The Procedural Review of Legislation and the Substantive Review of Legislation: Opponents or Allies?

Abstract

This essay aims to clarify the relationship between the substantive and procedural reviews of legislation in the case law of the German Federal Constitutional Court. While substantive review of legislation, owing to the constitutional guarantees of Article 93 Grundgesetz, is beyond question and makes up the bulk of Bundesverfassungsgericht adjudication, procedural review still encounters objections. Nevertheless, the German Federal Constitutional Court has adopted the idea of procedural review, while upholding substantive review as its main tool. This contribution argues that the Court only adopts procedural arguments as an adjunct to substantive review. This raises questions concerning the functioning of a model that merges standards deriving from different philosophies that are not necessarily mutually reinforcing. The article demonstrates that the regular dual assessment of procedural and substantive merits and downsides of a piece of legislation requires a preference rule that informs the judiciary on how to handle conflicting results. The Court evades this difficulty by shifting judicial review to the due process of lawmaking only when the substantive merits of a law are hard to assess because of the complexity of the matter. Whether the standards of substantive review are likely to relax owing to the emergence of procedural review requires a decision of fundamental significance, carefully avoided so far by the courts and academia.