German Constitution Research Articles

Trespassing on the Law: Critical legal engineering as a strategy for action research

AbstractThis paper proposes critical legal engineering (CLE) as a new methodology for legal‐geographic action research. While legal geography is on the rise, geographers rarely participate in legal or judicial process, and when they do – for example, as court expert witnesses – they merely respond to the pre‐established agendas of the legal system. I argue that legal geographers’ knowledge on the nature of law and its relations with society is a source of power that could allow them to set legal agendas and pluralise legal discussions. CLE assumes that legal geographers can put forward technical legal arguments, thus using law’s own tools to implement normative agendas implied in critical research. However, CLE demands a dialectical attitude that preserves the contradiction between political ends and legal technology – while pursuing both of them at the same time. As I show, CLE can realise critical agendas in three ways. First, it co‐opts the legitimacy provided by the legal system, lending it to the agendas that are otherwise perceived as “too radical.” Second, elevated by the law these radical agendas may gain greater power to influence political‐economic realities even before the legal outcomes are decided. Finally, CLE draws out of “technical” legal discussions into the heat of the public debate, thus politicising the law. Having developed this methodological proposition in the course of my research on urban movements, I illustrate it with the strategy of Berlin's campaign Deutsche Wohnen & Co. Enteignen (DWE), which has crafted a legal argumentation based on Article 15 of the German Constitution to pursue re‐municipalisation (or de‐privatisation) of housing.

Towards Categorical Visibility? The Political Making of a Third Sex in Germany and the Netherlands

AbstractAlthough international proclamations increasingly recognize legal sex beyond binary categories, domestic legislation is lagging behind. Germany and the Netherlands are the first countries in Western Europe where courts have ruled in favour of a third option. While the German constitution was amended to guarantee a third option, the Dutch government has refrained from implementing comparable legislation. What explains this difference? This article draws on parliamentary debates, newspapers and statements from activists to follow the trajectory of the third option. Building on literature on intersex rights legislation and the diffusion of LGBT rights norms, we find that an established progressive reputation can lead states like the Netherlands to take a back seat, while mobilization by activists was crucial in establishing the self‐determination of legal sex on the German political agenda. Our study contributes to unravelling the complex ways in which new norms shape – or fail to shape – domestic political outcomes.

Inter-Legality and Surveillance Technologies: Looking at the Demands of Justice Beyond Borders

On the 19th of May, the German Federal Constitutional Court ruled that telecommunication surveillance of non-German individuals outside German territory violates the German Constitution. The reasoning of the Court entails a number of crucial questions both from the international and European human rights law perspective. The most important one being whether the German Federal Government is bound by the provisions of the German Constitution when it interferes with the rights of non-German individuals in a non-German territory. Relying on international human rights law, the Court answered affirmatively. The reasoning of the judgment has demonstrated a successful example of Inter-legality. Therefore, this paper aims at analyzing the judgment from such a perspective through a three-step analysis: Taking the vantage point of the affair – the case at hand - under scrutiny, understanding the relevant normativities controlling the case, looking at the demands of justice stemming from the case. It concludes that such an inter-legal reasoning provided the Court to close ‘virtual legal black holes’, and avoid injustice.

Dabeisein ist alles: Zur Notwendigkeit körperlicher Anwesenheit im Parlament

German parliamentary law is currently based on MPs being physically present in parlia­ment . This presence is especially indispensable for elections and votes . It cannot be replaced, even during the pandemic, by MPs participating remotely . To create the possibil­ity for parliamentary sessions to take place in whole or in part without a physical presence, the German constitution would have to be amended . Even creative interpretations of “pres­ence” do not make a constitutional amendment unnecessary . Parliaments should create the legal means to ensure functionality in times of crisis and such provisions for emergencies should be made in reasonably calm times .

Wohin steuern die Ultra-vires- und die Identitätskontrolle? Eine Zwischenbilanz anhand der Entscheidungen des Bundesverfassungsgerichts im PSPP-Verfahren

The article takes stock of the consequences which the decisions of the German Federal Constitutional Court (FCC) concerning the Public Sector Purchase Programme (PSPP) of the European Union (EU) have had on the relation between EU law and the German constitution. The interplay between the PSPP judgment of 5 May 2020 and a follow-up decision on its enforcement reveals a certain degree of back-paddling by the FCC. Irrespective of the infringement procedure, which the European Commission recently initiated against Germany, there are good chances for a respite for both the FCC and the Court of Justice of the EU. It is up to the FCC to use this period to clarify where it is headed with its jurisprudence on controlling the application of EU law in Germany.

