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1
Fröschl, Thomas. "Rezeption und Einfluss der American Constitution in den deutschen Verfassungsdebatten, 1789 bis 1949." Journal of Modern European History 6, no. 1 (March 2008): 38–57. http://dx.doi.org/10.17104/1611-8944_2008_1_38.
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Perception and Impact of the American Constitution on German Constitutional Debates, 1789–1949 This article considers the impact of the American federal constitution of 1787 on German constitutional debates. Its prime chronological focus is on the nineteenth century, as this time period has so far received relatively little systematic scholarly attention. The article examines both the political rhetoric that emphasised – and often exaggerated – American influences and the practical impact these debates had on constitutions in German-speaking countries. The article highlights the extreme complexity of such developments, with very widely different perceptions of what ‹America› stood for, being used as a reference point in constitutional debates. The direct impact of American constitutional thinking on the structure and design of constitutions in German countries remained, however, very limited. It was only after the unconditional surrender of National Socialist Germany that a constitutional order emerged in the Federal Republic in 1949 that embodied significant elements of American (or more generally ‹Western›) constitutional thought, most importantly in the provisions for ‹basic rights› and a Federal Constitutional Court in the West German Basic Law.
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Rausch, Fabian. "«Constitutional Fever»? Constitutional Integration in Post-Revolutionary France, Great Britain and Germany, 1814–c.1835." Journal of Modern European History 15, no. 2 (May 2017): 221–42. http://dx.doi.org/10.17104/1611-8944-2017-2-221.
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«Constitutional Fever»? Constitutional Integration in Post-Revolutionary France, Great Britain and Germany, 1814–c.1835 This article proposes a comparative perspective on the role of constitutions in European political cultures from 1814 to c.1835. Through its analysis of constitutions first as a means to legitimising post-revolutionary monarchies, and secondly as a means to integrating the divided societies in France, Great Britain as well as the German states, this article suggests two major results: 1) Constitutions were a central instrument that was imagined by post-revolutionary European societies in order to open up an «evolutionary» path to political progress and thereby finally «end» or «prevent» further revolutionary changes. 2) The major challenges to constitutional integration were posed by the emergence of competing political groups that often demanded a strengthening of certain parts of the constitutions or their further reform. The problems, which were faced by almost all political actors regarding the acceptance of these new imperatives of party politics and the different constitutional «solutions» that they had developed to meet these challenges, provide explanations for the different constitutional paths that were taken by Great Britain, the German states and France during the early 1830s. In Great Britain, a common constitutionalist language enabled a precarious understanding amongst the competing groups, whereas anti-pluralist constitutional conceptions led to constitutional instability in France and even damaged the very idea of constitutional integration in Germany thus benefitting a «unification first»-approach in the German states.
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Stefanovski, Mirjana. "Radivoje Milojkovic’s 1867 constitution draft." Zbornik Matice srpske za drustvene nauke, no. 138 (2012): 1–16. http://dx.doi.org/10.2298/zmsdn1238001s.
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As an authoritative work of an excellently educated writer well acquainted with constitutional theory and foreign constitutional solutions, Milojkovic?s draft constitution is also a product of a serious political reasoning. That draft deserves a particular and very important role in the nineteenth century constitutional history of Serbia. It is an evidence of the character of constitutional transformation prepared during the last years of Prince Mihailo?s reign. Taken for the specimen during the enacting of Regent Constitution of 1869, which followed it in its basic concept, composition of constitutional solutions and framing of more important institutions, that draft determined adoption of the model of constitutional monarchy in Serbia. By catching sight of the Saxony?s Constitution of 1831, it transfers basic German constitutional model, supplemented by taking into consideration other European constitutions. Its distinction is an attempt to adapt foreign model mostly to particular circumstances of the country and to implement harmoniously new institutions in accordance to the Serbian constitutional tradition.
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MAIER, CLARA. "THE WEIMAR ORIGINS OF THE WEST GERMAN RECHTSSTAAT, 1919–1969." Historical Journal 62, no. 4 (August 29, 2019): 1069–91. http://dx.doi.org/10.1017/s0018246x19000323.
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AbstractThe article explores the key components of the political project of West Germany and the role of the Rechtsstaat within it. It shows how the German Federal Republic developed a specific reading of the rule of law as an order founded on basic rights as supra-legal values and judicial authority, which had to be defended even against democratic government. This did not signify a departure from the constitutional theory of the Weimar period, as constitutional lawyers such as Gustav Radbruch and Carlo Schmid claimed at the time. Instead, the decisive innovations in constitutional thought stemmed from the Weimar era. Judicial review and basic rights had been instruments in a political and legal struggle over the social question and the boundaries of democratic decision-making in the 1920s. They had been invoked by conservative lawyers such as Carl Schmitt and been the subject of a substantial critique mounted by social democrat interpreters of the Weimar Constitution such as Hermann Heller and Franz Neumann. As such the Rechtsstaat, which is so strongly associated with the renewal of German democracy, carries with it a tradition of legal thought which systematically and successfully expanded judicial power to the detriment of the legislature and democratic action.
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Kurtishi, Emir. "The Constitutional Court of the Federal Republic of Germany." SEEU Review 15, no. 2 (December 1, 2020): 143–55. http://dx.doi.org/10.2478/seeur-2020-0023.
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Abstract Decisions made so far by the Federal Constitutional Court of Germany have always been characterized by their writing and content, even down to details, precision, accuracy, professional legal style of writing, always clear in the elaboration and adjudication of cases from its competence, but surprisingly, in our country, only a few have paid attention to the German Court in a scientific context, which can be seen from the only few materials we possess in the Albanian language. The purpose of this paper is to provide an overview of this Court, so that the comparative aspects can be made, highlighting its advantages and disadvantages, in case of dictating the state need for reform of the Constitutional Courts. Those who have institutionalized this constitutional institution know its value in the system of constitutional justice, which performs it in terms of protection of constitutions, its principles and value, and most importantly in the protection of freedoms and rights of human beings and citizens. The Federal Constitutional Court of Germany, to this date, has conveyed the efficiency of the protection of the German legal order, the serious approach and law interpretation, for the protection of freedoms and human rights, which ranks this court into a high level among all other powers in the German law system. The author, in the following paper, gives an overview of this Court starting with its history, organization and functioning, which today undoubtedly constitutes one of the most important constitutional courts in the world.
