Tradition and Transformation: The Rise of German Constitutionalism by Michaela HailbronnerTradition and Transformation: The Rise of German Constitutionalism by Michaela Hailbronner

Tradition and Transformation: The Rise of German Constitutionalism

byMichaela Hailbronner

Hardcover | November 29, 2015

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German constitutionalism has gained a central place in the global comparative debate, but what underpins it remains imperfectly understood. Its distinctive understanding of the rule of law and the widespread support for its powerful Constitutional Court are typically explained in one of twoways: either as a story of change in a reaction to National Socialism or as the continuation of an older nineteenth-century line of constitutional thought that emphasizes the function of constitutional law as a constraint on state power. But while both narratives account for some important features,their explanatory value is ultimately overrated.Offering an introduction to German constitutional law, this book adopts a broader comparative perspective to understand the rise of the German Constitutional Court. It interprets the particular features of German constitutional jurisprudence and the Court's strength as a reconciliation of twodifferent legal paradigms: first, a hierarchical legal culture as described by Mirjan Damaska, building on Max Weber, as opposed to a more co-ordinated understanding of legal authority such as prevails in the United States and secondly, a more recent paradigm of transformative constitutionalism,which is most often associated with countries like South Africa and India.Using post-war legal history and sociological and empirical research in addition to case law, this book demonstrates how German developments reflect the frequently conflicting demands of these two legal paradigms - yielding an idiosyncratic synthesis in Value Formalism, a specific type ofconstitutional reasoning, at once pragmatic, open, formalist, and technical. Value Formalism however, also comes with serious problems, such as a lack of self-reflection in the Court's jurisprudence and the closure of constitutional discourse towards laymen.

About The Author

Michaela Hailbronner currently works as a Senior Researcher at the Institute for Comparative and international Law in Africa, University of Pretoria, on humanitarian and human rights law and constitutionalism in the Global South. She holds two German law degrees (University of Freiburg 2007, Berlin High Court 2009) and an LLM (2010) an...

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Title:Tradition and Transformation: The Rise of German ConstitutionalismFormat:HardcoverDimensions:200 pagesPublished:November 29, 2015Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0198735421

ISBN - 13:9780198735427

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Table of Contents

1. Constitutional Paradigms and Judicial Authority2. Transitions and Transformations: Towards Activist Constitutionalism3. Hierarchical Authority in German Constitutional Law: The Constitutional Court between Law and Politics4. Value Formalism5. Judicial Self-Reflection and Institutional Awareness7. We the Lawyers - Dialogue and Constitutional PatriotismConclusion