From empire to union : conceptions of German constitutional law since 1871 / Jo Eric Khushal Murkens.

Format:

Book

Author/Creator:

Murkens, Jo Eric.

Language:

English

Subjects (All):

Constitutional law--Germany.

Constitutional law.

Germany.

Constitutional history--Germany.

Constitutional history.

Law--European Union countries--International unification.

Law.

European Union countries.

Physical Description:

ix, 261 pages ; 24 cm

Edition:

First edition.

Place of Publication:

Oxford : Oxford University Press, 2013.

Summary:

Germany has long been at the centre of European debates surrounding the modern role of national constitutional law and its relationship with EU law. In 2009 the German constitutional court voted to uphold the constitutionality of the Lisbon Treaty, but its critical, restrictive decision sentshockwaves through the European legal community who saw potential threats to further European integration.What explains Germany's uneasy relationship with the project of European legal integration? How have the concepts of sovereignty, state, people, and democracy come to dominate the Constitutional Court's thinking, despite not being defined in the Constitution itself? Despite its importance to thewhole enterprise of the European Union, German constitutional thought has been poorly understood in the wider European literature. This book presents a historical account of German conceptions of constitutional law, providing the understanding necessary to see what is at stake in contemporarydebates surrounding the constitution and the European Union.Examining the modern development of German constitutional thought, this volume traces the key public law concepts of state, constitution, sovereignty, and democracy from their modern emergence in the 19th century through to the present day. It analyses the constitutional relationship between Germanyand the EU from a sociological and historical perspective, looking at how German constitutional law has conflicted and compromised with EU law, and the difficulties this has raised.Filling a significant gap in comparative constitutional law literature, this book provides an account of the major schools of German constitutional thought and their development. Against this backdrop it offers a fascinating insight into Germany's relationship with the European Union.

Contents:

Part I Constitutional Law as a Discipline

1 The Emergence of Constitutional Law as a Positive Discipline 9

I Georg Jellinek (1851-1911) 18

II Hans Kelsen (1881-1973) 21

1 The state 26

2 Sovereignty 29

3 Constitution 30

4 The foundation of the constitution 31

III Conclusion 32

2 The Rejection of Constitutional Law as a Positive Discipline 37

I Carl Schmitt (1888-1985) 40

1 The state 41

2 Constitution 45

3 The foundation of the constitution 47

4 Sovereignty 50

5 Critical assessment 52

II Rudolf Smend (1882-1975) 55

1 The state 56

2 Constitution 58

3 Critical assessment 60

III Conclusion 63

Part II Constitutional Law as a Method

3 Staatsrecht and Verfassungsrecht 69

I Internal Interpretations of the Constitution 69

1 Staatsrecht 73

a The state as organized power distinguished from society 74

b The state exists prior to the constitution 76

c The constitution as a framework order 79

d Critical assessment 80

e Conclusion 83

2 Verfassungsrecht 85

a The state fulfils a social function for the political community 87

b The law and constitution replace the theory of the state 90

c The constitution is the basic legal order of the entire political community with a comprehensively guiding function 91

II Conclusion 95

4 External Application to the European Union 99

I Staatsrecht 102

1 Statehood as a limit to integration 104

2 Representation and the role of the people 106

3 The social glue 108

4 Critical assessment 110

II Ius Publicum Europaeum 112

1 The principle of open statehood 117

2 The post-national constellation 120

3 The social glue 124

4 Critical assessment 128

Part III Constitutional Law as Political Jurisprudence

5 Sovereignty and Continuity 137

I A Short History of Sovereignty 137

1 Legal doctrine 137

2 Scholarship 140

3 Politics 142

II The Genesis of the Basic Law 146

III The Continuity of the State 149

6 The Interpretation of the Basic Law by the Federal Constitutional Court 153

I Dethroning Constitutional Scholars 153

II Article 24 GG 157

III Solange I (1974) and Solange II(1986) 160

IV Constitutional Amendment in 1992 165

V Article 23 GG 168

VI Article 146 GG and the 'suprema potestas' of the Court 171

VII The Federal Constitutional Court as Final Arbiter 175

7 The Structure of the Federal Constitutional Court's Decisions in Maastricht and Lisbon 178

I Ratio decidendi 178

II Article 38 GG 181

1 First ideological obstacle: Staatenverbund 183

2 Second ideological obstacle: Sovereignty 188

3 Third ideological obstacle: Democracy 194

a The domestic concept 194

b The European democracy deficit 199

4 Fourth ideological obstacle: Identity 203

III Conclusion 207.

Notes:

Includes bibliographical references (pages [218]-254) and index.

ISBN:

9780199671885

0199671885

OCLC:

810946934