Exposé eines Verfassungsprozessrechts von den Letztfragen? Das Lissabon-Urteil zwischen actio pro socio und negativer Theologie - 10.1628/000389110792016544 - Mohr Siebeck

Holger Grefrath

Exposé eines Verfassungsprozessrechts von den Letztfragen? Das Lissabon-Urteil zwischen actio pro socio und negativer Theologie

Section: Short Contributions
Archiv des öffentlichen Rechts (AöR)

Volume 135 () / Issue 2, pp. 221-250 (30)

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Article 146 of the Basic Law, a symbol of vanity for all positive constitutional law, has challenged constitutional interpretation ever since its (re-) enactment. By now, the Federal Constitutional Court rendered an important clarification of this issue. In its judgement concerning the Treaty of Lisbon, the Court held that this article can be successfully pleaded within the scope of a constitutional complaint by an individual, not directly but in conjunction with individual rights – especially Article 38.1 sentence 1 of the Basic Law. In line with the general disapproval of the Lisbon decision, the Court has been harshly criticised for its finding. This paper argues to the contrary that the Court found an utterly precise way to deal with »ultimate questions« of constitutional law. First of all, the Court's new approach is not redundant to its prior argumentation based on Article 38.1 sentence 1 of the Basic Law alone – and already known since the Maastricht decision. Article 146 of the Basic Law allows to adjudicate the boundaries between the constituent power (pouvoir constituent) and the constituted powers (pouvoirs constitués). By doing so, the Court cannot be found guilty of the fallacy not to distinguish between constitutional theory and constitutional dogmatics. The modus operandi which allows this is negation. Already approved in cases dealing with the guarantee of human dignity, arising from Article 1.1 of the Basic Law, a definition strictly ex negativo avoids a confusion of constitutional theory with constitutional dogmatics. Meta-positive concepts, such as »human dignity« and »constituent power« can thus be introduced into constitutional litigation. As a meaningful interpretation of the right to vote (Article 38.1 sentence 1 of the Basic Law) indicates, there is an essential inner connection between the individual and the exercise of the people's constituent power. An intradisciplinary comparison with the actio pro socio of corporate law shows that issues like the non-action of the constituent power can be adjudicated by an individual without violating the basic structures of legal thought. The thereby created »constitutional complaint for negating a revolution« lies within the jurisdiction of the Federal Constitutional Court. Systematically, the decision shows the relevance of the people's constituent power for constitutional dogmatics. Most certainly, the principle of open statehood is of fundamental importance for German constitutional law. But still, it remains as one among many constitutional principles. By no means it can be interpreted as the predominant »constitutional decision« in an existential, Schmittean sense. Methodologically, the decision offers a way out of an aporia of legal positivism – to be open for meta-positive concepts without having a proper set of tools for dealing with the »meta«: At its frontiers, the law knows negation only.

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