The German System of Constitutional Review: Prototype of a Concentrated Model?

Abstract

Within the last two decades German constitutionalism in general and the German Federal Constitutional Court (BVerfG) in particular have noticeably increased their influence as prototypes for legal systems worldwide. Despite the fact that neither constitutions nor a specialized constitutional jurisdiction are German inventions as such, in recent times several nations within and outside of Europe have turned their eyes into Germany. In an enormous range that includes countries in Western Europe, most of the former Eastern Bloc, as well as nations in Latin America, Asia, and Africa; for a time now the German Basic Law and the BVerfG as its “guardian” have clearly substituted their American counterparts as the “world’s leading model of democratic constitutionalism”. Surprisingly enough, however, in spite of the remarkable influence both of German legal institutions and German constitutional jurisprudence worldwide, there are still some important misconceptions—particularly among Hispano-American scholars—regarding the German system of constitutional review. These misunderstandings have not only impacted foreign academic work but also, unfortunately, they have had significant influence on policy making abroad. They relate, as one would have thought, to oversimplification; a deficiency that is not unusual among comparative legal studies. This way, for example, the existence of a specialized constitutional jurisdiction in Germany has led some scholars to assume that the BVerfG monopolizes the whole activity of constitutional judicial review. What is more, the presence of a specialized procedure through which individuals as such can further challenge ordinary courts’ judgments before the constitutional court—the so-called ‘constitutional complaint’ (Verfassungsbeschwerde)—frequently leads scholars to explain the division of duties between constitutional and ordinary courts as if it were given by the application, respectively, of constitutional or ordinary law. Finally, no less important, this specialized constitutional mechanism for individuals is often understood as if it were a ‘right’ in the strictest sense of the term, that is, as if its correct filing by an individual were sufficient to bind the constitutional court to admit the complaint and thus to solve the case on its merits. This somewhat romantic notion of the constitutional complaint has certainly contributed to strengthen the idea that the constitutional jurisdiction in Germany works as a “super jurisdiction of appeals”.