraints and control
in the process of law-making is ensured.71 Moreover, the publicity of the law-making
Grzeszick (2012: 51–52) rightly points out that the expectation of rationality is mainly attributed
to the Rechtsstaatsprinzip. Kloepfer (1982: 65) describes the state governed by the rule of law as a
form of government that is characterized by the keeping of “distance”. For example, it ensures
distance between private interest and public decision, between the creation of law and its application, and between political will and the binding law.
Grimm (2001: 491) stresses that the law has a rationalizing power merely because of its generality, independent of its content.
On the significance of objectivity as publicity, see Postema (2001: 125 et seq).
BVerfG, Order of 12 February 2003, 2 BvL 3/00, 107 BVerfGE 218 at 256 – Different Salary in
East and West Germany; BVerfG, Judgement of 19 March 2003, 2 BvL 9/98, 2 BvL 10/98, 2 BvL
11/98, 2 BvL 12/98, 108 BVerfGE 1 at 20 – Fees for Re-registrations of Students; BVerfG, Order
of 13 September 2005, 2 BvF 2/03, 114 BVerfGE 196 at 236–237 – Contribution Rate Safeguarding
Act; BVerfG, Judgement of 4 July 2007, 2 BvE 1-4/06, 118 BVerfGE, 277 at 366–367 – Legal
status of MP (German Bundestag). See also Lübbe-Wolff (2000b: 231–232); S. Meyer (2009: 294
et seq); Drüen (2009: 60 et seq); Cornils (2011: 1055).
See Degenhart (1981: 479); Kloepfer (1982: 65); Schulze-Fielitz (1988: 378, 459 et seq).
Degenhart (1981: 479); Schulze-Fielitz (1988: 457–458); Dann (2010: 645); Reyes y Ráfales
(2013: 604–605). However, according to Lienbacher (2012: 32–34), with regard to Austria the
internal controls within the law-making process are rather blunt weapons.
procedures in parliament re-enforces its function as an assembly of the people
because this allows political agendas to be evaluated in a free debate and guarantees
a certain control and participation of the public. Thereby a communicative relationship is established that embeds the statute, as a tool of politics, into the legitimizing
process of the transformation of the political will into law in a representative democracy.72 To the extent to which this condition is met in practice – and, of course, there
is a significant discrepancy – it brings the legislative process at least a bit closer to
the standards of aperspectival objectivity. At the same time, the fact that the outcome of the law-making process is generally binding, so that the ‘authors’ of the
laws are also its addressees, establishes a nexus that helps to restrain
Lastly, the rationalizing force of a representative democratic system has to be
considered. According to Art. 38(1) sentence 2 of the German Basic Law the
Members of Parliament, the German Bundestag, shall be representatives of the
whole people, not bound by orders or instructions, and responsible only to their
conscience. In this way a certain distance is created and the factual ties and
dependences of the voters or the party to which a representative is attached are put
into a legal perspective. It is conceded, however, that this approach to rationality,
which counts on the legal protection of the free mandate of the representative in the
political process of law-making, does not match the conception of ‘Grundsatzvernunft’
(principle-based rationality). It rather corresponds to what Helmut F. Spinner in his
theory of rationality calls ‘Gelegenheitsvernunft’ (occasional rationality). According
to Spinner the latter is not aligned to general, abstract, anticipated principles but
takes an occasional-rational approach in the sense that on a case-by-case basis a
“changing, occasional rationality is created”, depending on the circumstances, “as
specific means […] to solve a particular case occasional-rationally, without any
generalization”.74 The (one-sided) ‘occidental’ conception of rationality as an
orientation towards general principles, which has been promoted by Max Weber, is
thereby contrasted with an orientation towards occasion and opportunity.75
As already mentioned, the law itself seeks the highest possible degree of
compliance with the conception of Grundsatzvernunft, with Kant’s notion of law as
a postulate of reason marking the pinnacle. However, politics shifts as a ‘wavering
figure’ between principle-based and occasional rationality: on the one hand, it is in
the interest of politics to enact laws that organize and shape life according to certain
principles, i.e. to create a Lebensordnung on a legal basis. On the other hand,
Grigoleit (2004: 20). On the function of members of parliament as representatives see H. Meyer
(1989: 117 et seq, margin note 9 et seq).
Grimm (2001: 491).
Spinner (1986: 925).
Spinner (1986: 933).
