The Judicialization of Politics in Germany

Author(s): Christine Landfried

Source: International Political Science Review / Revue internationale de science politique,
Vol. 15, No. 2, The Judicialization of Politics. La judicialisation de la politique (Apr., 1994),
pp. 113-124
Published by: Sage Publications, Ltd.
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International Political Science Review (1994), Vol. 15, No. 2, 113-124

The Judicialization of Politics in Germany

CHRISTINE LANDFRIED

ABSTRACT. Judicialization of politics means that more and more political

questions are decided by courts and thereby political alternatives are
reduced. In Germany it is the Federal Constitutional Court that is most
involved in this process of judicialization. Members of Parliament
contribute to this development by litigating far too often a lawsuit before
the Constitutional Court and by carrying too far the consideration of legal
arguments in legislation. Judges of the Constitutional Court contribute to
the judicialization by sometimes exceeding their competences and by
becoming involved in power politics. As the Constitutional Court has only
a limited democratic legitimacy, it is detrimental to a democracy when
such a court frequently decides on policy-making.

In the following article I will first describe the ways by which the Constitutional
Court gains influence in policy-making and, second, will analyse the ways by which
the members of Parliament reinforce the tendency towards the judicialization of
politics. Thirdly, I will outline what could be a proper balance of power between
Parliament and the Constitutional Court.

The Federal Constitutional Court as Policy-Maker

From its beginning in 1951 up until 1990 the Federal Constitutional Court has
declared 198 federal laws invalid or incompatible with the Constitution-out of
4 298 bills passed into law by the Bundestag during the same period. Thus, the
Court has invalidated roughly 5 percent of all federal laws. The Constitutional
Court, however, has much more impact on policy-making than these data on inval-
idated laws suggest.
The most important competences concerning the Court's participation in policy-
making are the abstract and concrete judicial reviews and the constitutional
complaints. Even important disputes between the federal government and the state
governments have arisen under the abstract judicial procedure, and not as a result
of the relatively small number of direct federal-state conflicts.

0192-5121 94/02 113-12 ? 1994 International Political Science Association

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114 The Judicialization of Politics in Germany

In the case of doubts about the compatibility between a federal and a state law,
or between these laws and the Constitution, the abstract judicial review procedure
may be initiated by the federal government, a state government, or one-third of the
members of the Bundestag. This procedure enables the Court to examine the
constitutionality of a law without reference to any specific case. More often than by
abstract judicial review-120 cases were filed between 1951 and 1992-the
Constitutional Court influences policy-making by concrete judicial review and the
constitutional complaint. The concrete judicial review procedure arises out of an
ordinary lawsuit, when a court is convinced that a federal or a state law, on the
basis of which the case must be decided, is unconstitutional. Between 1951 and
1992, 2 756 such cases were filed. The constitutional complaint, embodied in the
Basic Law in 1969, may be filed by any person who claims that one of his basic
rights has been violated by a public authority. The 86 567 constitutional complaints
filed up to 1992 (Bundesverfassungsgericht, 1993: 6) show that the Constitutional Court
has been accepted as the "Court of the Common Man." Even if the number of
successful complaints is not high (only 2.25 percent) they have been of great impor-
tance for social life in Germany.
An overview of the invalidated federal laws, classified by policy area, shows that
the Court invalidated the greatest number of norms in social policy, followed by
financial policy and legal policy (see Table 1). Thus, most of the invalidated laws
belong to a policy area in which the Constitution is open to a variety of interpre-
tations.
Besides invalidating laws, there are other ways by which the Constitutional Court
takes part in policy-making. The Court has developed some forms of sanctions to
escape the simple choice between declaring a law constitutional or unconstitutional.
These "weapons of limited warfare against unconstitutionality" (Cappelletti and
Cohen, 1979: 94) are not reflected in the above statistics. One of these forms is the
interpretation in conformity with the Constitution (verfassungskonforme Interpretation).
This declaration, that one particular interpretation of a law is the only constitu-
tional one, often entails precise prescriptions for the implementation of a law and

TABLE 1. Federal Laws Declared Invalid or Incompatible with the Basic Law
Classified by Policies 1951-1990.

