The Post-sovereign Constitution or the Return of Sovereignty?

2021 ◽  
pp. 163-177
Author(s):  
Michael A. Wilkinson
Keyword(s):  
Academic Discourse ◽  
The Political ◽  
Constitutional Theory ◽  
Constitutional Court ◽  
Constituent Power ◽  
Popular Support ◽  
Judicial Practice ◽  
German Constitutional Court ◽  
Post War

<Online Only>This chapter outlines how the political constitution after Maastricht developed into a paradoxical configuration, whereby EU constitutional authority was augmented in specific areas, but was subject to increasing domestic contestation. This generated heightened constitutional conflicts in formal arenas, particularly in the jurisprudence of the German Constitutional Court, which will be examined in this chapter, and social and political contestation and opposition in informal arenas (examined in the next chapter). The chapter outlines how issues of sovereignty and domestic constituent power resurfaced after their post-war sublimation, but without obvious practical moment, since the judicial practice and academic discourse of European constitutionalization continued apace, exacerbating their disconnect from popular support. The chapter concludes by considering how, in constitutional theory, the discourse of post-sovereignty becomes dominant yet highly ideological, given the concrete constitutional developments, a disconnect which is dialectically deconstructed to reveal a hollow authoritarianism.</Online Only>

scholarly journals Sieyès and Republican liberty

2020 ◽  
pp. 147488512098059
Author(s):  
Adam Lindsay
Keyword(s):  
The Political ◽  
Constitutional Theory ◽  
Constituent Power ◽  
Commercial Society ◽  
Political Sphere ◽  
Normative Foundation ◽  
Philip Pettit ◽  
The Face ◽  
Political Freedoms ◽  
Republican Liberty

In On the People’s Terms, Philip Pettit incorporates the Sieyèsian notion of constituent power into his constitutional theory of non-domination. In this article, I argue that Emmanuel Sieyès’s understanding of liberty precludes such an appropriation. While a republican, his conceptualisation of liberty in the face of commercial society stood apart from theories of civic vigilance, preferring instead to disentangle individuals from politics and maximise what he understood to be their non-political freedoms. Sieyès saw that liberty was heightened through relations of representation and commercial dependency. This conception of liberty was pivotal to the identity of the nation, and so allowed Sieyès to assess forms of collective injustice committed by the French nobility. It also provided the normative foundation of his theory of constituent power. For Sieyès, constituent power guarded against legislative excess in a decidedly minimal sense, intending instead to separate citizens from the political sphere so they were not burdened with ongoing participation or public vigilance.

scholarly journals On the Lissabon-Urteil: Democracy and a Democratic Paradox

2009 ◽  
Vol 5 (3) ◽  
pp. 341-344
Author(s):  
JHR ◽  
LB
Keyword(s):  
Political Engagement ◽  
Institutional Arrangements ◽  
Constitutional Theory ◽  
Constitutional Court ◽  
Constitutional Development ◽  
Member States ◽  
German Constitutional Court ◽  
Constitutional Pluralism

The Bundesverfassungsgericht was castigated for the Maastricht-Urteil by most European lawyers, especially the Germans among them. But that judgment has placed its stamp on much of the constitutional development of the Union and has allowed theories of constitutional pluralism, polycentrism, multilevel constitutionalism, Verfassungsverbund and the constitution composée to flourish. The German constitutional court is likewise being castigated for its Lissabon-Urteil. Certainly, it has put the questions of democracy, the level at which democracy is to be aggregated and articulated, and the pertaining institutional arrangements in the member states and in the Union higher on the agenda of intellectual and political engagement than they have been over the last decades. Perhaps it will be just as fruitful for European constitutional theory as the Maastricht-Urteil was.

Law and Politics in Germany

1978 ◽  
Vol 26 (3) ◽  
pp. 348-362 ◽  
Author(s):  
Philip Blair
Keyword(s):  
Easy Access ◽  
The Political ◽  
Constitutional Court ◽  
Political Issues ◽  
Political Actors ◽  
Law And Politics ◽  
Basic Rights ◽  
The Social ◽  
Federal Constitutional ◽  
Post War

German politics are still influenced by the tradition of legalism. Constitutional provisions often serve as criteria of political argument, and constitutional principles (e.g. the ‘social state’) and basic rights may be portrayed as programmatic ‘commandments' justifying specific political demands. The corollary is a propensity towards judicial, and thus ‘authoritative’, solutions to political disputes. The post-war establishment of the Federal Constitutional Court with comprehensive constitutional jurisdiction and easy access for the political actors has subjected major political issues to legal adjudication. Increasingly appeal to the Court has become a weapon of opposition, resorted to by the Christian Democrats to challenge such measures as the Basic Treaty with East Germany and the Abortion Reform. Despite general self-restraint vis-à-vis the political authorities, the Court has sometimes construed basic rights expansively as ‘participatory’ rights to positive government action. Recently it has been criticised for ‘conservatism’ and a tendency to restrict future legislative discretion. The ‘politicization of justice’, emerging from the judicialization of politics, could affect respect for the Court as authoritative arbiter. But it may foster a healthier relationship between politics and the law.

