Verfassungsgerichtliche Abwägung: Gefährdung der gesetzgeberischen Spielräume? Zugleich eine Kritik der Alexyschen formellen Prinzipien
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While the balancing power of the Constitutional Court is widely criticized for its subjective and arbitrary character, it is often neglected that, since motivation is to be distinguished from argumentation, an irrational way of thinking does not suggest an irrational way of judicial reasoning. In other words, the rationality of judicial reasoning needs not presuppose the rationality of judicial motivation. Thus perceived, both the guarantee of the legislative power of discretion and the limitation of the Constitutional Court's power of balancing need not be premised upon a rational judicial motivation; rather, they should be realized through the dogmatic requirement that the Constitutional Court must be able to demonstrate the rationality of its reasoning, that is, to prove its decision as one of the permissible outcomes deriving from the applied constitutional norm. This essay thereby examines Robert Alexy's theory of formal principles in a critical way. While formal principle, according to Alexy, aims at resolving the counter-majoritarian or counter-democratic difficulty of the Constitutional Court, it misjudges the core of the problem and to this extent fails to clarify how the power of the Constitutional Court is ought to be restrained. From the perspective that judicial argumentation is to be distinguished from judicial motivation, I argue that, even in light of Alexy's theory of principles, the key point to the separation of powers between Constitutional Court and legislators lies not in formal principles, but rather in the rationality of the Constitutional Court's legal reasoning.