German constitutionalism has gained a central place in the global comparative debate, but what underpins it remains imperfectly understood. Its distinctive conception of the rule of law and the widespread support for its powerful Constitutional Court are typically explained in one of two ways: as a story of change in 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.
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 two different legal paradigms: first, a hierarchical legal culture as described by Mirjan Damaska, building on Max Weber, as opposed to a more co-ordinate understanding of legal authority such as prevails in the United States, and secondly, the turn towards a
transformative understanding of constitutionalism, as it is today most often associated with countries such as South Africa and India.
Using post-war legal history and sociological and empirical research in addition to case law, this book demonstrates how German constitutionalism has harmonized the frequently conflicting demands of these two legal paradigms, resulting in a distinctive type of constitutional reasoning, at once open, pragmatic, formalist, and technical, which this book labels Value Formalism. Value Formalism, however, also comes with serious drawbacks, such as a lack of institutional self-reflection in the
Court's jurisprudence and a closure of constitutional discourse to laymen, whom it excludes from the realm of legitimate interpreters.
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) and JSD (2013) from Yale Law School, for which she was awarded grants by the Zempelin Foundation, the German Academic Exchange Service (DAAD), and the German National Academic Foundation. Previously, Michaela Hailbronner worked as a Senior Research Fellow at the Max Planck Institute for Comparative Public and International Law in Heidelberg and as a legal clerk in the German Foreign Office, in the Federal Department for Economic Cooperation and Development. She also taught constitutional law at Humboldt University.
1. Constitutional Paradigms and Judicial Authority ; 2. Transitions and Transformations: Towards Activist Constitutionalism ; 3. Hierarchical Authority in German Constitutional Law: The Constitutional Court between Law and Politics ; 4. Value Formalism ; 5. Judicial Self-Reflection and Institutional Awareness ; 7. We the Lawyers - Dialogue and Constitutional Patriotism ; Conclusion