The New Constitutionalism and its Discontents

2021 ◽  
pp. 230-248
Author(s):  
Michael A. Wilkinson
Keyword(s):  
Monetary Union ◽  
European Central Bank ◽  
Crisis Response ◽  
The Political ◽  
Constitutional Court ◽  
Euro Crisis ◽  
European Constitution ◽  
European Central ◽  
German Constitutional Court ◽  
The Guardian

<Online Only>This chapter examines the unsettling of the political constitution by domestic challenges to the euro crisis response, particularly against the actions of the European Central Bank (ECB). The disconnect between postnational discourse and domestic constitutionalism generated critical constitutional moments over who was ‘the guardian’ of the European constitution. These moments were exemplified by the OMT saga, when the German Constitutional Court threatened to invalidate an ECB programme that had existential implications for the eurozone. The chapter will examine how the ECJ’s assertive ruling, in response, did not signal the perfection of European constitutionalism, as suggested by the new constitutionalists, but revealed its precarity, rubber-stamping a programme that was of dubious legitimacy. If this would ‘buy time’ for the project, it would do so in a way that merely concealed the dysfunctionality of Economic and Monetary Union. The chapter concludes that authoritarian liberalism was, ultimately, juridically fortified by these challenges, but left open to further constitutional contestation, revealing the erosion of sovereignty underlying the European construct.</Online Only>

The German Federal Constitutional Court

2020 ◽  
pp. 279-356
Author(s):  
Anuscheh Farahat
Keyword(s):  
Constitutional Law ◽  
Constitutional Court ◽  
New Era ◽  
Federal Constitutional ◽  
German Constitutional Court ◽  
Post War ◽  
Nazi Era ◽  
German Constitutional Law ◽  
The Guardian ◽  
German Federal Constitutional Court

This chapter discusses the German constitutional court, otherwise known as the Federal Constitutional Court (Bundesverfassungsgericht; ‘BVerfG’). It first traces the development of the German process of constitutional jurisdiction from its pre-Nazi era roots to its astounding post-war transformation into one of the world’s leading courts. The chapter looks at the challenges inherent in the founding of the BVerfG before providing an overview of the organization and role and functions of the BVerfG. It shows how the BVerfG acts as the ‘guardian’ of German constitutional law. To conclude, this chapter reflects on the increasing Europeanization of constitutional law and what it means for the BVerfG to navigate this new era of constitutional pluralization.

scholarly journals Les Juges Constituants

2010 ◽  
Vol 6 (2) ◽  
pp. 171-174
Author(s):  
JHR ◽  
WTE
Keyword(s):  
Political Institutions ◽  
The Political ◽  
Constitutional Theory ◽  
Constituent Power ◽  
The People ◽  
The Relationship

Constituent power of the courts, in dialogue, accommodation or even collaboration, has become undeniable. It raises at least two points for scholarship to contemplate. First, what is the foundation of this power in terms of classical constitutional theory? Second, instead of or apart from the courts and their interactions: what is the relationship, in this constituent activity, between the courts and the political institutions, including the people?

scholarly journals The right to a self-determined death as expression of the right to freedom of personal development: The German Constitutional Court takes a clear stand on assisted suicide

2020 ◽  
Vol 46 (6) ◽  
pp. 416-417 ◽  
Author(s):  
Ruth Horn
Keyword(s):  
End Of Life ◽  
Personal Development ◽  
Assisted Suicide ◽  
Historical Context ◽  
Federal Court ◽  
Constitutional Court ◽  
German Constitution ◽  
German Constitutional Court ◽  
Post War ◽  
The Right

On 26 February 2020, the German Constitutional Court rejected a law from 2015 that prohibited any form of ‘business-like’ assisted suicide as unconstitutional. The landmark ruling of the highest federal court emphasised the high priority given to the rights of autonomy and free personal development, both of which constitute the principle of human dignity, the first principle of the German constitution. The ruling echoes particularities of post-war Germany’s end-of-life debate focusing on patient self-determination while rejecting any discussion of active assistance to die through a lethal injection administered by a doctor. This brief report discusses the ruling in the light of the broader sociopolitical and historical context of the German end-of-life debate.

scholarly journals Old Weimar Meets New Political Economy: Democratic Representation in the Party State

2012 ◽  
Vol 13 (3) ◽  
pp. 237-258
Author(s):  
Emanuel Towfigh
Keyword(s):  
State Theory ◽  
The State ◽  
The Other ◽  
The Political ◽  
Constitutional Theory ◽  
Constitutional Court ◽  
Federal Republic Of Germany ◽  
Other Hand ◽  
Great Tradition ◽  
Party State

