Wischmeyer, Thomas

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The Stakes of the UnwrittenConstitutional Norms and PrinciplesDebate in GermanyThomas Wischmeyer 2024-07-08T10:27:40The issue of the “writtenness” of the constitution has, up to this point, only beena peripheral issue in German constitutional scholarship. This is unsurprising.The Grundgesetz’ (GG) written articles are a reliable starting point and focus forconstitutional arguments in academia and practice. The importance of the writtentext for German political culture is exemplified by the reverence in which theconstitutional document is being held, especially on occasion of the Grundgesetz’75th birthday celebrated these days. At 23.000 words – four times as many as theU.S. constitution – the Grundgesetz also offers more than enough textual materialto resolve legal questions. Unlike in the United Kingdom  and Canada – exampleswhich will be discussed within this online symposium –  constitutional principles suchas the principle of Democracy and the principle of Federalism are also part of thewritten text. And even if there are (hypothetical) gaps in the text – see the currentdebate on protecting the Federal Constitutional Court (FCC) from authoritarianpopulism -, the document can be amended relatively easily. Thus, unwritten normsor principles seem to only be of relevance in marginal areas of German constitutionallaw.At second glance, however, things are not so obvious. Just like any law, theGrundgesetz is naturally incomplete and patchy. Even the term “Rechtsstaat” (whichcan be roughly captured with the concept of rule of law) – foundational forGermany’s constitutional tradition – is only mentioned explicitly with regards toEurope (Art. 23 GG) and the Länder (Art. 28 GG) but not for the federal level. Theprinciple of proportionality, the principle of legality (Vorbehalt des Gesetzes) orthe principle of certainty (Bestimmtheitsgebot) are additional constitutional normsthat do not have a clear textual basis but are nevertheless central to constitutionalthought in the Federal Republic and are also considered to be “particularly German”by comparative constitutionalists. Similarly, one struggles to find a textual basis forcanonical “inventions” of the FCC such as the fundamental right to informational self-determination and the fundamental right to climate protection.The “Writtenness” of Norms in the “GermanApproach” to LawWhy then do German constitutional lawyers (almost) never discuss unwrittenconstitutional law – and should that possibly change? Compared to the UK andCanada, there is no practical need for such a discussion. That does not mean,however, that an intense debate over the content of, and relationship between,- 1 -the aforementioned principles as well as the role they can legitimately play in ademocratic constitutional order does not also exist in Germany. Additionally, whilethe FCC still enjoys very high approval ratings, the fear of a “Court without Limits”,freely creating law is not foreign to the German constitutional debate. However,these debates are not framed around the argument that constitutional jurisprudenceshould focus more on “written” law or, inversely, that it should feature the unwrittenconstitution more strongly.Anyone who, for example, argues against the much-criticized jurisprudence of theFCC on the political neutrality obligation of public officials solely on the grounds thatthere is no mention of this in the text of the Grundgesetz, would expose himself asa legal amateur. Judge Wallrabenstein’s dissenting opinion on the Second Senate’sruling of 15 June 2022 therefore justifies her opposition in a completely different way,namely – like the majority – in a non-textual and principle-oriented manner.It is tempting to explain the relative lack of interest in the question of the“writtenness” of the constitution with a specific method of applying the law and therole of legal doctrine – the famous “German Approach”. Ever since Savigny and theGerman historical school German lawyers have treated the positive text as (merely)one factor in a complex process of interpretation oscillating between “historically-intuitive and scientifically-logical reason” (Savigny, p. 204). This model combinesa principle-oriented approach, as we might call this today, with a profound respectfor the positive text. But whether a specific legal outcome is deduced from thewritten text or from the “system” is often difficult to discern and hardly ever makes adifference in practical terms.However, this methodological tradition is not the only explanation. For constitutionallaw in particular, it might not even be the most relevant one.The Longing for the Stability and Security of theWritten WordAs Linda Colley has shown in her brilliant global history of the constitution,the written constitution as a modern institution does not only emerge from theprogressive spirit of the enlightenment era. Rather the success of the (written)constitution as a concept is also due to its efficacy as a tool in mobilising society toresolve the political and social crises that shook the world from 1750 onwards andwere often associated with the unleashing of extreme violence. Such a politicallymotivated deployment of “writtenness” can be found from Norway to – of course –the USA and the revolutionary and post-revolutionary constitutions of France all theway to Meiji era Japan. Great Britain is the exception, but only because a stablesettlement had already been found in the aftermath of the civil war of the 1640s andthe “glorious” revolution of 1688/89.Conversely, in a territorially fragmented Germany the idea of a constitutional charterlong remained a noble dream and was merged with the yearning for national unity.The Frankfurt Constitution (“Paulskirchenverfassung”) saw the first attempt at anational constitution fail rather spectacularly in 1849 (for the fascinating fate of- 2 -the original document, see here). Success only came with Bismarck’s ImperialConstitution of 1871. However, in its structural design this charter was closerto a State Treaty than an actual Basic Law. Or in the words of Rudolf Smend(1882-1975), later becoming the doyen of constitutional law in the Federal Republic:“It is an extraordinarily austere and unappealing, badly drafted law that can hardlybe fully understood.” Due to the “gaps” of the 1871 constitution, the “unwrittenconstitutional law of the monarchical federal state” – the title of Smend’s seminalcontribution – was an obvious and important topic for constitutional lawyers duringthe Kaiserreich.It was only with the Weimar Constitution (1919) that Germany seemed to havereached modernity. The complex history of this “good constitution in a badtime” (Christoph Gusy) cannot be traced here. What followed is well known. Oftenoverlooked however is the fact that the national socialists never repealed the WeimarConstitution. Rather, its fundamental provisions were overwritten through a rapidprogression of “governmental laws”. These created a wholly new constitutionalsituation that