On the “Legisprudential Turn” in Constitutional Review: An Introduction

Abstract

Constitutions are not laid down in an attempt to transform any theory of rational lawmaking into positive constitutional law but to settle the procedures by which laws can be validly enacted, to enshrine those basic values and fundamental rights that laws have to respect or protect, and to establish which policies and collective goods lawmakers are expected to foster. Yet, what may be derived or not from constitutional texts—or analogously ranked legal documents—largely depends on their authoritative interpreters, most notably constitutional judges. And these judges may well construe the substantive, formal and procedural mandates of a constitution in a way that obligates lawmakers to legislate better, i.e. more rationally. When embarking on such a construal, courts are juridifying tenets and insights that usually belong to the aspirational realm of legisprudence (cf. Wintgens 2012). Thus constitutional texts—enriched through judicial doctrines—might turn out indeed to comprise a normative theory of lawmaking, at least in outline. Seen from the reverse angle, it would appear that there exists a constitutional, legally binding dimension to legisprudence. The aim of this book is to explore this dimension in the light of the case law of the German Federal Constitutional Court (Bundesverfassungsgericht, hereinafter BVerfG) and the approach to rational lawmaking which underlies it.