Skip to Main Content

Traditions and Transformations: The Rise of German Constitutionalism

Online ISBN:
9780191799587
Print ISBN:
9780198735427
Publisher:
Oxford University Press
Book

Traditions and Transformations: The Rise of German Constitutionalism

Michaela Hailbronner
Michaela Hailbronner

Humboldt Research Fellow

Senior Researcher, Institute for Comparative and International Law in Africa, University of Pretoria
Find on
Published online:
17 December 2015
Published in print:
1 October 2015
Online ISBN:
9780191799587
Print ISBN:
9780198735427
Publisher:
Oxford University Press

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.

Contents
Close
This Feature Is Available To Subscribers Only

Sign In or Create an Account

Close

This PDF is available to Subscribers Only

View Article Abstract & Purchase Options

For full access to this pdf, sign in to an existing account, or purchase an annual subscription.

Close