Jakab, András

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The Fading International Influence ofGerman Constitutional ThinkingAndrás Jakab 2020-10-09T09:00:54German constitutional thinking has been central in EU law, in ECHR law, and even insome domestic constitutional systems outside of Germany. It is, however, graduallyand unstoppably losing influence in Europe. This is largely due to the fact thatKarlsruhe has lost its status as the most influential court in constitutional issues inEurope, with this title now belonging to the Strasbourg Court and likely to do so forthe foreseeable future. This trend (i.e. the fading international influence of Germanconstitutional thinking) cannot be reversed by German constitutional lawyers, as itis the result of major institutional and structural (“tectonic”) changes that have takenplace over the last 20-25 years. German lawyers can, however, somewhat mitigatethis trend by constructively participating in the formation of a common EuropeanConstitutional Language (in English).1. The Rise of a Doctrinal SuperpowerThe highest level of conceptual-doctrinal legal thinking (Rechtsdogmatik) emergedin Germany (at the time still fragmented) in the 19th century: conceptual elaborationbecame the main goal of legal scholarship (see in particular Friedrich Carl vonSavigny, Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft,1814). It first conquered private law, then criminal law and (with the extension ofthe judicial review of administrative acts) administrative law as well. The end ofthe Wilhelmine Empire in 1918 also meant that the very basics of constitutionallaw (or “state law”) had to be reinvented, which during the Weimar Republic madeGerman constitutional theory blossom, and resulted in a number of memorabletheoretical and methodological debates. Since then, the four classics of this period(Hans Kelsen, Carl Schmitt, Hermann Heller, Rudolf Smend) have also been well-known abroad. From amongst these four, Kelsen has been the most influentialinternationally – paradoxically, much less so in Germany, where the vocabulary andthe ideas of Smend and Schmitt have had a longer-lasting impact.The final boost was given by the establishment of the Bundesverfassungsgericht,which resulted (in combination with the German doctrinal traditions) in the mostsophisticated legal doctrine of fundamental rights in human history (with a specialemphasis on proportionality tests, theorised by Robert Alexy in his 1985 Theorieder Grundrechte). German constitutional doctrines directly influenced both otherdomestic constitutional cultures and international-supranational discourses (ECJ,ECtHR). Establishing and solidifying the rule of law in Germany after the Gräueltatenof the Second World War was a remarkable achievement in terms of both legaltechnique and moral determination. Moreover, Germany, also as a substitute for itspast feared hard power, built up a grant system for foreign scholars after the Second- 1 -World War on an unprecedented scale, which made it into the unquestionablebeacon of conceptual-doctrinal legal thinking in Europe (actually, in the entire world).The above projected soft power also radically transformed the badly tainted imageof Germany into an example to be followed. After the end of communism in Europe,most of the newly emerging democracies imported German constitutional solutions:partly because these were specifically designed for post-authoritarian situations,and partly because many of the Eastern European lawyers who wrote the newconstitutions for these emerging democracies (or became judges at constitutionalcourts) had actually spent one or two years as guest researchers in Germany in the1980s. By the 1990s, it was not exaggeration to say that you were only consideredto be a serious constitutional lawyer in Europe if you spoke German and if you hadspent some time at a German university or a Max Planck Institute.2. Fading International Influence: The New Karlsruheis StrasbourgHowever, since the 1990s, things have been going downhill for the internationalinfluence of German constitutional thinking. Karlsruhe has been losing its leadingrole to Strasbourg in human rights issues. The reasons are manifold, and actuallythey are beyond the scope of what Karlsruhe can do. These are tectonic changes,where no one is to blame.It is difficult to measure the influence that one constitutional culture has onanother. A possible proxy is to count the number of citations of the judgments of aconstitutional court by another constitutional court. Such research has actually beenconducted by Groppi and Ponthoreau, who have established that the number ofreferences to foreign constitutional courts is diminishing all over the world. (It is sadand surprising news for comparative lawyers!) The reason for this development isthat international human rights tribunals (especially the ECtHR) are taking over thisrole. Since 1998, the ECtHR has been a permanent court with a growing case-law(in which many elements of German constitutional doctrine have been borrowed).Moreover, it has legal authority over its Member States, and it is also available inEnglish. There is nowadays a clear tendency in most European constitutional courtsto take into account the case-law of Strasbourg, but not to care about Karlsruhe – asituation that is very different from the beginning of the 1990s.Even if the Bundesverfassungsgericht were to translate some of its judgments(which it has actually done recently), it would not be able to compete with aninternational court that interprets an international human rights treaty that is bindingon its signatories. For the South African Constitutional Court, it can be an openquestion whether to look at Karlsruhe or at Strasbourg. For a European