Armin Steinbach

Evidenz als Rechtskriterium Versuch einer dogmatischen Verortung

Volume 140 () / Issue 3, pp. 367-414 (48)

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The term »evidence« can refer to two distinct meanings. Evidence is understood mainly as empirical information that tends to prove a fact or proposition. In the legal context, by contrast, it often emerges as a criterion that requires legal assessment, and this article deals with the latter meaning. Evidence in this sense appears in various contexts: a norm must be breached »evidently« in order to be annulled; the duty of the legislator to legislate must be »obvious« in order for the court to oblige the legislator to take specific action; or a claim can be »evidently« unfounded, allowing the court to reject it without going into detailed analysis. Evidence can take manifold guises as a legal criterion: It may trigger a breach of constitutional duties; it can be a prerequisite for sealing the facts of a case; or it may even be decisive with regard to the course that an act of law, a judgement or a written law takes. In terms of legal methodology, evidence fulfils a function as a criterion for legal validity or the creation of precedents, and it may be used, in the guise of a particularly heightened insight, as a basis for the validity of unwritten law. In legal practice and legislation, however, evidence takes on various functions for the protection of constitutional positions: It protects the legislator's freedom of scope vis-à-vis the Constitutional Court's control, it serves as a balancing mechanism between legal certainty and material justice, or else it promotes the effectiveness of administrative and court activities. The evidence criterion is hence used as an assessment criterion in the case of such protected goods, the demarcation of which is fuzzy and requires deliberation. It draws the demarcation lines that visualize the core content of constitutional positions, thus defining a minimum content that remains free from intervention. Depending on the area of application, obvious interventions become a prerequisite for affirming a breach of the constitution, a constitutional breach of duty or material justice in individual cases. Thus, the legislator's leeway must only take the back seat if the breach of the constitution is obvious. Here, the evidence measure has the task of keeping both the judiciary review and the politically convenient discourse at a distance from each other. In other constellations, the evidence criterion provides relief for courts and authorities, thus supporting procedural economy. The guarantee of legal protection must then make way for procedural economy in obviously futile cases. And insofar as the evidence criterion is used for assessing the nullity of administrative acts and judgements, it proves a flexible instrument in the balancing of legal certainty and material justice. At the same time, the use of the evidence criterion does give rise to some constitutional concerns. First of all, it does so with regard to the principle of legal certainty, which is valid in equal measure for both jurisprudence and legislation. Evidence is an inner process, as it were, and as such it lacks basic transparence and intersubjective traceability. Moreover, its application increases the risk of the Federal German Constitutional Court falling short of its authority. Evidence creates a distance between illegality and legal consequence, between conditions and consequence; in cases of separation of powers, it also creates a space in which the breach of the constitution already exists, but where the court does not exercise its supervision. The danger here lies in removing the coincidence of constitutional breach and legal consequence. The evidence criterion keeps these two factors apart, thereby creating spaces of breaches of the constitution without legal consequences. What ensues is a limitation of the effect of the norm and a qualification of the simple breach of the constitution; in addition, the threshold of legal consequences being caused is raised. Constitutionally, the evidence criterion does no

Armin Steinbach Geboren 1978; 2007 Promotion in Jura (LMU München); 2013 Promotion in Volkwirtschaftslehre (Erfurt); seit 2014 Gwilym Gibbon Fellow am Nuffield College (Oxford University); 2017 Habilitation (Bonn); seit 2017 Leiter des wirtschaftspolitischen Grundsatzreferates im Bundeswirtschaftsministerium (Berlin).