16 September 2023

Bistable Perception

Yesterday was climate strike day, so this week’s editorial comes a day late.

I drove home a little melancholy yesterday after the demonstration at the Brandenburg Gate. Wir sind hier, wir sind laut, weil ihr uns die Zukunft klaut! (We are here, we are loud, because you are stealing our future!) That has been the signature chant of the FFF demonstrations for these five last years. We weren’t that loud actually yesterday, truth be told. As much as the people at the microphones struggled to whip up some passion, in the back where I stood the chants rarely went beyond an embarrassed murmur. The momentum is pretty much gone, I guess. We weren’t loud. But we were there, at least. The NGOs, the young, the old, they were there. I also saw many of the Last Generation, who plans to pick up its traffic-blocking actions again in Berlin on Monday. In the 70s, with the momentum of 1968 gone, the protest movement quickly splintered into a thousand hostile pieces. There is nothing of that sort in these loamy, sad times at least. It sticks together. That’s something.

The momentum is with the AfD now. In Thuringia, the CDU has made common cause with it to form a joint majority in the state parliament and jointly enact a law to lower a real-estate tax. The CDU, indignantly proclaiming its innocence, argues that it’s not their fault if others also approve of what is important to them. As if politics in a democracy consisted of someone proposing something and looking around to see who else is going along with it. As if politics in a democracy didn’t first and foremost consist of organising majorities. As if it weren’t the most political of all questions who and which interests one forms an alliance with and against. As if the CDU wanted to take us for fools.


In eigener Sache: Wir suchen baldmöglichst eine KOMMUNIKATIONSMANAGER*IN (20 h / Woche).

Näheres dazu hier.

Bitte gerne weiterverbreiten! 


In Israel, the party that until not so long ago could be considered something like the equivalent of the CDU in the party spectrum there, has entered into an alliance to establish a theocracy in Israel and an apartheid regime in the occupied territories. Preventing the courts from preventing them from doing so is a central goal of this government, which is why it has passed an amendment to the Basic Law: Judiciary with its majority in the Knesset, according to which courts may no longer annul most actions of this government on the basis of their „unreasonableness“ in future. Whether this amendment to the Basic Law is in turn substantively constitutional was heard this week before the Supreme Court.

If one looks at this constellation – as anyone with an interest in democracy and the rule of law should – what does one see? A strictly legal procedure to measure government action against the yardstick of constitutional law before an independent and impartial court? A power struggle between two ambitious political actors, the government and the Supreme Court? A court usurping powers by presuming to judge the validity of constitutional law itself? A government usurping powers by striving to get rid of judicial control over the justifiability of its actions?

Earlier this week, a journalist I know called me to discuss what to make of this constellation. Under the rule of law, he said, the Constitutional Court must always have the last word. That’s right, I said, and in a democracy, parliament must always have the last word. Both is true, both is mutually exclusive, and that is precisely the genius of the whole thing. Not to resolve the dilemma in one direction or the other, but on the contrary to make that tension permanent and productive, so that we, with our countless different and conflicting interests, can still get legitimate collectively binding decisions made without having to oppress and inflict violence on each other all the time – that is what characterises a functioning constitutional democracy. That is what we have it for in the first place.

Psychology has long been fascinated by so-called ambiguous images (Kippfiguren): in the same drawing, for example, one moment you see a young woman or a rabbit, the next you see an old woman or a duck. The interesting thing is that this perception can be quite stable and it takes quite an effort to switch from one to the other (for other examples, see here or here). All the while, both images are right there in the same drawing, and it is the human brain that constructs from the same lines and dots that young / old woman, that rabbit / duck, and strives to keep this once-constructed reality stable instead of letting it constantly tip over into the other and back again. (Recommended reading on the remarkable tenacity of convictions true and false in general: the fascinating book Die  Illusion der Vernunft by my friend Philipp Sterzer.)


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With this, as with every human need, politics can be made. Once a part of the population has been made to perceive the court system as a political opponent striving for power, this perception keeps stabilising itself: One is inclined to perceive everything one sees as a confirmation of the initial thesis and every judgement with which the judiciary calls the attack against it contrary to the rule of law and illegal as proof that these attacks were well justified to begin with. Once the political battle has been fought and won, the perception tilts. Suddenly, the enemy of a moment ago is perceived as a judicial body above all politics again, and all those who dispute this perception, as lawbreakers. The Kippfigur as such, the dilemma, is inescapable. The decision to specifically and strategically exploit it to gain and consolidate one’s power, however, is not.

It is this kind of politics that has infected constitutional democracy like a plague in so many countries in recent years, in Venezuela, in Hungary, in Poland, in the USA. It is not only a political problem, but a legal one, too. It runs against the condition of the possibility of constitutional democracy and thus cannot be constitutional. The Israeli Supreme Court is likely to come to a similar conclusion in one form or another, I’m told. Rightly so.

