The Federal Republic of Germany

2021 ◽  
pp. 39-114
Author(s):  
Steven Gow Calabresi
Keyword(s):  
Judicial Review ◽  
Civil Law ◽  
Constitutional Court ◽  
Federal Republic Of Germany ◽  
Constitutional Protection ◽  
Basic Law ◽  
German Model ◽  
Hans Kelsen ◽  
The Third Reich ◽  
The One

This chapter looks at the German system of judicial review of the constitutionality of legislation, which has been borrowed by virtually all of the civil law countries in the world as being the one that is the most compatible with their legal system. The historical lessons drawn from Germany’s experience with the Third Reich made Germans acutely aware of the need for constitutional protection of rights growing out of the great historical wrongs of Nazism and of the Holocaust. Thus, the fundamental core explanation of the origins and growth of German judicial review is that it is a rights from wrongs phenomenon. That being said, the growth of German judicial review was made easier by the fact that the German Basic Law constituted the Constitutional Court to act as a federalism and separation of powers umpire. The German Constitutional Court has performed those umpiring function from 1949 down to the present day with great deftness and ability. Thanks to the great scholar, Hans Kelsen, the Germans borrowed a greatly modified system of U.S. judicial review, which was specially designed to work well in civil law countries. The German Model has, in turn, been borrowed by every oother country discussed in Volume II of my two part book series.

Abortion and Judicial Review of Statutes

1977 ◽  
Vol 12 (1) ◽  
pp. 15-31 ◽  
Author(s):  
Ernst Livneh
Keyword(s):  
Federal Republic ◽  
Judicial Review ◽  
German Law ◽  
Reform Movement ◽  
Constitutional Court ◽  
Federal Republic Of Germany ◽  
French Law ◽  
The West

It is difficult to see the connection between these two topics, but on 25 February 1975 the Constitutional Court of the Federal Republic of Germany gave a decision of great importance in both fields, and although Israel adheres to another system of law, in the opinion of the writer, this decision is of great interest here too.The amendment of the German law relating to abortions, whose constitutionality was examined in the judgment mentioned, is part of a reform movement spreading from Europe to the Americas in the West and to Russia, India and Singapore in the East. It began to have influence upon legislation between the two wars (Russia 1920, Scandinavia and Switzerland in the 1930's), but gathered momentum particularly during the last decade (one of the earlier laws in this series is the English Abortion Act, 1967; one of the latest, the French Law of 17 January 1975).

The Concentrated and Hybrid Models of Judicial Review

2021 ◽  
pp. 27-38
Author(s):  
Steven Gow Calabresi
Keyword(s):  
Complex System ◽  
Latin America ◽  
Hybrid Model ◽  
Judicial Review ◽  
Civil Law ◽  
Hybrid Models ◽  
Judicial System ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
The Government

This chapter examines the two models of judicial review that exist in the civil law countries: the Concentrated Model and the Hybrid Model. The Concentrated Model of judicial review is built around the idea that what judges do when they enforce constitutions and Bills of Rights is inherently political and nonjudicial. For this reason, a separate Constitutional Court is created outside the ordinary judicial system, and is the only entity with the power of judicial review. The power of judicial review of Constitutional Courts is conceived as being a power to make the law and not simply to interpret it. Hence, a Constitutional Court in a civil law country is, essentially, a fourth branch of the government. Meanwhile, many countries, especially in Latin America, have developed distinct Hybrid Models of judicial review. The country of Brazil can be considered as the archetypal Hybrid Model. Brazil’s Hybrid Model of judicial review consists of a very complex system full of institutional mechanisms that are meant to enforce the Constitution. The Brazilian system combines features from both the Concentrated and the Diffuse Models hence the term Hybrid Model.

The Federative Republic of Brazil

2021 ◽  
pp. 201-230
Author(s):  
Steven Gow Calabresi
Keyword(s):  
Judicial Review ◽  
Separation Of Powers ◽  
Civil Law ◽  
Constitutional Court ◽  
Military Government ◽  
Military Dictatorship ◽  
Stare Decisis ◽  
German Constitutional Court ◽  
The Military ◽  
The U.S

This chapter looks at Brazilian judicial review. Judicial review in Brazil originated because it was borrowed from the U.S. Constitution. It emerged in amplified form in Brazil’s 1988 Constitution because, by 1988, the normative appeal of judicial review was widely appreciated all over the world. Moreover, the Hybrid Model of judicial review in Brazil, whereby the Supreme Federal Tribunal is both, at the apex of a diffuse system of judicial review, and is also a Constitutional Court, reflects widespread appreciation for the value of a system like the German Constitutional Court in a civil law jurisdiction. The power of such a court to issue rulings with erga omnes effect is especially important in civil law countries like Brazil, which lack systems of stare decisis. First, judicial review emerged in Brazil as the result of borrowing. Second, it emerged as a rights from wrongs reaction to abuses of power during Fascism and during the military dictatorship, which ruled Brazil for 1964 until 1984. Third, judicial review is necessary in Brazil for both federalism and separation of powers umpiring reasons. Fourth, judicial review in Brazil also emerged because the constitution-writing elite wanted to entrench its liberal and socialist values to forestall the emergence of yet another military government in the country. And, fifth, the Brazilian Constitution divides and allocates power among so many federal and state entities that the Supreme Federal Tribunal has the political space it needs to play a really big role in governing the country.

