Search Results

Germany is a clear example of how judicial rivalries and divergent judicial preferences regarding European legal issues have shaped the process of doctrinal change. Divergent preferences created a dynamic of legal integration that both propelled the expansion of European law into the national sphere and created limits to its reach in the national sphere. While full doctrinal agreement has not been achieved, German courts and the political actors have thus far found ways to accept the legal substance of European Court of Justice (ECJ) decisions and keep legal tensions from rupturing and undermining the authority of European law and the ECJ. This chapter traces the negotiation process in Germany. Section I identifies the main actors in Germany and their preferences in European legal issues. Section II explains the evolution of the German doctrinal debate over time, divided into rounds in which the debate developed. Section III explains how the German experience contributed to European integration.

The chapter discusses three periods of policy change in the field of family policy. Concentrating on basic aspects of family support, such benefits and tax allowances for families, as well as pension credits and parental leave programmes, the chapter contrasts current policy provision with the one which existed in the late 1970s. Using a number of indicators, it assess the scale and profile of change in each country. The chapter argues that both countries have traditionally favoured the male breadwinner families and been rather modest in the support for families per se, albeit for different reasons. However, family support has expanded in both countries, particularly since the 1990s, for several reasons. The ‘paid work’ oriented rationale for policy expansion has become a major driving force in the UK and, more recently, in Germany. Institutionally less embedded than the other two policy areas, national family policy profiles have evolved more dynamically.

The basic principle for the Bundesverfassungsgericht (German Federal Constitutional Court) has been that the international delegation of limited and revocable powers generally has been accepted as long as the organizations to which powers are delegated also provide adequate protection of individual rights. The principle that delegation is to be functional was another way to create safeguards concerning the extent to which powers were delegated. That principle has been applied consistently with regard to delegations to the European Community (EC), although the definition of powers that are limited and revocable has been given an ever-wider interpretation over time. When considering how the Constitutional Court has exercised constitutional control over delegations to international organizations, it also is important to note that, in relation to the EC and the European Union (EU), it has controlled a process of constitutionalization at the level of European integration. This chapter compares that development with how the Constitutional Court has conceptualized the national constitutional control of developments in the second and third pillars of the EU and European integration more generally. In that context, it also provides a short background outlining how the Constitutional Court has treated problems of European integration. It argues that the development of supranational integration sheds new light on some of the central aspects of theories of judicial control of political decision-making.

This chapter presents a case note from 2005, which examines the Federal Constitutional Court's controversial response to decisions of the European Court of Human Rights (ECtHR). The Federal Constitutional Court was less sanguine about that international tribunal's intrusion upon the German legal system. The EtCHR had condemned, as a violation of Article 8 of the European Convention on Human Rights, the limited child custody privileges German law provided for unwed fathers. There has been persistent engagement between the legal systems of Germany and the convention on these questions. The resulting cases, and commentary about them in the German Law Journal, raise interesting questions about Germany's legal culture. The dissonance is tied to the fact that German family law is embedded in the closed and highly revered system of the Bürgerliches Gesetzbuch (BGB—German Civil Code). But these cases also push to the fore questions about the way German and international human rights law perceive gender, and the roles of men and women in family life.

This chapter examines poor survival rate of early modern German books. It emphasizes an increasing interest in women's capabilities and education, and discusses pietism as a movement that encouraged women's learning. It also considers educating fathers: German professors who taught their daughters Latin, and a continued use of Latin in court contexts, particularly among the Wittelsbachs, the Braunschweig-Lüneburgs, and in the Palatinate. Women published in Latin, such as Euphrosine Aue, are presented. In the Low Countries, Anna Maria van Schurman was the outstanding, but not the only example, of a multilingual woman scholar, and probably the first woman permitted to attend university (Utrecht) as a student. There were Latinate women among the Dutch petit bourgeosie, notably Elizabeth Koolaart. In the 17th century, princesses and professors' and pastors' daughters in Scandinavia began to study Latin, notably Queen Christina, Sophia Brenner, and Maria Aurora van Königsmarck. Women in the court of Luisa Maria Gonzaga, Queen of Poland, continued to cultivate Latin, notably Sophia Corbiniana, and another outstanding figure is the poet Anna Memorata.