did not coalesce into a new constitutional charter or a comprehensiveconcept of Nazi constitutionalism. If, as most Nazi-Jurists did, one nevertheless heldon to the idea of a constitution, one had to make virtue out of a necessity, as didErnst Rudolf Huber, the leading constitutional lawyer of this era. According to Huber,national socialism had no “constitution in the formal sense as was characteristicfor the 19th century”, but an “unwritten basic political order” – that could be pittedagainst the written constitution at any time (cf. E. R. Huber, Verfassungsrecht desGroßdeutschen Reiches, 2nd ed. 1939, pp. 54-55).This tradition must be borne in mind when considering why unwritten law appearedso precarious as a source of constitutional law after the Second World War. TheGrundgesetz’s genesis is an additional factor. While the document was certainlynot imposed on a helpless Germany, the result of the Parliamentary Council’sdeliberations had to be approved by the Allies and ratified by state parliaments.Thus it needed to be in writing. To the early Federal Republic, the “writtenness” ofits constitution represented enlightenment, westernization, security and stability.The Grundgesetz itself demonstrates its codificatory ambition, particularly in Article79 which not only removes certain core principles from amendabilty (section 3) butalso states in section 1: “This Basic Law may be amended only by a law expresslyamending or supplementing its text.”How little the concept of unwritten law could help to come to terms with thenew constitutional situation is shown by the discussion on the subject at the the10th Conference of the Association of German Constitutional Law Professors[Staatsrechtslehrertagung] in Göttingen in 1951. This moment likely representsan intellectual low point in the history of the association, which is not rich in stellarmoments anyway. Since then, the topic has gone quiet (remarkable exception:Wolff 2000). Why then, to return to the initial question, should it be awoken from itsslumber?- 3 -Why Should We Care?There are at least four reasons why the writtenness of constitutional law could andshould once again become an issue in Germany.The first is associated with the comparative interest that also motivates thissymposium: If other constitutional systems use (un)writtenness as an argument foror against the legal nature and the relative weight of constitutional concepts, such asthe principle of democracy, comparative law needs a sophisticated understanding ofthis concept. Merely stating that the principle of democracy is codified in Germanybut not codified in the UK does not explain anything. It is essential in this regardnot to view the category of writtenness in a binary way. Instead, it is important whowrites what in what form – and how the act of writing relates to the establishmentof the constitutional authority of a specific text. The question as to whether aconstitutional norm is written or unwritten, is thus transformed into the questionof who can write constitutional law, and as such enables a much more nuancedcomparative view of the genesis of constitutional law.Focussing on writtenness can secondly sharpen our sensibility of how liberally theGerman legal system allows the FCC as well as other courts to acknowledge legalnorms or principles whose textual basis in the Grundgesetz is far from obvious– which in other jurisdictions might be put into the area of norm-free, principle-oriented argumentation, i.e. whose constitutional quality is being problematized. Thisshould not be taken to mean that the “German Approach” amounts to arbitrarinessin its dealing with constitutional law. On the contrary. It does however highlight atension between the status that the Grundgesetz enjoys as a textual documentin our political culture (see e.g., here), and the massive rewriting that this texthas undergone over the past 75 years through constitutional jurisprudence andscholarly dogmatisation. Today we need to ask ourselves: Is there a differencebetween Constitutional patriotism and Constitutional Court patriotism and, if this isthe case, which do we have and which do we want? Against this background, it isnot surprising that the discussion about “defensive democracy” is currently shiftingfrom the protection of the constitution to the protection of the constitutional court.The third reason is that there is also a smallish body of constitutional norms andprinciples in Germany whose validity is not derived from the Grundgesetz, butwhich –despite Article 79 sec. 1 GG – are according to general opinion “unwritten”.These norms and principles are to be found in particular in the deeper strata ofour constitutional law which have been untouched by the various changes of thepolitical system. They can be traced back to “gaps” in the Imperial Constitution of1871 for which compromises were later found that remained untouched during thelater codification processes in 1918/19 and 1948/49. Specifically, they relate to (1)federalism – every German law student learns about the unwritten legislative andadministrative powers of the federal government –, (2) the relationship between thevarious constitutional organs and (3) the law of parliament. The law of parliamentis particularly interesting. Traditionally, the lack of formalization has served thedemocratic system well, because it left the political parties considerable room fornegotiation. With the entry into parliament of parties that fundamentally question the- 4 -system of representative democracy, however, this mode of “binding informality” iscoming under increasing pressure. Karlsruhe is increasingly being pushed into therole of formalizing parliamentary conventions – currently, for example, in mattersrelating to committee chairs. The open question is whether the unwrittenness of therelevant norms makes a difference regarding the current process of judicializationand how this is to be assessed with a view to the separation of powers.Fourthly and lastly, there is in no way a guarantee that the interaction between thewritten constitution and the Federal Constitutional Court will remain as productiveas it used to be. Other countries show that constitutional courts can turn againstthe constitution. What would happen if Karlsruhe were to refuse to recognize theprinciple of proportionality in the future due to its lack of a sufficient textual basis inthe Grundgesetz? From a policy perspective, such hypotheticals might not seemfruitful, because – luckily – they are still too improbable. From a theoretical point ofview, however, they force us to think more clearly about the basis of the validity ofour constitutional law. And precisely this is the main purpose of our project UnwrittenConstitutional Norms and Principles. A Comparative Study.- 5 -

The Stakes of the Unwritten Constitutional Norms and Principles Debate in Germany

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The Stakes of the Unwritten Constitutional Norms and Principles Debate in Germany

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