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3 Different Conceptions and Standards of Rationality Under the German Basic Law

3 Different Conceptions and Standards of Rationality Under the German Basic Law

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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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13.3.2



A. Siehr



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

50



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).

52

See for a profound analysis Daston (1992: on the following esp. 597–98) and Daston and Galison

(1992).

53

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.

54

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).

55

Daston (1992: 599).

51



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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

56



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).

58

Daston (1992: 597, 599, 607; see on the following, including the citation: 600).

59

Daston (1992: 600; see on the following 599). On the relation of objectivity to inter-subjectivity

see also Nagel (1986: 63 and passim).

60

Nagel (1986: esp. 5 et seq, 60 et seq: “centerless view”, passim). See on Nagel also Daston

(1992: 599).

61

Rawls (1971: 29, 36–37, 159 et seq, 228–229, 284, passim).

57



328



A. Siehr



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



62



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).

63

Hofmann (1986: 101–102); see also Siehr (2001: 80–81, 188–189, 262).

64

See Grawert (1975: 894–899); Hofmann (1995: 9, 23–24 with n 88).

65

See Alexy (1983).



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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

66



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.

67

Grimm (2001: 491) stresses that the law has a rationalizing power merely because of its generality, independent of its content.

68

On the significance of objectivity as publicity, see Postema (2001: 125 et seq).

69

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).

70

See Degenhart (1981: 479); Kloepfer (1982: 65); Schulze-Fielitz (1988: 378, 459 et seq).

71

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.



330



A. Siehr



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

self-interest.73

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,



72



Grigoleit (2004: 20). On the function of members of parliament as representatives see H. Meyer

(1989: 117 et seq, margin note 9 et seq).

73

Grimm (2001: 491).

74

Spinner (1986: 925).

75

Spinner (1986: 933).



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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’

objectivity).



13.3.3



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

76

Kant (1795/1983, vol 9, Appendix II: “Of the Harmony which the Transcendental Idea of Public

Law Established between Morality and Politics”, 244–245).

77

See supra n 69.

78

Drüen (2009, see for a summary: 74); Bumke (2010: 91); Merten (2015: 351).

79

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.



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A. Siehr



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

democracy.



80



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).

81

See on this issue above in the text near n 38.

82

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).

83

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



13.3.4



333



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[1] 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’

Conceptions

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

is reasonable.

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



84



See H. Meyer (1989: margin note 7). On the following see H. Meyer (1989: margin note 8).

Hofmann and Dreier (1989: margin note 24).

86

Dreier (1988: 457). On the majority rule Dreier (1986: 94); Schulze-Fielitz (1988: 443 et seq).

87

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.

85



334



A. Siehr



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 –

88

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

unclear.

89

See Hamilton, Madison and Jay (1787–1788/1961).

90

See Dreier (1988); Hofmann and Dreier (1989: margin note 12).

91

See Dreier (1988: 462); Hofmann and Dreier (1989: margin note 12).

92

See for example Lehner (1985: 95 et seq).

93

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).

94

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,

passim).



13 Symbolic Legislation Under Judicial Review



335



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

95



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).

97

Schmitt (1983: 210). On the elitist-aristocratic character, ibid, 219.

98

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).

99

See on this H. Meyer (1989: margin notes 9–11), also on the following.

100

Cf Dreier (1988: 483 with n 91, including further references).

101

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).

102

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).

96



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3 Different Conceptions and Standards of Rationality Under the German Basic Law

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