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Reutter, Werner. "German State Constitutional Courts." German Politics and Society 39, no. 2 (June 1, 2021): 1–21. http://dx.doi.org/10.3167/gps.2021.390201.
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The article shows that two constitutional principles govern the election of justices and the composition of the 16 German state constitutional courts: democracy and the separation of powers. The recruitment of candidates, the vote on nominees in state parliaments, and the composition of benches of the courts in question support this assumption. There is no evidence indicating that a partisan takeover of German state constitutional courts has taken place. In addition, the majorities required for an appointment of justices of state constitutional courts seem less crucial than is often assumed.
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de Wilde, Marc. "The state of emergency in the Weimar Republic Legal disputes over Article 48 of the Weimar Constitution." Tijdschrift voor Rechtsgeschiedenis / Revue d'Histoire du Droit / The Legal History Review 78, no. 1-2 (2010): 135–58. http://dx.doi.org/10.1163/157181910x487341.
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AbstractThe article analyzes the debate on 'constitutional dictatorship' that took place at the first annual conference of the Association of German Constitutional Lawyers in Jena in 1924. In their keynote lectures, Carl Schmitt and Erwin Jacobi argued that Article 48 of the Weimar Constitution authorized the President of the Reich to derogate from the rule-of-law provisions of the constitution if this was necessary to save its 'political substance'. Advocating a 'doctrine of derogation', they implicitly criticized one of the main methodological assumptions of legal positivism, i.e., that legal norms and politics, law and power, had to remain strictly separated. They thereby set the stage for the emerging 'conflict of methods and directions' that was to haunt German jurisprudence in subsequent years.
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Ogorek, Markus. "The Doctrine of Parliamentary Sovereignty in Comparative Perspective." German Law Journal 6, no. 6 (June 1, 2005): 967–80. http://dx.doi.org/10.1017/s207183220001405x.
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For the German-trained lawyer, the process of coming to terms with the constitutional law of the United Kingdom can be disconcerting. This disorientation arises principally because the study of constitutional law on the other side of the English Channel seems to lack an appropriate object to deal with. State order in the United Kingdom is not based on a definitive constitutional document created at a particular point in history which would be in any way comparable to the German constitutional document, the Basic Law (Grundgesetz). In spite of this, as Helmut Weber so aptly noted in a talk before the Centre for British Studies of Berlin's Humboldt University, “British textbooks on constitutional law […] are no less numerous and no less comprehensive than German textbooks onVerfassungsrecht”. This observation is not in the least surprising. Even though it may be disputed that a UK constitution exists in the narrower and more common continental European sense of the term, it cannot be denied that the learned discourse forming the body of constitutional scholarship in the United Kingdom is regarded by jurists not only in Europe, but in all corners of the globe, as an important standard for the scholarly examination of their own constitutional systems. This is certainly due in large measure not only to the centuries-old traditions of English constitutional law, but also to its striking intellectual depth and variety.
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Theil, Stefan. "What Red Lines, If Any, Do the Lisbon Judgments of European Constitutional Courts Draw for Future EU Integration?" German Law Journal 15, no. 4 (July 1, 2014): 599–635. http://dx.doi.org/10.1017/s2071832200019064.
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The lingering European financial crisis continues to threaten the Eurozone and, in the opinion of German Chancellor Angela Merkel, the very survival of the European idea. With this apocalyptic rhetoric, it is easily forgotten that only nine years earlier Europe overcame a predicament that was, at the time, equally described as the most challenging in its history. Two failed referendums in Member States of the European Union (Member States)—namely, in France and the Netherlands—stopped the Treaty establishing a Constitution for Europe (Constitutional Treaty) in its tracks and led to an extended “period of reflection” for Europe's leaders. From this emerged a reboot of the Constitutional Treaty, now dubbed the Treaty of Lisbon, with few substantial changes, but more success throughout the ratification procedures. The final hurdle presented itself in the form of institutionally strong Constitutional Courts (CC) and Tribunals (CT) of the European Member States. Of these, the following were at one time or another seized with complaints against the ratification of the Lisbon Treaty: The AustrianVerfassungsgerichtshof(Austrian CC), the Belgian CC, theÚstavní soud České republiky(Czech CC), the FrenchConseil Constitutionnel(French CC), the GermanBundesverfassungsgericht(German CC), the Hungarian CC, theLatvijas Republikas Satversmes tiesa(Latvian CC), the PolishTrybunał Konstytucyjny(Polish CT), and theTribunal Constitucional de España(Spanish CT).
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Reinkowski, Maurus. "Constitutional Patriotism in Lebanon." New Perspectives on Turkey 16 (1997): 63–85. http://dx.doi.org/10.1017/s0896634600002648.
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In this paper I will discuss the options of political identity the Lebanese have at their disposal against the background of the German experience. Germany and Lebanon, states at first glance completely different from each other, show some similarity in their historical experience. In the context of this comparison I will discuss constitutional patriotism, a political concept in circulation in Germany over the last fifteen years or so, and its potential application in the Lebanese case. Constitutional patriotism, unlike many other concepts originating in the West, has yet not entered the political vocabulary of the Middle East. The debate on democracy and the civil society is widespread in the whole of the Middle East, including Lebanon. Lebanon's political culture, polity and national identity, however, show some peculiar traits that might justify the introduction of the term constitutional patriotism into the Lebanese political debate.
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Martinico, Giuseppe. "Review Essay –Principles of European Constitutional Law (Armin Von Bogdandy & Jurgen Bast eds., 2006)." German Law Journal 10, no. 11 (November 1, 2009): 1551–60. http://dx.doi.org/10.1017/s207183220001837x.
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Recently the GermanBundesverfassungsgericht(Federal Constitutional Court) knocked on the European Union's door with its impressive judgment on the Lisbon Treaty, recalling all the weight of the German scholarship tradition steeped in the German dogmatic flavor: the attention to the history of sovereignty and the attempt to catch all the European Union constitutional system's life revealed the systemic approach peculiar to the German dogmatic scholarship.
