
Contents
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I. Constitution and Constitutional Interpretation I. Constitution and Constitutional Interpretation
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II. Exceptional Status through Method II. Exceptional Status through Method
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A. Division of the reasoning into standards and subsumption A. Division of the reasoning into standards and subsumption
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B. Consequences of this division B. Consequences of this division
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C. The standards as incontestable intermediary rules and as a vehicle for expansion of competence C. The standards as incontestable intermediary rules and as a vehicle for expansion of competence
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III. Standard Formation in Section “C.I.” III. Standard Formation in Section “C.I.”
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A. Elfes: the subjectivization of the objective law. A. Elfes: the subjectivization of the objective law.
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B. Lüth: the objectivization of subjective law B. Lüth: the objectivization of subjective law
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C. Institutional causes C. Institutional causes
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D. Further processing of standards D. Further processing of standards
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E. Decontextualization instead of distinguishing E. Decontextualization instead of distinguishing
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IV. Proportionality as the “C.II.” Standard IV. Proportionality as the “C.II.” Standard
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A. The relational function of proportionality A. The relational function of proportionality
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B. The processing of normative and factual aspects in proportionality B. The processing of normative and factual aspects in proportionality
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C. Linking law and politics? C. Linking law and politics?
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V. Problems in Standard-Setting V. Problems in Standard-Setting
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A. Dynamic over time A. Dynamic over time
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B. Functional sub-standards in the liberty rights B. Functional sub-standards in the liberty rights
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C. Standards in the law of state organization C. Standards in the law of state organization
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D. Development of new standards D. Development of new standards
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E. Problems with proportionality E. Problems with proportionality
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VI. Standards or Precedents? VI. Standards or Precedents?
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A. Meaning of facts in legal reasoning A. Meaning of facts in legal reasoning
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B. Attaining majorities and compromises among justices B. Attaining majorities and compromises among justices
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C. No precedents from Karlsruhe C. No precedents from Karlsruhe
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D. Dogmatization instead of contextualization D. Dogmatization instead of contextualization
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VII. On the Future of the Standard-Setting Power VII. On the Future of the Standard-Setting Power
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A. First rescue attempt: consistency and other methodological experiments A. First rescue attempt: consistency and other methodological experiments
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B. Second rescue attempt: area-specific exceptional standard B. Second rescue attempt: area-specific exceptional standard
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C. Crossroads C. Crossroads
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D. First strategy: contextual differentiation D. First strategy: contextual differentiation
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E. Second strategy: differentiation of competences E. Second strategy: differentiation of competences
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Cite
Abstract
This chapter chronicles the proliferation of doctrinal standards over time and underscores the bizarre lengths to which that proliferation has recently extended. It shows how the Federal Constitutional Court makes use of a distinctive technique for reaching and justifying decisions, which it elaborated over many years, and which today it habitually applies. The Court regularly divides the reasoning of a decision into two blocks. The first block identifies general statements on the interpretation of the constitution. In such general terms, the Court establishes the legal standard, which will lie at the foundation of the case. The application of the standard to the determinative set of facts follows. The facts of the specific case first enter the reasoning in the second part, the “subsumption section.” The standard already formed in general-abstract terms is now applied to the specific issue the Court has to decide. Finally, the chapter warns that the era of bold new standards is probably gone for good.
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