The Race to Rationality Review and the Score of the German Federal Constitutional Court

Abstract

AbstractJudicial review is composed of a triangle of substantive, procedural, and impact review which often overlap and culminate in the concept of rationality review. The dichotomy of substantivism and proceduralism is modified in German Constitutional Law for two reasons: Firstly, because the German Basic Law asks for a minimum procedural review, and secondly, because the principle of proportionality often requires an assessment of facts and a prognosis, thus establishing an impact review which sometimes overlaps with a procedural review. However, the quest for rational decision-making and due deliberation does not prevail over substantive review. Only in borderline cases where the compatibility of a law with the substantive requirements of the Constitution cannot be ascertained, due to the empirical or prognostic complexity of the matter, may standards of proper lawmaking be the decisive criteria. These standards are not directly derived from the EU Better Regulation agenda. Rather, they are part of th...