On Constitutional Duties to Give Reasons for Legislative Acts

Abstract

This chapter will argue that, as a general rule, the legislature is under no constitutional duty to give reasons for legislative acts. The argument put forward to justify this proposition will point out that it is because of the political nature of legislation that reasons are ultimately not required for legislative acts. Nonetheless, a multi-step legislative procedure, in which several institutions are involved, more or less automatically produces legislative materials and thereby yields normative reasons for legislative acts and statements of legislative intent. In contrast, German public law contains numerous duties to give reasons for administrative acts as well as judicial decisions. European Union Law even provides for a general duty to give reasons for legislative acts. Against this backdrop the extent to which legislative acts of the executive are subject to a duty to give reasons needs to be examined: if there is no duty to give reasons for statute law, does that equally apply to delegated legislation and other kinds of administrative law-making? This leads to the question whether administrative rule-making falls into the category of “political decision-making”.

The author would like to thank Christian Neumeier for his help with the translation of this chapter.