Social Policy 61
Fiscal and Financial Policy 35
Legal Policy 29
Regulatory Measures within and between Federal Organs 25
Economic Policy 12
Traffic Policy 9
Education Policy 7
Labour Market Policy 6
Health Policy 4
Military Policy 2
Environmental Policy 1
Others 7

Total 198

Source: Up to 1980, von Beyme (1986) p. 268, from 1980 to 1990 volumes of the
decisions of the Constitutional Court including volume 82.

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 CHRISTINE LANDFRIED 115

hence results in policy-making by the Constitutional Court. In Germany as well as

in France (Favoreu, 1988: 100; Stone, 1992: 135) these interpretations in confor-
mity with the Constitution have increased in number. While the clear-cut invali-
dation of a law gives the legislature room for political manoeuvring, because a new
law can be enacted, the interpretation in conformity with the Constitution reduces
the policy-making power of Parliament.
By interpreting norms of the Constitution that are open to different meanings
and by applying derived norms like the principle of proportionality (Benda, 1979:
20) the Constitutional Court influences policy-making. Sometimes the judges also
have to deal with questions that are difficult to relate to specific provisions of the
Constitution. With this judicial review, the Court reduces the possibilities for policy-
making and curtails the openness of the Constitution. This development is inher-
ent in a political system that has institutionalized judicial review, and this is why
there has to be a certain balance of power between Court and Parliament.
As long as the judges do not exceed their competences, judicial policy-making has
to be accepted as part of the existence of judicial review. The judges themselves
have become conscious of this aspect of their work. When the judges of the
Constitutional Court were asked in a survey in 1972 if the main load of their work
involved norm enforcement or the development of law, and thereby policy-making,
a majority answered that it was norm enforcement. Only 7 percent held the opinion
that judicial review meant the development of law (see Table 2). When the judges
were asked the same question eleven years later, more of them admitted that their
work included policy-making: now 25 percent of the judges interpreted their work
as being primarily policy-making.
While it is legitimate for a court that has to interpret the provisions of a
Constitution to influence policy-making, there have been cases in which the Court
exceeded its competences. This occurred in the Court's decisions on abortion in
1975 and in 1993.
Since the 1970s there has been a broad discussion in the Federal Republic of
Germany on reform of abortion legislation, because it has become questionable if
prenatal life can be protected by criminal law. In 1974 the Social-Liberal
Government passed a law permitting abortion within the first three months of
pregnancy. The CDU/CSU-opposition filed an abstract judicial review procedure, and

TABLE 2. Consciousness of Policy-making by the Judges of

the Constitutional Court.

Question: "Do you think that your work as Judge of

the Constitutional Court does primarily consist of
norm enforcement or of the development of law?"
1972 1983
% %

Norm enforcement 63.0 37.5

Development of law 7.4 25.0
Both 22.2 37.5
No answer 7.4 -

Sources: For 1972, Riegel, Werle and Wildenmann, 1974,

Table HI; for 1983 Landfried, 1984, p.25.

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116 The Judicialization of Politics in Germany

the First Senate of the Constitutional Court ruled that the state had to protect
prenatal life in the utmost case by criminal law.
The Court, in its majority vote, gave the legislature a precise prescription as to
how a constitutional regulation of abortion would have to look. According to the
judges it was not the pregnant woman who could decide upon abortion but a
medical doctor or an advisory board. If the medical doctor or the advisor held the
opinion that there was insufficient reason to end the pregnancy, then any subse-
quent abortion was a crime. The legislature, however, had good reasons to doubt
the aptitude of criminal law for the protection of prenatal life.
The question of whether a certain remedy is suitable for the realization of a basic
right-in this case the right to life under Article 2 of the Basic Law-is a political
question that has to be decided by Parliament (Bockenforde, 1974: 1536). Without
taking into consideration the social problems of abortion, the majority of the First
Senate of the Court had exceeded its competence by deciding a question that was
definitely within the competence of Parliament. Judges Rupp-von Briinneck and
Simon, who wrote a dissenting opinion, emphasized exactly this point: it was up to
Parliament to determine how to protect most efficiently prenatal life (BVerfGE 39,
1: 89).
After German reunification, one had to find a new regulation for abortion in
order to end the strange situation in which abortion was allowed in the former GDR
states and could be punished under certain circumstances in the former FRG states.
In June 1992 Parliament passed a new law that allowed abortion within the first
three months of pregnancy after a compulsory consultation. Two hundred and forty-
nine members of Parliament belonging to the conservative CDU/CSU asked the
Constitutional Court for judicial review of the law. The Court decided in May 1993
that it was constitutional not to punish for abortion after consultation. In the
opinion of the Court it was, however, not constitutional that abortions after consul-
tation should be qualified to be legitimate. With a majority of six judges to two,
the Constitutional Court ruled that all abortions after consultation were not punish-
able, but were equally illegitimate, and therefore social insurance should no longer
pay for abortions (decision of the Constitutional Court of 28 May 1993).
Here again the Court transgressed its competences because the decision cannot
be derived from the Constitution. On the contrary it violates the rule of law to
qualify indiscriminately all abortions after consultation as being illegitimate. The
majority of the judges did not want to accept politically the decision of Parliament
that it was up to pregnant women alone to decide on abortion after having had a
consultation. The methodological shortcomings of the decision, stressed in the
dissenting opinion of Judge Bockenf6rde, are an indication that it was unnecessary
for the Court to make a value-oriented decision, and that the Court nevertheless
did so because of judicial power politics.