constitutionalcourt, however, it is clear: you have to consider Strasbourg, and if you still havesome additional time and resources then you might have a look at Karlsruhe. (Asomewhat similar development can be observed in Latin American countries,where the Inter-American Court of Human Rights has taken over most of the roleformerly occupied by the US Supreme Court and the Bundesverfassungsgericht- 2 -in human rights cases.) The fact that throughout Europe the younger generationsof constitutional lawyers are increasingly more likely to speak English than theolder ones, aggravates the situation even more for Karlsruhe. This is an unfaircompetition, which structurally favours Strasbourg.We have recently conducted a large empirical research and have established thatthe topic of leading cases have become more and more fundamental rights orientedin the last couple of decades at every analysed constitutional court (as opposed tostate organisation law, or to generic sovereignty questions). Constitutional law isbecoming human rights law, or more precisely: human rights case-law. In humanrights cases, however, Karlsruhe is internationally becoming an exotic footnote,and the standards are determined by Strasbourg (which does not mean at all thatthe doctrinal sophistication is any better in Strasbourg). Moreover, the diminishinginternational influence of Karlsruhe leads (with some delay) to the diminishinginternational influence of the German scholarly constitutional discourse, with theexception of a few German scholars who become part of the international andsupranational constitutional discourse (in English). The average German humanrights Habilitationsschrift about the Grundgesetz is today much less likely to beread by foreign constitutional scholars then at the beginning of the 1990s. Theirresistible wind of international irrelevance just keeps blowing from Strasbourgtowards Karlsruhe.3. Mitigating the Decline of International Influence:New Responses to Supranational QuestionsThere is a newly emerging set of open questions in constitutional law nowadays:How to deal with supranational organisations (more precisely: with the EuropeanUnion)? The EU poses serious challenges to traditional constitutional doctrines,and some German scholars did offer promising new theories and doctrinal framesto deal with these (multilevel constitutionalism, international public authority, openstatehood, etc.), but none of these became THE dominant scholarly opinion andespecially none of these was able to fully conquer the Bundesverfassungsgericht.Instead, since the 1990s Karlsruhe has been trying to answer these novel questionswith a traditional state-centred conceptual frame. The etatistic tradition in Germanconstitutional thinking has an impressive intellectual history, and it is still influential(as was evident in the last PSPP judgment).Whereas many German constitutional scholars have strongly and convincinglycriticised this approach, in the Bundesverfassungsgericht it is still the dominantone when dealing with the European Union. On the one hand, this makes theBundesverfassungsgericht (and its case-law) less appealing to many foreignscholars. On the other hand, those who are consciously trying to dismountEuropean integration, the rule of law and democracy have discovered a newlove for the Bundesverfassungsgericht – a newly emerging fan club that theBundesverfassungsgericht most definitely did not wish for.- 3 -Constitutional issues of state organisation are always more local, in human rightsissues (which is the most important part of constitutional law, see above in Section2) the ECtHR has taken up the international pole position for the foreseeable future,but issues of supranational organisations are a dynamic and complicated field ofconstitutional law, where some open questions still need to be answered. Hopefully,German scholarship can actively and constructively participate in the supranationalconstitutional discourse by contributing to a European Constitutional Language (inEnglish). For this purpose, it needs to embrace critical voices about its own workthat also come from abroad, and it should try to open up the German discourse(Europeanise it, as Armin von Bogdandy put it here).The Strasbourg academic discourse is more case-note oriented, more essayistic,more pragmatic, more analogical, more open to use metaphors for explanations,but less conceptual, less abstract and less systematic than its German counterpart.In many ways, its style is nearer to common-law countries, than to the Germandiscourse. This Strasbourg style is most likely going to keep influencingconstitutional thinking on both an EU and national level. Therefore, the gradualcommon-lawisation (without being bound to any specific common-law country) willprobably continue in Europe, despite Brexit.Germany is still the most influential European constitutional culture, bothintellectually and financially (especially via scholarship programmes in Germanyfor foreign constitutional scholars) promoting its own ideas. But it is most likelynever going to reach its peak of the 1990s again, and the slow decline of itsinternational influence is probably going to continue. Constitutional issues of the EUdo not present a continuous flow of key questions, thus even though the Germandebates are relevant for other European constitutional systems, this cannot undothe continuing loss of international doctrinal influence which is due mainly to theinstitutional pre-eminence of the Strasbourg human rights case-law.- 4 -

The Fading International Influence of German Constitutional Thinking

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The Fading International Influence of German Constitutional Thinking

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