Von der Konstitutionalisierung von Nulla poena, nullum crimen sine lege in Art. 116 WRV (1919) zu dessen Umkehrung in ein Nullum crimen sine poenadurch das NS-Regime

The principle of Legality (nullum crimen, nulla poena sine lege) is the most fundamental principle of German criminal code since it was codified in the Bavarian Criminal Code 1813 for the first time. With the Foundation of the German Empire in 1871 it became an integral part of the new German Penal Code Reichsstrafgesetzbuch). It was constitutionalized in 1919 as a fundamental right with Art. 116 of the Weimar Constitution. It was unchallenged till the Nazi regime came to power. Not within the Empowerment Act but with other legal measures resulting from the burning of the Parliament (”Reichstagsbrand”) on 28 February 1933 till 1935 on, the Nazi regime changed the principle step by step from nullum crimen, nulla poena sine lege to nullum crimen sine poena. They made Analogy in disfavor of the accused person possible and they stated criminal offences with retroactivity. Unfortunately, the Supreme Court of Justice (Reichsgericht) accepted the new provisions and used it as a basis for its sentences. After WW II the allies nullified the Nazi provisions. With Art. 103 § 2 of the new (West-)German constitution from 1949 nulla poena sine lege has been constitutionalized again. The Paper deals with that development with a special focus on the role of the Reichsgericht as the highest body of judges, who were trained in the times before the Nazis came to power.

Human Dignity and Orthodoxy: Systemic Incompatibility or Profitable Coexistence?

Human dignity is at the core of the German Constitution. According to Art. 1 of the German Basic Law, every state authority is obliged to respect human dignity and this premise, as a central element of the objective value order, influences German law as a whole. Both the Catholic Church and the Protestant churches have acknowledged human dignity in their official statements. The position of the Orthodox Church is, however, frequently questioned. Due to an alleged “traditional distance“, a systemic incompatibility has been proclaimed between orthodoxy and human rights, especially their foundation in human dignity. This assumption is based, inter alia, on the low ranking of the individual in the hierarchy of values, the statist premise of the Orthodox doctrine, the lack of constitutional state experience and the absence of a human rights discourse. The article analyses the compatibility of Orthodox theology together with the constitutional topos of human dignity and lightens the position of the Orthodox Church on the European constitutional tradition.

Intersektionale Ansätze in Gleichstellungsgesetzen

Gender equality laws have existed in public administration in Germany since 1998. These laws specify the constitutional requirement of gender equality on the basis of article 3(2) of the German Constitution. Considering the background of present discussions in Germany concerning inclusion and diversity in public administration, this article analyses possibilities to address intersectional discrimination, including racial discrimination and discrimination based on different socio-economic backgrounds. Therefore, the following critical analysis focuses on possible intersectional approaches in German gender equality laws. The article presents the primary existing constitutional provisions and simple legal rulings, while also taking a ‘de lege ferenda’ perspective. To this end, the article suggests concrete wording for new legislation and for the amendment of existing laws.

The Austrian Doctrine of Individual Administrative Acts as an Instrument for Dynamically Developing the Protection of Rights

The Austrian system of “act-specific” legal protection in the field of administrative law as laid down in the Federal Constitutional Law (B-VG) was not compatible with the plurality of administrative acts for a long time. Due to the evolutive jurisdiction of the Austrian constitutional court (VfGH) painful gaps in the coverage of administrative acts by this system could be avoided. Furthermore, conceptions in the law that always led to appealable acts closed such gaps. The VfGH appears to assume, that the principle of the rule of law in the Austrian constitution would always require legal protection when there is an interference into subjective rights. This assumption will be contradicted here on the basis of historical arguments. Furthermore, it will be shown that the VfGH does not apply this legal view consequently in its decisions. In an effort to eradicate the last gaps, the Austrian constitutional legislature should consider an abolition of the “act-specific” system of legal protection and install a general guarantee of legal protection instead, such as laid down in Article 19 paragraph 4 of the German Constitution (dGG).

Между федерацией и конфедерацией: баварский проект германской конституции 1848 года

Между федерацией и конфедерацией: баварский проект германской конституции 1848 года

