Symbolic Legislation and the Need for Legislative Jurisprudence: The Example of the Federal Republic of Germany

Abstract

AbstractAs the example of symbolic statutes illustrates there is a tension between the claim of law to rationality, inherent in the idea of self-government of the autonomous subject, and the dynamics of the democratic process that uses statutes as a political instrument. Legislative theory seeks to lower this tension and to enhance the standards of rationality in the law-making process. Four different approaches within legislative theory are disentangled and examined, mainly against the background of the German Constitution. It becomes obvious, that especially the potential of the legal theory approach has not yet been fully explored. Also in view of recent developments we need a further elaboration of principles that provide some guidance for the internal legislative process and a legislative theory that conceives itself as a general theory about regulation, in short: We need the strengthening of legislative jurisprudence.