Das Verbot der Verfassungsumgehung

Der Staat ◽  
2021 ◽  
Vol 60 (2) ◽  
pp. 243-272
Author(s):  
Torben Ellerbrok

In der Rechtsprechung zum Verfassungsrecht wird mitunter der Gedanke fruchtbar gemacht, dass Normen des Grundgesetzes nicht umgangen werden dürften. Während aber im zivilrechtlichen Diskurs Bestand und methodische Verortung eines Umgehungsverbots seit Langem diskutiert werden, wurde einem „Verbot der Verfassungsumgehung“ bisher nicht näher nachgegangen. Der Beitrag zeigt auf, dass zwar ein hoher Abstraktionsgrad zahlreicher verfassungsrechtlicher Normen einer Umgehungsmöglichkeit entgegensteht und die Spezifika der Verfassungsauslegung zu berücksichtigen sind, auch das Grundgesetz aber rigide, umgehungsanfällige Normen enthält. Dort kann ein Umgehungsverbot ins Werk gesetzt werden, indem der Anwendungsbereich einer Norm über ihren Wortsinn hinaus ausgedehnt wird. Diese teleologische Verfassungsextension, eine Form richterlicher Rechtsfortbildung, ist nach hier vertretener Ansicht vorzunehmen, wenn Wortsinn und Ziel einer Verfassungsnorm divergieren, ein hoheitliches Handeln nicht dem Wortsinn, aber dem Ziel einer Norm zuwiderläuft und schließlich eine Eingriffsschwelle überschritten ist. Diese liegt bei der Verfassungsfortbildung aus näher aufgezeigten Gründen besonders hoch. Relevant werden kann hier insbesondere eine Umgehungsabsicht. Jurisprudence on constitutional law sometimes makes use of the idea that the norms of the Basic Law may not be circumvented. However, while scholarship on private law has long debated whether a prohibition of circumvention exists and how to place it methodologically, a “prohibition of constitutional circumvention” has not yet been examined in detail. As this article demonstrates, the fact that many constitutional norms are very abstract prevents circumvention, and the specifics of constitutional interpretation must be taken into account. Nevertheless, the Basic Law also contains rigid norms that are susceptible to circumvention. In this case, a prohibition of circumvention can be put into effect by extending a norm’s scope of application beyond its literal meaning. This teleological extension of the constitution, a form of judicial development of the law, must be carried out if the literal meaning and the purpose of a constitutional norm diverge, if a sovereign act runs counter not to the literal meaning but to the objective of a norm, and finally, if a threshold of interference is exceeded. This threshold is particularly high in the case of the further development of the constitution for reasons explained in greater detail. In particular, an intention to circumvent can become relevant here.

2019 ◽  
Author(s):  
Louisa Specht

This study discusses the effects of technology on how the content of contracts is designed. For example, today e-books can be equipped with a technological protection mechanism which prevents them from being copied, which means that an agreement under private law which stipulates that a book cannot be copied is no longer necessary. However, if a contracting party is able to dispense with action using technological means because the design of technological devices allows it to do so, this technology then displaces legal regulations. Therefore, this study examines the boundaries which the technological design of contractual objects is subject to and what effects its application has on the institution of contractual freedom, because if a contractual regulation is replaced by technological design, it threatens to nullify regulations such as §§ 134, 138 of German Basic Law, Germany’s consumer protection law or even the limiting conditions of its copyright law. This work develops mechanisms to counteract the law being undermined by technology in this way.


2016 ◽  
Vol 1 (1) ◽  
pp. 1
Author(s):  
Fritz Edwadr Siregar

Nine Indonesian Constitutional Justices have the authority to annul a law drafted by 550 Parliament members and the President. The Constitutional  Court of the Republic of Indonesia (“the Court”), particularly in deciding cases  of judicial review, has the capability to declare words, sentences, paragraphs, articles or the law unconstitutional. Consequently, it is essential for the Court  to take into account legal arguments. The fundamental element of these legal arguments is constitutional interpretation, which serves as a parameter in determining constitutionality of the laws. However, in exercising its authority, the Court needs to interpret the Constitution as a  basis  for deciding  a case.  The standards for determining the constitutionality of a law must be the text of the Constitution, not what the judges would prefer the Constitution to mean. Constitutional supremacy necessarily assumes that a superior rule is what the Constitution says it is, not what the judges prefer it to be. [Craig R. Ducat: E3]. The Court period 2003–2008 were the Court’s the formative years, and as such are important to understand the methodology and interpretative approaches adopted by the Court. Many observers of the Court’s early decisions are still unsure of the overarching approach and methodology adopted by the Court. Thus, there is a need  for a close analysis and criticism of  the Court’s early decisions   to determine which methods and approaches it has adopted and whether these are appropriate in the Indonesian context. The Court has openly referred to the experiences of foreign jurisdiction in constitutional law, and therefore it would be appropriate to analyze the court’s decisions in a broader comparative context of constitutional interpretative approaches from around the  world.


2021 ◽  
Author(s):  
Benedikt Kruse

The scope of application of the duty of disclosure for tax arrangements is not sufficiently tailored to abusive tax arrangements. The aim of this thesis is both to clarify questions of doubt regarding the scope of application of the duty of disclosure for tax arrangements and to submit concrete reform proposals to the national legislator for the further development of the law on binding information. The main consideration of the reform proposal is that, taking into account the regulatory effects of the duty of disclosure for tax arrangements, the legislative objectives pursued with the duty of disclosure can be promoted by granting taxpayers binding information for tax arrangements to be disclosed.


