Due Process und Grundrechtsschutz durch Verfahren. Eine vergleichende Untersuchung zum amerikanischen und deutschen Verwaltungsverfahrensrecht

Due process constitutes one of the corner stones of US-American legal thinking. The so-called due process clauses in the 5th and 14th Amendments to the Constitution of the United States elevate that principle to constitutional rank. Even though many aspects of administrative and judicial process and procedure are nowadays laid down in statutory law, the Constitutional provisions still serve as central points of reference for US administrative law. The clauses make sure that individuals will be heard before decisions are made that affect their rights or interests and that they can influence – above all – the finding of facts that leads to those decisions. To that end, procedural law provides individuals with several interrelated means of participation, thus emphasizing a concept of administration as a specific form of communication. German law, too, presents a long tradition of procedural rights, a tradition which is – curiously – often overlooked: detailed provisions on competences, neutrality and fact-finding can be found in old and oldest sectoral legislation, which modern codifications from the second half of the 20th century could built on. In many cases, procedural rules in Germany focus on structures and legality, and perhaps less on communication than American legislation does. Slightly, however, that rather formalistic approach was readjusted by the Bundesverfassungsgericht, when it developed the concept of Grundrechtsschutz durch Verwaltungsverfahren ('fundamental rights protection by administrative procedure'), therewith combining doctrinal legality and the ideal of liberty. German scholarship and jurisprudence should more broadly refer to that conceptional shift! That does not necessarily mean to create or modify specific procedural rules, but rather to interpret and apply existing law differently, e.g. by readjusting the idea that the administration must somehow dominate administrative procedures (Verfahrensherrschaft), or that the inquisitorial principle is as such an unalterable fact. Interestingly, when it comes to the core of specific right(s) deducible from the concept of due process, both legal orders do not differ significantly: the right to be heard is central both in US and German law, and it is especially well developed with regard to individual decision making. However, when we leave that 'core area' and ask what else is required by due process, again there is some remarkable concurrency: judges find it hard to define in concrete terms what else constitutes fair and reasonable process. Here we must positively recognize the efforts of lawmakers trying to carve out specific rules and must not discard the resulting statutory law all too easily as insufficiently 'fair'. It seems that German scholarship and jurisprudence find it easier than their US counterparts to recognize the value of statutory rules, but in America, too, clear cut statutory rules should be allowed to reduce – at least to some extent – far-reaching reliance on judge-made balancing tests. That might help increase the predictability of administrative conduct significantly. Finally and beyond their potential as basis for the deduction of specific procedural rules, due process and Grundrechtsschutz durch Verfahren encapsulate the ideal of rational administrative decision making, an ideal which should be allowed to further expand into hitherto unaffected areas of national and international administrative law.