13 Symbolic Legislation Under Judicial Review
politics – under the pressure of time and the pressure to act – also seeks flexible
solutions for political problems. If these problems cannot be solved in the short-run,
laws are supposed, at least, to send programmatic signals and to demonstrate the
political ability to take meaningful action; symbolic laws (in the narrower sense)
fulfil exactly this function. Thus, next to substantive fact-based objectives emerge
tactical political aims. Considering that certain tactical goals are not revealed,
because doing so could jeopardize their achievement, such legislation comes into
conflict with principle-based rationality.
It becomes clear at this point that objectivity and rationality in legislation are
linked but not congruent: the modern scientific ideal of objectivity rules out both the
natural law notions of ‘reason’ and of ‘Gelegenheitsvernunft’ but it harmonizes with
‘Grundsatzvernunft’ (especially as the latter overlaps with ‘aperspectival’
Specific Conflicts of Symbolic Laws with Standards
of Rationality and Their Consequences
As we have seen, there is a conflict with Grundsatzvernunft (principle-based
rationality) that seems to be typical of symbolic laws and this conflict bears
consequences that should be taken seriously. Firstly, the concealment of the latent
functions of a statute contradicts aperspectival objectivity, for the ‘view from
nowhere’ presumes equal knowledge of everyone involved in the public discourse.
Or to re-phrase it in the words of Kant’s famous “Treatise on Eternal Peace”: “All
actions relating to the right of other men are unjust if their maxim is not consistent
with publicity”.76 Thus, symbolic statutes lack publicity in view of their latent
intentions which renders them ‘unjust’.
It is this conflict with aperspectival objectivity that is visible under the surface of
the constitutional requirement of Normenwahrheit (truthfulness of legal norms).
Normenwahrheit as a standard of rationality that legal norms have to meet has been
formulated in the jurisdiction of the German Federal Constitutional Court only quite
recently.77 It has been partly approved in literature78 but it has also encountered
sharp criticism. Those who are critical have found no real difference between
Normenwahrheit and Normenklarheit, i.e. the clarity of a legal norm.79 Actually, the
Kant (1795/1983, vol 9, Appendix II: “Of the Harmony which the Transcendental Idea of Public
Law Established between Morality and Politics”, 244–245).
See supra n 69.
Drüen (2009, see for a summary: 74); Bumke (2010: 91); Merten (2015: 351).
See Cornils (2011: 1055). However, Drüen (2009: 64 et seq, 74) defines the difference clearly.
The position of S. Meyer (2009: 294 et seq, esp 298/302) is ambiguous: on the one hand, he does
not see a doctrinal innovation in relation to Normenklarheit, on the other hand, he explains why
this requirement may lead to a different result.
requirement of clarity of a legal norm ensures that the addressees are able to grasp
the legal situation on the basis of the said legal norm, whereas the idea of
Normenwahrheit aims at the element of deception which is crucially characteristic
of symbolic statutes in the narrower sense. The manifest message of a symbolic
statute may be very clear, yet not enforceable, while its latent aims remain hidden.
This shows that, in fact, the two standards are different and that the development of
the requirement of Normenwahrheit is a very specific response to the phenomenon
of symbolic laws.
Secondly, symbolic laws, in line with the infringement of the requirement of
Normenwahrheit, often lack means of implementation. But if the manifest objective
of a norm is missed this undermines, at least in the long run, the normativity of the
law,80 and the objectifying aspects that allow the law to appear as an expression of
‘Grundsatzvernunft’ (principle-based rationality) lose their foundation. This is a
serious danger to the law but it is not triggered by a single statute or a few symbolic
laws. It depends rather on the question of how often symbolic laws are passed and
to what degree they may be described as symbolic laws81 in the narrower sense.
Thirdly, as mentioned above, in symbolic legislation the idea of the preservation
of liberty through self-legislation of the autonomous subject is betrayed. If the
people do not discover the deception they are deprived of taking part (virtually,
through representation) in legislation.82 In the opposite case the consent of the
people to a law that actually does not serve its manifest purposes contradicts the
notion of reason that is inherent in law and, as Kant notes: “what the whole people
cannot decide upon for itself the legislator also cannot decide for the people.”83 –
But how should we counter the argument that the legislator is, through a symbolic
statute, merely reacting to the demands of the people? This question shifts our attention from the Rechtsstaatsprinzip (rule of law) to the second main constitutional
principle that can be seen as counterpoint in this context, i.e. the principle of
This poses a problem for the legal culture as Enders and Lange (2006: 112) correctly point out.
