Constitutional theory

from Wikipedia, the free encyclopedia

The constitution theory (also Verfassungslehre ) is a topic in the tension between state and international law which is characterized by abstraction of specific jurisdictions strictly speaking outside the legal in the range between state and legal theory moved.

Constitutional theory also has many overlaps with these two areas, although it is the least clear-cut to distinguish it from state theory; only individual sub-areas can still be assigned exclusively to one or the other area with sufficient accuracy. In addition, constitutional theory often (but not necessarily) overlaps with democratic theory . Alexy's theory of fundamental rights is not dealt with under the topos constitutional theory .

Just like the development from legal philosophy to legal theory or from state philosophy and general state theory to state theory, constitutional theory is actually a further development of constitutional doctrine , although - again analogous to the above terms - the terms constitutional doctrine and constitutional theory are often used synonymously . Similar to the development of the normative-ontological state philosophy towards the analytical and rather pluralistic and structuring state theory, the constitutional theory is based on an analytical-abstract approach, in particular on the basis of constitutional history .

Schmitt School and Smend School

The constitutional doctrine of Carl Schmitt from 1928 is still considered to be the fundamental work of constitutional theory . In the state and constitutional doctrine, the Schmitt School and the Smend School (the fundamental work of which is Rudolf Smend's Constitution and Constitutional Law , which is also valid in 1928, however, only after the constitutional theory was published, and in which Smend drafted his integration theory ) opposite.

Schmitt's approach can be described as decisionist , (occasionally) polarizing and normative, while Smends can be described as integrative, consensual, undogmatic and descriptive.

The Schmitt School and the Schmitt thinker collective include, for example, Ernst Rudolf Huber (1903–1990), Werner Weber (1904–1976), Ernst Forsthoff (1909–1974), Roman Schnur (1927–1996), Ernst-Wolfgang Böckenförde ( * 1930), Helmut Quaritsch (1930–2011) and Josef Isensee (* 1937).

Representatives of the Smend School include Gerhard Leibholz (1901–1982), Ulrich Scheuner (1903–1981), Konrad Hesse (1919–2005), Horst Ehmke (1927–2017), Peter Häberle (* 1934), Friedrich Müller ( * 1938), Friedhelm Hufen (* 1944) and Martin Morlok (* 1949).

Heinrich Triepel , Erich Kaufmann or Hermann Heller ( Staatslehre , posthumously and unfinished in 1934), who themselves did not establish a school, did not belong to any of these schools . Naturally, the right positivists did not belong to either of the two schools; Hans Kelsen founded his own collective of thought through his further development of legal positivism to the pure legal theory ( pure legal theory , 1934).

State and constitutional theory in academic teaching

State and constitutional theory are partly taught in law , although they do not belong to the usual canon of subjects. In political science teaching, constitutional studies are an integral part of many universities. It is one of the foundations in the field of systems theory. Individual aspects of constitutional theory are conveyed rather unsystematically within political theory .

Current problems

State and constitutional theory received increased attention in the context of the discussion about the qualification of the EU as an association of states (in contrast to the two previously established categories of confederation and federal state ) as well as in the discussion of the constitutional quality of the so-called Treaty on a Constitution for Europe .

literature

Works attributable to the Schmitt School

Monographs and compilations
  • Carl Schmitt: Verfassungslehre , 9th edition, Duncker & Humblot, Berlin 1993 (corrected new edition of the first edition from 1928), ISBN 3-428-07603-6 Reviews 1 2 (PDF; 127 kB).
  • Carl Schmitt: Constitutional articles from the years 1924–1954. Materials for a constitutional doctrine , 4th edition (unchangeable reprint of the first edition from 1958), ISBN 3-428-01329-8 .
  • Ernst-Wolfgang Böckenförde: State, Society, Freedom. Studies on state theory and constitutional law , Suhrkamp, ​​Frankfurt am Main 1976, ISBN 3518277634 .
  • Ernst-Wolfgang Böckenförde: State, Constitution, Democracy. Studies on constitutional theory and constitutional law , 2nd edition, Suhrkamp, ​​Frankfurt am Main 1992, ISBN 3-518-28553-X .
  • Ernst-Wolfgang Böckenförde: State, Nation, Europe. Studies on the theory of the state, constitutional theory and legal philosophy , 2nd edition, Suhrkamp, ​​Frankfurt am Main 2000, ISBN 3-518-29019-3 .
  • Ernst-Wolfgang Böckenförde: Law, State, Freedom. Studies on legal philosophy, state theory and constitutional history , 4th edition, Suhrkamp, ​​Frankfurt am Main 2006, ISBN 3-518-28514-9 .
  • Ernst-Wolfgang Böckenförde: The constitutional theoretical distinction between state and society as a condition of individual freedom , Opladen 1973, ISBN 3-531-07183-1 .
  • Josef Isensee: Principle of Subsidiarity and Constitutional Law , 2nd edition, Duncker & Humblot, Berlin 2001, ISBN 3-428-10632-6 .
Essays
  • Ernst-Wolfgang Böckenförde: The suppressed state of emergency. On the action of state power in extraordinary situations , in: NJW 1978, pp. 1881 to 1890.
  • Helmut Quaritsch: Church and State. Constitutional and political theory problems of the doctrine of state church law today , in: Der Staat 1 (1962), pp. 175 to 197 and 289 to 320.

Works attributable to the Smend School

Monographs and compilations
  • Rudolf Smend: Constitution and Constitutional Law , Duncker & Humblot, Munich 1928.
  • Horst Ehmke: Contributions to constitutional theory and constitutional policy (edited by Peter Häberle), Königstein 1981.
Essays
  • Peter Häberle: The principle of subsidiarity from the perspective of comparative constitutional theory , in: AöR 119 (1994), pp. 169 to 206.

Secondary literature

  • Frieder Günther: Thinking from the state. The Federal German constitutional law theory between decision and integration 1949-1970 , Munich 2004, ISBN 3-486-56818-3 ( review by H-Soz-u-Kult )
  • Roland Lhotta (ed.): The integration of the modern state. On the topicality of integration theory by Rudolf Smend , Baden-Baden 2005, ISBN 3-8329-1421-8
  • Peter Badura : State, Law and Constitution in Integration Theory. On the death of Rudolf Smend (January 15, 1882 - July 5, 1975) , in: Der Staat 16 (1977), pp. 305 to 325
  • Christian Bickenbach: Rudolf Smend (January 15, 1882 to July 5, 1975) - Basics of Integration Theory , in: JuS 2005, pp. 588 to 591.
  • Hasso Hofmann : Legitimacy and legal validity. Constitutional theoretical remarks on a problem of the doctrine of the state and the philosophy of law , Berlin 1977, ISBN 3-428-03911-4

Others

  • Karl Loewenstein : Verfassungslehre , German translation, Tübingen, 1959, ISBN 3-16-147432-5 (Political Power and the Governmental Process, Chicago, 1957)
  • various articles in: Josef Isensee / Paul Kirchhof (ed.): Handbook of the constitutional law of the Federal Republic of Germany .
  • Kurt von Fritz : Writings on Greek and Roman constitutional history and constitutional theory , de Gruyter, Berlin / New York 1976.

swell

  1. Another view of Böckenförde, who regards the concept of the political as the starting point for a systematic understanding of Schmitt's work, cf. Böckenförde: The concept of the political as a key to the constitutional work of Carl Schmitt , in: Ders., Recht, Staat, Freiheit , p. 365.