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Heinig, Hans Michael. "The Political and the Basic Law'sSozialstaatPrinciple—Perspectives from Constitutional Law and Theory." German Law Journal 12, no. 11 (November 1, 2011): 1887–900. http://dx.doi.org/10.1017/s2071832200017624.
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The welfare state aspect is among the central characteristics of German statehood as established by the constitution. For the Basic Law's drafters, it was so indispensable that they included the mandate of a welfare state in the catalogue of constitutional principles which are to have eternal validity within the constitution and which could only be dispensed with at the cost of breaching the constitution, the cost of revolution (Article 79(3) of the Basic Law (Grundgesetzin German; hereinafter “GG”)). Article 79(3) GG codifies the distinction between constitution and constitutional provision made prominent by Carl Schmitt, whose constitutional doctrine of 1928 asserted that, while the constitutional legislature can amend an individual provision in the constitution, the constitution as a whole is not to be changed short of political action transcending the law, that is, a revolution. Article 79(3) GG takes up this idea, insulating certain features of the constitution from amendment. These features—outside all democratic reach and thus quasi depoliticized—include the inviolability of human dignity (Article 1(1) GG) and the nature of the state as a democracy, a republic, a federal state based on the rule of law, and a “social” state (Article 20(1) GG). On closer scrutiny, the principles underlying the state's structure reveal a significant difference between, on the one hand, the principles of democracy, federalism, the rule of law, and republicanism and, on the other, the principle of the welfare state. The four former features stem from long traditions in constitutional law; modern political philosophy has detailed them precisely and the Basic Law concretizes them in thorough regulations. In contrast, the political history of ideas has failed to produce a “flag-bearing” thinker for the welfare state. The establishment of the welfare state has played no significant role in constitutional history. And, on first glance, even the Basic Law seems to provide hardly any specifics as to what exactly makes up its “social” state or, in particular, what normative consequences follow from this constitutional principle. This raises the question: What actually justifies the principle of the welfare state's illustrious position among those constitutional entities endowed with highest relevance? The following discussion develops the answer: Regardless of its limited historical and theoretical traditions, the principle of theSozialstaatfinds its meaning beyond its doctrinal content in its own distinct, symbolic substance.
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Fuchs, E. "Popular Sovereignty and the Crisis of German Constitutional Law." German History 18, no. 2 (April 1, 2000): 282–83. http://dx.doi.org/10.1177/026635540001800224.
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Dauster, Manferd. "Parliaments versus Raising Extremist Member of Parliament." Bratislava Law Review 5, no. 1 (June 30, 2021): 27–64. http://dx.doi.org/10.46282/blr.2021.5.1.213.
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(Right-wing) extremism is on the rise across the continent. Propaganda and other activities affect European societies and parliaments. Extremists do not stop their activities in front of parliaments’ buildings. As far as extremist performance within parliaments is concerned, parliaments may react to them using measures of order, as provided for by their Rule Books but cannot apply them to harmful activities outside the parliament in the ordinary (political) arena. Parliamentarian means of defence appear inadequate and at the end not efficient to defend our representative democracies. By comparing the present German constitutions in perspective of the German constitutional history, the article seeks to find „sharper armoury“ for parliamentary defence. In conclusion, some consideration is given to constitutional amendment providing parliaments with the authority to expel the unruly Members of Parliament.
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Whitman, James Q., and Peter E. Quint. "The Imperfect Union: Constitutional Structures of German Unification." American Historical Review 103, no. 4 (October 1998): 1275. http://dx.doi.org/10.2307/2651279.
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Popov, Ivan. "The Munich conference of Minister-Presidents of German lands in 1947." OOO "Zhurnal "Voprosy Istorii" 2020, no. 10-2 (October 1, 2020): 86–98. http://dx.doi.org/10.31166/voprosyistorii202010statyi28.
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The paper deals with the organization and decisions of the conference of the Minister-Presidents of German lands in Munich on June 6-7, 1947, which became the one and only meeting of the heads of the state governments of the western and eastern occupation zones before the division of Germany. The conference was the first experience of national positioning of the regional elite and clearly demonstrated that by the middle of 1947, not only between the allies, but also among German politicians, the incompatibility of perspectives of further constitutional development was existent and all the basic conditions for the division of Germany became ripe. Munich was the last significant demonstration of this disunity and the moment of the final turn towards the three-zone orientation of the West German elite.
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Janssen, Achim. "VIII. Ohne Körperschaftsgarantie keine Reichsverfassung?" Zeitschrift der Savigny-Stiftung für Rechtsgeschichte: Kanonistische Abteilung 107, no. 1 (June 1, 2021): 333–58. http://dx.doi.org/10.1515/zrgk-2021-0008.
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Abstract No Weimar Constitution without a guarantee of the corporate status of religious communities? The discussion about article 137 section 5 of the Weimar Constitution and its content in the National Assembly of Weimar. Some researchers hold that without the constitutional guarantee of the corporate status of religious communities in article 137 section 5 the Weimar Constitution in 1919 would not have come about. The minutes of the constituent Weimar National Assembly, however, do not indicate that the guarantee of the corporate status was in danger to fail in default of political consensus. Rather, the decision in favour of a constitutional guarantee of the corporate status had already been made early in the debate. Yet it remained unclear and controversial which rights this status contained, except of the right to taxation explicitly guaranteed by article 137 section 6 of the Weimar Constitution. The deputies assumed that the specific rights of the religious communities were not determined by Article 137 section 5 of the Weimar Constitution, but by the legislation of the German Länder.
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Vick, Brian. "Of Basques, Greeks, and Germans: Liberalism, Nationalism, and the Ancient Republican Tradition in the Thought of Wilhelm von Humboldt." Central European History 40, no. 4 (November 28, 2007): 653–81. http://dx.doi.org/10.1017/s0008938907001070.
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The relationships between German intellectuals and politics at the turn of the nineteenth century have been much debated, with the nature of the German liberal tradition at the core of controversy, and with questions about the interconnections between liberalism, nationalism, and neohumanistBildungcircling not far beyond that core. Prominent in such discussions stands the figure of the Prussian scholar and statesman Wilhelm von Humboldt. Best known today variously for his part in overhauling the Prussian educational system during the “reform era” of Chancellors Stein and Hardenberg, or for helping to establish the disciplines of classical philology and comparative linguistics, Humboldt also authored one of the seminal texts in the European liberal tradition and was actively involved in the diplomacy, constitutional planning, and nationalist upheaval surrounding Napoleon's expulsion from Germany and the subsequent construction of the German Confederation.
