Die Bundesrepublik Deutschland - ein Parteienstaat? (German Edition)

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Finally, several minor proposals have been made to change the voting procedure, the most surprising of which is probably choosing justices exclusively by drawing lots among all federal judges 33 —an idea that is similar to some forms of filling public offices sometimes practiced in antiquity.

It is easy to condemn the influence of political parties. What is more, specifically in the judicial context, party influence may be seen as politicizing a judicature that must base its decisions solely on legal, rather than on political, arguments. Additionally, parties might be tempted, in selecting a candidate, to place greater emphasis on party affiliation than on expertise in the field of constitutional law. The dominant role of German political parties in general has been frequently and in many respects criticized. Politically, their role may, indeed, be regarded with some skepticism.

From a constitutional law point of view, however, parties play an important, valuable, and legitimate role in our parliamentary democracy. The Grundgesetz is not based on an idealized view of the people as a harmonic whole, forming a unitary will which is then brought to bear through parliamentary representation.

Such an idea of identity between the ruler and the ruled would only provide and has provided a perfect platform for anti-democrats, 41 since democracy in the real world could never live up to such expectations and would only appear to be a cynical mockery of real representation. These limits are particularly narrow in the judicial branch, due to the constitutional guarantee of judicial independence art.

Accepting an important role for political parties in the selection process does not, however, necessarily imply that the justices themselves will be selected according to party affiliation. Rather, one could imagine parties relying mostly, or exclusively, on individual legal qualification. It would be wrong, however, to suppose that the current system ignores quality.

Quite on the contrary, nobody has ever seriously doubted that the persons elected to be justices are highly qualified. This is even assured by the current system, since any candidate with high political, but only minor legal, qualifications would be a very easy target for the opposing political party. The only lamentable result of the current system is, therefore, that many highly qualified individuals will never be taken into consideration because they have never come to the attention of any party. These considerations aside, the whole idea of a purely legal qualification is misguided.

However, and in spite of the high degree of formalism prevalent in German law and among German lawyers, 48 it is accepted that the application of legal norms to facts is not a purely logical procedure, 49 but influenced by legally filtered value judgments. In other words, party affiliation is not important as such, but as an expression of the general outlook a Justice takes on the world.

In this sense, the alternative solution—selecting truly neutral judges without any party affiliation—makes a promise it cannot keep: The proportional selection of justices through party affiliation is thus not the illness, but rather the most reliable cure—even if the medicine may well appear somewhat bitter. The German reliance on party affiliation is thus one of the main reasons for the high degree of stability that continues to characterize the German Constitutional Court as well as its jurisprudence.

The ensuing interdependence between the stability of the Court and the stability of the German party system could be regarded as a cause for concern, since the party system has been recently undergoing increasing pressure. The importance of the two traditionally dominating parties, the Christian Democrats and the Social Democrats, is waning; the Liberals are in danger of disappearing; the Green Party is still growing and endangering the traditional place of the Social Democrats; the so-called Left Party has established itself; and the so-called Pirates have, for a short time, seriously started to enter the political scene, but with less success than anticipated in earlier comments.

Where these developments will lead is uncertain. The system of party affiliation for justices has, however, shown to be resilient in the past. It has accommodated the rise of the Green Party as well as the possibility that the Liberal party is not always needed to find a majority in parliament to elect the chancellor. It has also not reacted to the continuing existence and importance of the successor party of the former socialist party ruling the GDR, causing very little, if any, debate.

If future changes in the German political landscape should establish themselves permanently, it is therefore likely that the election system will respond—slowly, but effectively. There seems to be a simple solution to the current lack of transparency in the selection process: Instead of a clandestine procedure, all candidates could present themselves and be asked questions by members of parliament, thus establishing a high degree of publicity and enabling all citizens to form their own opinion.

Internal party circles would lose a lot of influence. The problem with such a proposal is not the potential benefit of a public hearing, but its reality as exemplified by the US example. A general inquiry into the publications, former decisions, legal as well as ethical opinions of the candidates, even putting their personality and integrity to the test, is an approach that hardly any German jurist would like to see transferred home.

Extreme examples like the events surrounding the nomination of Robert Bork or Clarence Thomas add to the general dislike. The description of the Clarence Thomas hearings as the battlefield of a veritable political war 57 reveals exactly what German jurists would want to avoid at all costs.

In order to achieve a more restricted and civilized hearing, several, often conflicting, ways have been proposed, aiming to limit the range of admissible questions. There is, indeed, a possibility that selection hearings in Germany could be held in an objective and professional atmosphere, just like in former times a positive attitude towards the candidate used to prevail in the United States. While there is no struggle between executive and legislature, thanks to the German parliamentary system, there is struggle between political parties.

It would be unrealistic to expect parties to show a degree of self-restraint so high that they would voluntarily forgo a chance to ask unacceptable questions that would, however, guarantee media coverage, thus raising their profile with potential voters. This would be especially true in times of political turmoil, in the case of controversial candidates, and of the smaller parties which would in all likelihood have a chance of asking their questions as well.

