The Justicization of Politics: Constitutionalism and Democracy in Germany after 1949

Verena Frick

doi:10.33134/rds.312

Abstract

By engaging with the historiography of German constitutionalism after 1949, this article reconstructs a profound change of the meaning of the concept of constitution. The constitution evolved from a rather formal and provisional instrument of government to the just value order of politics, which scholars worldwide have celebrated as the value model of constitutionalism. The article critically examines the democratic consequences of this justicization of politics and disentangles the relationship between law and politics within German constitutional thinking by tracing its traditions and transformations back to scholarly debates and early Constitutional Court’s landmark decisions.

Highlights

The adoption of the German Basic Law in 1949 turned a new page in the history of modern constitutionalism
Considering that from the mid-1950s through much of the 1960s, large discrepancies between the Basic Law’s normative claims and their realization in much of German law and society existed (Hailbronner 2014, 643), it becomes obvious that the Federal Constitutional Court (FCC) and the Smend School followed an agenda of political change by legal means
Concluding Remarks: Crisis of the Constitution or more Political Constitutionalism? By engaging with the historiography of German constitutional thinking after 1949, the article has sought to reconstruct the interplay between law and politics embedded in German constitutional thinking along three core dimensions: guardianship, value-constitutionalism and juridical epistocracy

Summary

Introduction

The adoption of the German Basic Law in 1949 turned a new page in the history of modern constitutionalism. Considering that from the mid-1950s through much of the 1960s, large discrepancies between the Basic Law’s normative claims and their realization in much of German law and society existed (Hailbronner 2014, 643), it becomes obvious that the FCC and the Smend School followed an agenda of political change by legal means.

Results

Conclusion