Gesetzgeberische Inkonsistenz als Beweiszeichen Eine rechtsvergleichende Analyse der Funktion von Konsistenzargumenten in der Rechtsprechung

Many courts use consistency arguments when they have to resolve conflicts of competing legal principles. The use of consistency arguments by the German Constitutional Court has recently been heavily criticized in the German constitutional law scholarship. Consistency requirements are perceived as additional rationality demands that misconceive the nature of the political process. This contribution compares the use of consistency arguments by the German constitutional court with similar tendencies in the case law of the European Court of Justice and WTO Appellate Body. This comparison reveals a different perspective on the nature and function of consistency arguments. Consistency is not a material standard, but a procedural instrument to control the legislature. When the legislature tries to limit constitutional rights or fundamental freedoms, it has to justify this restriction. In this context, consistency is an indication whether the aim mentioned in the explicit justification, is indeed the reason for the limitation. If the implementation of the measure is inconsistent, courts take this as an indication that the legislator tried to privilege specific societal actors to the detriment of groups, which are insufficiently represented in the legislative process.