Contribution of Members of Parliament to Judicialization of Politics

The decisions of the Constitutional Court have always been respected by
Parliament. The problem is not so much the absence of obedience by members of
Parliament towards the Court, but rather its excess.
Let us take the example of the financing of political parties. In this area the legis-
lature has followed as closely as possible the standards set by judicial review. In its
judgement of July 1966 the Constitutional Court ruled that grants from public
funds for the general activities of political parties were unconstitutional. But as the

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 CHRISTINE LANDFRIED 117

activities of parties were necessary for the operation of Parliament, the Court
decided that reimbursement of the costs of an appropriate election campaign would
be admissible (BVerGE 20, 56).
Parliament reacted immediately. After the politicians had failed for nearly twenty
years to pass a parties law, this became possible after judicial review. Politicians
discussed in Parliament how to adjust the law to judicial review. As Member of
Parliament Arndt, from the SPD, warned his colleagues, "We should not kick against
the pricks." (Verhandlungen des Deutschen Bundestages, 28.6. 1967: 5801A). The parties
law was passed in 1967 by a great majority, but in spite of the careful preparation
by politicians, the law was invalidated by the Constitutional Court. The Court ruled
that at least 0.5 percent of the second votes-and not 2.5 percent as required by
the law-must qualify a party for reimbursement of election campaign costs
(BverfGE 24, 300). Parliament amended the law accordingly.
Already during the legislative decision-making process members of Parliament
adjust their bills to former decisions of the Court, and anticipate a possible future
judicial review. When in 1983 a new bill on the financing of parties was prepared
in Parliament, a public hearing of experts-all lawyers-was convened in a commit-
tee of the Bundestag to clarify the question of just how the Court would judge the
proposed bill in a potential future decision. The debate centred not so much on
where the Basic Law draws the line for the financing of parties but on where the
Constitutional Court would draw the line in a judgement. As Hans-Peter Schneider
said in the hearing, "In my opinion there is no risk of unconstitutionality as long
as one looks at the constitution.. .but there is a certain risk if one looks at judicial
review." The experts of the hearing had quite different opinions about the consti-
tutionality of the bill. While Friauf and Schneider held the bill to be constitutional,
Isensee had doubts about its constitutionality, and von Arnim and Seifert held the
bill to be unconstitutional.
Indeed, judicial review proved to be a risk for the parties law of 1983. This law
declared political parties to be non-profit associations, and thereby donations to
parties became tax-deductible up to 5 percent of income and 0.2 percent of the
turnover. This was advantageous for big donations and for political parties that are
attractive for big donors. The Constitutional Court ruled in July 1986 (BVerfGE 73,
40) that it was unconstitutional to give tax deductions for donations to parties corre-
sponding to a certain percentage of income or turnover. And the Court gave the
politicians a formula that would be constitutional: individuals and firms may give
donations of up to 100 000 DM per year to parties and thereby reduce their taxes.
Such a limit, however, in reality meant a privilege for the well-to-do that was not
much different from the percentage solution.
The role of the Constitutional Court in the area of the financing of parties
demonstrates that it was often the Court that solved delicate political problems,
and that members of Parliament wanted the Court to do so. With its latest decision
on the financing of parties, in April 1992, the Court again played its role as problem
solver (EuGRZ 1992: 153-171). In this decision the Court deviated from its decision
of 1986 and now held the opinion that tax deductions for large donations to polit-
ical parties were unconstitutional. And some of the problems of the financing of
politics that have been obvious for a long time, and which Parliament has neglected
to tackle (for example the problem of direct donations to politicians) were part of
the decision of the Court. The Constitutional Court claimed publication of direct
donations to politicians was overdue though there remain important shortcomings
in this respect even after the decision (Landfried 1992b: 439-447).