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Livingston, Robert Gerald. "German Reunification from Three Angles." German Politics and Society 17, no. 1 (March 1, 1999): 127–36. http://dx.doi.org/10.3167/104503099782486932.
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Robert L. Hutchings, American Diplomacy and the End of the Cold War: An Insider’s Account of U.S. Policy in Europe, 1989-1992 (Washington, D.C. and Baltimore: The Woodrow Wilson Center Press and The Johns Hopkins University Press, 1997)Charles S. Maier, Dissolution: The Crisis of Communism and The End of East Germany (Princeton, New Jersey, Princeton University Press, 1997)Peter E. Quint, The Imperfect Union: Constitutional Structures of German Unification (Princeton, New Jersey, Princeton University Press, 1997)
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Roberts, G. K. "Book Review: The Imperfect Union. Constitutional Structures of German Reunification." German History 17, no. 2 (April 1, 1999): 319–20. http://dx.doi.org/10.1177/026635549901700233.
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Prakke, Lucas. "On the rise and Decline of the Monarchical Principle: Constitutional Vicissitudes in Spain and Germany." European Constitutional Law Review 6, no. 2 (June 2010): 268–92. http://dx.doi.org/10.1017/s1574019610200068.
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Nation-state formation – Holy Roman Empire – Dissolution and realignment – Spain, fragmented – Reconquista – Charles V – Wars of succession – Centralisation under house of Bourbon – Napoleon – Spanish war of independence – History of the Cortes – Constitution of Cádiz – Weakness of Spanish Constitutionalism – German Confederation – Monarchical principle in Vienna Final Act – Old and new ideas of sovereignty – Metternich and fear of revolution – March revolution – Bismarckian empire as constitutional monarchy – Degeneration of the Reich – Exit the Kings – Enter Juan Carlos
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Wiegandt, Manfred H. "Herr or Hüter of the Constitution?" German Politics and Society 36, no. 3 (September 1, 2018): 94–110. http://dx.doi.org/10.3167/gps.2018.360305.
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Flockerzie, Lawrence J. "State-Building and Nation-Building in the “Third Germany”: Saxony after the Congress of Vienna." Central European History 24, no. 2-3 (June 1991): 268–92. http://dx.doi.org/10.1017/s000893890001904x.
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In a recent article on state-building in the “Third Germany” during the Rheinbund years, Hans Schmitt noted the “degrees of variation” that were to be found in the tempo, structure, and results of government reform programs among the German states. This variety stemmed not only from the uneven penetration of French influence, but also from the different historical conditions and levels of political development pertaining in each state. Schmitt concluded part of his analysis by pointing out that this variety which so characterized state-building between 1806 and 1813 continued after the fall of Napoleon and the unravelling of the Rheinbund. The multiplicity of state-building programs and agendas in Germany during the Restoration era confirms this assertion. For the monarchs of states such as Bavaria, Württemberg, Baden, and Nassau, the end of the French Imperium was an opportunity—under the new auspices of the German Confederation—to continue the integration of new territories and subjects via bureaucratic centralization and experimentation with constitutional models.
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Hall, John R. "Abdication, Collective Alignment, and the Problem of Directionality." Social Science History 34, no. 1 (2010): 91–96. http://dx.doi.org/10.1017/s0145553200014115.
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In Ruling Oneself Out Ivan Ermakoff (2008) addresses the puzzle of what amounts to collective political suicide: why would any constitutional body pass legislation that in effect cedes all its power to another entity—an autocrat? Constitutional rule rules itself out, closing off any pathway back to constitutional rule. Ermakoff explores this unusual but not unique development in two cases of the utmost significance for World War II: the March 1933 decision by the German Reichstag to give power to Adolf Hitler to modify the Weimer constitution without further recourse to parliament, and the French National Assembly’s decision in Vichy in July 1940 to transfer all state powers to Marshall Philippe Pétain.Ermakoff has woven a fabric of many threads—some historical, some methodological, some theoretical—drawn together in complex patterns. His analysis begins by artfully turning what in many books would be a historiographical review of previous work into a deep and thorough consideration of three alternative explanations of abdication.
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Starck, Christian. "State duties of protection and fundamental rights." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 3, no. 1 (July 10, 2017): 20. http://dx.doi.org/10.17159/1727-3781/2000/v3i1a2882.
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Duties of protection are duties of the state to protect certain legal interests of its citizens. They cover the interests of life, health, freedom and property and also protect some other interests and certain constitutionally recognised institutions. State duties of protection must be considered in connection with fundamental rights. The foundations of modern constitutionalism and attendant procedures are essential to develop guidelines for a constructive critique of the jurisprudence of the Constitutional Court. This is done with reference to the recent history of France, Germany and England. The historical excursus reveals that a single theory underlies the variety of constitutional states. The development of the constitutional state gave rise to the significance of the preservation of freedom through the maintenance of law and the separation of powers. This has given rise to various legal devices, based also in part on experience with moderate rule and earlier theories of the imperium limitatum.A textual analysis of the German Basic Law is undertaken to determine whether and how the duties of protection are expressly created. Furthermore, the duties that have been discovered in the Basic Law by the Federal Constitutional Court are considered. These duties include the protection of human life and health, personal freedom, the right to autonomous development of one's personality, freedom of science, research and teaching, marriage and the family, children, mothers, professional freedom, property and the protection of German nationals against foreign states. Finally the justification of such duties and the constitutional control of the manner of protection are considered.In a final section a critique of relevant constitutional jurisprudence is undertaken. It is argued that claims to protection cannot be directly binding law. They presuppose legislation. If statutory protection is connected with infringements of third-party fundamental rights, the principle of proportionality can be adopted to test whether the protection is effective. Insofar as protection can be achieved without infringements of rights, one must attempt to test the effectiveness of protection by some other means. Where the legislature omits to protect at all, the court should limit itself to establishing the existence of a duty and to querying its non-fulfilment. The Court may not pass protective regulations or impose a duty to pass specific regulations. Where general statutory norms apply, protective duties can be realised through the socalled indirect third-party effect of fundamental rights. In its reaching its decision, the German Federal Constitutional Court is responsible for preserving the political discretion of the legislature in protecting interests and remembering the structural distinction between "hard" defensive rights and "soft" protective duties in order to prevent the erosion of the directly binding nature of defensive rights.
