Interpretation and application of constitutional law are often influenced by theoretical presuppositions, which then finally determine the content of constitutional law . In particular this can be observed in the periphery of the democratic principle where it not only shapes the legal view on the principle as such but also on related institutions and organizations (like parliament, government, political parties etc .) . In its recent judgment on the status and the rights of parliamentary opposition the Federal Constitutional Court, however, backed away from any perception of opposition as a theoretical phenomenon; instead, it turned to purely formal and positivist handling of the case brought forward to it . Moreover it broke opposition down from a basically collective phenomenon to a mainly individual attitude of any single MP, thus depriving it from any practical political effect . The article analyzes the judgment and confronts it with the Court’s reverse approach in other fields; the question then is why the Court refused to do here what it usually does in other cases . An explanation may be found in the prevailing theory of democracy itself which in Germany by a long tradition focuses mainly on the effective functioning of government and, in addition, is highly consensus-oriented, leaving hardly any space for genuine, not to speak of merely obstructing opposition .
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