El desarrollo histórico del principio de lealtad federal en el derecho alemán

El «padre» del principio de la lealtad federal - Rudolf SMEND - ha pasado a la historia por su aportación en la obra «Derecho Constitucional no escrito en el Estado Federal Monárquico.» Por primera vez en la historia del constitucionalismo alemán y en contra de la doctrina constitucionalista del Imperio de 1871, presentó y analizó el principio lealtad federal de forma jurídica y sistemática dotándolo de fuerza normativa. Aunque originariamente fue desarrollado para el contexto de una monarquía constitucional, lo fue adaptando a las diferentes épocas y formas de Estado. Por ello, desde el punto de vista histórico los enfoques bajo la Constitución del Imperio Alemán de 1871 y Constitución Republicana de Weimar de 1919 son de suma importancia. Muestra de ello es que el Tribunal Constitucional Federal Alemán en sus más tempranos pronunciamientos sobre la lealtad federal (ej.: STCF 1, 299; 12, 205) hace explícita referencia a la obra de SMEND. En concreto, son sentencias sobre el principio fundadas en las «profundas raíces dogmáticas e históricas» del ordenamiento alemán. Por ello, todavía hoy las posturas doctrinales sobre el principio del Bundestreue en las fases iniciales de formación del Estado alemán son de decisiva importancia. En el caso español los trabajos sobre el desarrollo histórico de este principio destacan por su ausencia. Carencia que dificulta entender su significado y alcance. Ha sido precisamente el objetivo de este trabajo el llenar este vacío.

A Defense of Non-Representational Constitutionalism: Why Constitutions Need Not Be Representational

Abstract The standard opinion is that the force of the constitution hinges on the fact that it is willingly endorsed by the people or, at least representative of the people. This Article challenges this view. More specifically, I differentiate between two types of legitimation: representational legitimation and non-representational or reason-based legitimation. While representational legitimation rests on the fact that the constitution is representative of who the people are or what they want, reason-based constitutions are based on the judgement that the constitution is just or, at least grounded in reason. I also show that some of the puzzles in constitutional theory can be resolved by acknowledging the significance of the latter type of legitimation. For instance, I illustrate that constitutions that were not adopted freely by the nations and could not have been characterized as representative of the people such as the German Constitution can still be legitimate. To put it provocatively: the legitimation of a constitution need not rest on the conviction that it represents the people whom it governs; it may simply rest on the belief that it is a good or just constitution. Representational legitimacy is only one form of legitimacy but not the only one.

Gender in Socio-Legal Teaching and Research in Germany

AbstractGender in socio-legal teaching and research in Germany is a story of impediments, hindrances, and of singleperson initiatives—my personal history being a part of this. But it is also a story of influences upon the impulse and inspiration to undertake socio-legal work. My Article is therefore influenced by (feminist) standpoint theory (Harding 1991). Germany has had a very conservative family culture and, over the past decades, many of the legal regulations that infringed upon women have had to be adapted, in what was quite a tedious political process, to comply with the German Constitution’s gender equality clause. Only in the past decade has gender awareness in law faculties increased and gained acceptance, usually as a result of greater focus on diversity issues, and anti-discrimination legislation. Obstacles have resulted from a lack of cooperation between the actors in social sciences and law, as well as in academia and gender equality practice, and a lack of understanding between more conservative and more progressive women. Socio-legal research was, and is, needed to deliver empirical evidence and provide theoretical foundations for cultural and legal changes as societies progress towards gender equality. Socio-legal teaching is needed to alert lawyers to necessary change, to enable them to undertake informed critique, and to prepare them to act. There are, however, marked deficits in socio-legal teaching and research on gender. In spite of an increased political acceptance, gender equality is still mainly a women’s project.

Cultural artefacts and the ‘migration crisis’: Disruptive materialities in works by Navid Kermani and Maxi Obexer

Amplified worldwide fragility and growing mobility have contributed to increased forced migration towards Europe. However, Europe’s present focus on border protection has furthered the ‘migrant crisis’ which is very much a crisis of response. News about the ‘migrant crisis’ continues to dominate political discourse in Europe and elsewhere. The discussions typically focus on Europe’s supposed solutions in the form of increased border security, new political agreements, and various forms of humanitarian aid. This article reviews four literary texts about Europe’s responses to forced migration and proposes that the literary treatment of various cultural artefacts employed in these texts critiques Europe’s current restrictionism. Two speeches by Navid Kermani, ‘Towards Europe’ and ‘On the sixty-fifth Anniversary of the Promulgation of the German Constitution’ and two novels by Maxi Obexer, Wenn gefährliche Hunde lachen (‘When dangerous dogs laugh’) and Europas längster Sommer (‘Europe’s longest summer’) make reference to several phenomenal objects and also to gestures. In and of themselves, these cultural artefacts such as beds, blankets, buses, lipsticks, T-shirts, shoes, and even the gestures of kneeling and bowing, may not possess anything disruptive. However, there is an unruly quality about them that puts a spotlight on the precarity of survival migrants who cannot access the European asylum process.