This chapter presents a Holocaust denial case involving a 1994 decision by the German Constitutional Court. Decided before the amendment of section 130, the case did not concern a criminal conviction, but rather arose out of an administrative proceeding. The complainant was the Munich/Upper-Bavarian section of the National Democratic Party of Germany (NPD), a small right-wing party not represented in the Bundestag, the federal parliament. The NPD had planned a public meeting in the city of Munich where David Irving was supposed to speak. According to the announcement by the NPD, the speech would deal with the alleged Jewish blackmailing of German politics by exploiting the Holocaust. The municipal authorities of Munich, who had been notified of the planned assembly by the NPD, issued an order prohibiting Irving, other speakers, and the participants of the assembly from denying the persecution of Jews during the Third Reich.

This chapter deals with the critical appraisal of the decision which the Second Senate of the German Federal Constitutional Court (FCC) handed down on 26 October 2004. With respect to the question of the relevance of the International Law Commission's (ILC) Draft Articles on State Responsibility to the practice of UN member States, and especially the practice of their domestic courts, this decision is so far the most important as well as the most problematic decision of the German Federal Constitutional Court.

This chapter explores to what extent the Personhood Dependent Principle (PDP) as it is developed in Chapter One is an attractive principle for a country such as Germany, with strong constitutional protections of the embryo. A closer look at the various laws and practices reveals, however, that only some embryos are protected in Germany. The reasons for distinguishing between embryos that are protected and embryos that are not, fail to be convincing. Rather, they express a lack of respect for women and a problematic privileging of traditional family values. Thus, this chapter shows that the Personhood Dependent Principle is both a viable and attractive principle to adopt for law and policy makers as it would help make the Germany position on the embryo’s moral value more coherent.

This chapter explores the German Constitutional Court’s engagement with the memory of Nazism in the first quarter century of the Court’s operation. The chapter shows how the Court came to identify itself, internally and externally, as an overtly anti-Nazi institution. It highlights how the Court construed the postwar German Basic Law as a fundamentally anti-Nazi document and the basis of an anti-Nazi state. The most dramatic case in this regard is the Court’s Civil Servants judgment of 1953, which is discussed at length. The chapter also explores the mnemonic backdrop to the Court’s landmark fundamental rights judgments of the late-1950s. The chapter concludes by discussing the Court’s 1975 abortion judgment, which controversially invoked the memory of Nazism to explain why the right to life had a different valence in Germany than in other democratic states, and why the German Constitution accordingly required the state to protect unborn life throughout the duration of pregnancy.

Chapter 1 has three major themes: (1) the Court’s battle for institutional independence vis-à-vis the executive and the ministry of justice, a battle that played out against the backdrop of a controversy surrounding the constitutionality of the proposed European Defence Community; (2) the Court’s struggle for supremacy within the judiciary—that is, its conflict with the ‘ordinary’ German courts; and (3) the Court’s establishment of a fundamental rights jurisprudence that conceived of basic rights not merely as defensive rights against the state, but as objective values whose ‘radiating influence’ permeated all spheres of public and private law. The chapter also visits various causes celebres—the Court’s banning of the German Communist Party, its injunction of an atomic weapons plebiscite, its early landmark decisions on gender equality, etc. The chapter stresses the fundamentally anti-Nazi orientation of the early Court, as well as the anti-Nazi credentials of its justices.

This chapter analyzes the impact of the Lisbon Treaty on the EU judiciary. It begins by examining the Lisbon Treaty amendments that affect the nomenclature of the Union courts and the rules relating to judicial appointment. This is followed by analysis of the provisions concerning the courts' jurisdiction, and the extent to which these have been altered by the Lisbon Treaty. The focus then shifts to the overall judicial architecture of the EU courts. This was given scant attention in the deliberations that led to the Constitutional Treaty, which largely replicated the schema in the Nice Treaty, and the same remains true for the Lisbon Treaty. The reasons why this issue never made it onto the reform agenda are explained, and the possibilities for more coherent and rational division of power between the European Court of Justice (ECJ) and the General Court is explored. The chapter then addresses the implications of the Lisbon Treaty for central components of judicial doctrine, direct effect, and supremacy. It concludes by considering what can be learned from national courts during the ratification process, with particular attention focused on the German Federal Constitutional Court.

