Compensation through procedure. On the forms of, need for and limits to the proceduralisation of administratve and constitutional law.

• Applicant: Dr. Jochen Rauber
• Subject Area: Public Law
• Term: since 2020
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 428548823

The aim of the research project is to analyse the “compensation through procedure”-thesis, which is widespread in administrative and constitutional law. The core of this thesis is the notion that the procedural containment of state decisions compensates for the fact that substantive-law requirements only weakly determine the content of the decision.In a study that compares administrative and legislative procedures, I would like to examine this compensation thesis in more detail: Which types of procedural obligations are supposed to counterbalance the administrative and legislative margins of decision-making and to what extent do they actually fulfil this compensatory purpose? Is it legally required to have a compensating influence on state decision-making processes by means of procedural obligations? What limits does constitutional law draw on the attempt to abandon legal requirements regarding the content of state decisions and to compensate for their absence by procedural obligations? And in view of this, should the canon of procedural functions be supplemented by an independent compensation function? I will develop the answers to these questions in six steps: The first step will define the basic concepts “procedure” and “compensation”. In the second step, I will develop a comprehensive typology of compensating procedural obligations, which classifies the forms of procedural compensation instruments in both administrative and constitutional law. This is based on an analysis of representative fields of administrative law as well as on an evaluation of constitutional court jurisprudence concerning legislative procedural obligations. Using this typology, I will examine whether the idea of compensation accurately describes the relationship between procedural and content-related specifications. For this purpose, the third step draws on the predominant functional reading of the compensation thesis and will show, taking into account findings in behavioural and political science, to what extent the identified procedural obligations can fulfil the functions originally intended for substantive law (e. g. steering, control, legitimation function). In contrast, the fourth and fifth step will introduce a normative reading of the compensation idea in order to elaborate its legal dimension. They will demonstrate to what extent constitutional law requires a minimum degree of substantive regulation at all, and analyse whether the respective constitutional provisions also allow for an alternative fulfilment through procedural requirements in case substantive regulations fall short of this minimum. Based on this, I will examine the conclusions that can be drawn from this for the relationship between substantive law and procedural law in general and assess to what extent the idea of compensation can be used not only descriptively but also normatively, i.e. to justify the judicial development of unwritten procedural requirements.

• DFG Programme: Research Grants