Is Post-Mortem Organ Donation a Duty Towards Society and Can It Be Justified by Public Interest? Recent Bills to Amend the German Transplantation Law

The issue of organ donation from deceased donors remains unsatisfactorily resolved in Germany. The number of donors has remained very low in recent years. Consequently, the German Bundestag was holding a debate on two MP bills aimed at amending the organ transplantation law. Two main bills were presented by different groups of MPs. The more controversial of them, supported by the Minister of Health, tried to introduce the opt-out model into Germany’s organ transplantation system. The second one aimed to improve the existing opt-in model. During the final voting, the Bundestag decided against the opt-out model and in favour of the improved opt-in one. In some experts’ eyes, an opt-out model imposes an obligation on the citizens to donate an organ after brain death. Can such a duty to the society be justified by public interest or other principles? The goal of this article is to offer an answer to this question by analysing the provisions of the German constitution.

German principals\u2019 attitude towards the form of religious education at state schools

Despite the strong status of denominational religious education (RE) in the German constitution this organizational form of RE finds itself increasingly under pressure at state schools. Reasons for this development are among others the shrinking percentage of baptized people in Germany, problems in organising this form of RE at school and the discussion on the role of religion in civil society. Concerning the future of RE four options can be determined that need to be discussed: denominational RE, cooperative RE, integrative RE and Moral Education instead of RE. This article presents a survey of 228 school principals who have introduced a cooperative RE at their school to find out which form of RE they prefer for which reasons. The results show that they prefer integrative RE (M = 4.07) over cooperative RE (M = 4.00). Moral Education does not get much support (M = 2.57), but still more than denominational RE (M = 2.27). Regression analysis gives evidence that issues like organizational aspects (for example size of the school) and educational goals (for example views on “taking position in RE”) predict the principals’ preferences. These results provide first impressions of an important group of people within the educational system who have hardly been considered in the discussion about how religion should be taught in the future.

How critical are Germans of democracy? The pattern and origins of constitutional support in Germany

ABSTRACT Academic studies have consistently demonstrated that citizens have lost trust in democratic institutions, grown sceptical of elected leaders, and become dissatisfied with how democracy works. These studies, however, neglect the analysis of some of the most important objects of the democracies they analyse. A case in point is the German constitution (Basic Law), which prescribes the values of German democracy and the institutions through which they are realized. By analysing 28 years of individual-level data from the German General Social Survey (ALLBUS), this article makes two important discoveries about attitudes towards the constitution. First, support for it is widespread, enduring and increasing amongst citizens in the east and west of the country. Second, generalized linear models demonstrate that this form of support is grounded in phenomena which provide it with durability. Postmaterialist values, centrist ideology, and age all nurture attachments to the constitution. These effects are confirmed by post-estimation analyses of average marginal effects. By demonstrating that German democracy is underpinned by a fund of enduring support, the research challenges suggestions of a crisis of democracy and concludes that Germans are not cynically rejecting of democracy, but critically democratic: they desire a fuller expression of the constitutional ideals.

Auf der Suche nach dem kirchenpolitischen System der Reichsverfassung

Abstract In search of the system of the state-church relation in the German Constitution – the academic discussion about state church law in the period of Weimar. The academic discussion during the period of Weimar about the state-church relation as it was adjusted by the German Constitution lasted only thirteen years. Among many other themes it focussed on the right of self-determination of religious communities and its limits, on the churches’ status as public corporations, and on the extent of state supervision over the churches. Summarizing these topics, the question how the “system of church politics of the constitution” could be defined was widely discussed. As the state-church regulation was the result of a compromise between fundamentally opposing positions, it was hardly possible to find a summarizing term for this concept. The formulations which were proposed clearly reflect this difficulty. Irrespective of this, the Weimar discussion developed principles of the state church law which are still valid.

Editor’s Note

Editor’s Note

Animal Rights: An approach to the Rights of Nature in Ecuador.

This study seeks to highlight the main historical antecedents of the complex relationship between human beings and animals, bringing us closer towards the material sources that influenced the creation, transformation and / or derogation from different legal regulations that ultimately reduced animals to the realm of things and objects of law. Simplifying the study of the animal question, we will unravel the scarce but relevant bibliography in respect of this, from the various legal regulations of antiquity, through extravagant medieval trials, arriving at unpublished international treaties, constitutions, laws and ordinances that nowadays support the recognition of animal rights. This brief analysis presents varied philosophical, religious and cultural conceptions that allow us to involve ourselves in the wide debate on the main topics of Animal Law that have grown in popularity in recent decades, starting with the publishing of Peter Singer’s Animal Liberation in 1975, and of the initiative of the Universal Declaration of Animal Rights in 1977. Furthermore, we will quickly look over the advances in the recognition of animal dignity, analysing Article 20 of the German Constitution of 2002, the recognition of the Rights of Nature in the Ecuadorian Constitution of 2008 and the Bolivian Constitution of 2009, and the recognition of animals as sentient beings in the Columbian Civil Code of 2016, as well as Ecuadorian regulations on this topic.