Rational Lawmaking under Review

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.

Auteur
Klaus Meßerschmidt, Dr. iur., is adjunct professor of public law at Humboldt University of Berlin and lecturer at the University of Erlangen-Nürnberg. He obtained his doctorate in law at the University of Trier (1986) and his habilitation at the University of Berlin (2000). His research concentrates on legisprudence, originating from his postdoctoral thesis on legislative discretion (Gesetzgebungsermessen), and environmental law. His teaching interests are in constitutional and European law. His recent publications include a textbook on European Environmental Law (Europäisches Umweltrecht, München, C. H. Beck, 2011).

A. Daniel Oliver-Lalana, Dr. iur., LL.M. (Genova), is currently a Ramón y Cajal Fellow at the University of Zaragoza's Law Faculty, where he lectures on jurisprudence. His works include a book on legal communication (Legitimidad a través de la comunicación, 2011), a socio-legal study on data protection law (Derecho y cultura de protección de datos, 2012, with J.F. Muñoz) and The Rationality and Justification of Legislation (2013, co-edited with L. Wintgens).

Contenu

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. JudicialReview 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.