Constitutional comparison

The comparative constitution is a branch of comparative law .

The object of the constitutional comparison are constitutions of different states or epochs . It is a sub-case of comparative law , which examines the entire legal system . Another expression is comparative constitutional law .

General

The purposes of comparative constitutional law are scientific knowledge, the promotion of state constitutional legislation and the function as an interpretation aid for national constitutional courts and as a source of legal knowledge for community and international law.

history

In contrast to the terms politeia (Greek: πολιτεία - in German often translated as “Staat”) or constitution (from Latin: constitutio - “fixation”, “law”), constitution is actually a modern term.

In the 16th century the term constitution still described a summary, a presentation, a content. In the 17th century, the term primarily meant a condition. In the 18th century, especially under the influence of the American Virginia Bill of Rights (1776), the term was finally understood to be a “summary of basic rules about the social order”.

Cromwell's Instrument of Government (1653) is sometimes mentioned as the first constitution in the technical sense . Mostly the constitutions in North America ( Virginia Declaration of Rights : 1776, Declaration of Independence : 1776, Constitution of the Commonwealth of Pennsylvania : 1776, Philadelphia: 1787, Bill of Rights : 1789) and finally in France ( Declaration of the People and Civil Rights : 1789).

Even though the concept of the constitution is closely linked to the era of constitutionalism , science can be traced back from the constitutions and their precursors to antiquity. These texts were primarily state theories . So it is already in Aristotle : Because we have made to investigate which of all the best political community is for people who are able to live as desired as possible, we must also consider the other state constitutions into account both those which are in use in some states […], as well as those which have been suggested by individuals, so that it may be shown what is correct and useful about them.

In order to justify the state, representatives of modern state theories, especially the contract theories, have sought the idea of ​​a fictitious legal agreement . Many constitutions are the expression of such a legal agreement. Other authors have also described as observers the social mores and conditions that exist in a legal system and without which, in turn, no constitutional text can be understood. In 1748 Montesquieu tried to describe the external and mental conditions according to which individual states developed their respective legal systems . The general spirit (French: l'ésprit général) of a nation results from these factors, and this in turn corresponds to the spirit of its laws. And in 1835 Tocqueville also described the so-called mœurs, the customs of the North Americans, in addition to the institutions: the laws contribute more to the preservation of the democratic republic in the United States than the geographical circumstances and the mœurs even more than the laws.

There have always been epochs in which law studies had comparatively little interest in other legal cultures. In 1891 Rudolf von Jhering lamented in relation to private law: The formal unity of science, as it was once given by the commonality of one and the same code of law for most of Europe, is that cooperation of the jurisprudence of the most varied of countries on the same material and the same task gone forever with the formal community of law; science has been degraded to state jurisprudence, the scientific boundaries coincide with the political boundaries in jurisprudence.

Comparative law in the narrower sense initially took place in the field of private law. The classifications of legal circles that are still common today were therefore developed on the basis of private law and do not apply to public law and the comparative constitution. On the other hand, in political practice, there is hardly a constitution worldwide that has been created without comparison. It is therefore no coincidence that political philosophy and comparative political science initially dealt with the scientific processing of constitutional questions. There are close points of contact with general political science .

Constitutional law, in particular, receives important impulses from international events, for example the independence efforts of former colonies, the end of the two world wars and the end of the so-called Cold War.

Foreign policy relations are also regulated in constitutional texts. They form the interface to international law, the law of states and other subjects of international law among themselves.

Current questions

method

A distinction is made between comparing different legal texts (macro comparison) and examining individual institutes (micro comparison). The micro-comparison is a kind of "special part" of the constitutional comparison and examines the design of individual legal institutions such as constitutional courts.

Methodological difficulties

If the rules of legal interpretation are primarily based on rationality, these rules apply to all national legal systems. The same methodological difficulties then arise in the constitutional comparison as in the legal method in national constitutional law. They are the subject of legal theory or methodology .

The nature of comparative law creates additional difficulties. A translation is necessary, functional equivalents of different institutes have to be found and a different legal and cultural environment has to be taken into account.