One of the prominent questions surrounding Weimar Theory of the State was that of the significance and influence of the political parties within the state. From the perspective of constitutional law, parties were as undesirable as they were an “inescapable” fact of modern statehood. They appeared to be an absolutely necessary consequence of the emancipation of all classes and social strata: Legitimation of state rule was no longer conceivable merely as a natural rule from above; on the other hand, there was no longer a unified bourgeoisie, and it thus seemed impossible for the political whole to be represented by people who felt beholden exclusively to the common weal. The homogeneous “people” had become a heterogeneous “mass.” The parties seemed to be a necessity, on the one hand, for active citizens to articulate themselves in the political system and, on the other hand, for state unity not to be torn apart by the power of a plurality of interests leaning in many different directions. Parties could therefore be conceived of as aprerequisitefor state organisation: The idea of the “party state” was born. One important protagonist in the discussion on the status of parties within the state structure was the constitutional legal scholar Gerhard Leibholz (1901–1982). In Weimar times, he was the most prominent representative of party state theory (Parteienstaatslehre), and as someone who “had somehow fallen between the eras,” he also actively shaped the party state of the Bonn Republic for over twenty years (1951–1971), as a judge at the Federal Constitutional Court (Bundesverfassungsgericht), by significantly influencing legislation on parliamentary, party, and electoral law. His persona was therefore a particularly important bridging link between the Weimar Republic and the Federal Republic of Germany, and even today, his theses are highly topical: “Beyond all eras, Gerhard Leibholz stands for the great tradition of German constitutional theory.”

scholarly journals The Changing Constitutional Role of the European Court of Justice

2006 ◽  
Vol 34 (2) ◽  
pp. 223-245 ◽  
Author(s):  
Julio Baquero Cruz
Keyword(s):  
European Convention ◽  
The Political ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Political Actors ◽  
Court Of Justice ◽  
European Court ◽  
German Constitutional Court ◽  
Widespread View

The process through which the founding Treaties of the European Communities came to function and be regarded as a constitution and the role of the Court of Justice in that process are well known. According to a widespread view, the Court would have been the main or even the only actor in the constitutionalization of the Treaties, transforming them into constitutional entities by virtue of some judgments of the 60s and 70s. For many, in those judgments the Court would have been excessively prointegrationist, too audacious, almost “running wild”. At some point, a number of constitutional courts, in particular the German Constitutional Court with its Maastricht decision of 1993, would have voiced their concerns, tracing potential limits to judicially driven integration. As a result, the Court of the 90s would have become wiser, more self-restrained, at times even minimalistic – more like a court and less like an omnipotent legislator or “pouvoir constituent.” With the calling of the European Convention and the drafting of the Treaty establishing a Constitution for Europe, the Court would have been more than ever on a second plane, as if constitutional matters had finally returned to the political actors to which they belong.

Nazistowski mord na Żydach w prasie polskich komunistów (1942–1944).

2006 ◽  
pp. 54-75
Author(s):  
Klaus Peter Friedrich
Keyword(s):  
Shared Responsibility ◽  
The Political ◽  
Right Wing ◽  
Social Democrats ◽  
The Social ◽  
The Government ◽  
Post War ◽  
Polish Government ◽  
The Right ◽  
Political Right

Facing the decisive struggle between Nazism and Soviet communism for dominance in Europe, in 1942/43 Polish communists sojourning in the USSR espoused anti-German concepts of the political right. Their aim was an ethnic Polish ‘national communism’. Meanwhile, the Polish Workers’ Party in the occupied country advocated a maximum intensification of civilian resistance and partisan struggle. In this context, commentaries on the Nazi judeocide were an important element in their endeavors to influence the prevailing mood in the country: The underground communist press often pointed to the fate of the murdered Jews as a warning in order to make it clear to the Polish population where a deficient lack of resistance could lead. However, an agreed, unconditional Polish and Jewish armed resistance did not come about. At the same time, the communist press constantly expanded its demagogic confrontation with Polish “reactionaries” and accused them of shared responsibility for the Nazi murder of the Jews, while the Polish government (in London) was attacked for its failure. This antagonism was intensified in the fierce dispute between the Polish and Soviet governments after the rift which followed revelations about the Katyn massacre. Now the communist propaganda image of the enemy came to the fore in respect to the government and its representatives in occupied Poland. It viewed the government-in-exile as being allied with the “reactionaries,” indifferent to the murder of the Jews, and thus acting ultimately on behalf of Nazi German policy. The communists denounced the real and supposed antisemitism of their adversaries more and more bluntly. In view of their political isolation, they coupled them together, in an undifferentiated manner, extending from the right-wing radical ONR to the social democrats and the other parties represented in the underground parliament loyal to the London based Polish government. Thereby communist propaganda tried to discredit their opponents and to justify the need for a new start in a post-war Poland whose fate should be shaped by the revolutionary left. They were thus paving the way for the ultimate communist takeover

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