Judicialization of politics means that more and more political questions are decided by courts and thereby political alternatives are reduced. In Germany it is the Federal Constitutional Court that is most involved in this process of judicialization. Members of Parliament contribute to this development by litigating far too often a lawsuit before the Constitutional Court and by carrying too far the consideration of legal arguments in legislation. Judges of the Constitutional Court contribute to the judicialization by sometimes exceeding their competences and by becoming involved in power politics. As the Constitutional Court has only a limited democratic legitimacy, it is detrimental to a democracy when such a court frequently decides on policy-making.

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THE HISTORICAL EXPERIENCE OF THE SURRENDER OF LEGAL positivism to the prevalence of injustice under the nazi regime and the concern to create a real federation led the founding fathers of the Federal Republic of Germany to create the most powerful Constitutional Court in the world for the control of the formal and material constitutionality of laws.This Court, a supreme constitutional organ like the Bundestag and the Bundesrat, is organized in two chambers, called Senates. The First Senate has jurisdiction over basic rights, the Second Senate decides all questions of political disputes. Though the Court only acts on request, it does nevertheless play an active role in shaping politics and policy output. The jurisdiction of this Court is the ‘authentic interpretation of the Constitution’ and it cannot be qualified as normal jurisdiction, because many provisions of the Basic Law are open to different interpretations and call for a reference to sources and premises beyond the document itself.

This article examines the hypothesis that the impact of difference of ideas and interests on European constitution making can, under certain conditions, be a positive potential for legitimate and effective constitution making. The prerequisite conditions include actors that take differences seriously, structures of constitution making that are suitable for recognising differences, and processes of constitution making in which actors deal with differences in a democratic and communicative way. The analytical approach will be applied to the European Convention. Two case studies concerning the Convention's work will be examined: the process of decision-making that led to the protocol on national parliaments and the decision-making process concerning a permanent president of the European Council. Both case studies give evidence that the way in which members of the Convention were dealing with difference influenced the degree to which the positive potential of difference was activated for a legitimate and effective European constitutional treaty.

Decision-making processes within the European Union are often to be teclinocratic in nature. This article challenges this assumption upon conceptual and empirical grounds. Whilst in the European regulatory Jield of biotecllnologyo politicians often seek to deJine political issues as tecknical questions and SO may successfu1ly evade necessary but time-consuming legislative processes through the means 0 f Comitology; the diverse mixture Of national, supranational, technocratic and political interests within the Commission, Council, Parliament and committees, determines that social and ethical criteria do Play a role in European regulation. Relating such specific Jindings to the broader question of European governance, it migllt tl1us be argued that the European Union is more than a technocratic regime, and does more titan promote negative integration. However, the political' within European decision-making needs nonetheless to be strengthened to ensure the necessary and continued inclusion within such regulatory processes of social and ethical rationalities to complement rite economic rationality of the internal market. ~ Ladeur. 'Supra-und transnationale Tendenzen in der Europlisierung des Verwaltungsrechtseine Skizze' in 3, E~rropart~ch/. 1995. 244. arguing that too much attention has been paid to such a dichotomy. Bucker/JoergeslNeyerlSchlacke. 'Social Regulation through European Committees: An Interdisciplinary Agenda and Two Fields of Research'. in R. PedlerlC. Schifer (eds). SliupinR Europrcm LUW crncl P o l i~:~) . The Role (I/ Ciimnirf,w.r und Conii~d(~#.v in lhe Pfdrlicul P r o r m . (European Institute of Public Administration, 1996). 55. speak of 'executive legislation within a multi-level system'. Kohler-Koch, 'Die Ciestaltungsmacht organisierter heressen'. in M. JachtenfuchdB. Kohler-Koch. (eds). EurrJptr.cclic, In/c,,qrcr/ron. ( Leske & Budrich, 1996). 204. 5Scharpf, 'Politische Optionen im vollendeten Binnenmarkt', in in M. JachtenfuchslB. Kohler-Koch. (eds). Europursdie Inlegrulion. op ril, n 4. 109. "Lepsius. 'Institutionenanalyx und lnstitutionenpolitik'. in B. Nedelmann (ed), 'Politische lnstitutionen im Wandel'. Special Issue. 35 KZ/SS 1995. 401. Ihrrl, 403. 256 A Blackwell Publishers Ltd. 1997 25 COM(95) 640 final of December 6. 1995. 26 Ehlermann. 'Die institutloneIIe Entwicklung der EG unter der Einheitlichen Europaischen Akte', in 41 :2 AirJenpolirik 1990. I40 and 144. 27 Case C-156/93, [l99S] ECR 1-2019. 2x /bid. *') Cf. EP ammendement no. 14 to Article 1 on the Chnmission PrOpOSdl for a directive on novel food (COM(92) 295) fin the Report of the EP Committee on the Environment, Public Health and Consumer Protection, Session Document A3-024493, PE 202.785 fin. 1o Suleiman, 'The Politics of hlvatization in Britain and France', in E. SuleimadJ. Waterbury (eds), ThC Pofitrcut Econonty (4' puhijc Secror Re/iirn? und Priwtizurion. (Westview Press 1990). 129. '1 0. I [ohmeyer el (11, /nrernarronule Regulierung drr Genteclmik. Pruklisrhe ErJahrungen in Jupun, den USA und Euriipu. (Physika-Verlag 1...