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Krehl, Christoph. "Reforms of the German Criminal Code -Stock-taking and Perspectives - also from a Constitutional Point of View." German Law Journal 4, no. 5 (May 1, 2003): 421–31. http://dx.doi.org/10.1017/s2071832200016114.
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Once a major reform has been concluded, one might easily be tempted to be just glad about what has been achieved and to think that nothing more needs to be done. However, experience in Germany as regards the amendment of criminal law and law of criminal procedure has shown that “after the reform” has, at the same time, always meant “before the reform.” The history of German criminal law is the history of a never-ending reform. The reform has not only consisted in making individual corrections to the existing positive law; time and again, developments in society have posed new challenges to criminal law, which, in the course of time, have resulted in profound changes in its structure. This means that even after a reform has been concluded, there must be willingness to further shape criminal law or, as the case may be, to protect it from changes that might be brought about by new influences. German criminal law, with its more than 130 years of history, and with its almost 180 more or less profound amendments of the law, bears eloquent witness to the profound changes that criminal law can experience, in spite of individual extensive reforms, admittedly in a time of historical upheavals. The present contribution provides an outline of the history of German criminal law through the present time and tries, on the basis of this outline, to develop a forecast of the influence to which criminal law will be exposed in the future.
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Meinel, Florian. "The constitutional miracle on the Rhine: Towards a history of West German constitutionalism and the Federal Constitutional Court." International Journal of Constitutional Law 14, no. 1 (January 2016): 277–93. http://dx.doi.org/10.1093/icon/mow018.
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Лазарева, Наталья, and Natalya Lazareva. "HISTORY OF CRIMINAL LEGISLATION DEVELOPMENT IN SLOVAKIA." Journal of Foreign Legislation and Comparative Law 1, no. 5 (December 2, 2015): 0. http://dx.doi.org/10.12737/16140.
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The subject of this research is criminal legislation of the Slovak Republic since the merge of Slovakia in the AustroHungarian Empire (XIX century) to the present day. The article analyzes the emergency criminal legislation of the World War II period, the socialist Criminal Codes of the Czechoslovak Republic (1950, 1961) and the existing Criminal Code of the Slovak Republic of 2005. The article also touches upon the country’s constitutional development on the example of the adopted Constitutions of the Czechoslovak Socialist Republic (1948, 1960) and the Constitution of the Slovak Republic (1992). The author pays special attention to the integration of Slovakia into the European legal framework when it became a member of the European Union in 2004. The article also contains comparative analysis of the main institutions of the criminal law in Russia and Slovakia. During the research the author used the following special methods: historical, logical, and comparative law method, which includes a variety of techniques (doctrinal, regulatory, functional comparison). As opposed to the criminal law of other European Union countries, the Slovak criminal law has remained practically unexplored by the Russian criminal law doctrine. But it is very unique because it comprises the combination of Austrian, German and Russian criminal law ideas which is conditioned by historical peculiarities of this state’s development. On the example of Slovakia, the author demonstrates possibility of combining the national legal legacy and directives of the European Union.
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Hanschmann, Felix. "“A Community of History”: A Problematic Concept and its Usage in Constitutional Law and Community Law." German Law Journal 6, no. 8 (August 1, 2005): 1129–41. http://dx.doi.org/10.1017/s207183220001419x.
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A prevalent assumption in German Constitutional Law and Community Law reads as follows: »If Europe wants to have a future it needs to become a community of history«. But there is a snag in it: Just as it is difficult, if not impossible, to identify national communities of history, it is unlikely that one European community of history will emerge.
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Scribner, R. W. "Communalism: universal category or ideological construct? a debate in the historiography of early modern Germany and Switzerland." Historical Journal 37, no. 1 (March 1994): 199–207. http://dx.doi.org/10.1017/s0018246x0001476x.
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One of the most challenging historical debates in early modern German history of recent years has been the ‘communalism thesis’ propounded by Peter Blickle, a German historian now teaching in Bern. The term ‘communalism’ was coined to designate attempts to achieve autonomous self-government in town and country during the Reformation period, and draws on an older historiographical tradition which stressed an inherent dualism at all levels of constitutional development between a corporate principle and one based on domination (Herrschaft). The former was founded on the equality of all members sharing common rights and obligations in a form of collective association. In late-medieval Germany the basic form of association in both town and country was the commune (Gemeinde), which possessed, or sought to possess, autochthonous rights to regulate its own affairs. This included the administration of justice, maintenance of peace within the community, economic functions such as distribution of common land or grazing, administration of church finances and church fabric, and in some places communal appointment of pastors. All these communal functions were justified by an appeal to the ideal of the ‘common good’ (gemein nutz), to which all individual self-interest (eigen nutz) was to be strictly subordinate. Thus, the commune appeared to be a fundamental building block of premodern German society.
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Spalding, Paul. "Noble Patrons and Religious Innovators in 18th-Century Germany: The Case of Johann Lorenz Schmidt." Church History 65, no. 3 (September 1996): 376–88. http://dx.doi.org/10.2307/3169936.
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Imperial law strictly prohibited religious novelty in eighteenth-century Germany. The Westphalian Peace accords of 1648, which served as the constitutional framework for the German empire until Napoleon, banned all public expression objectionable to the three sanctioned churches: the Roman Catholic, Lutheran, and Calvinist or Reformed. Various ordinances applied the Westphalian definitions broadly, but the jurisdictional quilt of the empire frustrated implementation. In particular, noble patrons could enable a writer accused of spreading heterodox, antichurch, or even anti-Christian views to remain active and influential.
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Fitzpatrick, Matthew P. "A State of Exception? Mass Expulsions and the German Constitutional State, 1871–1914." Journal of Modern History 85, no. 4 (December 2013): 772–800. http://dx.doi.org/10.1086/672529.
