Britz, Gabriele: Außerjuridisches in Maßstäben des Bundesverfassungsgerichts

Judicial constitutional development by the Federal Constitutional Court has preoccupied constitutional scholarship since the Court began its work in 1951. And yet it is still not fully clarified what precisely occurs in this process, and in what way. The pronounced factual dimension of the Court‘s standard-setting has so far received little attention. The exemplary analysis of case law shows how strongly extra-legal assumptions shape constitutional interpretation. The Court‘s work in interpreting the Basic Law incorporates a wide range of assumptions about under which interpretation constitutional norms can in fact achieve the effect intended for them. For this reason, fact-driven constitutional interpretation is modelled as an independent mechanism of constitutional development, distinct both from normatively driven standard-setting and from factual assumptions involved in constructing the case-specific facts. More broadly, the study also aims to determine more precisely the potential tension between judicial constitutional development and political will-formation. Where factual assumptions shape constitutional development, the process is less a matter of normatively creative innovation than of norm-preserving adaptation to the real conditions under which law is realised. This also shifts the potential for tension inherent in judicial constitutional development. Key challenges are the adequate empirical substantiation of standard-forming factual assumptions and the determination of an appropriate balance between expert validation and the Court‘s everyday theory of the world. From a careful engagement with the empirical dimension of constitutional interpretation in legal scholarship and legal practice, rational constitutional development can thus emerge.