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Traditions and Transformations - The Rise of German Constitutionalism (Hardcover)
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Traditions and Transformations - The Rise of German Constitutionalism (Hardcover)
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German constitutionalism has gained a central place in the global
comparative debate, but what underpins it remains imperfectly
understood. Its distinctive conception of the rule of law and the
widespread support for its powerful Constitutional Court are
typically explained in one of two ways: as a story of change in
reaction to National Socialism, or as the continuation of an older
nineteenth-century line of constitutional thought that emphasizes
the function of constitutional law as a constraint on state power.
But while both narratives account for some important features,
their explanatory value is ultimately overrated. This book adopts a
broader comparative perspective to understand the rise of the
German Constitutional Court. It interprets the particular features
of German constitutional jurisprudence and the Court's strength as
a reconciliation of two different legal paradigms: first, a
hierarchical legal culture as described by Mirjan Damaska, building
on Max Weber, as opposed to a more co-ordinate understanding of
legal authority such as prevails in the United States, and
secondly, the turn towards a transformative understanding of
constitutionalism, as it is today most often associated with
countries such as South Africa and India. Using post-war legal
history and sociological and empirical research in addition to case
law, this book demonstrates how German constitutionalism has
harmonized the frequently conflicting demands of these two legal
paradigms, resulting in a distinctive type of constitutional
reasoning, at once open, pragmatic, formalist, and technical, which
this book labels Value Formalism. Value Formalism, however, also
comes with serious drawbacks, such as a lack of institutional
self-reflection in the Court's jurisprudence and a closure of
constitutional discourse to laymen, whom it excludes from the realm
of legitimate interpreters.
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