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Klikauer, Thomas, and Kathleen Webb Tunney. "Germany's Secret Service Investigates the Alternative for Germany." German Politics and Society 37, no. 2 (June 1, 2019): 76–97. http://dx.doi.org/10.3167/gps.2019.370204.
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By the end of 2018, Germany’s secret service, the Federal Office for the Protection of the Constitution (Bundesamt für Verfassungsschutz) started composing a report on Germany’s most notorious right-wing political party, the Alternative for Germany (AfD). In January 2019, one of the authors asked Germany’s secret service to supply this report but was told “It’s secret.” On 28 January 2019, a short note even noted: “We will not send the document.” On the very same day, Netzpolitik.org posted the entire report online—all 436 pages of it. Netzpolitik.org stated: “We make the report available because open debate is vital in a democracy… and because it destroys the AfD’s fairy-tale of being a normal political party.” In their introduction, Netzpolitik’s Andre Meister, Anna Biselli, and Markus Reuter, who published the report, also emphasize: “We make the report available because the secret service believes ‘parts of the AfD violate Germany’s constitutional guarantee that human dignity is inviolable.”’ Netzpolitik.org is convinced that Germans have a right to know. Reading through the report one hardly finds evidence that would justify secrecy. Instead, it is a valid report written by a German state agency tasked with defending the Basic Law (Grundgesetz) concerning a political party.
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BONIN, HUGO. "One Swallow Does Not a Spring Make." Contributions to the History of Concepts 14, no. 1 (June 1, 2019): 140–46. http://dx.doi.org/10.3167/choc.2019.140107.
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Pasi Ihalainen, The Springs of Democracy: National and Transnational Debates on Constitutional Reform in the British, German, Swedish and Finnish Parliaments, 1917–1919 (Helsinki: Finnish Literature Society, 2017), 586 pp.
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Czermak, Gerhard. "Grundfragen des deutschen Religionsverfassungsrechts in Theorie und Praxis Ein kritischer Überblick." Zeitschrift für Religions- und Geistesgeschichte 63, no. 4 (2011): 348–63. http://dx.doi.org/10.1163/157007311798293665.
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AbstractThe article outlines the development and most important features of the religious constitutional law of the Federal Republic of Germany, as constituted in the Grundgesetz (the German Costitution) and the decisions of the Federal Constitutional Court. Under the basic principle of neutrality, it constitutes a system of separation with single aspects of cooperation of the state and religious communities. It is also a system of wide freedom and of kindness to religion. Non-religious worldviews are explicitly equated for individuals as well as for religious and non-religious associations. This system is in theory exemplary, but holed by contradictory laws, church-state-treaties and one-sided financial subventions in a huge dimension. The indirect influence of the large Christian churches is remarkable. Christian institutions dominate the social services – with unpleasing consequences for over 1 million employees, who are subject to a special employment law. Meanwhile, low-level discrimination of small religious communities continues.
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OH, Hyang Mi. "Sovereignty and Pouvoir Constituante as Conditions of Constitutionalism: Focused on the German Constitutional History." Korean Political Science Review 41, no. 4 (December 2007): 291–310. http://dx.doi.org/10.18854/kpsr.2007.41.4.013.
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Lin, Chien-Chih. "Global constitutionalism in Taiwan." Global Constitutionalism 10, no. 2 (July 2021): 275–89. http://dx.doi.org/10.1017/s2045381720000325.
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AbstractIn contrast with the decline of liberal constitutionalism around the world, liberal constitutionalism seems to be resilient in Taiwan. Weaving together several threads of history, law and politics, this article first argues that foreign legal education and identity concerns explain why judicial review and constitutional development more broadly in Taiwan have not only flourished but mirrored both German and American constitutional jurisprudence. Second, it maintains that the case of Taiwan poses another challenge to the concept of global constitutionalism since the number of referenced jurisdictions is quite limited.
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Aroney, Nicholas. "THE INFLUENCE OF GERMAN STATE-THEORY ON THE DESIGN OF THE AUSTRALIAN CONSTITUTION." International and Comparative Law Quarterly 59, no. 3 (July 2010): 669–99. http://dx.doi.org/10.1017/s0020589310000266.
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AbstractThis article draws attention to an important but neglected story about the dissemination of German and Swiss state-theories among English-speaking scholars in the second half of the 19th century and the influence of these ideas on those who designed and drafted the Australian Constitution. In particular, the article focuses upon the theories of federalism developed by the Swiss-born scholar, Johann Caspar Bluntschli, and the Saxon-born Georg Jellinek, and explains their influence, via the British historian, Edward A Freeman, and the American political scientist, John W Burgess, upon the framers of the Australian Constitution. The story is important because it illustrates the way in which constitutional ideas can be transmitted from one social and political context into a very different one, undergoing significant, though often subtle, modifications and adaptations in the process. The story is also important because it sheds light on the way in which the framers of the Australian Constitution came to conceive of the kind of federal system that they wished to see created. The story seems to have been overlooked, however, not only due to a general neglect of the intellectual history of the Australian Constitution, but also due to the assumption that prevailing Australian political and legal ideas were of Anglo-American provenance. While this assumption generally holds true, a closer examination of the intellectual context of Australian federalism reveals a surprisingly significant German influence on the framers of the Australian Constitution.
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Smith, David. "“Cruelty of the Worst Kind”: Religious Slaughter, Xenophobia, and the German Greens." Central European History 40, no. 1 (February 27, 2007): 89–115. http://dx.doi.org/10.1017/s0008938907000295.
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In 1995, before the Leitkultur debate about a hegemonic German culture to which immigrants might aspire, disputes over the wearing of headscarves, and September 11, a federal German court effectively banned Muslims from slaughtering animals without prior stunning. The court ruled that the practice was not required by their religion and was thus not protected by the constitution's guarantee of freedom of religious expression. In January 2002, however, the Federal Constitutional Court ruled that the right to freedom of religious expression and choice of occupation did in fact ensure the entitlement of Germany's Muslims, or at least those responsible for their provision with halal meat, to resume stunningless methods for such ends without the threat of legal action. Religious slaughter has been problematic throughout Germany's history and the reemergence of opposition to it late in the twentieth century was not without precedent. The issue throws up numerous areas for possible examination. But what does it have to do with the Greens and with their positions on animals and human society?
