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This chapter looks at the German system of judicial review of the constitutionality of legislation, which has been borrowed by virtually all of the civil law countries in the world as being the one that is the most compatible with their legal system. The historical lessons drawn from Germany’s experience with the Third Reich made Germans acutely aware of the need for constitutional protection of rights growing out of the great historical wrongs of Nazism and of the Holocaust. Thus, the fundamental core explanation of the origins and growth of German judicial review is that it is a rights from wrongs phenomenon. That being said, the growth of German judicial review was made easier by the fact that the German Basic Law constituted the Constitutional Court to act as a federalism and separation of powers umpire. The German Constitutional Court has performed those umpiring function from 1949 down to the present day with great deftness and ability. Thanks to the great scholar, Hans Kelsen, the Germans borrowed a greatly modified system of U.S. judicial review, which was specially designed to work well in civil law countries. The German Model has, in turn, been borrowed by every oother country discussed in Volume II of my two part book series.

This chapter focuses on the prefab model, which was proposed by the Western allies in 1990. The United States and West Germany convincingly made the case for taking the West's prefabricated institutions, both for domestic order and international economic and military cooperation, and simply extending them eastward. This institutional-transfer model had the advantage of being quick, and dealing in known and successful commodities, such as the West German Basic Law, the West German currency (or DM), and the Article 5 mutual defense guarantee of NATO, to name a few. Indeed, the fact that both the European Community (EC) and the North Atlantic Treaty Organization (NATO) were structurally capable of expansion provided useful precedents. Ultimately, the prefab model was the one model that proposed to harmonize both domestic and international institutions in Eastern Europe to preset Western standards.

Historical considerations have so far played a rather subordinate role in the interpretation of Article 1 German Basic Law. This is unfortunate, because the records of the proceedings of the Parliamentary Council show clearly that the famous dictum on Würde des Menschen as a ‘non-interpreted thesis’ (Theodor Heuss) was neither meant to be a carte blanche for any arbitrary interpretation nor an evidence for the impossibility of all kinds of interpretation. The ‘mothers and fathers of the Basic Law’ discussed the meaning of the legal term Würde des Menschen intensely. They agreed that it was neither a more or less vague value assignment nor just the sum of the following basic rights but a real capacity of human beings that had been proven highly vulnerable during the Nazi regime: the inner freedom of man.

This chapter offers a view of Alexy's study of the German Basic Law which treats it as an account, more broadly, of the ideal of the rule of law, given appropriate shape as a theory of constitutionalism. Doubting whether there is any difference, at the most fundamental level, between written and unwritten constitutions, it suggests that both German and British constitutions should be seen as instantiations of an underlying model of liberal-democratic constitutionalism. Since our concept of law embodies that ideal — the ideal of morally justified authority, such as could be acknowledged, in principle, by all those subject to it — we cannot neatly separate questions of legal authority from questions of constitutional right. The limits of the state's authority are set by our best understanding of what the basic rights of liberty, equality, and respect for human dignity require. Rules or decisions that violate those principles therefore carry no genuine, but only purported, authority; and there is an inherent jurisdiction, deriving from the duty of courts to apply the law, to draw such conclusions in appropriate cases.

Focusing on Germany, this chapter explores the national system of rights review and the constellation of the domestic structures and actors involved in the implementation of the ECtHR's judgments. These encompass government, administrative, judicial and legislative actors both at the state and the federal level, along with the involvement of a variety of non-governmental actors without a designated role in implementation. The small number of adverse judgments issued by the ECtHR against Germany cannot be understood independently from the highly developed and effective system of rights review domestically, dominated by the Basic Law and the Federal Constitutional Court. It is also linked to an apparently preventive approach often adopted by state authorities: the review of draft legislation for compatibility with the Convention and the consideration of the ECtHR's case law issued also against other countries. Nonetheless, the domestic implementation of the ECtHR's judgments is sometimes controversial and conflict-ridden process, as a result of factors that are explored in this chapter.

Virtually all constitutions codify amendment rules. But why? What are the uses and purposes of constitutional amendment rules? Amendment rules of course create a legal process for reformers to alter the constitution. But amendment rules serve important purposes even if the constitution is never amended at all because they have essential uses beyond the obvious one of textual alteration. Amendment rules have three categories of uses: formal, functional, and symbolic. Their formal uses include repairing imperfections, distinguishing constitutional from ordinary law, entrenching rules against easy repeal or revision, and establishing a predictable procedure for constitutional change. Their functional uses include checking the court, promoting democracy, heightening public awareness, pacifying change, and managing difference. Symbolically, amendment rules can be used to express constitutional values. This chapter explains all of these many uses of amendment rules and illustrates each of them with examples drawn from constitutions around the world. This chapter also interrogates the symbolic uses of amendment rules: How can we know whether the values expressed in constitutional amendment rules reflect authentic political commitments? This chapter explains with reference to the German Basic Law that it is possible to evaluate the authenticity of the values in amendment rules by investigating the design of amendment rules and their subsequent interpretation. This chapter considers constitutions from Afghanistan, Albania, Algeria, Bosnia and Herzegovina, the Central African Republic, Chad, China, Cuba, Ecuador, Germany, Kazakhstan, Kiribati, Saint Lucia, South Africa, Spain, the Russian Federation, the Soviet Union, Ukraine, the United States, and Yugoslavia.

