Thema: Vergleichendes Verfassungsrecht

Rechtsvergleichende Verfassungsanalyse, Verfassungstransplantate und vergleichende Verfassungsrechtsprechung. Systematischer Vergleich von Verfassungssystemen, verfassungsrechtlichen Gestaltungsentscheidungen und Verfassungslösungen über verschiedene Rechtstraditionen und politische Systeme hinweg.

Dead Lawyers, Complicit States

The decision by Northern Ireland Secretary Brandon Lewis to refuse an inquiry into the 1989 murder of Belfast solicitor Pat Finucane was just the latest episode in a long and sorry saga. The result is that a 2003 judgment from the European Court of Human Rights (ECtHR) finding that the UK had breached Article 2 ECHR (right to life) by failing to hold an appropriate inquiry into Finucane’s murder has still not been acted upon and any possibility of justice or accountability fades just that little bit more.

5. Dezember 2020

,

An Uphill Battle for a Constitutional Amendment in Thailand

Thousands of young activists are taking to the streets to protest the 2017 constitution of Thailand. However, the current government of Prayuth Chan-ocha, the former junta leader and present prime minister, afraid of losing control, has invoked all constitutional mechanisms to resist any change. The deadlock can easily escalate from a call for a charter amendment to toppling the entire regime.

2. Dezember 2020

, ,

Was die Verfassung über uns sagt

Durchweg positive Revuen waren es, die man die letzten Wochen und Monate durch alle österreichischen Formate hindurch aus Anlass des hundertjährigen Bestehens des Bundes-Verfassungsgesetzes lesen durfte. Doch ist eine Verfassung ohnedies nur soviel wert, wie die gelebte Verfassungskultur. Wäre es daher nicht gewinnbringender, aus Anlass des hundertjährigen Bestehens des B-VG über die gelebte Verfassungsrealität zu reflektieren? Denn es ist letztlich diese, die den Zustand einer Gesellschaft widerspiegelt.

27. November 2020

, ,

Vicarious Hegemony and the Anti-hegemonic Thrust of European Law: a Conversation

,

,

&

We are debating the specter of German Legal Hegemony. It’s a new dimension for most German lawyers. The prevailing view has been that Germany is at the receiving end and losing out. Many consider Germany as making a too small impact on European law because it’s too inflexible for its federalism and too inhibited for many reasons. Quite a few see the 2nd Senate of the BVerfG as the last institution defending law and reason against overbearing European institutions as Berlin politicians have largely given up. The symposium has provided a different picture. How to deepen learning from it? Today we propose a discussion which is both analytical and normative.

23. Oktober 2020

,

Anti-Hegemony and Its Discontents

Long before the fighting ceased, Jean Monnet was already planning to integrate a defeated Germany into “a Europe united on terms of equality.” The idea had been brewing in the French and Italian resistance during World War II, even since Germany had been defeated last time around, and before then, in other forms, too. The key to bringing the warring nations together in solidarity was, as the Schuman Declaration would explain, taming the age-old animosity between Germany and France in a supranational project “open to all countries willing to take part.” The aim, in the words of the Treaty of Rome would be an “ever closer union among the peoples of Europe.”

14. Oktober 2020

, ,

The End of the German Legal Culture?

In this post, I argue that: (I) the influence of German jurisprudence on the legal systems in Central and Eastern Europe results from transfers of legal knowledge and “cooperative adaptation” of elites in the new democracies; (II) the German legal hegemony is in fact a hegemony of reason and a culture of justification; (III) the decision of Bundesverfassungsgericht in PSPP is an attempt to maintain the culture of justification in view of its inevitable end.

14. Oktober 2020

How Not to Become Hegemonial

I have to start with a confession: if it was not for the Bundesverfassungsgericht and German legal scholarship, I would have not become the lawyer I am today. Writing a PhD in the Max-Planck-Institute in Heidelberg, attending classes by giants of German public law taught me to appreciate the famous German “Rechtsdogmatik”, a term that can only be poorly translated by “legal doctrine”. The conceptual sophistication and clarity of thoughts, the persuasive power of reasoning, the attention for details and the elegance with which the lack of answers to certain questions is concealed created for me an aura of infallibility and self-evident truth. I also remember my condescending attitude when I met foreign guests in the Max-Planck Institute who were not familiar enough with this constitutional language, or even dared to challenge some of its conclusions. Being inside this world felt reassuring, safe and also elevating. After wandering through the legal education of post-communist Hungary I finally saw the light.

13. Oktober 2020

,

The Ugly German

The novel’s two ugly Americans provide useful models for two facets of hegemony as Gramsci theorized it. Hegemony, he insisted, is more than a state of cultural domination. It is better understood as a process of socio-historical change that takes place before power is institutionalized. The two drivers of the hegemonic process Gramsci theorized are consensus and coercion.

13. Oktober 2020

,

Constitutional Borrowings, Not Hegemony

The question about the legal hegemony of Germany was raised by comments from lawyers, but also politicians, in connection with the - undoubtedly - controversial decision of the German Constitutional Tribunal in the PSPP case. Armin von Bogdandy’s introduction refers primarily to the problem of the Europeanization of Germany vs. the Germanization of Europe in the context of European integration and Sabino Cassese’s description of “some specific decisions of these more recent EU-specific decisions of the Second Senate of the German Federal Constitutional Court as an attempt to put a German dog leash on European institutions". But it also refers to the past of the countries of Central and Eastern Europe and the "imposition" of "an enlightened, soft neo-liberalism" on the countries of this region (Bogdan Iancu). In the case of Poland, because Kaczyński’s government seems to be a persecutor against the proceedings which the German jurisprudence provides, "the secret crypt in which the seeds of its spirit will be protected...". (Carl Schmitt).

12. Oktober 2020