Judicial examination law

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The judicial review right is a concept originating from the US-American law, which was spread in the Weimar Constitution in Germany and describes the review of the validity of parliamentary laws against the standard of the constitution by the courts. Today the concept of norm control is more common in Germany .

origin

The idea of ​​norm control originated in the United States of America . As early as 1803, in the Marbury v. Madison , established the highest US federal court, the US Supreme Court , the so-called Judicial Review on the scale of the federal constitution.

import

An early example of the use of judicial review rights in German law is the decision of the Danzig Higher Court on February 7, 1923. In Germany, the judicial review right only prevailed with a decision of the Reich Court on November 4, 1925. This was preceded by an intensive legal and political discussion in jurisprudence . The legal arguments were based on various provisions of the Weimar Imperial Constitution (WRV): on Art. 13 Para. 2 WRV, which ensured the control of norms for certain constellations, on Art. 102 WRV, which only subjected the judges to the law , and Art . 70 WRV, which the Reich President instructed the constitutional processes, have been laws must be made out .

In the discussion, the legal arguments turned out to be ambivalent. Hence, the legal scholars of the day concluded that political arguments must answer the question. The combination of “legal” and “political” functions was not only conceivable at the time, it was practiced. Liberal constitutional law teachers like Gustav Radbruch contradicted the right of examination in order to protect parliament from a predominantly conservative judiciary. On the other hand, conservative legal scholars fought for the control of norms. Triepel's central statement should be quoted many times later: "[T] he judicial review right is in the parliamentary republic, if not the only, then the most important protection of civil liberty against a power-hungry parliament".

The debate was first decided by the Reichsgericht with the above-mentioned judgment of November 4, 1925. In view of the intensity with which the dispute had previously taken place, the statements of the court are considered "apodictic":

"Since the Reich Constitution itself does not contain any provision according to which the decision on the constitutionality of the Reich laws would be withdrawn from the courts and transferred to a certain other body, the right and the duty of the judge to examine the constitutionality of Reich laws must be recognized."

From then on, the courts checked whether imperial laws were compatible with the constitution. Nonetheless, there were seldom cases in which a highest court declared an imperial law to be ineffective.

The judicial review right was only protected by constitutional text after the end of the Second World War , initially in some state constitutions , then in the Basic Law for the Federal Republic of Germany .

See also

literature

  • Bernd J. Hartmann: The judicial review right under the Weimar Constitution , in: Yearbook of Legal History (JJZG) Vol. 8 (2006/07), ed. by Thomas Vormbaum, pp. 154-173, Berliner Wissenschafts-Verlag (BWV), ISBN 978-3-8305-1471-8
  • Stefan Korioth : Guarantee of the constitution or constitutional law from the hand of the judiciary - judicial review of norms in the Weimar Republic , in: H. de Wall / M. Germann (Ed.), Civil Liberty and Christian Responsibility. Festschrift for C. Link on his 70th birthday , 2003, p. 705 ff.
  • Gertrude Lübbe-Wolff : The protection of constitutionally guaranteed individual rights: The role of the Reichsgericht , in: H. Wellenreuther / C. Schnurmann (Ed.), The American Constitution and German-American Constitutional Thinking, New York - Oxford 1990, pp. 411–434.
  • Hartmut Maurer : The judicial review right at the time of the Weimar Constitution , in: DÖV 1963, p. 683 ff.
  • Michael Stolleis : Judicial Review, Administrative Review, and Constitutional Review in the Weimar Republic , in: Ratio Juris Vol. 16 (2003), pp. 266-280

Individual evidence

  1. ^ 1 Cranch (5 US) 137 (1803). Likewise, the assessment by G. Brunner, The Access of Individuals to Constitutional Jurisdiction in Europe , JöR nF 50 (2002), p. 191 (195); Brun-Otto Bryde , Verfassungsentwicklung , 1982, p. 97 f.
  2. ↑ Danziger Juristen-Zeitung 1923 p. 28 (Grain levy); on this Fabian Wittreck : The beginnings of constitutional control of norms in Germany . In: ZRG (GA) 2004 pp. 415–470
  3. ↑ RGZ 111, 320 ff.
  4. ↑ Details from Bernd J. Hartmann: The judicial right of examination under the Weimar Constitution , in: Yearbook of Legal Contemporary History (JJZG) Vol. 8 (2006/07), p. 154 (158-167).
  5. ^ Gustav Radbruch : Judicial Examination Law? , Die Justiz 1925, p. 12 (13); Richard Thoma : The judicial examination law , AöR 43 = 4 NF (1922), p. 267 (272 f.).
  6. ↑ Cf. Rainer Wahl : The priority of the constitution and the independence of legal law , NVwZ 1984, p. 401 (402).
  7. ↑ Cf. Gustav Radbruch: Judicial Examination Law? , Die Justiz 1925, p. 12 (14).
  8. ^ Heinrich Triepel , The way of the legislation after the new Reichsverfassungs , AöR 39 (1920), p. 456 (537).
  9. ↑ Gerhard Anschütz : The Constitution of the German Reich of August 11, 1919 , 14th edition 1933 (reprint 1987), Art. 70 Note 5 (p. 374).
  10. ↑ RGZ 111, 320 (323).
  11. ^ Evidence from Bernd J. Hartmann: The judicial right of examination under the Weimar Constitution , in: Yearbook of Legal Contemporary History (JJZG) Vol. 8 (2006/07), p. 154 (169, in and at fn. 117-123).