Judicial self-restraint
The judicial self-restraint is a principle of separation of powers , which in the judicial decision must be considered.
According to this principle, the case law should not answer or anticipate any design questions that fall within the original area of legislative or executive state authority ( legal activism ). These are not to be answered and made binding by the highest courts, but by the constitutionally provided and legitimized organs such as the parliament or the government.
The Federal Constitutional Court of the Federal Republic of Germany basically stated:
"The principle of judicial self-restraint imposed by the Federal Constitutional Court does not mean a shortening or weakening of its [...] competence, but rather the renunciation of" doing politics ", that is, more freedom in the space created and limited by the constitution to intervene in the political process. It therefore aims to keep open the freedom of political formation guaranteed by the constitution for the other constitutional organs. "
There is a tension between judicial legal training as a derivation from the guarantee of legal recourse ( Article 19, Paragraph 4 of the Basic Law ), with which loopholes in regulations can be closed and non-final norms can be further developed.