Adjudicating Economics? Central Bank Independence and the Appropriate Standard of Judicial Review

2014 ◽  
Vol 15 (2) ◽  
pp. 265-280 ◽  
Author(s):  
Matthias Goldmann
Keyword(s):  
Monetary Policy ◽  
Central Bank ◽  
Judicial Review ◽  
Constitutional Court ◽  
Unconventional Monetary Policy ◽  
The European Union ◽  
Policy Measure ◽  
European Central ◽  
Basic Law ◽  
Federal Constitutional

In Karlsruhe's recent request for a preliminary ruling, an unconventional monetary policy measure of the European Central Bank (ECB) finds an unconventional judicial response. Based on its mandate to enforce the fundamental right to vote, the Federal Constitutional Court (FCC) leaves no doubt about its view that the ECB's Outright Monetary Transactions Programme (OMT Programme) violates the law of the European Union and hence the German Basic Law, unless one reads them in a rather restrictive way. But as unconventional monetary policy steps up the need for the ECB to justify the legality of its measures, so does the FCC's unconventional expansion of the scope of judicial review raise questions which the recent decision in its—generally laudable—brevity leaves underexplored. In particular, the decision does not dwell much on the issue whether it is appropriate for a court to review issues of monetary policy, and which standard of review should apply. Only Judge Gerhardt calls the majority's standard of review into question when he doubts whether the requirement for transgressions of the European Union's competences to be “manifest” is a workable criterion for defining the scope of the FCC's ultra vires control.

The emergence and transformation of self-determination claims in Hong Kong and Catalonia: A historical institutionalist perspective

Ethnicities ◽  
2018 ◽  
Vol 20 (1) ◽  
pp. 3-23 ◽  
Author(s):  
André Lecours ◽  
Jean-François Dupré
Keyword(s):  
Hong Kong ◽  
Central Government ◽  
Early Years ◽  
Self Determination ◽  
Constitutional Court ◽  
Regional Autonomy ◽  
Basic Law ◽  
One Country Two Systems ◽  
1997 Handover ◽  
The One

Using a historical institutionalist framework emphasizing the importance of transformative events, this paper seeks to explain the sudden emergence of self-determination claims in Hong Kong and their transformation into separatist ones in Catalonia. The paper argues that the inflexibility of the state in addressing moderate demands for regional autonomy has played a major role in the emergence and radicalization of these demands. In Hong Kong, the 1997 Handover from British to Chinese sovereignty was originally presented as an opportunity for self-governance under the principle of “Hong Kong People ruling Hong Kong” and the “One Country, Two Systems” formula. If Hong Kong nationalism was practically unheard of in the early years of the Handover, the unconciliatory attitude of the central government towards moderate demands for the actualization of the autonomy and democratization frameworks vested in Hong Kong’s Basic Law has directly contributed to the formation of today’s emerging self-determination movement. In Catalonia, the 2010 decision of the Spanish Constitutional Court to annul some articles of the reform to the Statute of Autonomy of Catalonia and to interpret others narrowly represented a transformative event that took Catalonia onto the pathway of secessionist politics. The secessionist turn was then further fed by the on-going refusal of the central government to negotiate with the Catalan government, notably on the notion of a popular consultation on the political future of the Autonomous Community.

David Currie and German Constitutional Law

2008 ◽  
Vol 9 (12) ◽  
pp. 2081-2094
Author(s):  
Peter E. Quint
Keyword(s):  
Federal Republic ◽  
Constitutional Law ◽  
Constitutional Court ◽  
Federal Republic Of Germany ◽  
Major Work ◽  
Basic Law ◽  
Federal Constitutional ◽  
German Constitutional Court ◽  
German Constitutional Law ◽  
Constitutional Jurisprudence

Without much doubt, the two great pillars of American scholarship on the German Basic Law and the jurisprudence of the Federal Constitutional Court are (in the order of first appearance) Donald Kommers's monumental casebook, The Constitutional Jurisprudence of the Federal Republic of Germany and David Currie's magisterial treatise, The Constitution of the Federal Republic of Germany. Professor Kommers's comprehensive work was a milestone in a long career that has been very substantially devoted to the study of German constitutional law. In the late 1960s, Kommers spent a research year at the German Constitutional Court and, drawing in part on personal interviews with the justices, he published the first major work in English on that court. Since then, Kommers has produced a steady stream of significant works on German constitutional law.

