Leitbildorientierte Verfassungsanwendung

The article puts forward the thesis that the application of the German constitution – and most likely of a number of other constitutions too – is often directed by implicit or explicit guide-images (»Leitbilder«) which have grown to be more important for this application today than the classical techniques of grammatical, historical, systematical and teleological interpretation. These images fill the sentences, principles and institutes of the constitution with content and substance, so that they themselves have become part of the legal order and are able to deploy a specific effect on it. In addition, they function as a bridge to empirical study as well as to the shared convictions of justice with in a society, which thus become relevant for the daily processing of law itself. The article deals with this thesis in four steps. At first, it gives a description of the concepts of democracy, public opinion making and political parties the way they have been shaped by the Federal Constitutional Court, since they can serve as an example for the development on the whole. In a second step, the respective images are distinguished from similar concepts, particularly from constitutional principles and values, and their characteristics are specified. In a following third step the assets and drawbacks of working with them are analyzed: On the one hand, the recurrence to such images legitimizes constitutional decisions and increases the acceptance of the constitution altogether. On the other hand, the constitution loses a part of its former normativity while being merged with the society's assumptions of justice and appropriateness. At the same time the results of the application of the law become more variable at will and harder to predict. Considerung this, in a fourth and last step possibilities to rationalize the handling of guide-images and to put them on a more reliable basis are searched. As a summary of the results it can be said that by dealing with and frequently recurring to these images the constitution itself today appears at its basis as a communicative structure that only exists in what is noticed of it, thought about and put into words.