Decision-making in the German Federal Constitutional Court (FCC) is a most collegial and collaborative enterprise. A great deal of time is devoted to discussion in conference. I have never seen a discussion end unless there was agreement that continuing it would not take the Court any further. Even objections by small minorities or by a single panel member are never just passed over as irrelevant. None of the judges, including the President, are immune from having their arguments dismantled and their draft texts rewritten. Much effort is made to find consensus. Where a concern does not prevail, it will at least be taken seriously, not just in conference, but also in the reasons of the resulting decision.

VIRTUES OF DELIBERATIVE, CONSENSUS-ORIENTED DECISION-MAKING

The fact that the German FCC works in a deliberative, consensus-oriented way may not universally be regarded as a recommendation for that practice. To the majority of lawyers in some countries, the FCC is a bête noire rather than a model: too activist, too talkative, and cultivating an awkward and sometimes opaque language.

As to the language, it must be admitted that reading decisions of the FCC in English can be a torment. But that is mainly a problem of translation by interpreters who, understandably, hardly dare to depart from a literal wordby- word and sentence-by-sentence transposition of the text, thus adding the complications and circumbendibuses of one language to those of the other. In the case of German-to-English translations, the result is often not simply inelegant, but downright repulsive, and sometimes hardly comprehensible. The FCC has been working on improving this situation for some time, but the problem is unlikely to be resolved in a perfectly satisfactory way. German grammar offers tools of elegant compression which make it possible to pack sentences with much more information than would fit into a tolerable English sentence. Untying sentences in apex court judgments will, however, usually require more judgement and self-assurance in the matter than can be expected from anyone but the Justices themselves.

As far as accusations of excessive activism and deficient succinctness are concerned, there is no need, for the purposes of this chapter, to discuss whether there is something to them, because if there was, this would have very little to do with the Court‘s culture of deliberative, consensus-oriented decision-making.