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The Constitutional Court - Applying the Proportionality Principle - as a Subsidiary Authority for the Assessment of Political Outcomes

Christoph Engel
Max Planck Institute for Research on Collective Goods



MPI Collective Goods Preprint No. 2001/10

Abstract:     
The Constitutional Court is one of the most characteristic features of the German constitution. The most important power of the Court rests in litigable fundamental rights. According to established jurisprudence, any governmental interference with freedom or property needs justification. It must pursue a legitimate aim, and the interference must be conducive to this end, it must be the least intrusive measure, and it may not be out of proportion. Conceptually, this dogmatic tool could become the vessel for a long-standing dream of (some) political scientists. It could turn the Constitutional Court into an authority for assessing political outcomes. The paper demonstrates the many obstacles, originating both from political sciences and from law. They call for high modesty and prudence. But they do not turn the dream into outright utopia. Systems theory, very liberally employed, allows us to define a subsidiary role for the Constitutional Court in assessing political outcomes. The paper concludes by analyzing the dogmatic consequences for the interpretation of fundamental rights.

Working Paper Series

Date posted: January 09, 2002 ; Last revised: March 08, 2004

Suggested Citation

Engel, Christoph, The Constitutional Court - Applying the Proportionality Principle - as a Subsidiary Authority for the Assessment of Political Outcomes. MPI Collective Goods Preprint No. 2001/10. Available at SSRN: http://ssrn.com/abstract=296367 or doi:10.2139/ssrn.296367


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Christoph Engel (Contact Author)
Max Planck Institute for Research on Collective Goods ( email )
Kurt-Schumacher-Str. 10
D-53113 Bonn Germany
+049 228 914160 (Phone)
+049 228 9141655 (Fax)
HOME PAGE: http://www.mpp-rdg.mpg.de/engel.html
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