On the specific value of normativity as a counterbalance to political and social power, see Engel
(2001b: 39). In more detail Engel (2001a: 23 et seq).
See on this issue above in the text near n 38.
In addition, the generality of law in the sense of its impersonal abstractness, an idea that was
elaborated by Rousseau for the first time, is lost: according to Rousseau a law is not general if a
single voter is excluded, irrespective of its content. However, deception is a form of exclusion; see
for details Siehr (2008: 286 et seq).
Kant (1797/1983, vol 7, Rechtslehre, Allgemeine Anmerkung C: 448). Cf also Kant (1797/1983,
vol 9, II. Vom Verhältnis der Theorie zur Praxis im Staatsrecht [Gegen Hobbes]: 150).
13 Symbolic Legislation Under Judicial Review
Symbolic Laws and the Principle of Democracy
The Process of Law-Making and the Principle of Democracy: Voluntas,
Instead of Ratio
The principle of democracy, enshrined in Art. 20(2) of the German Basic Law, is a
dynamic principle.84 Among all state organs the German Bundestag is connected
closest to this principle. In view of its right to legislative initiative and its influence
on the creation as well as the control of the government the parliament can be
described as the “center of gravity” in the constitutional state.85 The German
Parliament is the only state organ elected directly by the people and Members of
Parliament are, as previously mentioned, “representatives of the whole people”
(Basic Law, Art. 38 sentence 2) in the process of forming the will of the state.
This will, as articulated in Parliament, is not valid because it embodies a predetermined, objective reason that only needs to be discovered. It is valid because it
is the will of the majority of the representative body that is directly democratically
legitimatized: “voluntas, rather than ratio”.86
The Principle of Representation: Elitist and ‘Democratic-Egalitarian’
However, the fact that the principle of democracy is based on voluntas, rather than
ratio does not mean that input-oriented democratic legitimacy of democratic lawmaking cannot be enhanced through the output-oriented reasonableness of ‘good
law’. On the contrary, it is clear from what has been stated above that from the
rationalizing and distance-creating effects of the organization of the legislative
process a – but yet rebuttable – presumption follows that a law created by parliament
But how exactly does the disciplining power of representation work or, more
specifically, what may be expected in this respect from the individual representative
who exercises his or her free mandate in accordance with the Basic Law, Art. 38(1)
sentence 2? Is the representative, aligned with the ideas of Rousseau,87 obliged to
abstract him- or herself from all private interests, including those of the voters, and
to act strictly in concordance with what he or she perceives to be the ‘general will’
or, in common parlance, the common good? Though some statements in the
See H. Meyer (1989: margin note 7). On the following see H. Meyer (1989: margin note 8).
Hofmann and Dreier (1989: margin note 24).
Dreier (1988: 457). On the majority rule Dreier (1986: 94); Schulze-Fielitz (1988: 443 et seq).
For Rousseau the law is the expression of the general will (volonté générale) as a substantial
figure which focuses on the common good, and is different form the will of all (volonté de tous) as
a sheer numeric figure. According to his “contrat social” the general will is determined in an
assembly of free and equal men and is equally binding for all.
literature apparently point in this direction, this position is not really persuasive.88
Actually, in this context it is not Rousseau – who strictly opposed the idea of representation – we are close to, but the American ‘Federalists’: They drafted (in the
form of political journalism) in view of the Constitution of the United States of
America the first model for a representative and democratic system of government
in a large territorial state.89 The Federalists considered pluralism, arising from the
demands of different interest groups, not as a disturbing factor but as the basis for
the procedure of representation.90 In their view the process of gradual communicative expansion leads to the mutual abrasion of private interests and in the end the
common interest that is at the core of all singular interests is revealed.91 Although
modern criticisms of pluralism have disclosed relentlessly shortcomings in the process of the articulation of different group interests,92 this model is still superior to an
over-idealization of the representative. And this is precisely what is being done
when the representative is expected to go through the entire process of balancing
and adjusting diverse interests in his/her person – knowing very well that the reality
is quite different.
So, in fact, every single Member of Parliament may represent group interests
since it is not he or she as an individual that represents the whole people; instead,
we rely on the principle of collective representation through the German Bundestag
as the representative body.93 In practice, this is certainly still far from the ideal of
aperspectival objectivity. It should be noted, however, that there is nothing per se
‘irrational’ about the representation of group interests since solutions to a particular
problem may be found on the basis of Gelegenheitsvernunft (occasional rationality)
as outlined above. To sum it up: it is the process of forming the will of the legislator
under the conditions of pluralistic diversity of opinions and interests as a whole that
counts here. This process leads to a selective legal concretization of the common
good94 which will be valid for a certain period of time.
