The Rule of the Courts

Jörn Axel Kämmerer

M AKING C ONSTITUTIONAL C OURTS R ESILIENT : T HE G ERMAN E XAMPLE

Jörn Axel Kämmerer

One of La Fontaine’s most popular fables narrates about the ant and the cicada, which sang all summer but had nothing to feed on when winter came, whereas the ant had made constant provisions to buffer the lack of supply in the cold season (and was highly reluctant to share them with the cicada 1 ). There is a trend towards frostier weather in liberal democracies, too, and it might rate, metaphorically spoken, as climate change. When winter comes, we will have to ask ourselves whether all necessary precautions have been taken or if democracy and the rule of law will die in all their beauty like the cicada. I. Independence of (Constitutional) Courts in the Pan-European Legal Context Since independent courts are key to the vitality of the rule of law, they are likely to become the target of attacks aimed at weakening or toppling it. Reinforcing the judicial system is required to make it more resilient against these attacks, which tend to be launched from within the political system rather than from without. 2 What Germany has undertaken in this 1 « Vous chantiez ? j’en suis fort aise : Eh bien ! dansez maintenant. » (Jean de La Fontaine, Fables, Livre premier, I ; (ed. Parkstone Press, 1994, p. 13)). 2 For a recapitulation of methods of attacking constitutional democracy from within the political system, see Rosalind Dixon and David Landau, Abusive Constitutional Borrowing, 2021, p. 25 (with further references).

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