Helmut Philipp Aust
Grundrechtsdogmatik im Staatsorganisationsrecht?
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The doctrine of German constitutional law is sometimes described as differing fundamentally in its two main subfields: the protection of fundamental rights and the rest of constitutional law, pertaining to the organisation of state powers, the state organs and the relationship between the federal level and the Länder. The development of constitutional law doctrine in the field of fundamental rights is often praised for its sophistication. It is in this field that the German Federal Constitutional Court (FCC) has made its contribution to a transformation of German constitutional law, allegedly from a system akin to a formal framework to a material constitutional order which is thick with values. With respect to the protection of fundamental rights, the court would have, so the argument goes, excelled in setting abstract constitutional standards which further exemplify the content of the constitution. In contrast, its jurisprudence would be less than impressive in the field pertaining to organisational matters. This field would be characterised by a paucity of doctrinal and theoretical sophistication. The present contribution looks into this set of affairs and critically assesses the alleged deficits of constitutional law doctrine in these organisational matters. In particular, it asks whether specific aspects of constitutional law concerning the protection of fundamental rights could be transferred to the organisational domain, for example the principle of proportionality. In this respect, the jurisprudence of the FCC is divided. Whereas the court explicitly rejects the transfer of this notion to questions of state powers and competences, it is employed in other contexts without further justification. The article traces the development of the case law and looks for reasons for this state of affairs. It concludes that a doctrine of »impermeability« which was developed in the late 19th century continues to affect contemporary thinking about the state in German constitutional law doctrine. In essence, this doctrine conceptualises legal relations within the state differently from legal relationships between the state and individuals. In addition, the character of the organisational parts of constitutional law as being particularly close to the political process also prevent a greater level of sophistication of constitutional law doctrine. Finally, institutional aspects have a role to play. A lack of cases prevents the FCC from building up an array of doctrine which is comparable to the state of affairs in the field of the protection of fundamental rights. With respect to organisational matters, the FCC is the court of first and last resort. In matters pertaining to fundamental rights, it can concentrate on the abstract questions of constitutional law and remand cases to lower courts for the decision of the concrete disputes. This option is not available with respect to disputes concerning organisational matters.