Maßstabsinterpretation

Constitutional law is, to a large extent, judge-made law. But how should constitutional court standards be interpreted? To what extent can they be generalized, and to what extent must they be contextualized, historicized, and relativized? Drawing on pragmatist theories of methodological choice, Simon Pielhoff develops an approach to interpreting standards that navigates between historicization and abstraction. Building on the work of, among others, Ronald Dworkin, Joseph Raz, and Scott Shapiro, he reconstructs a "teleological argument" for methodological choice. According to this argument, norms should be interpreted using a method that brings to bear the functions for which we follow those norms. Methods must therefore pass a pragmatist test: they must prove themselves through their consequences. If constitutional court standards serve to simplify and harmonize the application of the constitution and to allocate competences, interpretive methods should enable them to fulfil these functions. Pielhoff argues that this approach to methodological choice is particularly well suited to identifying a method for interpreting standards. As an "incompletely theorized agreement," it provides common ground among the positions in the debate on standard interpretation. The teleological argument supports understanding constitutional court standards as norms with implicit escape clauses. Standards can be applied abstractly but always reserve the possibility of deviation. Accordingly, their binding force is differentiated: it varies depending on the form of the standard, its degree of abstraction, and the identity of the interpreter. Moreover, deviation from standards that are unconvincing in a particular application context is always envisaged, without thereby disregarding the standard itself. After developing this "exit method," Pielhoff uses pragmatist criteria to criticize both the methodological proposal of historicizing relativization of standards and the practice of their abstracting application.