A 'Blended System' of Judicial Review in Germany

Weak-form judicial review suggests that empowering courts to exercise rights-based judicial review does not necessarily mean that courts can assert their understanding of guaranteed rights or, where they do - as in Germany - that they always should. Instead, they could be constitutionally required to defer, at times, to another state organ's reasonable rights interpretation. Lisa Rabeneick examines this particular aspect of the broader question of how the German Federal Constitutional Court should exercise its powers of strong-form rights-based judicial review in relation to the Federal Parliament. Specifically, she proposes creating a 'blended system' of reviewing legislation under the Basic Law; to be achieved by the court implementing weak-form review in instances in which it should refrain from asserting its rights understanding in relation to the legislature.A. Introduction
I. Proposal of a ‘blended system’ of judicial review - II. Argument for a ‘blended system’ of rights-based judicial review of federal legislation within the German constitutional order
B. An alternative form of judicial review within the German constitutional order
I. Weak-form judicial review and the related international debate -II. Meaning of ‘weak-form and strong-form judicial review’
C. The German strong-form system of rights-based judicial review of legislation
I. Historical decision for a system of constitutional judicial review - II. Existing constitutional design mechanism providing for the court’s strong-form review powers - III. Conclusion and outlook
D. Towards weak-form judicial review in Germany
I. Proposal of a ‘blended system’ of judicial review within the German constitutional order review - II. Absence of weak-form judicial review ideas in Germany - III. Placing the proposal within the German constitutional debate - IV. Concluding observations: Proposal of a blended system within the German constitutional order
E. Benefits of a blended system of rights-based judicial review of legislation within the German constitutional order
I. Previously identified benefits - II. Creating a more appropriate constitutional balance between constitutional principles conflicting in the shape of the court’s strong-form review powers - III. Additional outcome-related constitutional benefits - IV. Conclusion
F. Implementing the proposed blended system on the institutional level
I. Preliminary considerations - II. Defining constitutional constraints - III. Existing room within key constitutional constraints for other forms of weak-form judicial review - IV. Outlook: Additional conversation on the appropriateness of weak-form review
G. Conclusion