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Rational Lawmaking Under Review: Legisprudence According to the German Federal Constitutional Court

Edited by: A. Daniel Oliver-Lalana, Klaus Messerschmidt

ISBN13: 9783319332154
Published: August 2016
Publisher: Springer-Verlag
Country of Publication: Switzerland
Format: Hardback
Price: £119.99

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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.

European Jurisdictions, Germany
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 Lube-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
About the Authors.