What is more, the different positions taken even now in the literature on the admissibility of certain questions, for example questions about general political views, reveal that the limits of the necessary self-restraint are rather open to discussion. Too limited a catalogue of admissible questions would risk turning the hearing into a sham since nothing valuable could be gained from it.

If, however, questions regarding obvious facts on the record make little sense, and legal qualifications can hardly be determined, the only questions that remain are those about personal and political opinions—exactly those that most experts want to exclude.

In other words, hearings might lead to more transparency, but at the cost of politicizing and ideologizing the selection process even further. What is more, the German hearing would not be a confirmation hearing for one candidate, as in the United States, but a selection hearing among several.

Dinosaurier der Demokratie : Wege aus Parteienkrise und Politikverdrossenheit

Thus, there would be a strong competition among the candidates as well as among the groups that sponsor them. This would produce two additional dangers. First, a number of highly qualified candidates might refuse to participate. This would be all the more understandable since—unlike in the United States 65 —there would always inevit ably be one or more losing candidates who would later be hard put to remove the stigma of defeat. Under the current German system, there are often only a few persons who know, or could at least suspect who had originally been considered for the post but not made it.

Second, public hearings would always favor candidates who have an aptitude for public appearances and who know how to handle the crowd as well as the press. The Constitutional Court might well need such persons, as well.

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But it would be an enormous waste of potential if excellent lawyers would stand no chance simply because their public appearances are less stimulating, less witty, or less charming. One of the most often criticized aspects of the election process is the delegation of decision-making to a mere parliamentary committee. Indeed, this delegation is unconstitutional—but not for the obvious reasons and despite the fact that it constitutes good policy.

In a nutshell, 66 the committee solution might not be the best solution imaginable, but it is the best possible one. It allows parties to discuss potential candidates in a small and professional circle where all may speak openly, regardless of election campaigns or representation in the media. Such an open debate could not, under German conditions, be achieved in parliament.

If the committee were to be abandoned, the real decision would in all likelihood be transferred to even more informal groups, with parliament only adding its consent. The current election committee, opaque as it may be, adds at least some element of control and predictability. From a legal point of view, article 94 1 phrase 2 GG grants the power to elect Justices to the Bundestag itself and does not mention any delegation to an election committee.

This contrasts vividly with article 95 2 GG which, with respect to electing other federal judges, explicitly calls for the creation of such a committee. On the other hand, such a result would imply that the election must be a direct and not an indirect one—a requirement that the Grundgesetz usually makes expressly cf. Consequently, arguments based on the wording and the systematic structure of the Constitution—which might seem formalistic, simplistic, or simply irrelevant in American eyes but are considered important in German law 68 —do not yield any clear results.

Neither can the current election committee be considered unconstitutional because it is itself only elected by parliament and not directly by the people, thus lacking the necessary degree of democratic legitimation. The real constitutional problem lies simply in the right of any member of parliament to vote on all issues art. While the work of parliamentary committees does not, in general, infringe upon that right, this result is based on the assumption that parliamentary committees may well prepare decisions and thus gain enormous factual influence, but that the final decision will be taken by parliament itself.

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The remedy for this unconstitutionality would, however, be quite simple. The entire procedure could remain unchanged, with only a final yea or nay vote of the Bundestag added to the decision of the committee, a vote that would not even require any prior debate. The German Constitutional Court, in its very first decision on this topic in June , decided to follow this line of thought insofar as it treats the lack of influence of all members of parliament in the election process as the main problem.

Its conclusion, however, is different. In essence, it has found a value of sufficient constitutional weight to justify the infringement of article 38 1 phrase 2 GG: First, it relies on a justification of the factual disempowerment of members of parliament which has, until now, been used only rarely and very reluctantly, for example in the context of intelligence service finances or, more recently, concerning urgent measures to solve the European debt crisis.

The evaluation of the entire election procedure depends, in the final analysis, on the question whether constitutional courts are regarded more as a political or as a legal actor. Therefore, justices would need to gain their democratic legitimation through an election procedure similar to that for other high governmental posts, i. Moreover, it would seem quite natural in such political context that questions of party affiliation play an important role.

If, on the other hand, the Constitutional Court is seen as simply another part of the judicial branch and thus—in spite of the obviously political nature of some of its cases and the impossibility to exclude value judgments—is bound to decide cases based exclusively on legal norms, 77 then it will have a much more extensive democratic legitimation through the text of the Constitution itself. The direct election of justices by parliament will seem less important, especially insofar as other judges are—like in Germany 78 —not directly elected, either. What is more, the necessity of a balanced, multi-partisan composition of the Court will only be accepted for pragmatic reasons, i.

