On a global level, we are witnessing a revitalisation of religion, which also includes a re-politisation of religion, particularly within contemporary Islam. Religion has become, once again, a political topos. The secularised western world is thus facing a new challenge, for which it appears to be inadequately prepared. The idea of freedom of religion, guaranteed as a fundamental right, obliges western democratic states to respect the religious activities of their citizens and to secure their free development. Therefore, the state is principally neither allowed to favour nor to discriminate against certain professions of faith. This concept of equidistance is known as the principle of state neutrality: it commits the state to generally withdraw from religious issues, especially the political act of defining what can legitimately be classified as religion and religious behaviour. The leeway given to the self-conception of religious groups by the German Federal Constitutional Court and its wide understanding of what kind of behaviour has a direct relationship to faith and therefore deserves protection by the freedom of religion, is to be understood against the context of this general principle. However, with regard to the new challenges mentioned above, the neutrality principle increasingly serves yet another purpose. The courts use it as an exit-option in order to avoid addressing problems which appear to be too complex for the law relegating religion to sociological study. In this context, state neutrality merely functions as a chiffre for indifference. But this strategy of avoidance, though understandable in the light of the complexity of religious pluralism, undermines the law's function of conflict resolution. Furthermore, it neither corresponds to the historical development nor to the functional aspects of the idea of religious freedom.

Before delving into the details of a specific German theory of sentencing, this first section attempts to very briefly outline the general framework of the sentencing process according to German law.

German law is codified law. This means that not only the individual crimes are laid down in the German Criminal Code, but also the general principles concerning sentencing are contained therein. The constitutional basis of the sentencing structure can be drawn from the notion of the Rechtsstaat, which can be translated with the term “rule of law.” This principle, which is laid down in Article 20 § 1 Grundgesetz (German Constitution – GG), encompasses the culpability-principle, under which the punishment must be proportionate to the individual guilt of the offender. Thus, section 46 § I of the Criminal Code (Strafgesetzbuch – StGB) reads: “the guilt of the perpetrator is the foundation for determining punishment.” The culpability-principle is a specific expression of the proportionality principle, which is also a constitutional requirement of the “rule of law.”

The rise of right-wing extremism in Germany since the beginning of the 1990s corresponds with an increasing number of propaganda offences, escalating from 8337 reported cases in 2004 up to 10881 in 2005. Also, the provision against the use of symbols of unconstitutional organizations, Section 86a Strafgesetzbuch (Criminal Code [StGB]), became increasingly important. The following essay will explain the aims and structure, the constitutional background and the main practical problems of applying this prescription.

The recent decision by the Federal Constitutional Court (Bundesverfassungsgericht) should please everyone concerned with sound constitutional and administrative law doctrine and the proper exercise of judicial functions. It should also please public procurement authorities and successful bidders; however, it will undoubtedly displease many attorneys and losing bidders.

“For, he reasons pointedly, that which must not cannot be:” the last two lines of a famous poem by Christian Morgenstern bring the crux of normativity to the point: what is the relationship between facts and norms? The research of the past decades has increased rather than reduced the complexity of this fundamental question for legal theory. First of all, the relationship between facts and norms is still less than clear. Hans Kelsen had argued that facts and norms were to be clearly separated, but once the Grundnorm (basic norm) had turned out to be fictitious, the search for an appropriate description of the relationship between facts and norms began anew. Positivists after Kelsen based normativity on different facts, such as social acceptance or social discourse. Secondly, research on new modes of governance, in particular in the fields of European and international law, has revealed that behaviour can be influenced by “soft” norms and non-normative forms of governance just as much as by “hard” law. These results prompted some to consider legal normativity a matter of degree instead of an on-off issue.