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118 The Judicialization of Politics in Germany

The political decision-making process in Germany is very often overloaded with

legal arguments. While members of Parliament are looking for solutions to politi-
cal problems, they have to consider the constitutional interpretations of the Court
in Karlsruhe, and must find their way through a labyrinth of headnotes and obiter
dicta. As politicians do not want to get into conflict with the Court they often not
only respect the main arguments of a decision but nearly every sentence of judicial
review. The more the Court is appealed to, the more close-meshed the constitu-
tional interpretations become. The abstract judicial review procedure can be
misused by the opposition in Parliament to attain its political goals by legal means.
Yet one has to realize that the abstract judicial review is an important procedure
for the protection of minorities. The contribution of members of Parliament to the
judicialization of politics is strengthened when politicians expect a solution for a
political or a social problem to come from the Court. In addition, members of
Parliament anticipate judicial review and try to formulate policies as near as possi-
ble not only to previous but also to predicted judicial reviews. What does this
growing influence of judicial review of politics mean for societal change?
"The fact is.. .that the policy views dominant in the Court are never for long out
of line with the policy view dominant among lawmaking majorities of the United
States" (Dahl, 1957: 285). Robert Dahl claimed with this thesis that policy-makers
and the Supreme Court were not very far apart and that the existence of the
Supreme Court had altered policy-making and the conditions of liberty by not more
than "a hair's breadth" (Dahl, 1957: 292).
A very similar thesis has been formulated for the German Constitutional Court by
Ulrich Preuss. The Constitutional Court, in his view, is part of the power elite and
tries to find judgements that please the political and social mainstreams.
Consequently, the Court, being itself part of, or at least in a "near location" to, politics,
is not able to control the legislature and to protect the rights of minorities. According
to the thesis of Preuss, the Court "makes politics in the spirit of consensus" and decides
in harmony with the powerful factors of political life (Preuss, 1987: 1-12).
The reason for this harmony between Court and lawmaking majorities is found,
according to Dahl and Preuss, in the way judges are appointed or elected. For the
United States it is claimed that presidents do not appoint justices who are hostile
to their views on public policy, nor to the dominant majority in the Senate. For
Germany it is argued that the election by a committee of the Bundestag and by the
Bundesrat has led to a certain pattern of selection of judges. Once a party is in
possession of a seat, it holds onto it. Judges elected on "party tickets" represent the
political mainstream, and this will show up in judicial review.
The thesis that constitutional courts will judge in conformity with the politically
dominant interests of society is an inadequate simplification of the reality of judicial
review. In the United States the president's nomination power is no guarantee for
judicial review in the political interests of the president. The conservative Burger
court, for example, has failed to please a conservative president and the conserva-
tives in Congress. In Germany party affiliation of the judges does not seem to play
a decisive role in the decision-making process inside the Court. Since 1971, when
the publication of dissenting opinions was first permitted (Lamprecht, 1992), the
voting behaviour of the judges has been analysed, and this indicates that there have
been decisions where party affiliation did play a role. This was, for example, evident
in the decision on abortion law, when a majority of judges connected with the
conservative Christian Democratic Party invalidated the law over the protests of
two dissenting members affiliated with the Socialist Party.