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Towfigh, Emanuel V. "Die Entwicklung des Verhältnisses des Bahá’í-Rechts zum säkularen deutschen Recht." Zeitschrift für Religions- und Geistesgeschichte 72, no. 3 (June 23, 2020): 286–310. http://dx.doi.org/10.1163/15700739-07203005.
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Bahá’í law differentiates between a secular and a sacred legal sphere, intertwining both by positing a religious duty for its adherents to abide by secular (state) law. In Germany, it encounters a secular legal framework that aims at something similar – creating an equilibrium between state law and religious law by establishing the principle of the division of State and Religion, while at the same time facilitating religious freedom; it provides a secular justification for the recognition of religious law. With this, both orders provide mechanisms ensuring that state law and religious law are able to enforce their own claim of validity, while at the same time avoiding conflicts between the respective legal orders. The article argues that this unique interaction between Bahá’í law and the German constitutional law framework impacted both legal orders. For German law, on the one hand, it proved to be crucial for the development and opening of this legal field – whose original purpose was the regulation of the relationship between the state and the (two) Christian churches – for other religious traditions. The interaction with state law has impacted the Bahá’í Community of Germany, on the other hand, by catalyzing a number of developments that in other comparative law contexts have been dubbed “constitutionalization” effects.
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Baer, Susanne. "The Basic Law at 60 – Equality and Difference: A Proposal for the Guest List to the Birthday Party." German Law Journal 11, no. 1 (January 1, 2010): 67–87. http://dx.doi.org/10.1017/s2071832200018435.
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This birthday gives rise to many considerations. Some reflect upon achievements – the German constitution, named “Basic Law”, has proven to work although many did not believe in it when it was framed. Others emphasize desiderata. Sabine Berghahn commented at the 50th birthday that it has developed “far too slowly and [some] has even gone completely wrong.” Jutta Limbach, former President of the Federal Constitutional Court, observed that constitutional history was “anything but regal, but very difficult and full of obstacles.” Former Chancellor Willy Brandt famously called the constitution “a snail on thin ice.” So what is missing when we analyze the Basic Law, and what should be finally added - as spirit, in interpretation, in clarifying words? I will try to point to achievements and show what might still be lacking. This is what studies in constitutionalism always do. To do justice to the occasion, I will also think about who we should invite to celebrate this birthday. More precisely, if we are to celebrate the 60th birthday of Article 3 of the Basic Law, which is the equality guarantee, and which has been amended since its birthday, I will encourage you to think about who should come to this party.
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Kaiser, Anna-Bettina. "German Federal Constitutional Court: German Data Retention Provisions Unconstitutional in Their Present Form; Decision of 2 March 2010, NJW 2010, p. 833." European Constitutional Law Review 6, no. 3 (October 2010): 503–17. http://dx.doi.org/10.1017/s1574019610300083.
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About one year after the European Court of Justice had handed down its notorious decision on the Data Retention Directive concerning telecommunications traffic data, it was for the German Federal Constitutional Court to take a final decision on the German implementation of the Directive. So far, the latter Court had only issued temporary injunctions restricting data retrieval by the public authorities. Now, the final ruling by the Court has been anxiously awaited since the complainants had not only challenged the German provisions implementing the Directive, but also the Directive itself. Thus, the question was raised whether the Court would finally, for the first time in its history, initiate a preliminary ruling procedure according to Article 267 of the Treaty on the Functioning of the European Union.
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van Kappen, O. Moorman. "Een negentiende-eeuws Gents collegedictaat over het ius publicum Belgicum." Tijdschrift voor Rechtsgeschiedenis / Revue d'Histoire du Droit / The Legal History Review 75, no. 3 (2007): 295–305. http://dx.doi.org/10.1163/157181907783054905.
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AbstractThis contribution deals with a manuscript, containing lecture notes made in 1827–1828 by a Ghent student named Callenfels and relating to the lectures on ius publicum universale et Belgicum, given by Jacob Joseph Haus (1796–1881), professor of jurisprudence at Ghent University and native of Würzburg. As the course programme of the law faculties in the southern provinces required courses in natural law as well as in ius publicum and ius gentium, the assumption has been put forward these lectures would be restricted to the ius publicum universale such as lectured in many German law faculties in the 18th century. On further examination of the manuscript under consideration this presumption proves to be wrong. After the first 13 sections, which refer in fact to the ius publicum naturale in an enlightened sense, the remaining 253 sections outline the then positive constitutional law of the Netherlands, mainly on the basis of the Dutch written constitution of 1815.
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Haferkamp, Hans-Peter. "On the German History of Method in Civil Law in Five Systems." German Law Journal 17, no. 4 (August 2016): 543–78. http://dx.doi.org/10.1017/s2071832200021362.
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AbstractGermany is the country of legal methodology. No other country saw such an intense academic discourse on the question of what jurists are able, allowed, and supposed to do when interpreting and applying the law. This German peculiarity is tightly linked to the history of the German Civil Code (BGB). Carefully worded and systematically precise, this codification had the potential to significantly limit judicial freedom; thus, its advent marked the beginning of the German methodological debates. The following Article examines this relationship, starting with the year 1874 (when preliminary work on the Civil Code began) and continuing with an analysis of the five political systems during which the BGB was in force: the German Empire (1900–1914), the Weimar Republic (1918–1933), the National Socialist period (1933–1945), the GDR (1949–1989), and the Federal Republic (1949–today). With the exception of the GDR, the methodological debates consistently show attempts to enable judges to adapt the law to real life conditions, or to political ideas in conflict with the BGB, without formally moving beyond extant law. At the roots of 20thcentury methodological debates, one can thus discern a profound mistrust of German legal academia with regard to both the legislature and the judiciary. Jurists had no confidence in the BGB, which was criticized for being inflexible, outdated, and politically unsound. They did not trust in the freedom of judges either, trying instead to somehow bind them, be it to “life,” “reality,” “justice,” “sense of justice,” “national order,” or “Christian Natural Law.” It was not until 1958 that the Federal Constitutional Court was entrusted with the task of dynamically shaping the guiding values of society, thus forcing both the legislator and the courts to adapt the BGB to these principles. As a consequence, the heyday of German methodological debates surrounding the BGB slowly came to an end.