The Week on Verfassungsblog

For those who want to understand what is at stake in the Israeli Supreme Court case, RIVKA WEILL has plenty of answers. BARAK MEDINA highlights the uniqueness of this case and considers it very likely that the Court will overturn the Basic Law Amendment.

Official Jewish reactions in Germany to Bavarian Prime Minister Markus Söder’s decision to keep his deputy Hubert Aiwanger in office despite the revelation his possible Nazi past and his petulant reaction to it have been strangely ambivalent. STEFANIE SCHÜLER-SPRINGORUM considers this ambivalence to be entirely consistent with the policy of the Jewish representatives of seeking the best possible, albeit always precarious, protection in a close relationship with those in power – which, however, is now in question: „If my memory does not deceive me, this is the first time in decades that an anti-Semitism scandal has not damaged a person but, on the contrary, strengthened him. While it is perhaps too early to speak of a turning point, this is nevertheless extremely worrying.“

Do opponents of vaccination who agitate against Corona measures with the slogan „Impfung macht frei“ (an obvious allusion to the Auschwitz gate inscription) trivialise the Holocaust? The Berlin-Brandenburg Regional Labour Court did not see this slogan as sufficient reason to dismiss a teacher. ANDREAS FISCHER-LESCANO’s critique of this decision appears as a preprint from the „Recht gegen Rechts“ report 2024.

The federal government wants to weaken the Climate Protection Act – that was what we were demonstrating against yesterday – and abolish the sector-specific targets for CO2 savings. Does this violate the climate protection ruling of the Federal Constitutional Court? Some say it does. WOLFGANG HECKER argues, though, that it does not.

In a special case of civil resistance, our friend Arne Semsrott of FragdenStaat.de has committed a breach of the law by publishing orders from a Munich court from the proceedings against members of the Last Generation. This is a criminal offence according to § 353d no. 3 StGB. Arne considers this law unconstitutional, and so do JENS PUSCHKE and PASCALE FETT: such interference with freedom of expression, information and the press is disproportionate.

The federal government intends to ban the way hundreds of thousands of cattle are held in stables in Germany: confined to a single spot for their entire lives where they cannot move. JENS BÜLTE, JOHANNA HAHN and JOSEF TROXLER argue that this practice is actually illegal under animal welfare law even without any legislative change.


The Max Planck Institute for Comparative Public Law and International Law is now accepting submissions for its conference on “70 Years of EU Law: Continuity and Discontinuity” (1-3 February 2024).

The conference will discuss the development of EU law in a historical perspective, taking as a starting point a recent book by the European Commission’s Legal Service.

Abstract proposals should be submitted via e-mail to mazzotti@mpil.de (deadline: 8 October 2023).

Further information is available here.


In France, Muslim girls and women are not only no longer allowed to wear abayas to school, but new restrictions are also in place for attorneys who are no longer allowed to wear headscarves in court. MAXIMILIAN GERHOLD notes that this binds the legal profession to the principle of laicité as if it were part of the state and not a free profession, and subjects this observation to a German-French constitutional comparison.

The French ban on buying sex is under review by the European Court of Human Rights. ELISABETH GREIF examines what the decision from Strasbourg to allow complaints from several sex workers means, and what to make of the ban in general.

Meanwhile, the European Court in Luxembourg had the opportunity to rule on the complicity of the EU’s scandal-ridden border agency Frontex in the most egregious human rights abuses, but chose not to: If Frontex had not participated in illegal pushbacks, the argument goes, the victims would still not have received protection in the EU for a long time, so their complicity can’t be causal to any damage they suffered. JOYCE DE CONINCK is gutting this argument.

If certain EU citizens need visa for the US, must the EU also require a visa from US citizens? No, says the ECJ, emphasising the Commission’s broad discretion. JONAS BORNEMANN regrets the missed opportunity to install some sense of urgency in the Commission to ensure more equal treatment for EU citizens.

In Indonesia, 200 million voters will decide on the successor to President Joko Widodo next year, and preparations are underway also in the Indonesian Constitutional Court. RAFSI ALBAR analyses a series of cases brought by supporters and allies of the incumbent, and the threats they pose to the integrity of democracy and the independence of the court.

Following analyses by ARNE PILNIOK and HEINRICH LANG, our blog symposium on parliamentary decisions on their own behalf turns in the pol-sci direction: ULRICH SIEBERER argues that such decisions are less problematic when they are subject to political competition. MICHAEL KOß looks at the role of the Federal Constitutional Court in this. And DANIEL HELLBERG asks whether the rules of electoral organisation are suitable as a blueprint for dealing with the problem.

That’s all for now. All the best to and see you next week!

Max Steinbeis

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SUGGESTED CITATION  Steinbeis, Maximilian: Bistable Perception, VerfBlog, 2023/9/16, https://verfassungsblog.de/bistable-perception/, DOI: 10.17176/20230916-220840-0.

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