On April 18, 2023, the German Federal Constitutional Court in Karlsruhe held an oral hearing on the constitutionality of the 2020 reform of the Federal Election Act. This was prompted by the application for abstract review of the law submitted by the opposition at the time—the parties FDP, DIE GRÜNEN and DIE LINKE. In addition to the effects of the law on the electoral equality and equal opportunities of the parties, the judges of the Second Senate focused on the comprehensibility, clarity and certainty of the law.
Emanuel V. Towfigh was invited to this hearing as a third party expert on the dogmatic foundations of certainty and clarity of norms.
The ruling has now been published on November 29, 2023:
His essay »Komplexität und Normenklarheit – oder: Gesetze sind für Juristen gemacht« (Complexity and clarity of norms—or: Laws are made for lawyers), which appeared in 2009 in the German magazine Der Staat (the German newspaper F.A.Z. had already reported on it), and the essay »Nur erst, wenn dir die Form ganz klar ist, wird dir der Geist klar werden« (Only when the form is completely clear, will the spirit become clear to you) from 2015, published in the educational magazine Juristische Arbeitsblätter (JA), served as the basis for the remarks.
»The electoral law is complex and difficult to understand. Whether it is so incomprehensible that it must be described as unconstitutional is a matter for the Federal Constitutional Court to clarify. That depends on whether one looks to the average voter or to experts in electoral law. In my opinion, professional expertise is always necessary to understand the law—in case of doubt, one simply has to seek advice. This is no different in electoral law. However, the question now arises as to whether experts can still understand electoral law. I have my doubts about that.«
The German newspaper taz of 18.04.2023 reports on the trial:
Law professor Emanuel V. Towfigh became fundamental: »The legal situation in a modern society is necessarily complex.« Legislation cannot be so simple that all citizens understand it. When it comes down to it, he said, one must simply seek advice. He warned against the »populist misunderstanding« that a detached legal elite is marginalizing citizens.
The matter was also covered by the following media: Tagesschau, ZDF, ZEIT Online, F.A.Z. (paywall), NZZ, Augsburger Allgemeine and stern.
Details on the oral hearing in the matter of »Normenkontrolle Bundeswahlrecht« (Review of Federal Election Law) are also available on the website of the BVerfG.
[Translated by DeepL]