This chapter picks up from the last, presenting the German Federal Constitutional Court’s expansive horizontal application of rights, as first announced in the landmark Lüth decision of 1958, as a continuation of its efforts to assert itself in a competitive institutional environment. In time, the Court’s horizontal rights jurisprudence went further, contributing to a constitutional cascade. Subsequent decisions drove constitutional norms deeper and deeper into ordinary law, bringing civil courts and legislatures under the tutelage of the Court and also engaging them as co-venturers in the project of elaborating constitutional meaning. The chapter explores the different ways the Court interacted with lawmakers and lower courts in the contexts of free speech, antidiscrimination law, and family law.

The German Federal Constitutional Court granted extensive horizontal effect to the rights in Germany’s constitution, the Basic Law, starting in the late 1950s. This chapter lays out the institutional and normative context against which these moves played out and in light of which they made sense. The new Court spent its first decade fending off attempts to marginalize it, not only from the executive branch but also from Germany’s other, more established, high courts. At the same time, the new Basic Law furnished the Court with interpretive authority over an expansive set of new rights, while the private law establishment was slow to satisfy the normative demands of a liberalizing postwar Germany.

This chapter concentrates on dignity as a legal notion. Which difference does it make if a term like ‘dignity’ appears in a theological or a philosophical text or in a law? What happens when an existing idea of dignity is endowed with legal validity? The specific way of existence of a legal norm is its validity (Geltung). It requires compliance. Yet, while laws are formulated in general and abstract terms, the requirement for compliance arises in concrete situations. The gap between the abstract norm and the concrete case has to be bridged by interpretation. What are the guidelines for interpretation? Does the interpretation of a legal text differ from the interpretation of, say, a philosophical text? Is it possible to use philosophical or theological authorities to interpret a legal notion? In other words, can a legal decision be justified by non-legal considerations? The second part of the chapter concentrates on one legal problem peculiar to the notion of dignity. In some jurisdictions, Germany included, dignity is regarded as an absolute right. Absolute rights are extremely rare and raise a number of problems. Can the idea of an absolute right be consistently upheld in legal practice? What follows from the absolute character of a right for its scope? What follows for the definition of the value, good or interest that is protected by dignity? Can there be more than one absolute right in a given legal order? These problems are avoided in legal systems that treat dignity as a fundamental right like others. But does this pay sufficient attention to the reasons for which dignity claims a particularly prominent place in post World War II constitutionalism?

Drawing on Giorgio Agamben’s idea of homo sacer and on the Catholic natural law tradition, Beattie explores the paradoxes and tensions inherent in the Christian understanding of divine justice and human laws. While natural law resists the pessimism of some Protestant theologies and their secularized postmodern derivatives, the doctrine of original sin means that all human laws are flawed in their quest to maintain justice through the imposition of order. Beattie argues that Christ is homo sacer in whom God is profaned, the human is made sacred, and the crucified body of the dehumanized other on the cross becomes the bearer of an absolute dignity outside the law.

This introductory chapter traces the development of the constitution as a legal concept. It shows how the revolutionary disruptions of 1776 and 1789 helped to bring about a solution to the permanent problem of legally constraining political rule, from which the modern, normative constitution would eventually emerge. The chapter then charts the emergence of constitutionalism from the American and French revolutionary discontent to the rise of the nineteenth-century constitutional fervour spreading throughout Europe and its latter developments from the twentieth century onwards. It considers the functional components of a constitution and whether constitutions which claim to meet these criteria, like the German Basic Law, remain able to fulfil these in view of altered conditions for realization. The alterations referred to in this chapter are large-scale tendencies that affect not this or that constitution but constitutionalism as such.

This chapter explores administrative procedure and judicial review in Germany. The German Basic Law contains a guarantee of access to justice. According to section 40(1) of the Code of Administrative Court Procedure (CACP), recourse to the administrative courts shall be available in all public-law disputes of a non-constitutional nature insofar as the disputes are not explicitly allocated to another court by a federal statute. German administrative court procedure generally aims to protect subjective rights. In general, all measures taken by a public authority are subject to review by courts. This principle forms an essential part of the fundamental rights constitutionally guaranteed. Thus, no measure by the public administration is excluded from this guarantee. The infringement of a procedural provision with protective effects does not necessarily lead to the right of the applicant to have the decision quashed. This usually requires the infringement of a right of the appellant resulting from substantive law. Damages cannot be claimed within the same (administrative) court proceeding that aims to quash an administrative decision.