Rational Lawmaking under Review: Legisprudence According to the German Federal Constitutional Court (Legisprudence Library Book 3)

This book explores the constitutional, legally binding dimension to legisprudence in the light of the German Federal Constitutional Court ́s approach to rational lawmaking. Over the last decades this court has been remarkably active in applying legisprudential criteria and standards when reviewing parliamentary laws. It has thus supplied observers with a unique material to analyse the lawmakers’ duty to legislate rationally, and to assess the virtues and drawbacks of this strand of judicial control in a constitutional democracy. By bringing together legislation experts and public law scholars to elaborate on ‘legisprudence under review’, this contributed volume aspires to shed light on the constitutionalisation of rational lawmaking as a controversial trend gaining ground in both national and international jurisdictions. The book is divided into five parts. Part I frames the two key issues pervading the whole collection: the intricate relationship between judicial review and democracy, on the one hand, and the possibility of improving and rationalizing the task of legislation under the current circumstances of politics, on the other. Part II provides an overview of the judicial review of rational lawmaking, laying special emphasis on the duty of legislative justification imposed on lawmakers by the German Constitutional Court. Part III is devoted to the review of the systemic rationality of legislation, in particular to the requirements of legislative consistence and coherence as developed by this court. Contributions in Part IV revolve around the judicial scrutiny of the socio-empirical elements of rational lawmaking, with the control of legislative facts and impacts and the problem of symbolic laws being the central topics. Finally, Part V draws on the German case law to discuss the links between rational lawmaking, balancing and proportionality, and the interdependence between process review and substantive review of legislation. This Book Explores The Constitutional, Legally Binding Dimension To Legisprudence In The Light Of The German Federal Constitutional Court ́s Approach To Rational Lawmaking. Over The Last Decades This Court Has Been Remarkably Active In Applying Legisprudential Criteria And Standards When Reviewing Parliamentary Laws. It Has Thus Supplied Observers With A Unique Material To Analyse The Lawmakers’ Duty To Legislate Rationally, And To Assess The Virtues And Drawbacks Of This Strand Of Judicial Control In A Constitutional Democracy. By Bringing Together Legislation Experts And Public Law Scholars To Elaborate On ‘legisprudence Under Review’, This Contributed Volume Aspires To Shed Light On The Constitutionalisation Of Rational Lawmaking As A Controversial Trend Gaining Ground In Both National And International Jurisdictions. The Book Is Divided Into Five Parts. Part I Frames The Two Key Issues Pervading The Whole Collection: The Intricate Relationship Between Judicial Review And Democracy, On The One Hand, And The Possibility Of Improving And Rationalizing The Task Of Legislation Under The Current Circumstances Of Politics, On The Other. Part Ii Provides An Overview Of The Judicial Review Of Rational Lawmaking, Laying Special Emphasis On The Duty Of Legislative Justification Imposed On Lawmakers By The German Constitutional Court. Part Iii Is Devoted To The Review Of The Systemic Rationality Of Legislation, In Particular To The Requirements Of Legislative Consistence And Coherence As Developed By This Court. Contributions In Part Iv Revolve Around The Judicial Scrutiny Of The Socio-empirical Elements Of Rational Lawmaking, With The Control Of Legislative Facts And Impacts And The Problem Of Symbolic Laws Being The Central Topics. Finally, Part V Draws On The German Case Law To Discuss The Links Between Rational Lawmaking, Balancing And Proportionality, And The Interdependence Between Process Review And Substantive Review Of Legislation. Foreword; Luc J. Wintgens -- 1 On The “legisprudential Turn” In Judicial Review: An Introduction; A. Daniel Oliver-lalana And Klaus Meßerschmidt -- Part I. Judicial Review, Democracy, And Legislation Theory -- 2 Constitutional Courts And Democracy. Facets Of An Ambivalent Relationship; Gertrude Lübe-wolff -- 3 Paths Towards Better Legislation, Detours And Dead-ends: An Appraisal Of Consultation With Independent Experts, Justifications For Legislation, Impact Assessments And Controls Of Efficacy; Helmuth Schulze-fielitzpart -- Ii. Judicial Review Of Legislative Rationality And Justification -- 4 Rationality Requirements On Parliamentary Legislation Under A Democratic Rule Of Law; Bernd Grzeszick -- 5 The Generality Of The Law. The Law As A Necessary Guarantor Of Freedom, Equality And Democracy, And The Differentiated Role Of The Federal Constitutional Court As A Watchdog; Gregor Kirchhof -- 6 On Constitutional Duties To Give Reasons For Legislative Acts; Christian Waldhoff --^ Part Iii. Judicial Review Of Legislative Consistency And Systematicity -- 7 The Obligation Of Consistency In Lawmaking. Using The Example Of The Ban On The Private Sale Of Public Lottery Tickets And Its Review By The Federal Constitutional Court; Christian Bumke -- Inconsistent Legislation; Matthias Rossi -- 9 Judicial Review Of Tax Laws: The Coherence Requirement; Roland Ismer -- Part Iv. Judicial Review Of Legislative Facts And Impacts -- 10 Legislative Margins Of Appreciation As The Result Of Rational Lawmaking; Christian Bickenbach -- 11 Due Post-legislative Process? On The Lawmakers’ Constitutional Duties Of Monitoring And Revision; A. Daniel Oliver-lalana -- 12 Efficacy, Effectiveness, Efficiency – From Judicial To Managerial Rationality; Ulrich Karpen -- 13 