Catalogue Search | MBRL
Are you sure you want to remove the book from the shelf?
{{itemTitle}}
18,850
result(s) for
"Federal Constitutional Court"
Sort by:
Climate Guardians: Navigating the Future in the 2021 German Climate Verdict and Constitutional Landscape
In the realm of intergenerational justice, green constitutionalism underscores the necessity for present generations to make choices that do not jeopardize the capacity of future generations to fulfill their needs independently. The climate verdict defending the rights of future generations by the German Federal Constitutional Court (Bundesverfassungsgericht) of March 2021 was a game changer in that regard. For the first time in Germany’s climate litigation, the fundamental rights of future generations were subject to constitutional claim and enforceable. They were no longer just a normative claim. Constitutional courts can be seen as defenders of the fundamental rights of future generations where constitutions include such normative perspectives. While the Court upheld the infringement of the fundamental rights of the adolescent plaintiffs in the future, the representation of not-yet-born generations remains unclear. This article examines how the 2021 German climate verdict and constitutional provisions address the representation and protection of the interests of future generations represented by the plaintiffs concerning climate change on the one hand and discusses the potential of protecting the fundamental rights of not-yet-born future generations. The article considers the implications for intergenerational justice and explores how these legal frameworks provided by the Constitution may contribute to the formulation of sustainable policies aimed at ensuring the long-term well-being of future generations. There is an urgent need to develop an institutional regime where the needs and rights of future generations are being considered and included in decision-making processes.
Journal Article
Fidelity & constraint : how the Supreme Court has read the American constitution
\"The fundamental fact about our Constitution is that it is old--the oldest written constitution in the world. The fundamental challenge for interpreters of the Constitution is how to read that old document over time. In Fidelity & Constraint, legal scholar Lawrence Lessig explains that one of the most basic approaches to interpreting the constitution is the process of translation. Indeed, some of the most significant shifts in constitutional doctrine are products of the evolution over time of the translation process. In every new era, judges understand their translations as instances of \"interpretive fidelity,\" framed within each new temporal context. Yet, as Lessig also argues, there is a repeatedly occurring countermove that upends the process of translation. Throughout American history, there has been a second fidelity in addition to interpretive fidelity: what Lessig calls \"fidelity to role.\" In each of the cycles of translation that he describes, the role of the judge--the ultimate translator--has evolved too. Old ways of interpreting the text now become illegitimate because they do not match up with the judge's perceived role. And when that conflict occurs, the practice of judges within our tradition has been to follow the guidance of a fidelity to role. Ultimately, Lessig not only shows us how important the concept of translation is to constitutional interpretation, but also exposes the institutional limits on this practice. The first work of both constitutional and foundational theory by one of America's leading legal minds, Fidelity & Constraint maps strategies that both help judges understand the fundamental conflict at the heart of interpretation whenever it arises and work around the limits it inevitably creates\"-- Provided by publisher.
Book
The European Central Bank and the German Constitutional Court: Police Patrols and Fire Alarms
In May 2020, a ruling of the German Federal Constitutional Court (FCC) questioned the legality of the Bundesbank’s participation in the European Central Bank’s (ECB’s) Public Sector Purchase Programme. Applying elements of a principal-agent analysis, this article analyses how the FCC ruling presents us with a new understanding of the relationship between the ECB, other EU institutions and Eurozone member states. Existing principal-agent analyses of the ECB focus upon its relations with other EU-level institutions and point to the limited ex ante control mechanisms and efforts to reinforce ex post control mechanisms—notably European Parliament oversight. The FCC ruling and the ECB’s reaction demonstrate the relative importance of national level controls over the ECB agent. This article understands the role of private plaintiffs in Germany as a form of ‘fire alarm’ on ECB policymaking against the background of weak ex post controls at the EU-level.
Journal Article
Activating Ultra Vires Review: The German Federal Constitutional Court Decides Weiss
In its famous PSPP judgment, the German Federal Constitutional Court activated for the first time its ultra vires doctrine and declared that both the Secondary Markets Public Sector Asset Purchase Programme of the Europe-an Central Bank and its interpretation by the CJEU violated the proportionality requirements by not examining in a comprehensive and substantiated manner the economic policy effects that its practical implementation inevitably entails. However, this judgment is based on a manifestly erroneous interpretation of the relationship be-tween the principles of proportionality and conferral and constitutes a concealed attempt to redefine the methods of interpretation of EU law and to impose the traditional perception of the constitutional court about the role of central banking and the existence of an absolute and inviolable separation between monetary and economic policy. At the same time, the constitutional court breaks its promise to exercise its ultra vires review in a cooperative spirit and fails to exhaust the institutional means that were available to it in order to resolve the matter in a legally appropriate and amicable manner that would not essentially amount to a precarious attempt to adjudicate economics.