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 CHRISTINE LANDFRIED 119

But, all in all, party membership does not influence judicial review to any great
extent. Of course one might ask why politicians are eager to have "their" share of
judges in the Court, and why there are such strict party quotas (see Table 3) if
party affiliation does not make a difference. Party membership does indicate the
general political views of a judge, and this is important when questions like abortion
have to be decided. But there are many decisions for which party affiliation is of
no importance.
Of course there have been decisions of the Constitutional Court that legitimated
the power politics of the established parties, such as the afore-mentioned 1986
judgement on the financing of parties (BVerfGE 73, 40). But there are also decisions
of the Constitutional Court (for example, those concerning the rights of prisoners)
that are certainly more progressive than the attitudes of the dominant forces
(BverfGE 70, 228). If one analyses the impact of judicial review on societal change
and asks the cui bono question, one has to differentiate according to policies. The
Court has been effective in protecting the basic rights of individuals, such as the
protection of privacy and data (Persdnlichkeitsrechte), and has made new policies in
this area. It has not been as effective in protecting the political rights of equal
participation of every citizen, as is seen in the judgement privileging big donors to
parties. The Constitutional Court has maintained the status quo and has been least
effective when it deals with problems concerning the structure of the economy (von
Briinneck, 1988: 237).
Judicial review cannot altogether be characterized as being in the interest of the
political mainstream, nor is it possible to divide the history of the Constitutional
Court into clear "pro-" and "anti-" government periods.

Criteria for Balance of Power between Constitutional Court and

Parliament

As the Federal Constitutional Court has only a limited democratic legitimacy, it is

detrimental to democracy when such a Court frequently decides on policy-making
and, with a dense network of constitutional interpretations, reduces the political
alternatives of future generations. This is why we have to ask if there are criteria
by which we can judge where the appropriate boundaries between a Constitutional
Court and Parliament should lie.
Criteria for an appropriate division of labour between Court and Parliament have
to be correlated with the functions of both institutions. The boundaries between
both institutions might change with the respective functions (Grimm, 1988: 170).
According to a most influential theory of judicial review, judges of constitutional
courts have to ensure that the political process is "open to those of all viewpoints
on something approaching an equal basis." As long as judges do not decide on
competing values and political concepts, and as long as they control "legitimate
processes" instead of "legitimate outcomes," judicial review is compatible with
democracy (Ely, 1982: 74).
With regard to the problem of a proper balance of power between Court and
Parliament in a representative democracy, the distinction between legitimate
processes and legitimate outcomes is convincing. There are, however, cases in
which a Constitutional Court has to make choices between competing values. If
one defines justice not only by democratic procedures and legitimate processes, but
also by substantially just legitimate outcomes, a Constitutional Court will not
always be able to avoid a value-oriented judicial review. Therefore I do not share

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 TABLE 3. Party Affiliation of Federal Constitutional Court Judges, 1951-199

First Senate
1951 1954 1955 1959 1962 1963 1965 1967 1970 1971 1975 1977 1979 198

Hopker Winter Muller Benda Her

Aschoff (CDU) (CDU) (CDU) (CDU
(FDP)
Kurt Heck Bohmer

Zweigert (CDU) (nom.by

(CDU) CDU/CSU)
Nied
(nom
Heiland Haager Heussner

(SPD) (SPD) (SPD)

Scholtissek Brox Katzenstein

(CDU) (CDU) (CDU)

Wessel Berger Zeidler Simon

(SPD) (SPD) (SPD) (SPD)

Scheffler Rupp v. Niemeyer
Brunneck (SPD)
(SPD)
Stein Faller Hen

(CDU) (CDU) (FDP

Ritterspach Hesse

(CDU) (nom.by SPD/FDP)

Draht
(SPD)
Lehmann

(SPD)
Konrad

Zweigert
(SPD)
Ellinghaus Kutscher

(SPD) (SPD)

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Second Senate
1951 1952 1956 1961 1963 1967 1968 1970 1971 1975 1977 1981 19

Katz Wagner Seuffert Zeidler

(SPD) (SPD) (SPD) (SPD)

Hennecka Rinck

(nom.by
(CDU/CSU)
Wolff Kutscher Wand Klein

(SPD) (CDU) (CDU

Klaas Geller Rothman B6ck
(SPD) (CDU) (FPD) (SPD)
Leibholz Hirsch Mahrenholz

(SPD) (SPD)
Federer v.Schlabrendorff Niebler

(CDU) (csu)
Rupp Steinberger
(SPD) (nom.by
CDU/CSU)
Geiger Traiger
(CDU) (CDU)
Leusser Schunck

(CDU) (CDU)
Friesenhahn
Fr6hlich

Roediger
(DP)

Source: Up to 1971, Donald Kommers, Judicial Politics in West Germany: A Study of the Federal Constitutional Court (Beverly Hills/Londo

