ABSTRACT
Law-making as a judicial activity? At first glance, such a notion seems contradictory. But a closer look at the constitutional court’s task reveals that the distinction is more delicate. While the German Federal Constitutional Court does not establish legal norms such as regulations or statutes, it still develops law at both the constitutional and sub-constitutional level. Based on this understanding, the question arises as to how the Court actually proceeds when it identifies and objects to violations of the Basic Law. What fundamental conditions influence this decision-making process? On that basis, when does a decision surpass the realms of mere application and amount to a law-making activity? These questions will be dealt with in three steps: firstly, the Court’s historical, institutional, and organizational setting is outlined; secondly, important stages of the law-making activity in the Court’s case law are presented; thirdly, the Court’s style of reasoning and its legal cultural setting in the context of its law-making activities are assessed.