2018 ◽  
Vol 2 (2) ◽  
pp. 140 ◽  
Author(s):  
Bono Budi Priambodo

Adat law has been narrowly understood, mainly as part of private law, in the curricula of Indonesian law schools. This is in contrary to the original intent of adat law, both as an academic and policy discourse, at the first place, which was as an attempt to develop a legal system that is suitable to govern the Netherlands East Indies (NEI) for preventing violation against the indigenous sense of justice. This article seeks to clarify the actual purpose of Adat Law, as it conceived, in the living of traditional community and the relation between adat law and Indonesian state law following the Indonesian independence. Subsequently, this article would explore how constitutional law and administrative laws (staatsrecht) would place “Adat law” under the Indonesian legal system that might be well claimed as an autochthonous law of Indonesia. It is a legal writing that uses historical, statutory, and case approaches. It has been found out that Adat Law scholarship had a pragmatic purpose i.e. to administer justice and govern the NEI colony that reflects a characteristic of public law. The later development showed that the law has shifted its focus into private law fields such as the law of persons, marriage and family laws, property and inheritance laws. Such shifting leads Adat law into an obscured relation between Adat Law and public laws in the era of the post-independence of Indonesia. It can be concluded that under historical inquiry, the Basic Law of 1945 (Indonesian Constitution) has strongly inspired by Adat Law. The same goes for administrative law, which in this case is represented by BAL that governs not only land administration but all kinds of natural resources in Indonesia until nowadays.


2021 ◽  
pp. 186-218
Author(s):  
Marie Seong-Hak Kim

This chapter discusses the operation of the early modern French monarchy from the perspectives of civil law and constitutional law. Exploration of the sale of offices at the nexus of the law of obligations and constitutional principles sheds important light on the state as enterprise. When venality is viewed as a royal commercial venture, the significance of extending the king’s dominion to private law becomes evident. The reformation of customs was carried out with the support of legal professionals who entered the royal bureaucracy by purchasing offices. The evolving relationship between judges and the crown over venality spurred Jean Bodin’s theory of royal sovereignty. A lawful government ruled by the sovereign with the established law became the crux of the new constitutional consciousness.


1974 ◽  
Vol 9 (4) ◽  
pp. 463-466 ◽  
Author(s):  
Lord Diplock

The subject matter of our discussion today is entitled “Written or Unwritten Constitutions”—but the real issue before us is the supremacy of the legislature. A written constitution is normally thought and spoken of as a curb upon the supremacy of the legislature; and a constitution under which the legislature is supreme, is normally called “unwritten”. I shall not presume to advise you in Israel as to whether you should give yourselves a written constitution: all I can venture to do is to give you some personal reflections from my own experience, as one who has lived his life and administered the law under an unwritten constitution.So far as constitutional law deals with the structure of government—how laws are to be made, how they are to be put into effect, how disputes as to rights and obligations under the law are to be decided—it may or may not, in a unicameral legislature, be advisable to require that amendments of what I may call the structure of the constitution should be by a particular majority. Opinions on this may be divided, and I am not going to take any stand. What I should like to give some reflections upon is the proposal that there should be a “basic law” setting out the fundamental human rights and liberties, and what the status of that law should be.


Author(s):  
Enzo Cannizzaro

The chapter discusses the philosophical foundations of the current regulation of the use of force. The chapter argues that, in correspondence with the emergence of a sphere of substantive rules protecting common interests of humankind, international law is also gradually developing a system of protection against egregious breaches of these interests. This conclusion is reached through an analysis of the law and practice governing the action of the UN Security Council as well as the law of state responsibility concerning individual and collective reactions to serious breaches of common interests. This system is based on positive obligations imposed upon individual states as well as UN organs, and it appears to be still rudimentary and inefficient. However, the chapter suggests that the mere existence of this system, these shortcomings notwithstanding, has the effect of promoting the further development of the law in search for more appropriate mechanisms of protection.


Author(s):  
John Gardner

Torts and Other Wrongs is a collection of eleven of the author’s essays on the theory of the law of torts and its place in the law more generally. Two new essays accompany nine previously published pieces, a number of which are already established classics of theoretical writing on private law. Together they range across the distinction between torts and other wrongs, the moral significance of outcomes, the nature and role of corrective and distributive justice, the justification of strict liability, the nature of the reasonable person standard, and the role of public policy in private law adjudication. Though focused on the law of torts, the wide-ranging analysis in each chapter will speak to theorists of private law more generally.


Author(s):  
Michel Meyer

Chapter 7 deals with one of the most traditional aspects of rhetoric, namely literature. It describes a basic law of literary rhetoric which accounts for the increasing problematicity of literary language in novels, poetry, and drama. This chapter also explains the evolution of literary criticism. The fact that literature is less and less linear in its narratives, and is increasingly enigmatic (Joyce or Kafka) is accounted for by the law of auto-contextualization of the problematic in the fictional answers. This law encourages the reader to provide the meaning of the text, even when it is considered as impossible or equivocal and pluralistic. The four main schools of literary interpretation correspond to our four basic operators of rhetoric: Mimetic for =, Hermeneutics for ±, Reception Theory for + (the reader is the “plus” of the interpretation of the text), and Deconstruction for –.


Sign in / Sign up

Export Citation Format

Share Document