The constitutional jurisprudence of the Federal Republic of Germany

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The constitutional jurisprudence of the Federal Republic of Germany

Donald P. Kommers and Russell A. Miller ; with a new foreword by Ruth Bader Ginsberg

Duke University Press, 2012

3rd ed., rev. and expanded

  • : pbk
  • : cloth

Available at  / 11 libraries

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Includes index

Description and Table of Contents

Description

First published in 1989, The Constitutional Jurisprudence of the Federal Republic of Germany has become an invaluable resource for scholars and practitioners of comparative, international, and constitutional law, as well as of German and European politics. The third edition of this renowned English-language reference has now been fully updated and significantly expanded to incorporate both previously omitted topics and recent decisions of the German Federal Constitutional Court. As in previous editions, Donald P. Kommers and Russell A. Miller's discussions of key developments in German constitutional law are augmented by elegantly translated excerpts from more than one hundred German judicial decisions.Compared to previous editions of The Constitutional Jurisprudence of the Federal Republic of Germany, this third edition more closely tracks Germany's Basic Law and, therefore, the systematic approach reflected in the most-respected German constitutional law commentaries. Entirely new chapters address the relationship between German law and European and international law; social and economic rights, including the property and occupational rights cases that have emerged from Reunification; jurisprudence related to issues of equality, particularly gender equality; and the tension between Germany's counterterrorism efforts and its constitutional guarantees of liberty. Kommers and Miller have also updated existing chapters to address recent decisions involving human rights, federalism, European integration, and religious liberty.

Table of Contents

Foreword to the Third Edition / Justice Ruth Bader Ginsburg xi Preface to the Third Edition xiii Acknowledgments xvii Note on Translations and Judicial Opinions xxi Abbreviations xxv Part I. German Constitutionalism 1. The Federal Constitutional Court 3 Origin 4 Jurisdiction 10 Institution 17 Process 25 Judicial Review in Operation 33 Conclusion 40 2. Basic Law and Its Interpretation 42 New Constitutionalism of the Basic Law 43 Nature of the Polity 48 Theories of the Constitution 55 Theory of Basic Rights 59 Interpretive Modes and Techniques 62 Sources of Interpretation 70 Conclusion 75 Part II. Constitutional Structures and Relationships 3. Federalism 79 Territorial Organization 80 Doctrine of Federal Comity 90 Apportionment and Distribution of Revenue 95 Local Self-Government 104 Bundesrat, Reformstau, and Modern Federalism 110 Division of Legislative Power 120 Cooperative Federalism 138 Implementation of Federal Law 141 Conclusion 150 4. Separation of Powers 152 Executive-Legislative Relations 153 Judicial versus Legislative Authority 164 Delegation of Legislative Power 175 Foreign and Military Affairs 189 Conclusion 214 5. Political Representation and Democracy 216 Parliamentary Democracy 216 Elections and Voting 238 Party State and Political Spending 269 Militant Democracy 285 Conclusion 300 6. Jurisprudence of the Open State 302 Basic Law and International Law 302 Germany's Constitutional Openness and International Tribunals 319 Basic Law and European Law 325 Conclusion 352 Part III. Basic Rights and Liberties 7. Human Dignity, Personal Liberty, and Equality 355 Dignity of Persons 356 Right to Life 373 Right to Personality 399 Equality 419 Conclusion 439 8. Freedom of Speech, Press, and Art 441 A Jurisprudence of Balancing 442 Reputational Interests and Offensive Speech 460 Resocialization, Privacy, Truth-Telling, and Assembly 479 Freedom of the Press and Broadcasting 502 Artistic and Academic Freedom 519 Conclusion 536 9. Religion, Conscience, and Family Rights 538 Free Exercise of Religion 539 Minority Religions 553 Religious Practices and Symbols in Public Schools 566 Taxation, Autonomy, and Religious Societies 590 Marriage and Family Rights 600 Conclusion 620 10. Economic Liberties and the Social State 622 Nature of the Economic System 623 Right to Property 630 Occupational and Associational Rights 659 Reunification and Economic Liberties 685 Conclusion 711 Appendix A: Chronological Chart of the Justices 713 Appendix B: Biographical Sketches of Presidents and Vice Presidents 717 Notes 725 Tables of Cases 833 Index Permissions 845

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