Fundamental Works of Constitutional Law

2020

Democracy as a Constitutional Principle

E.-W. Böckenförde
Article 20 paragraph 1 GG (Basic Law) constitutes democracy as the form of state and government for the Federal Republic of Germany. Democracy is the manifestation of the sovereignty of the people, it is therefore linked to the latter by Article 20 paragraph 2 GG. A sovereign people takes the decisions that concern itself, but in order to be functional, state authority is formed by representation.

2020

Human Dignity as the Foundation of the State Community

Peter Häberle
“Human dignity shall be inviolable.” Article 1 Section 1 (1) places human dignity at the very beginning of the German constitution (Basic Law / GG). It is the benchmark for all state decisions and actions, as all state authority is obliged to respect and protect human dignity. However, the notion of human dignity is not specified by the Basic Law. A more detailed examination of its substance and value is therefore indispensable for understanding its impact on the German constitutional system.

2020

Origin and Change of the Constitution

Dieter Grimm
Constitutions provide the fundament and framework of states, their claim to legitimacy and the exercise of power. A constitution regulates the institution as well as the organisational structure and determines how and by whom state authority is exercised. It also organizes the relationship between state and society and the rights of individual citizens. How did the constitutional idea develop and what lessons can be drawn from its history for the 21st century?

2020

The Fundamental Right as a Right of Defence and a State Duty to Protect

Josef Isensee
Fundamental rights are probably the most elemental aspect of the German constitution and an expression of its liberal design. Reflecting this importance, they stand at the very beginning of the constitution. However, the fundamental rights have different functions. An examination of these functions is necessary in order to understand their necessity and the system of fundamental rights in German constitutional law.

About this series

Supporting Comparative Constitutional Law

by Anja Schoeller-Schletter

 

In recent years, the institutions charged with constitutional review in the countries of the Middle East and North Africa – be it Constitutional Courts, Constitutional Councils, Supreme Courts, or High Tribunals - are being reformed (e.g. Morocco, Tunisia). Some have been established for the first time (e.g. Bahrain in 2002, Iraq in 2004 or Saudi Arabia in 2009), some have been attributed new competences, and new procedures have been introduced, thus indicating a rising awareness for the importance of constitutional review as an instrument for judicial oversight.

 

Fundamental topics of constitutional law have gained prominence in regional debates as societies face similar challenges. How powers are distributed is at the very heart of every state. The fundamental principles of government, the ways and means of exercising powers, the efficiency of checks and balances, and the guarantee of rights and freedoms are subject to constant interpretation and development as societies are evolving. With constitution-building processes and reform of constitutional courts ongoing, comparative constitutional law has become a topic on the rise. 

 

Constitutional scholars and judges world-wide increasingly take into consideration other countries experience and practice, analysing different constitutional models, principles, designs, and functioning. Many of the challenges currently discussed in the Middle East and North Africa have been faced in other continents in the past, and are still being faced, including the control of elections, banning of extremist parties as unconstitutional, balancing individual rights and religious freedom. Along with the recently vibrant debates on constitutional law issues and constitutional control in the Middle East and North Africa, an immense quantity of highly interesting court decisions on constitutional matters has been published during the past years. Some countries have undertaken remarkable efforts to encourage regional or continent-wide African discussions. More efforts are to be expected with regards to the digitalization and accessibility as benefits of visibility and accessibility to the international research community are becoming more and more obvious. With the world becoming increasingly interconnected, countries are not limited to look for inspiration or options in their neighbourhood only. 

 

Over the past three years the Rule of Law Programme Middle East/ North Africa, has put considerable emphasis on fostering and linking thematic discussions of cross-cutting regional and international interest. In accordance with our aim of encouraging exchange of expertise and partnership on a peer-to-peer-level regionally and internationally, one of the ongoing initiatives is dedicated to making key decisions and developments in constitutional jurisdiction from the MENA Region accessible in English to the international community.

 

In order to meet a growing interest of young scholars from the region in comparative constitutional law, the Rule of Law Programme Middle East/ North Africa has decided to complement this endeavour by also publishing a series of selected works on German constitutional law in Arabic translation.

 

Over the past half century, the German post-war constitutional state has gained respect internationally. At the basis of its economic, political and social development lies its constitutional system. Having been created in the aftermath of the complete failure of its previous political and governmental system, the German “Basic Law” (Grundgesetz) of 1949 integrated key elements of what was then considered one of the most successful democracies – the United States of America – with Germany’s own legal and constitutional tradition. The members of the constitutional council spelled out the essence of what they considered to be essential lessons for building a democratic state that upholds the rule of law and protects human dignity (Menschenwürde) against all imaginable future threats.

 

The German Federal Constitutional Court has played a fundamental role since in the country’s efforts to establish a stable, balanced system of government, and in upholding the constitution, its principles and the individual rights vested in it. Within more than 70 years of jurisdiction it has continuously done so by applying, interpreting and developing the constitutional framework of Germany. 

 

Unfortunately, for many decades, most major works on German constitutional law have been published in German only, and are thus inaccessible to most international scholars. To make constitutional jurisdiction accessible, the German Federal Constitutional Court in the 1990s has established an in-house translation service. While at first only selected decisions were translated into English on demand, summaries of all decisions are now translated systematically and compilations of translated decisions are published, enabling more profound comparative research and international debate by experts.

 

This newly initiated series of the Rule of Law Programme Middle East/ North Africa strives to present constitutional concepts that have been of fundamental relevance to the (positive) development of the German constitutional state. The series starts off with four papers on cross-cutting topics of fundamental and lasting relevance written by the most eminent of German Constitutional Law Experts - most of them judges at the Federal Constitutional Court at some point in their life. 

 

The translation into Arabic is intended to improve accessibility to a wider circle of Arabic speaking readers, to young researchers, students and interested readers of the region. The works translated into Arabic and published in this series invite to explore, compare and debate existing concepts and solutions that were developed to address certain questions - always aware that “copy-paste” never works, and what may seem to be a good solution in one country may not necessarily serve for another. 

 

We wish that such initiatives in the region and on a global level will contribute to the evolution of an international community of comparative constitutional law experts.