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122 The Judicialization of Politics in Germany

the assumption that it is illegitimate for a Constitutional Court to decide on legit-

imate outcomes as well.
Maintaining John Ely's distinction, I would suggest using it to establish a more
flexible interpretation of the balance between Court and Parliament, a balance
that could still be compatible with the principle of democracy. Concerning
decisions on legitimate processes-for example decisions of the rights of small
parties in parliamentary decisions-the Constitutional Court has broad compe-
tences, and the boundaries between the two powers shift in favour of the Court.
Concerning decisions on legitimate outcomes-for example a decision on
abortion-the Court has only restricted competences, and the boundaries shift in
favour of Parliament.
In cases where a Constitutional Court decides on legitimate outcomes, we
must apply strict criteria to judge whether the specific value-oriented judgement
was necessary and adequate or a transgression of competence. Such criteria could
be: first, the commitment of a decision to the text of the Constitution. Though
many provisions of the Constitution are open to different interpretations, one
has to keep in mind that there are also many clear-cut articles. Similar to a thesis
developed for the historical method-a document cannot tell us what we should
say but rather prevents us from making statements that should not be made-
the Constitution can at least tell what policy-makers are not allowed to do
(Koselleck, 1977: 45). Second, there is the rationality of the argument. Quite
often, irrational argumentation and methodological shortcomings can be an
indication that it was unnecessary for the Court to make a value-oriented
decision and that it nevertheless did so because of judicial power politics. The
Court's legal procedures are not just a "play on the stage," and the persuasive-
ness of the arguments is not "suggested" (Preuss, 1987: 6) in order to veil the
fact that judicial review is after all oriented to correspond with the wishes of the
political power elite. There must always be, and so far there has been, the possi-
bility for judges to interpret the Constitution independent of the political
mainstream, in accordance with convincing arguments derived from the
Constitution. The third criterion is the constitutional system of separation of
powers. A theory of constitutional interpretation (B6ckenf6rde, 1976: 2089-2099)
that contains standards for a balance of power between Constitutional Court and
Parliament cannot be derived from a subjective viewpoint or from an existing
social consensus, but must be construed from the text and the genesis of the
Constitution.
Just as there can be "no such thing as a complete separation of judicial and polit-
ical power" (Denninger, 1985: 1024), there can be no separation of a Constitutional
Court as "negative" and Parliament as "positive" legislature, as Hans Kelsen
proposed (Kelsen, 1929: 56). A Constitutional Court does take part in policy-
making, often more by telling Parliament how a certain law has to be interpreted
than by finding a law unconstitutional.' As the Constitutional Court is a policy-
maker, we have to be aware of its restricted democratic legitimacy. It is the compe-
tence of Parliament to shape politics and policies. Parliament is also better
qualified than the Constitutional Court to adapt law to social change and to initi-
ate social change by a process of trial and error. Judges are not very much inclined
to revise judicial review and to adapt it to a changing political and social situa-
tion.2 Therefore it is all the more important for the solution of political problems
in modern societies that judges do not gain too much influence on policy-making
(Grimm, 1991: 436).

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 CHRISTINE LANDFRIED 123

Notes

1. This has been emphasized for the Supreme Court as well: "In order to bring theoretical
concepts into line with empirical reality, emphasis should be placed upon the Court's 'yea-
saying' power rather than upon its 'nay-saying' power ... students of judicial policy making
should be paying more attention to the Court's statutory, as distinct from its constitu-
tional, interpretation. In the areas of selective service, welfare, and civil rights, to cite but
a few recent examples, the Court has been making public policy of tremendous conse-
quence...." Funston, 1976: 809.
2. The approach not to revise former decisions is seen by the judges themselves. Compare
interviews with the judges and the Constitutional Court in 1983, (Landfried, 1984: 172).

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Biographical Note

CHRISTINE LANDFRIED is Professor of Comparative Government at Hamburg

University. She has published Bundesverfassungsgericht und Gesetzgeber (Nomos, 1984),
Parteifinanzen und politische Macht (Nomos, 2nd ed., 1993) and edited Constitutional
Review and Legislation. An International Comparison (Nomos, 1988). ADDRESS:
Department of Political Science, University of Hamburg, Allendeplatz 1, D-2000
Hamburg, Germany.

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