Symbolic Legislation Under Judicial Control; Angelika Siehr -- Part V. Legislative Balancing, Proportionality, And Process Review -- 14 Rational Lawmaking, Proportionality And Balancing; Jan Sieckmann --^ 15 The Procedural Review Of Legislation And The Substantive Review Of Legislation – Opponents Or Allies?; Klaus Meßerschmidt -- Index -- About The Authors. Klaus Messerschmidt, A. Daniel Oliver-lalana, Editors. Includes Bibliographical References And Index. This book explores the constitutional, legally binding dimension to legisprudence in the light of the German Federal Constitutional Courtś approach to rational lawmaking. Over the last decades this court has been remarkably active in applying legisprudential criteria and standards when reviewing parliamentary laws. It has thus supplied observers with a unique material to analyse the lawmakers' duty to legislate rationally, and to assess the virtues and drawbacks of this strand of judicial control in a constitutional democracy. By bringing together legislation experts and public law scholars to elaborate on 'legisprudence under review', this contributed volume aspires to shed light on the constitutionalisation of rational lawmaking as a controversial trend gaining ground in both national and international jurisdictions. The book is divided into five parts. Part I frames the two key issues pervading the whole collection: the intricate relationship between judicial review and democracy, on the one hand, and the possibility of improving and rationalizing the task of legislation under the current circumstances of politics, on the other. Part II provides an overview of the judicial review of rational lawmaking, laying special emphasis on the duty of legislative justification imposed on lawmakers by the German Constitutional Court. Part III is devoted to the review of the systemic rationality of legislation, in particular to the requirements of legislative consistence and coherence as developed by this court. Contributions in Part IV revolve around the judicial scrutiny of the socio-empirical elements of rational lawmaking, with the control of legislative facts and impacts and the problem of symbolic laws being the central topics. Finally, Part V draws on the German case law to discuss the links between rational lawmaking, balancing and proportionality, and the interdependence between process review and substantive review of legislation.-- Provided by publisher This book explores the constitutional, legally binding dimension to legisprudence in the light of the German Federal Constitutional Court℗þs approach to rational lawmaking. Over the last decades this court has been remarkably active in applying legisprudential criteria and standards when reviewing parliamentary laws. It has thus supplied observers with a unique material to analyse the lawmakersĺl duty to legislate rationally, and to assess the virtues and drawbacks of this strand of judicial control in a constitutional democracy. By bringing together legislation experts and public law scholars to elaborate on ĺllegisprudence under reviewĺl, this contributed volume aspires to shed light on the constitutionalisation of rational lawmaking as a controversial trend gaining ground in both national and international jurisdictions. The book is divided into five parts. Part I frames the two key issues pervading the whole collection: the intricate relationship between judicial review and democracy, on the one hand, and the possibility of improving and rationalizing the task of legislation under the current circumstances of politics, on the other. Part II provides an overview of the judicial review of rational lawmaking, laying special emphasis on the duty of legislative justification imposed on lawmakers by the German Constitutional Court. Part III is devoted to the review of the systemic rationality of legislation, in particular to the requirements of legislative consistence and coherence as developed by this court. Contributions in Part IV revolve around the judicial scrutiny of the socio-empirical elements of rational lawmaking, with the control of legislative facts and impacts and the problem of symbolic laws being the central topics. Finally, Part V draws on the German case law to discuss the links between rational lawmaking, balancing and proportionality, and the interdependence between process review and substantive review of legislation Front Matter....Pages i-viii On the “Legisprudential Turn” in Constitutional Review: An Introduction....Pages 1-16 Front Matter....Pages 17-17 Constitutional Courts and Democracy. Facets of an Ambivalent Relationship....Pages 19-32 Paths Towards Better Legislation, Detours and Dead-Ends....Pages 33-57 Front Matter....Pages 59-59 Rationality Requirements on Parliamentary Legislation Under a Democratic Rule of Law....Pages 61-87 The Generality of the Law....Pages 89-127 On Constitutional Duties to Give Reasons for Legislative Acts....Pages 129-151 Front Matter....Pages 153-153 The Obligation of Consistency in Lawmaking....Pages 155-188 Inconsistent Legislation....Pages 189-208 Judicial Review of Tax Laws: The Coherence Requirement (Folgerichtigkeitsgebot) ....Pages 209-232 Front Matter....Pages 233-233 Legislative Margins of Appreciation as the Result of Rational Lawmaking....Pages 235-256 Due Post-legislative Process? On the Lawmakers’ Constitutional Duties of Monitoring and Revision....Pages 257-294 Efficacy, Effectiveness, Efficiency: From Judicial to Managerial Rationality....Pages 295-313 Symbolic Legislation Under Judicial Control....Pages 315-346 Front Matter....Pages 347-347 Rational Lawmaking, Proportionality and Balancing....Pages 349-372 The Procedural Review of Legislation and the Substantive Review of Legislation: Opponents or Allies?....Pages 373-403 Back Matter....Pages 405-412