This chapter examines the role and importance of judicial precedents in each of the four jurisdictions: Germany, England and Wales, Sweden, and the United States. It begins with a historical overview of the use and importance of judicial precedents in each of the four jurisdictions through the centuries and up into the present. It then looks at statutory provisions which concern the authority of judicial precedents and presents an overview of the modern practice of employing precedents in these four jurisdictions. This is followed by a study of the case decisions of the German Federal Constitutional Court. The study attempts to ascertain to what extent its judges feel constrained to follow its previous decisions. It shows that court seldom overrules previous precedents, at least when compared to the practice of the U.S. Supreme Court. The study also attempts to answer how political the two courts are by identifying the number of overrulings that are political in nature.

This chapter considers the highly problematic issue of defiance by a court. Notably, the chapter focuses on defiance by national courts in the context of European integration—a phenomenon which has occurred with some frequency. Still more specifically, this chapter turns to the German Constitutional Court’s approach to European integration. Though the 1949 German Constitution (the Grundgesetz) appears to be more open for European and international cooperation than most other constitutions on the continent, it too seems to be edging toward defiance. As a first step it is thus necessary to take a closer look at the broader picture of the German constitutional landscape, in particular at the German Constitutional Court and its decisions on European integration. Based on that broader account of cases, the chapter then assesses the degree and motivations of defiance and to reflect on possible future developments.

This chapter highlights the German Constitutional Court’s mnemonic jurisprudence in the modern era. It shows how the Court has continued to invoke the Nazi era, and the collapse of the Weimar Republic that preceded it, as key reference points in constitutional adjudication. It stresses that the Court has continued to strike a balance, or forge a hybrid, between the parenthetical and the redemptive modes of memory. It notes that the redemptive mode sometimes leads to a form of exceptionalism. This is most striking in the context of Nazi-related speech. The Court has held that, because the Basic Law as a whole must be understood as a counter-proposal to Nazism, Nazi-related speech is partially exempted from general constitutional protections of speech and opinion. The chapter also suggests that the Court has sometimes paid more attention to the Constitution’s prehistory than to the Federal Republic’s lived experience under the Basic Law. The chapter ends by noting that in recent years, the Court has begun to show more sensibility to its own (and the Constitution’s) historicity.

This chapter charts how proportionality has developed into a global principle of constitutional law. The German Federal Constitutional Court constitutionalized the proportionality principle, which has roots in eighteenth-century political theory and nineteenth-century administrative law. From Germany, proportionality radiated outward, spreading through Europe with the aid of the courts from the European Union and the European Convention on Human Rights, and beyond Europe owing to its adoption by influential constitutional courts, including in Canada, Israel, and South Africa. PA has accompanied most successful transitions to rights-based constitutional democracy in the past three decades, including in Asia and Latin America. The empirical focus in this chapter is on (i) how courts have justified their turn to proportionality, (ii) how they subsequently deploy PA, and (iii) how these choices impact law and politics. Proportionality’s diffusion exhibits the basic features of what institutional sociologists call isomorphism, which is driven by mimetic, coercive, and normative mechanisms. Notwithstanding points of convergence, there are profound cross-national variation in how courts adopt and use proportionality. The chapter explains why this diversity is likely to persist.

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.

This chapter presents a case study of the Austrian Coupon Cases of the 1870s and 1880s, which involved internationally issued bonds of Austrian railway companies that were originally denominated in multiple currencies. Some of these currencies became extinct when the German Empire was created in 1871 and they were merged into the German mark, which was based on gold and appreciated against Austrian silver currency. The disputes were about whether the debt was to be converted into the appreciated mark. The courts consistently ruled in favour of the bondholders, but their reasoning in the six principal decisions evolved: while the initial decisions applied a metallistic approach and treated the issue as a conflict of laws, the later decisions of the German Imperial Court developed a nominalist concept of monetary debt, and on that basis concluded that the law of the currency was universally applicable.

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.

The sovereign debt crisis has caused significant changes in the architecture of EMU and its constitutional underpinnings, and it has unleashed a broad debate on the future of European integration. This chapter analyses the different ways in which both the Court of Justice of the EU (CJEU) and certain national courts have been involved in the review of post-crisis legal developments. Despite the significance of these developments, both EU and national courts have shown deference to the political process, to varying degrees. This degree of restraint is both problematic and hardly surprising, and it comes as a response to a different set of challenges in each category of cases. The chapter critically analyses the role played by the CJEU and national courts so far, and provides an overview of the challenges ahead.