Abstract
AbstractDemocracy is usually relied upon as an important argument against the excessive influence of international and foreign law on the domestic legal order, and especially on domestic constitutional law. Both in Germany and the United States, skeptics and opponents of the Europeanization or internationalization of domestic constitutional law repeatedly raise democratic concerns. From a comparative perspective, this Article examines the German and American democratic arguments against an overreliance on international and foreign law in constitutional interpretations. In exploring the democratic concerns expressed in German and American discussions, this Article focuses especially on the contrast between German dualism on the one hand and American exceptionalism on the other hand. This Article shows that, while the German dualists and the American exceptionalists base their arguments on different understandings of democracy, they share the viewpoint that democracy can only be realized on the national level, whereas international law aims at uniformity und thus inevitably runs counter to democratic self-governance and self-determination of the states. Precisely in this sense, it can be said that there is no qualitative, but rather only a quantitative distinction between German and American democratic arguments. Thus conceived, the alleged contrast between the principle of open statehood emphasized by German constitutional law scholars and the Constitutional Court and the idea of American exceptionalism embraced by a number of critics of the use of foreign law lies only in the extent to which the reference to international or foreign law in interpreting the domestic Constitution is deemed legitimate and justifiable.
Highlights
Democracy is usually relied upon as an important argument against the excessive influence of international and foreign law on the domestic legal order, and especially on domestic constitutional law
In exploring the democratic concerns expressed in German and American discussions, this Article focuses especially on the contrast between German dualism on the one hand and American exceptionalism on the other hand. This Article shows that, while the German dualists and the American exceptionalists base their arguments on different understandings of democracy, they share the viewpoint that democracy can only be realized on the national level, whereas international law aims at uniformity und inevitably runs counter to democratic self-governance and self-determination of the states
The alleged contrast between the principle of open statehood emphasized by German constitutional law scholars and the Constitutional Court and the idea of American exceptionalism embraced by a number of critics of the use of foreign law lies only in the extent to which the reference to international or foreign law in interpreting the domestic Constitution is deemed legitimate and justifiable
Summary
It has long been widely recognized in Germany that the German Basic Law is characteristic of its commitment to international cooperation, and especially to European integration, most German constitutional law scholars adhere to the idea that the principle of open statehood (“offene Staatlichkeit”) must not be confused with the relativization, or even erosion, of national sovereignty.[2]. The discussions following from this distinction suggest that the German mainstream opinion has never abandoned the classic idea of national sovereignty, which above all, is characteristic of the adherence to the so-called dualistic view on the relationship between international law and domestic law,[10] and to the inviolability of domestic constitutional identity.[11] the principle of open statehood does not challenge dualism at all. Both European Union law and international law are to be regarded merely as “external law” that differs from domestic law in a formal sense, and, and especially, from a democratic perspective
Sign-in/Register to view highlights & summary Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Schedule a callDisclaimer: All third-party content on this website/platform is and will remain the property of their respective owners and is provided on "as is" basis without any warranties, express or implied. Use of third-party content does not indicate any affiliation, sponsorship with or endorsement by them. Any references to third-party content is to identify the corresponding services and shall be considered fair use under The CopyrightLaw.