Journal Article
Populism and Support for Limiting the Power of Constitutional Courts: The Case of Germany
Given the rise of populism around the globe, do populist citizens support the exceptional authority of national constitutional courts to make decisions on controversial issues? Or do these individuals view constitutional courts just like any other political institution? To investigate this question, we embedded an experiment in a national survey in Germany in early 2020 that varied the institution (i.e., the federal constitutional court (FCC), the parliament and the EU) and its decision on a controversial civil liberties issue. The results clearly show that citizens with populist attitudes judge the FCC like any other political institution in terms of their willingness to restrict its authority. In contrast, individuals with non-populist attitudes endorse the exceptional status of the FCC compared to other institutions. The study suggests that the FCC may lose its venerate status as the ultimate guardian of democracy among the nontrivial portion of citizens who favor populism. Theoretically, the results support a “fusion” model that assumes populists’ support for power curbing includes the constitutional court in “the system” they disparage.
Journal Article
Paradoxes of Ultra-Vires Review: A Critical Review of the PSPP Decision and Its Initial Reception
This contribution explores paradoxes of ultra vires review with specific regard to the PSPP decision of the German Federal Constitutional Court in the light of the decision’s initial reception. While some of these paradoxes are inherent in the very nature of ultra vires review, others are specific to the PSPP judgment. They relate to the underlying doctrinal and theoretical premises, to key concepts such as proportionality or the scope of judicial review, to the overall context in which the decision is embedded, and even to the community which is addressed and affected by the decision. It is the sad irony that the Federal Constitutional Court, while accusing others of manifestly exceeding their competences, does not sufficiently adhere to its own standards and increasingly risks overstretching the boundaries of its mandate under the Basic Law.
Journal Article
The Constitutionalization of Social Rights in Italy, Germany, and Portugal: Legislative Discretion, Minimal Guarantees, and Distributive Integration
In an international social rights debate disproportionately focused on English-speaking countries, redundant emphasis has been placed on justiciability. While constitutionalization does challenge stable relations between powers, especially in the post-colonial and developing world, solid insights for a workable interpretative method can be derived from continental Europe, where the difficulties typically associated with justiciability have long been settled. The constitutions of Italy, Germany, and Portugal take socioeconomic democracy seriously, tempering socialist claims and refuting libertarian stances, and have managed to spur a legitimate judicial increment of substantive equality. Through a threefold comparison, this paper describes the peculiarities of these fundamental texts across the spectrum of possible constitutional design choices, and draws from comparative constitutional caselaw to highlight a cross-national convergence on a set of interpretative standards. These blend together a strong safeguard of legislative discretion with justiciable minimal guarantees, and a value-assertive orientation of balancing coextensive with the integrationist function of constitutionalized social and economic rights.
Journal Article
Do We Need the Concept of Drittwirkung to Protect Fundamental Rights in Private Relations? A Lesson from Germany
The Drittwirkung determined the discussion on the impact of fundamental rights on private relations, significantly influencing the dogmatics of fundamental rights and the paradigm of their application in Germany. The current state of development of the Drittwirkung is a result of a dialogue over the course of several decades in German academia between the Federal Constitutional Court and legal scholars, who point out the dogmatic deficiencies of this concept. The development of the problem of the phenomenon in question in the jurisprudence of the FCC progressed along two lines. Firstly, it consisted of the dogmatization of the Drittwirkung , as this is how the process of the clarification of the conditions for the radiating impact of fundamental rights can be described in its subsequent rulings. Secondly, the efforts of the FCC were aimed at searching for solutions alternative to Drittwirkung , which could justify the horizontal application of fundamental rights norms. The article reconstructs the dogmatization process of Drittwirkung with reference to the key rulings in the development of this concept. It presents a possible account of the relationship between Drittwirkung and Schutzpflichten . Finally, it argues in favour of a reorientation of the doctrine of the Drittwirkung , framing the horizontal application of fundamental rights as an interpretation in accordance with the constitution.
Journal Article