Comparative legal interpretation of the constitution

Constitutional comparison serves as an interpretation aid for national constitutional courts. An interpretation of the constitution based solely on the wording of the regulation or the legal text can rarely fully grasp the practical meaning of the regulation. In addition to the "classic" criteria for interpreting laws established by Savigny , the comparative legal interpretation of the constitution is now generally recognized. The concept of comparative law as the “fifth” method of interpretation goes back to Peter Häberle .

Source of legal knowledge

Union law

→ Main article : European law

Legal sources of Union law are primarily the contracts and unwritten Union law (primary law), and secondly the legal acts enacted by the organs of the Union (secondary law): regulation , directive , resolution , recommendation and opinion .

The unwritten Union law also includes, for example, the “general legal principles that are common to the legal systems of the member states”. These legal principles correspond to the general legal principles common to the legal systems of the Member States. They generally represent no customary law of the Union, since it will not necessarily reflect a legal conviction of all Member States, but the European Court of Justice (ECJ) in the way evaluative comparative law as the best in terms of EU law solution from the standard inventory of the legal systems selected all Member States and formulated have been. Fundamental rights and the rule of law play a special role.

The Treaty on European Union has the "constitutional traditions" of the EU Member States towards - Art. 6 of the EU Treaty: The Court of Justice no Union action may be right that against recognized by all Member States and protected rights violates .

international law

Bi- or multilateral international treaties, customary international law and general legal principles are sources of international law (cf. Art 38 I lit a, b, c ICJ Statute). The comparative constitution is not an independent legal source, but a source of legal knowledge .

Outlook: Europeanization of Constitutional Law

A transnationalization of the law as a whole corresponds to the growing interest in comparing the constitution. At the level of Community and international law, not only is comparative law carried out by the courts and academia, but increasingly also legal harmonization and legal standardization by the other organs and legal entities. The main reasons for this form of transnationalization are practical needs. Critics of this development see this as a form of loss of culture. The task of constitutional comparison is therefore also to preserve diversity.

See also

• democracy
• Fundamental rights
• Human rights
• Constitutional state
• Constitutional cycle

literature

Historical texts

• Aristotle : Politics (translated into German and edited by FF Schwarz), ISBN 978-3-15-008522-6 .
• Charles-Louis de Secondat, Baron de La Brède et de Montesquieu : De l'esprit des loix (1748), German: From the spirit of the laws . Reclam, 1994, ISBN 3-15-008953-0 .
• Alexander Hamilton, James Madison et al. a .: The Federalist Papers (1787/1788), (complete English print edition) Bantam Classics, 1989, ISBN 0-553-21340-7 .
• Charles Alexis Henri Maurice Clérel de Tocqueville : De la démocratie en Amérique . 2 vol. (1835/1840), German: About Democracy in America . Stuttgart 1959 and more.

International constitutional texts

• Albert P. Blaustein et al., Constitutions of the Countries of the World , Oceana, New York, ISBN 0-379-00467-4 .

Secondary literature

• Markus Kotzur , Lothar Michael (eds.): Peter Häberle , Constitutional comparison with European and cosmopolitan intentions, late writings . Duncker & Humblot, Berlin 2009, ISBN 978-3-428-12594-4 .
• Peter Häberle , Comparative Law in the Force Field of the Constitutional State: Methods and Contents, Small States and Developing Countries . Duncker & Humblot, Berlin 1992, ISBN 978-3-428-07467-9 .
• Kenneth Robert Redden: Modern Legal Systems Cyclopedia . Buffalo, New York, ISBN 0-89941-300-5 .
• Gerhard Robbers (Ed.): Encyclopedia of World Constitutions (Facts on File Library of World History) . 3 volumes, Facts on File Publishing, New York 2006, ISBN 0-816-06078-9 .

Textbooks

• Georg Jellinek : General state theory . 1900.
• Bernd Wieser : Comparative constitutional law . Springer, Vienna 2005, ISBN 3-211-27753-6 .
• SE Finer : Comparing Constitutions . Clarendon Press, 1995.
• Armin von Bogdandy (Ed.), European Constitutional Law . Springer Verlag, Berlin, Heidelberg, New York 2003, ISBN 978-3-540-73809-1 .
• Norman Dorsen, Michel Rosenfeld, András Sajó, Susanne Baer: Comparative Constitutionalism - Cases and Materials . Westpub, 2003, ISBN 0-314-17946-1 .
• Tim Koopmanns: Courts and Political Institutions - A Comparative View . Cambridge University Press, 2003, ISBN 0-521-53399-6 .

