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Top>Opinion>The Normative Power of Constitutional Law and the Federal Constitutional Court


Tsuyoshi Hatajiri

Tsuyoshi Hatajiri [profile]

The Normative Power of Constitutional Law and the Federal Constitutional Court

Tsuyoshi Hatajiri
Professor, Faculty of Law, Chuo University
Areas of Specialization: Constitutional Law

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1. Freiburg and the normative power of the constitution

I am currently living in the southwestern region of the Federal Republic of Germany for the purpose of overseas research, in the university town of Freiburg, whose population of around 220,000 includes 27,000 internal and external students. For constitutional researchers such as myself, the University of Freiburg is famous as the institution where Konrad Hesse, a great authority on post-war German constitutional law and a judge at the Federal Constitutional Court, taught for many years. One of Hesse’s key works is Fundamental Principles of the Constitutional Law of the Federal Republic of Germany [Grundzüge des Verfassungsrecht der Bundesrepublik Deutschland]. In it, he talks about what a constitution requires in order to have the power to govern reality as a law with which everyone must comply (the normative power of a constitution), and not stop at simply being a political platform.

2. Federal Constitutional Court

Germany’s Federal Constitutional Court, along with the Supreme Court of the United States of America, has continually served as a model for other countries in the rapid development and expansion of constitutional reviews since World War Two, as expressed in these words: “The German-built institutions that will remain until the end are the Prussian General Staff and the Constitutional Court.”

I was reminded again of its importance after coming to this place. The Federal Constitutional Court (also known as Karlsruhe, from the town where it is located) appears on a daily basis in the German media, which is full of stories not only about sentencing but also people concerned stating their opinions in oral proceedings, and its President, Andreas Vosskuhle, being critical of government policy. Incidentally, I happened to hear on the radio program What Is Today? on September 24, which reported that ten years had passed since the Federal Constitutional Court’s ruling on the Islamic headscarf issue. It was another clear reminder of the Federal Constitutional Court’s strong presence in Germany’s political process.

3. Public opinion of the Federal Constitutional Court

An opinion poll on the Federal Constitutional Court appeared in the August 22, 2012 edition of the newspaper Frankfurter Allgemeine Zeitung, from which I would like to quote (with some editing) a number of very interesting figures.

(1) What level of influence do you think the Constitutional Court has on Germany’s political process?
1. (Very) High: 66%
2. Moderate: 25%
3. (Very) Low: 8%
4. No opinion/No answer: 1%

(2) How do you view the level of influence that the Constitutional Court has on us?
1. Too high: 5%
2. Too low: 14%
3. Just right: 56%
4. No opinion: 25%

(3) Which of the following opinions do you agree with?
1. It is good that the Constitutional Court can reject decisions made by the Federal Government that do not conform with the Basic Law. Such control is essential for a nation governed by law: 82%
2. It is not good that the Constitutional Court has the power to repeal legal decisions made by the government or Bundestag. These are political decisions that should not be left to a court: 8%
3. No opinion: 10%

(4) The Constitutional Court warned that it would spend a long time on litigation related to the euro bailout in order to be able to fully review the circumstances. Do you think it is right for the Constitutional Court to spend so much time on this decision, or should it deliver judgment as quickly as possible in such an immediate crisis?
1. It should take its time: 59%
2. It should deliver judgment quickly: 26%
3. No opinion/No answer: 15%

(5) What level of trust do you have in the Constitutional Court?
1. Very high/Reasonably high: 75%
2. Very low/None: 24%
3. No answer: 1%

(6) Do you feel that the values and opinions of the Constitutional Court judges broadly agree with those of the public?
1. Their views broadly agree: 43%
2. There are large rifts: 19%
3. No opinion: 38%

(7) The following is a list of various national and social institutions and organizations. What level of trust do you have in each one? Give an answer for each institution or organization.
(The institutions and organizations are ranked according to how many respondents selected Very high.)
1. Basic Law (78%)
2. Constitutional Court (75%)
3. President (63%)
4. Bundesrat (41%)
5. Bundestag (39%)
6. Cabinet (38%)
7. European Commission (22%)
8. Political parties (17%)

4. What the poll shows

The results of the opinion poll show what a high level of trust citizens have in the Federal Constitutional Court. Reading between the lines, we can also see how this high level of trust derives from their trust in the German Constitution, the country’s Basic Law. People’s trust and acceptance of the Constitutional Court depend on their trust and acceptance of its decisions, which in turn depend on the people’s trust and acceptance of the constitutional law, which provides the criteria for those decisions.

Constitutional law functions as one of the standards for judging real-life political, economic and social issues, and the use of constitutional law to constantly judge state behavior is something that is accepted by citizens and state institutions alike. You get a real sense of this in Freiburg.

In Japan, a lively debate is currently underway over constitutional amendment. What should be confirmed as a premise of this debate is the acceptance of the use of the constitution to judge state actions, which is to say, the normative power of constitutional law. The importance of this is best illustrated by the results of the above German opinion poll showing the high level of trust placed in their constitution and, subsequently, in its keeper, the Federal Constitutional Court.

Tsuyoshi Hatajiri
Professor, Faculty of Law, Chuo University
Areas of Specialization: Constitutional Law
Born in Wakayama Prefecture in 1950. Graduated from the Law Department, Faculty of Law, Chuo University in 1975. Completed a doctoral program at the Graduate School of Law, Chuo University in 1982 and gained a PhD in Law. He has held his current post since 2004 as well as the concurrent position of Professor at Chuo Law School, Chuo University from 2005 to 2012.
The theme of his current research is the clarification of what is needed to secure and strengthen the normative power of constitutional law, through a comparative legal study of Japan and Germany with a focus on constitutional review.
His major publications include An Introduction to the Study of Constitutional Courts [Kenpou Saiban Kenkyuu Josetsu] (Shogakusya, 1988) and his most recent publications are The Constitutional Court of Germany (2nd Edition) [Doitsu no Kenpou Saiban (Dai 2 Han)] (co-edited with Tatsurou Kudou, Chuo University Press, 2013) and The Normative Power of Constitutional Law and the Constitutional Court [Kenpou no Kihanryoku to Kenpou Saiban] (Forschungsgesellschaft für deutsches Verfassungsrecht edition, co-edited with Kouji Tonami, Shinzansha, 2013).