Traditions and Transformations: The Rise of German Constitutionalism
Traditions and Transformations: The Rise of German Constitutionalism
Humboldt Research Fellow
Cite
Abstract
German constitutionalism has gained a central place in the global comparative debate, but what underpins it remains imperfectly understood. Its distinctive conception of the rule of law and the widespread support for its powerful Constitutional Court are typically explained in two ways: as a story of change in a reaction to National-Socialism or as the continuation of an older nineteenth-century line of constitutional thought. But while both narratives account for some important features, their explanatory value is ultimately overrated. This book adopts a broader comparative perspective to understand the rise of the German Constitutional Court. It interprets the particular features of German constitutional jurisprudence and the Court’s strength as a reconciliation of two different legal paradigms: first, a hierarchical legal culture as described by Mirjan Damaška as opposed to a more coordinate understanding of legal authority such as prevails in the United States; and second, the turn towards a transformative model of constitutionalism, as it is today most often associated with countries such as South Africa and India. Using post-war legal history, sociological and empirical research, as well as case-law, the book demonstrates how German constitutionalism has harmonized the frequently conflicting demands of these two legal paradigms—resulting in a distinctive type of constitutional reasoning, at once pragmatic, open, formalist, and technical, which this book labels Value Formalism. Value Formalism, however, also comes with serious drawbacks, such as a lack of institutional self-reflection in the Court’s jurisprudence and a closure of constitutional discourse towards laymen.
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Front Matter
- Introduction
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1
Constitutional Paradigms and Judicial Authority
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2
Transitions and Transformations: towards Activist Constitutionalism
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3
Hierarchical Authority in German Constitutional Law: the Constitutional Court between Law and Politics
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4
Value Formalism
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5
Judicial Self-reflection and Institutional Awareness
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6
We the Lawyers—Dialogue and Constitutional Patriotism
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Conclusion
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End Matter
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