Methodologischer Individualismus und Gemeinwohl

Abstract

German constitutional law calls for a reasonable justification of state measures that infringe upon fundamental rights, such as the right to property or the freedom to conduct a business. To comply with these requirements, any such measure must serve the common good (“Allgemeinwohl”), meaning it must be characterized by a social net benefit of its effects. In short, takings and other publicly induced infringements are constitutionally legal if and only if the state can demonstrate that the benefits of the project outweigh its costs in a collective and holistic perspective. By using lenient standards of review, courts of justice grant the state considerable discretion when determining whether this can be verified under judicial scrutiny. However, the use of numerical decision-making procedures such as cost benefit analysis and similar approaches arguably helps making such decisions more rational and more transparent. The paper tries to make a case for the more widespread use of such tools in public decision making even considering the possible and/or considerable downsides of their practical deployment.