Article by Erhard Denninger
A realistic comparison of the laws of Germany and the United States cannot be effected simply by contrasting the meanings of a couple of rules or the operations of different institutions. One must instead consider a number of basic factors which comprise the social and political framework of each legal order.
First, German political and legal thinking is to the present day shaped by a high respect for the ‘Staat,’ a term which is not synonymous with ‘state’ nor with ‘government’ or ‘nation.’ One would have to go back in German history to the times of Martin Luther or of Hegel in order to understand the unique but traditional concept of ‘Staat,’ which has come to mean the community of private individuals who aspire to a higher grade of moral quality than ‘Gesellschaft’ or ‘society.’
Second, the German Constitution of 1949 was drafted in the aftermath of the nation's shocking experience with a totalitarian regime. After the demise of the Third Reich, Germans became aware of the fact that it was the ‘Staat,’ the government and all its staff, which had committed the most atrocious crimes. They realized that their legal order from 1933 to 1945 had not fostered justice but had permitted brutal inhumanity and immorality. As a result, legal positivism did not influence governmental action from 1945 to the end of the 1950's. But, notwithstanding German society's scepticism towards any kind of legislation, there was at the same time an intense demand for legal rules, and for establishing positions of justice, along with a strong tendency towards promotion of the ‘juridical’ and judicial review. At present, this demand may be decreasing, but Germans still face an ongoing process of ‘Verrechtlichung,’ or ‘legalization,’ because of the impact of ‘Rechtsstaatlichkeit,’ or the ‘Rule of Law.’ In Germany, the principle of Rechtsstaatlichkeit involves securing a person's rights by adjudication rather than through participation in the democratic decisionmaking process.
Third, new social, cultural, technical, and economic challenges have prompted intense legislative activities, which can be measured by the quantity of statutory output. On the federal level alone, for example, the Parliament passed 3,446 statutes between 1949 and 1979. If one adds the number of statutes enacted by the parliaments of the eleven States and by the European Community, the total number of ‘quasi-statutory’ rules and regulations having the force of law would triple or quadruple.
But, with respect to their normative quality, many of these rules and regulations are substandard. The causes for this are complex, but a principal one is certainly the various legislatures' inability to make clear, precise, goal-oriented decisions. The normative quality of this legislation can be evaluated under at least two sets of criteria: those referring to the relation between the rule and its application and those referring to the relation between the rule and its social effects. For the present, it suffices to consider the former criterion.
Distrust of both the legislative and executive branches of government has created more business and heavier responsibilities for the judiciary. This evolution is characterized by the titles of two books. The first, published in 1957 by R. Marcic, is entitled From the Statutory State to the Judge's State. The second, by Kaltenbrunner, was published in 1979 and is entitled On the Way to the Judge's State. This book is significantly subtitled ‘The Consequences of Political Impotence.’
The judiciary's increasing power is not the result solely of social changes or the average citizen's rising expectation that the administration operate as a modern democratic welfare state. Judicial power is deeply rooted in our Basic Law, in the Constitution of the Federal Republic of Germany. Indeed, it is not the constitutional commitment to a social welfare state that strengthens the administrative and the judicial branches at the expense of the legislative, but rather several principles which constitute the ‘Rule of Law,’ or Rechtsstaatsprinzip. Four well-known constitutional principles merit attention. Two of them embody classic tenets of western democratic constitutionalism. The remaining two principles offer some novelty, at least in Germany.
The first principle involves separation of powers. This is explicitly provided for in the German Constitution, and it is implicitly maintained in the provisions that govern judicial competency.