Clearly, this article is based on the latter, non-political position. The important point, however, is not so much whether this point of view is the correct or better one, but rather the insight that there is no global answer, and there cannot be any, when determining the character of constitutional courts. Rather, each existing constitutional court in the world is as political or as legal as its practice reveals and as is accepted in its respective legal culture. In other words, what might be true for the US Supreme Court must have no bearing whatsoever on the German Constitutional Court, and vice versa.

In this sense, it is revealing that the few voices in Germany that will not readily accept the Constitutional Court to be normatively bound and guided by the Constitution as a binding legal instrument, but would rather view constitutional jurisdiction as a political process, 79 frequently refer to US sources or follow US lines of thought.

Indeed, the text of the Constitution as well as the legal theories developed by the courts and by legal literature what is usually called legal doctrine in civil law countries have much less controlling force over future decisions in the United States than in Germany. German law, including constitutional law, is much more formalistic 80 in the US sense of the word in that it is mostly accepted that there is an inherent and important difference between law and politics, and that law is not necessarily what the judges say it is.

In sum, constitutional jurisprudence is political if the justices believe in the political character of their office and act accordingly. If, by contrast, they believe in the legal character of their office, it is legal. This does not, however, lead to a simple and one-sided empirical determination.

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Rather, there is a dialectical relationship in which not only empirical reality determines theory, but theory also influences empirical reality. If the opinion that constitutional courts are political bodies should gain the upper hand in Germany, this opinion would slowly start to determine reality through the mutual influence of public opinion, 85 constitutional scholarship, 86 and the Constitutional Court itself. If such a development is not considered desirable—a position very much shared by this author—the current German system of electing Constitutional Court Justices gains the additional advantage of supporting the present, non-political self-image of the justices.

If the system were changed, if the candidates were made part of an open political inquiry and struggle, and if the necessity of a politically balanced composition of the court were continuously and publicly debated and questioned, the justices and the Constitutional Court would inevitably be seen from a more political point of view, which—as a self-fulfilling prophecy—would likely change the Court itself. The present article intends to present to a non-German audience an important aspect of German constitutional scholarship which, at the same time, can serve as an ex ample for the practical influence of comparative law.

This, in itself, is an exercise in comparative law, for which an insight into the different legal and jurisprudential backgrounds is often more important than the apparent differences or similarities in black-letter legal rules.

First, this article is, and is intended to be, in many ways an example of traditional mainstream German scholarship. German law has remained what most US but not German lawyers would call formalistic, 92 much in accordance with the mainstream view in many European countries and very much in contrast to the United States. This might be deplored, and is deplored by a minority in Germany, but it does have many advantages, not the least among which are the continuing dialogue and mutual influence between legal literature and legal practice that is characteristic of German law, and the strong belief among German legal academics and practitioners that legal scholarship proudly stands on its own, that it might borrow from and cooperate with other social sciences, but is in no way dependent on their methods or goals.

Consequently, this article does not try to incorporate social science or political science theory, for instance by exploring the reasons for the stability of the German party system, or the relationship between the dominance of a single political force and the political independence of the judiciary. Nor does it, for instance, try to model possible systems for the appointment of justices in general, thus placing the German example in a larger framework of social science theory.

Such interdisciplinary endeavors would, of course, be perfectly worthwhile, but they would not represent the widely accepted, mainstream German constitutional law scholarship. To complete the picture, it might be useful to point out that the analysis of factual and informal, non-normative aspects in this article, while not completely unusual in Germany in the context of the specific topic of the election of justices, does already go somewhat beyond what would be considered mainstream for most other topics of constitutional law.

Second, while this article by no means intends to be a comprehensive comparative study, it reveals the practical importance of comparative law scholarship. Simply put, the most widely discussed proposition for change in the election of German Constitutional Court Justices, the introduction of a public hearing, is based on the US example, thus adding an inherently comparative aspect to the discussion. It is only comparative law, however, and the emphasis it puts on integrating all legal and extra-legal aspects—the very essence of functionalism 93 —that allows to correctly understand and place the US experience in relation to German law: In this sense, this article is a practical application of the lessons taught by functional comparative law in the context of national law.

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Sign In or Create an Account. Close mobile search navigation Article navigation. Criticizing the election process. A question of legal culture: A personal note on method.

Party, pope, and politics? Abstract The election of Constitutional Court Justices in Germany is guided by an unusual and complex normative system in which rules with the lowest degree of legal normativity often play the most important practical role.

Official Journal of the European Communities II, Springer, Heidelberg, Ginsburg Tom and Posner Eric A. Lehmbruch Gerhard, , Parteienwettbewerb im Bundesstaat.

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Working Paper , available at http: Tsebelis George, , Veto Players: United Nations, , Convention on the Rights of the Child, available at: Voigt Stefan, , Explaining Constitutional Change. User Account Sign in to save searches and organize your favorite content. De Gruyter - Sciendo.

Issue 1 First Online: Federalism ; subnational constitutionalism ; Germany ; rights of the child ; party politics.

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