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Seitzer, Jeffrey. "Carl Schmitt's Internal Critique of Liberal Constitutionalism: Verfassungslehre as a Response to the Weimar State Crisis." Canadian Journal of Law & Jurisprudence 10, no. 1 (January 1997): 203–25. http://dx.doi.org/10.1017/s084182090000031x.
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In one of his most famous dicta, the German legal and political theorist Carl Schmitt proclaimed it “obvious” that “all political concepts, images, and terms have a polemical meaning,” because “[t]hey are focused on a specific conflict and are bound to a concrete situation.” Taking Schmitt at his word, I argue that one must read Schmitt's masterpiece of comparative law from the Weimar period, Verfassungslehre, as a response to the Weimar state crisis. Schmitt's conceptual approach in Verfassungslehre aims to create a form of constitutional theory capable of compensating for structural defects of the Weimar state. Reading Verfassungslehre in this way also reveals that Schmitt does not present his constitutional theory as an alternative to liberal constitutionalism, but rather Schmitt's comparative history of constitutionalism in Verfassungslehre locates his decisionism at the very core of the liberal constitutional tradition.
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Bendersky, Joseph W., and Peter C. Caldwell. "Popular Sovereignty and the Crisis of German Constitutional Law: The Theory and Practice of Weimar Constitutionalism." American Historical Review 103, no. 5 (December 1998): 1630. http://dx.doi.org/10.2307/2650053.
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Friedrich, Pierre. "Gierkes Protest gegen das BGB." Tijdschrift voor rechtsgeschiedenis 85, no. 1-2 (June 22, 2017): 325–61. http://dx.doi.org/10.1163/15718190-08512p11.
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The enactment of the German Civil Code (BGB) marked the triumph of the Romanists in the famous codification debate. However, the Germanists’ resistance endured and found new grounds and means of conflict. This essay throws light on the exploitation of the fine arts for the advancement of the Germanists’ legal policy. With the help of the prominent murals in the plenary hall of the court of appeal in Düsseldorf, executed in 1913, we will examine the continuing influence of the germanistic combat and the socio-political mores of the functionary elite of the late empire. It will be demonstrated that these murals were an expression of the ressentiment of a certain part of these ‘power elites’ towards the liberal constitutional state which had come into existence by the time of the codification of the BGB at the very latest. Nazi ideology was able to appeal to these political dispositions and values after the First World War. This was one of the major routes that led to the Nazi takeover and finally to the decline of the rule of law in Germany.
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Helms, Ludger. "Keeping Weimar at Bay: The German Federal Presidency since 1949." German Politics and Society 16, no. 2 (June 1, 1998): 50–68. http://dx.doi.org/10.3167/104503098782173877.
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Learning from the Weimar experience, the founding fathers of theFederal Republic eliminated the chance of a renewed institutionalizedconflict between the head of state and the federal governmentthrough the creation of the Basic Law [Grundgesetz ]. They primarilystrengthened the power of the chancellor and his cabinet by introducingthe “constructive” vote of no confidence and abolishing theprinciple of individual ministerial responsibility, while also reducingthe position of the federal president to a mere representative head ofstate. With these clear-cut constitutional arrangements it is not surprisingthat Germany has not been among the number of west Europeandemocracies (such as Italy or Austria) for which issuesregarding the power of heads of state have occupied a rather prominentposition on the political agenda of the 1990s.
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Pirro, Robert. "Situating a German Self in Democratic Community: Greek Tragedy and German Identity in Christa Wolf’s Mythic Works." German Politics and Society 22, no. 1 (March 1, 2004): 31–52. http://dx.doi.org/10.3167/104503004782353294.
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In times of political or social crisis, issues of identity and affiliationtend to become more salient. In response to the threatened or actualdisruption of the routines of material provision, social order, andideological legitimation, definitions of self and community that hadformerly been considered authoritative come under more frequentand more extensive questioning. Responses to this condition ofuncertainty and doubt about identity and affiliation are typicallyforthcoming from many different quarters: party politicians, leadersof social movements, public intellectuals, religious authorities. Suchresponses can also be quite varied as was the case, for example, inthe aftermath of the fall of the Berlin Wall. Only months after theevent and with major questions about the future of the two Germaniesin the air, Jürgen Habermas surveyed the various possible sources of German identity that were on offer at that time—economic prestige(“DM nationalism”), cultural inheritance, linguistic unity, ethnicdescent, historical fate, aesthetic experience, and constitutional patriotism—and found all but the last seriously wanting.3 In any givenepisode of crisis and questioning, most responses will ultimatelyhave little or no effect; the eventual reestablishment of the routinesof provision, order, and legitimation usually means that one oranother set of definitions of self and community has won out andbecome authoritative for a critical mass of citizens.
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Schönberger, Christoph. "Lisbon in Karlsruhe: Maastricht's Epigones At Sea." German Law Journal 10, no. 8 (August 1, 2009): 1201–18. http://dx.doi.org/10.1017/s2071832200001553.
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On 30 June 2009, the Second Senate of the German Federal Constitutional Court handed down its long-awaited decision on the compatibility of the Treaty of Lisbon with the German Constitution, the Basic Law. It was no surprise that the Court upheld the constitutionality of the treaty. Even the plaintiffs could not have imagined in their wildest dreams that the Court would actually say “no”. What is more than disturbing, however, is the tortuous way in which the Court's vast and verbose opinion purports to be justifying the approval of the treaty. There is probably no other judgment in the history of the Karlsruhe Court in which the argument is so much at odds with the actual result. To the point of perplexity and bewilderment, the reader of the opinion is hardly able to find any reasons supporting the outcome of the case. At the moment when the Court approves the most far-reaching revision of the European founding treaties since Maastricht, it does not present any serious argument supporting the conclusion it has reached, except sketchy evocations of a principle of “openness towards European law” it finds enshrined in the Basic Law and brief solemn reminders of a murderous past. Instead, the main thrust of the argument is a ringing indictment of European integration based on a certain idea of egalitarian and majoritarian parliamentary democracy that the Court derives from the Basic Law. Unfortunately, this standard of democratic legitimacy can only describe certain centralized states; it is unable to account for federal States, including Germany, and cannot be made to fit the federal system of the European Union.