The Rule of Law in The German Constitution

1991 ◽  
Vol 22 (2) ◽  
pp. 159-174 ◽  
Author(s):  
Allen S. Hance ◽  
Author(s):  
Mathias Möschel

This contribution analyses the cases in which ordinary German judges have annulled statutes for being unconstitutional and thus exercise what is also known as ‘diffuse constitutionality review’. In the past, this used to be the case under the Weimar Constitution and in West Berlin. However, what is less known is that even today, certain statutes that are deemed to be pre-constitutional or certain legislative provisions from the former GDR can be declared as conflicting with the German Constitution. This contribution argues that such diffuse constitutionality review might also have contributed to a further strengthening of the rule of law in Germany. Ultimately, from a comparative constitutional law perspective, this contribution also provides a more nuanced view of the German model of constitutionality review, which has been traditionally classified as belonging to the centralized ‘European’ or ‘Kelsenian’ model, with a specific constitutional court, the Bundesverfassungsgericht, having the monopoly over such review.


2020 ◽  
Author(s):  
Gerrit Manssen

The German Federal Republic is a state under the rule of law (Art. 20 and 28 of the German Constitution). However, there are frequent complaints concerning the „misuse“ of lawsuits, which allegedly undermine the rule of law. Looking closely, those accusations can not really be confirmed. No systematic misuse can be found in the field of environmental law (matters like diesel driving ban or lawsuits filed by environmental associations) or in the field of asylum law. What can be found instead is a jeopardy to the rule of law because of a decreasing acceptance of court rulings. Public authorities sometimes simply ignore such rulings. This unlawful development must be counteracted.


2007 ◽  
Vol 8 (2) ◽  
pp. 153-171 ◽  
Author(s):  
Franz Streng

Before delving into the details of a specific German theory of sentencing, this first section attempts to very briefly outline the general framework of the sentencing process according to German law.German law is codified law. This means that not only the individual crimes are laid down in the German Criminal Code, but also the general principles concerning sentencing are contained therein. The constitutional basis of the sentencing structure can be drawn from the notion of theRechtsstaat, which can be translated with the term “rule of law.” This principle, which is laid down in Article 20 § 1Grundgesetz(German Constitution – GG), encompasses the culpability-principle, under which the punishment must be proportionate to the individual guilt of the offender. Thus, section 46 § I of the Criminal Code (Strafgesetzbuch – StGB) reads: “the guilt of the perpetrator is the foundation for determining punishment.” The culpability-principle is a specific expression of the proportionality principle, which is also a constitutional requirement of the “rule of law.”


IEE Review ◽  
1989 ◽  
Vol 35 (6) ◽  
pp. 218
Author(s):  
Clifford Gray
Keyword(s):  

IEE Review ◽  
1989 ◽  
Vol 35 (1) ◽  
pp. 24
Author(s):  
H. Aspden
Keyword(s):  

2020 ◽  
Vol 28 (3) ◽  
pp. 355-377
Author(s):  
Lydia A. Nkansah ◽  
Delali A. Gawu

There have been seven general elections, under Ghana's Fourth Republic, to elect presidents and members of parliament. There are laws regulating the electoral process and election results have generally been accepted and, in a few cases, challenged through the laid-down process. Elections in Ghana are nonetheless reportedly flawed with irregularities tainting the outcome and creating tensions and sometimes pockets of violence. This article examines the electoral process under Ghana's Fourth Republic, namely the adoption of regulations for each electoral cycle, voters’ registration and the voters’ register, nomination of aspirants, voting, counting of votes and declaration of the results. To ensure the integrity of the electoral process, the laws regulating elections should comply with the dictates of the procedural requirements of the rule of law and the Electoral Commission's actions must be consistent with these laws.


1993 ◽  
Vol 3 (1) ◽  
pp. 71-72
Author(s):  
Phil Baker

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