Vol. 9 No. 11 (November 1999) pp. 479-481.
GERMAN CONSTITUTIONAL LAW: THE PROTECTION OF CIVIL LIBERTIES by Sabine Michalowski and Lorna Woods. Brookfield, Vermont: Ashgate Publishing Company, 1999. 373 pp. Cloth $96.95.
Reviewed by John E. Finn, Department of Government, Wesleyan University.
GERMAN CONSTITUTIONAL LAW: THE PROTECTION OF CIVIL LIBERTIES appears at an auspicious time. This year marks the fiftieth anniversary of the Basic Law, which makes it one of the world's oldest extant constitutions. For this reason alone, but certainly not for this reason only, the Basic Law merits the attention of scholars of comparative constitutional law. More importantly, the Basic Law has been an influential model for constitutional design, especially in the newly emerging European democracies and, to a lesser extent, in Latin America.
The Basic Law, both in design and in interpretation, has also had an important influence in American constitutional scholarship. Consider the recent scholarship on what has been called the "constitutional exceptionalism" of the United States. Some of this work begins with the (mistaken) premise that the Basic Law and the American Constitution represent two different understandings about the relationship between constitutionalism and democratic theory. In the German case, we hear, the entrenchment of certain civil liberties against the claims of majorities and supermajorities suggests that the German polity is "rights-foundationalist." The absence of entrenched rights in the American case, in contrast, yields a polity that is "dualist-democratic." (See Ackerman 1991). In this case, the German Basic Law influences contemporary scholarship because it has the capacity to elucidate fundamental questions about the purposes of constitutions and how they envision political communities. The influence of the German Basic Law, however, reaches well beyond the mechanics and politics of constitutional design. The sophistication of German constitutional interpretation has attracted the attention of Americans who find the contrast between originalism and most other methods of interpretation maddeningly simplistic.
Given the importance of this scholarship -- and of comparative constitutional inquiry more generally - it may seem strange to say that this new book by Michalowski and Woods might not have an audience in the United States. One difficulty is that unlike these other works, the volume by Michalowski and Woods is disinclined to shed light on such issues. Its audience, instead, is the undergraduate who comes to the study of comparative constitutional law in complete innocence. A second difficulty is that we already possess a number of fine works on German constitutional interpretation (See Kommers 1997; Starck 1995; Currie 1994).
Unlike these other works, the Michalowski and Woods volume adopts as its primary focus the protection of civil liberties in the German order. The book is divided into two parts. The first presents an
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overview of the German constitutional system, beginning with a brief history of the Basic Law and continuing with a chapter each on basic constitutional principles, constitutional review, the impact of the European community, and the basic rights. These short chapters work fine as material for undergraduates or for readers thoroughly unfamiliar with German constitutional law, which is their purpose. The larger part of the book consists of chapter length treatments of specific basic rights, including those of human dignity (Art. 1), bodily integrity (Art. 2), equality (Art. 3), religion (Art. 4), and several others. Michalowski and Woods have constructed these chapters with the purpose of providing students with a sense of how judicial protection for the specific rights has developed over time and with a sense of how more recent case law contrasts with older case law.
The advantage to this approach is that permits the authors to cover a great deal of ground in fairly economical fashion. For an audience unfamiliar with German constitutional law, and inclined only to win a passing sense of the jurisprudence, this approach can work. But it purchases its breadth at a high cost. The most significant is that the book contains no full-length cases, but only extracts from cases, and these are typically quite short. A student is unlikely to get a sense of how judicial interpretation of the Basic Law proceeds in general, much less of the nuances and sophistication of German constitutional interpretation. Similarly, the extracts and the commentary about them do little to illuminate the connections between the underlying principles of German constitutional history and thought and their expression in case law.
Another limitation to the book is that, with the exception of a brief chapter on the European Community, it does nothing to situate German constitutional law in a larger perspective. Its value as a comparative resource is thus hampered on two fronts. First, it simply does not offer enough original source material for others to use in a comparative fashion. Second, it makes no effort at comparative analysis in its own right. A notable example concerns the authors' discussion in chapter two of the concept of militant democracy. The authors' treatment of the Federal Constitutional Court's decision in the SOCIALIST REICH PARTY CASE and the COMMUNIST PARTY CASE is impoverished by their failure to consider these cases in light of the proscription provisions in British antiterrorism statutes. Nor do the authors make any sustained effort to connect up their discussions with the larger scholarly literature. Such failures are missed opportunities. For example, the conclusion to the chapter on constitutional review notes that the Basic Law "shows a certain distrust in representatives of the people and probably also in the people themselves. . .". This statement occurs in a short paragraph that also notes that the German constitution rests upon a particular understanding of democracy and theseparation of powers. This is undoubtedly true, and a sustained discussion about the concepts, their historical contexts, and how they continue to influence constitutional interpretation would do much to make this book more attractive to a wider audience. Likewise, such passing remarks present the perfect opportunity to engage in comparative analysis.
In sum, this is a book that is unlikely to find an audience in the United States, its strengths notwithstanding. Scholars looking to learn about the intricacies and subtleties
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of the Basic Law will have to consult more ambitious works. Novice students will get some benefit from the book's breadth, but may be better advised to consult works that include longer treatments of the case law and which compare German jurisprudence to the work of other constitutional courts.
REFERENCES:
Ackerman, Bruce. 1991. WE THE PEOPLE: FOUNDATIONS. Cambridge: Belknap Press of Harvard University Press.
Currie, David P. 1994. THE CONSTITUTION OF THE FEDERAL REPUBLIC OF GERMANY. Chicago: University of Chicago Press.
Kommers, Donald P. 1997. THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY. 2d ed. Durham: Duke University Press.
Starck, Christian. 1995. STUDIES IN GERMAN CONSTITUTIONALISM. Baden-Baden: Nomos Verlagsgesellschaft.