A second principle guarantees the independence of the courts and the judges. The Constitution succinctly stipulates that ‘[t]he judges shall be independent and subject only to the law (Gesetz).’ The phrase ‘subject only to the law’ contains a number of hermeneutic, functional, procedural, and institutional problems, all of which become evident if this clause is considered in light of two other constitutional provisions of primary importance. Paragraph 3 of article 1 of the Basic Law provides that fundamental rights shall bind the legislature, the executive, and the judiciary as ‘directly enforceable law.’ In addition, article 20, paragraph 3 of the Basic Law states, inter alia, that the executive and the judiciary shall be bound by ‘Gesetz und Recht,’ or by ‘law and justice.’ This phrase creates many difficult problems with respect to interpretation and translation. The meaning of the ‘Gesetz und Recht’ formula is not at all clear. Some authors believe it to be tautological; others consider it to be a reminder of the possible tensions between written law and notions of natural justice. In this context, however, the term ‘justice’ is not synonymous with the terms ‘law’ or ‘right.’ ‘Recht’ does not mean the same thing as ‘Gerechtigkeit.’
Third, the binding force of statutory law upon judges and executive officers is primarily a hermeneutic, not a political or institutional, problem. Whenever the meaning of the statutory rule is clear and precise, the judge will feel bound by it and will accordingly give deference to the statute. Problems arise in those areas of the law where the meaning of the rule is not clear and precise.
The difficult problems of judicial review in Germany cannot be resolved by mere resort to statutory or constitutional interpretation, for they are also caused by functional and political realities which are brought about by the third and fourth elements of the Rule of Law. The German Constitution's ‘supremacy clause,’ while ostensibly similar to that in article VI of the United States Constitution, is actually quite different. The German Constitution's supremacy clause disregards completely all questions of federal or state competence or jurisdiction. What is meant by ‘supremacy’ is the abstract ranking of rules. Constitutional rules, for example, rank above all other kinds of rules, above parliamentary statutory law, executive orders, regulations and administrative rulings having the force of law, bylaws of public corporations and municipalities, and common law. German lawyers distinguish the ‘einfaches Gesetz,’ or simple statute, from constitutional provisions possessing a higher rank. The relationship between federal and state law is briefly covered by a three-word rule within the German constitution, ‘Bundesrecht bricht Landesrecht’: federal law shall override state law. Thus, a problem arises in article 1, section 3 and article 20, section 3 of the Basic Law, in which the legislative branch is obligated to respect basic rights and the constitutional order.
The fourth element involves the large, comprehensive jurisdiction of our Federal Constitutional Court and presents an entirely separate problem. Unlike the United States Supreme Court, the Federal Constitutional Court has no appellate jurisdiction. But, when a conflict exists between state law and federal law and when the integrity of the Federal Constitution is at stake, the Federal Constitutional Court has jurisdiction. Among all the judicial powers of the Court enumerated in the Basic Law, for items merit examination: (1) the individual's right to sue for nullification of any governmental action that violates a constitutionally guaranteed individual basic right; (2) judicial review by which either the federal or a state government, or a certain number of members of Parliament, or any judge of any lower court within the scope of the pending litigation may bring about judicial scrutiny of the constitutionality of a rule; (3) controversies between the several constitutional authorities, such as a dispute between the executive branch and the Parliament; and (4) litigation between the states and the federation—the classic jurisdictional conflict in constitutional law.
The two panels of eight justices of the Federal Constitutional Court will, of course, emphasize that they function as judges, as members of a part of the judiciary. They like to be regarded, nevertheless, as the ‘guardians of the constitution’ (Hüter der Verfassung) and, in actuality, they differ considerably from ordinary judges. While the judge of an ordinary state or federal court resorts primarily to interpretation of simple statutes in reaching his decisions, a justice of the Constitutional Court uses the text of the constitution as his yardstick. The normal judge is bound to observe rules regularly enacted, but the Constitutional Court justice may declare legislation null and void. Some of the Court's decisions pass into law, and its holdings are published in the Federal Gazette. Thus, the decline of undisputed legislative authority and the corresponding increase in judicial power vested in the Constitutional Court have their bases in the German Constitution itself.
About the Author
Erhard Denninger. Professor of Law, University of Frankfurt.
Citation
59 Tul. L. Rev. 1013 (1985)