The Standard-Setting Power
This chapter chronicles the proliferation of doctrinal standards over time and underscores the bizarre lengths to which that proliferation has recently extended. It shows how the Federal Constitutional Court makes use of a distinctive technique for reaching and justifying decisions, which it elaborated over many years, and which today it habitually applies. The Court regularly divides the reasoning of a decision into two blocks. The first block identifies general statements on the interpretation of the constitution. In such general terms, the Court establishes the legal standard, which will lie at the foundation of the case. The application of the standard to the determinative set of facts follows. The facts of the specific case first enter the reasoning in the second part, the “subsumption section.” The standard already formed in general-abstract terms is now applied to the specific issue the Court has to decide. Finally, the chapter warns that the era of bold new standards is probably gone for good.