Anyhow, for a better understanding of symbolic laws we must tackle the ‘hard
cases’ in terms of standards of rationality. For example, how should the legislator
deal with the situation mentioned above of a general perception of a threat amongst
the populace; a perception that is not justified by the state of affairs but in response
to which the populace nevertheless calls for the – needless and therefore ineffective –
Strongly opposing H. Meyer (1975: 93); Dreier (1988: 464 et seq); Hofmann and Dreier (1989:
margin note 27). The position of Schneider (1989: margin note 4 and 18) appears ambiguous and
See Hamilton, Madison and Jay (1787–1788/1961).
See Dreier (1988); Hofmann and Dreier (1989: margin note 12).
See Dreier (1988: 462); Hofmann and Dreier (1989: margin note 12).
See for example Lehner (1985: 95 et seq).
Cf BVerfG, Order of 10 May 1977, 2 BvR 705/75, 44 BVerfGE 308 at 316 – decision-making
capacity of the German Bundestag –; Schneider (1989: margin note 18); Hofmann and Dreier
(1989: margin note 27).
In a democracy the common good is not pre-determined but its definition is subject to an open
pluralistic process which follows strict procedural rules, see Münkler and Fischer (2002: 9–11,
13 Symbolic Legislation Under Judicial Review
tightening of penal laws? Naturally, elitist conceptions of representation that are
based on the idea of the superior ability to reason of particularly qualified
representatives would have no difficulty in conceding a discrepancy between the
reasonable insight of the representative body and the unreasonable empirical will of
the people. Such a conception had previously been invoked by Sieyès, the genius
constitutional theorist of the French Revolution95 and surfaced again, albeit in a
modified version, in Carl Schmitt’s disputable idealism of representation. He
defined representation virtually as the “non-democratic [element] of this democracy”
for democracy, according to Schmitt, is defined as the identity of ruler and ruled.96
Lastly Schmitt’s highly idealizing conception of representation, in which “a higher
form of being is concretely manifested”,97 served to nourish his criticism of parliamentarism.98 Since the various elitist models of representation are not compatible
with the egalitarian democratic foundation of the sovereignty of the people in the
German Basic Law and the universal and equal right to vote inherent in it, they shall
not be examined further in this context.
Under the German Basic Law it proves necessary to differentiate: On the one
hand, it follows from the Parliament’s basic function of representation that its
Members have to maintain a close connection to the people99 in a way that allows
for supervision and criticism, so that the democratic ideal of self-rule of the people
through elected representatives can become reality.100 This means that although the
representative, according to Art. 38(1) sentence 2 of the Basic Law, obtains a free
mandate and is not bound by orders or instructions, the empirical will of the people
is certainly of relevance.101 On the other hand, however, the representative is,
according to Art. 48(2) sentence 1 of the Basic Law, the holder of a public office102
and is therefore bound by the Constitution which also sets limits to the empirical
will of the people. Furthermore, the representative does not only have to bear in
mind the question whether a new law may lead to a clear (and therefore justiciable)
breach of the Basic Law but he or she has also to consider the spirit of the Constitution
that gives life to the idea of the free mandate. In the following sections it will be
examined more closely under which circumstances issues that are linked to the
In detail on Sieyès see Herbst (2003: 66–78).
Schmitt (1983: 204 et seq, 218). Cf Hofmann and Dreier (1989: margin note 10); Hofmann
(2002: 148 et seq).
Schmitt (1983: 210). On the elitist-aristocratic character, ibid, 219.
Schmitt even concludes that, actually, a “powerful representation” is only conceivable against the
Parliament, (1983: 315). Cf Hofmann and Dreier (1989: margin note 10, 31); for a thorough analysis of Schmitt’s criticism of parliamentarism see Hofmann (2002: 96 et seq).
See on this H. Meyer (1989: margin notes 9–11), also on the following.
Cf Dreier (1988: 483 with n 91, including further references).
The German Basic Law clearly dismisses both: conceptions of democracy that are based on the
identity of rulers and ruled as well as mystifying notions of representation, see Schneider (1989:
before article 38, margin note 2–3), and Dreier (1988: 482–483).
Evidently the representative does not hold an office within public service but a state office (oberstes Staatsamt) that, in fact, is incompatible with a public service position, see Schneider (1989:
margin note 20).