The Effects of the Judgments of the European Court of Human Rights According to the German Constitutional Court

2010 ◽  
Vol 11 (5) ◽  
pp. 513-526 ◽  
Author(s):  
Christian Tomuschat
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Constitutional Court ◽  
Federal Republic Of Germany ◽  
The Rule Of Law ◽  
Basic Law ◽  
European Court ◽  
German Constitutional Court ◽  
The Individual ◽  
Willingness To Cooperate

The Federal Republic of Germany counts among the earliest States parties to the European Convention on Human Rights (ECHR). It ratified the ECHR on 5 December 1952, three years ahead of Italy, and hence found itself among the original members of the treaty system when the ECHR entered into force on 3 September 1953. For the new democratic Government, it was a decision of principle to affirm its willingness to cooperate peacefully within the group of European States, submitting to an international review mechanism with regard to all of its activities. Therefore, very shortly afterwards, it accepted also the individual application under Article 25 ECHR, which at that time was not yet compulsory for all States parties. For many years under the Nazi dictatorship, Germany had brought death and destruction to its neighbours. Now, organized under a democratic and liberal constitution, the Basic Law (BL), it wanted to manifest its newfound identity as a civilized State abiding by the rule of law.

Streikverbot für Beamte – sowohl verfassungs- als auch konventionsgemäß? Kritische Anmerkungen zum Urteil des BVerfG vom 12.6.2018

2018 ◽  
Vol 101 (4) ◽  
pp. 376-394
Author(s):  
Shu-Perng Hwang
Keyword(s):  
International Law ◽  
Public Law ◽  
Civil Servants ◽  
Constitutional Court ◽  
Federal Republic Of Germany ◽  
Public International Law ◽  
Basic Law ◽  
Federal Constitutional ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

This article critically approaches the recent decision of the German Federal Constitutional Court regarding the ban on strikes for civil servants. It shows that the judgment cannot be seen as a decision committed to international public law, as some scholars suggest. By once more adopting a material understanding of Art. 33 para. 5 Basic Law and thereby not only confirming the constitutionality, but in particular the constitutional status of the ban on strikes for civil servants, the court holds on to the absolute primacy of the Basic Law that is not to be undermined by the ECHR or the jurisprudence of the ECtHR as a means of interpretation. The reference to the need to contextualize the jurisprudence of the ECtHR as well as the emphasis on the national particularity of the Federal Republic of Germany clearly indicate that, by developing a state-centred principle of commitment to public international law, the court does not seek to align and harmonize the requirements of the ECHR and the Basic Law by developing a state-centred principle of commitment to public international law but rather to achieve a delimitation of competences between the spheres of the ECtHR and the Federal Constitutional Court.

scholarly journals JUDICIAL ACTIVISM OR SELF-RESTRAINT : SOME INSIGHT INTO THE INDONESIAN CONSTITUTIONAL COURT

Yuridika ◽  
2018 ◽  
Vol 33 (1) ◽  
pp. 145
Author(s):  
Radian Salman ◽  
Sukardi Sukardi ◽  
Mohammad Syaiful Aris
Keyword(s):  
Judicial Review ◽  
Separation Of Powers ◽  
Constitutional Court ◽  
Power Relationship ◽  
Judicial Activism ◽  
Conceptual Approach ◽  
Judicial Control ◽  
The One ◽  
Law Making

The Constitutional Court of Republic of Indonesia is centralized judicial review institution which implements a posteriori and abstract control. Constitutional court decision often politically sensitive and involve important issues. On the one hand handing down strong decisions that uphold important constitutional principles can bring great benefits to citizens and can strengthen support for democracy but on the other hand, strong role of the court in judicial review tends to encroach increasingly on the territory of the law making institution. This article examines the decision of constitutional court in the framework of a tension between constitutionalism and democracy, especially from theoretical or conceptual approach. As result of examining its decisions, Indonesian Constitutional Court may reflect two characters; judicial activism as characterized by acting as law-maker and using policy in judicial decisions and/ or judicial self-restraint.  Recent  Indonesian experience shows that judicial review of legislation is not a simply of judicial control over law-making institution, as it brings  tension in the context of power relations in the scheme of separation of power. Relationship between the court and legislature, in respective of judicial review, will culminate in the philosophy of the judiciary. However, as constitutionalism and democracy are virtue, decisions of the Constitutional Court in judicial review should create mode of self-limitation within the framework of the principle of separation of powers.

scholarly journals DISTINGUISHING CONSTITUTIONAL AND STATUTORY INTERPRETATION IN JUDICIAL REVIEW CASES: A BLURRED BOUNDARY LINE

2018 ◽  
Vol 18 (2) ◽  
pp. 235
Author(s):  
B Bisariyadi
Keyword(s):  
Judicial Review ◽  
Common Law ◽  
Civil Law ◽  
Boundary Line ◽  
Constitutional Court ◽  
Constitutional Interpretation ◽  
Statutory Interpretation ◽  
Court Practice

The establishment of the Constitutional Court to hold power of reviewing the constitutionality of Laws raises discourse on the distinction between constitutional interpretation and statutory interpretation. In judicial review cases, the separation, either in common law or civil law tradition, between the two interpretations is not clearly distinguished. The Indonesian Constitutional Court, in judicial review decisions, shows that the Court does not only interpret constitutional provision. In a number of decisions, the Court has put more emphasis on the use of statutory interpretation. The essay discusses the Constitutional Court practice in the use of constitutional interpretation and statutory interpretation on judicial review cases.Keywords: Constitutional Court, judicial review, constitutional interpretation, statutory interpretation.

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