The Rule of the Courts

Jörn Axel Kämmerer

Federal Constitutional Court was prominent in rebuilding it after World War II and has had an important share in the evolution and refinement of constitutional doctrine. It has set yardsticks on democracy and the rights of political parties, the rule of law and its numerous ramifications, federal balance (including finance) and European integration. 6 It adopted a modern doctrinal approach to fundamental rights, with human dignity in its focus, refined the principle of proportionality and what is known as “practical concordance”. 7 The German post-war constitutional order, resting on the Basic Law (BL), was devised as a “militant” or rather “defensive democracy” and equipped with instruments to thwart attempts to destroy it. Some have been applied, and shaped, by the Court, while others never gained any rele vance, for instance, forfeiture of fundamental rights (Art. 18 BL) or intangibility of their essence (Art. 19 (2) BL). Another tool which the Court was asked to apply on a handful of occasions (and which it applied not completely without reluctance in face of its temporal demand) is the prohibition of political parties (Art. 21 (2, 4) BL). While no prohibition has been pronounced for nearly 70 years, the Court lately applied a newly created tool – debarment from government financing (Art. 21 (3, 4) BL) – to a small extremist party. The lesson to be learnt from the Polish and Hungarian experience was that the judiciary needed bolstering against attempts to instrumentalise, undermine or dismantle it. Awareness was increasing in German politics that the country might not be spared from such attempts and could no 6 Cf. BVerfG, Judgment of 9 June 2020 – 2 BvE 1/19; Judgment of 22 February 2023 – 2 BvE 3/19. For an overview, cf. Oliver Lepsius, “The Standard-Setting Power”, in: Jestaedt, Lepsius, Möllers and Schönberger (ed.): The German Federal Constitutional Court: The Court Without Limits , 2020, pp. 70 ff. 7 Starting with BVerfG, Order of 5 March 1968 – 1 BvR 579/67; and Judgment of 17 December 1975 – 1 BvR 63/68. III. The Constitutional Judicial Reform of 2024 1. The Federal Constitutional Court as a “Prime Target of Autocrats”

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