Trade journals

• Peter Häberle (Hrsg.): Yearbook of the public law of the present , Mohr Siebeck, Tübingen (also in German).
• Brun-Otto Bryde et al. (Ed.): Constitution and law overseas. Law and politics in Africa, Asia and Latin America , Nomos, Baden-Baden (also German).
• Michel Rosenfeld et al. (Ed.), International Journal of Constitutional Law , Oxford University Press, ISSN  1474-2659 (English).

Essays

• Susanne Baer: Constitutional comparison and reflexive method: Intercultural and intersubjective competence , ZaöRV 64 (2004), p. 735 ff.
• Rainer Grote: Legal circles in public law , AöR 126 (2001), 10–59.
• Christian Starck : Comparative Law in Public Law , JZ 1997, 1021
• Rainer Wahl: Constitutional comparison as cultural comparison . In: ders .: Constitutional State, Europeanization, Internationalization , Suhrkamp, ​​Frankfurt a. M. 2003, p. 96 ff.

Web links

Wikiquote: Constitution  - Quotes

Wiktionary: Constitution  - explanations of meanings, word origins, synonyms, translations

Wikisource: Constitutional Documents  - Sources and Full Texts

• Current and historical national and international constitutional texts - verassungen.de
• Historical German constitutions - documentArchiv.de
• International Constitutional Laws - Uni Bern (English)
• Institute for European Constitutional Law at the University of Trier , constitutions worldwide (German, English, French)
• Constitution Finder , constitutions worldwide

Individual evidence

1. ↑ Christian-Friedrich Menger, German Constitutional History of Modern Times , CF Müller, Heidelberg, 8th edition 1994, Rn. 3 mwN
2. ^ Johann Jacob Moser : Teutsches Staatsrecht. (1764) or Karl Friedrich Häberlin : About the quality of the German state constitution. In: German monthly . 1793, p. 1 ff. 1794.
3. ↑ Aristotle (384 to 322 BC), Politics. Trans. U. ed. v. FF black. Reclam UB 8522.
4. ↑ Cf. especially the third part in De l'esprit des loix
5. ^ Charles Alexis Henri Maurice Clérel de Tocqueville: De la démocratie en Amérique . 2 vols., Paris 1835/1840 (German: About democracy in America . Stuttgart 1959 and other); see. also ders., L'ancien régime et la révolution , Paris 1856 (German: The old state and the revolution ).
6. ↑ Rudolph von Jhering: Spirit of Roman law at the various stages of its development. Volume 1 (5th edition 1891), pp. 14/15. ( Digitized in the Internet Archivehttp: //vorlage_digitalisat.test/1%3D~GB%3D~IA%3Dgeistdesrmische07jhergoog~MDZ%3D%0A~SZ%3D~doppelseiten%3D~LT%3DDigitalisat%20im%20Internet%20Archive~PUR%3D )
7. ↑ See Konrad Zweigert , Hein Kötz : Introduction to Comparative Law , 3rd edition, Tübingen 1996, ISBN 3-16-146548-2 .
8. ↑ Alexander Hamilton, James Madison et al. a .: The Federalist Papers . 1788.
9. ↑ Examples: Constitution of Japan (1947) and Basic Law for the Federal Republic of Germany (1949)
10. ↑ See Rett R. Ludwikowski, Constitution-Making in the Region of Former Soviet Dominance , Durham 1996.
11. ↑ ^{a b} Bernd Wieser: Comparative Constitutional Law. Pp. 49-115, 117-146.
12. ^ Carl Friedrich von Savigny: System of today's Roman law, Vol. 1, 1840.
13. ↑ Peter Häberle: The validity of fundamental rights and the interpretation of fundamental rights in the constitutional state - At the same time as comparative law as a “fifth” method of interpretation, in: Juristenteitung 1989, p. 913 ff.
14. ↑ ECJ, judgment of December 13, 1979, Case 44/79, Hauer in: Sammlung 1979, 3727.
15. ↑ Cf. Hein D. Kötz: Farewell to the legal system? In: ZEuP 1998, 495-505.