Mendelson, J. () 'The Habermas–Gadamer Debate', New German Critique, 44– Müller-Doohm in M. Biegi and others (eds) Demokratie, Recht und Legitimität im Jahrhundert, Wiesbaden: VS Verlag für Sozialwissenschaften.
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Kommentar by Horst Dreier Book 28 editions published between and in German and Undetermined and held by WorldCat member libraries worldwide. Akten der IVR-Tagung vom Kommentar Book 8 editions published between and in German and Undetermined and held by 98 WorldCat member libraries worldwide. Philosophie des Rechts und Verfassungstheorie: Hierarchische Verwaltung im demokratischen Staat: Genese, aktuelle Bedeutung und funktionelle Grenzen eines Bauprinzips der Exekutive by Horst Dreier Book 9 editions published between and in German and held by 95 WorldCat member libraries worldwide.
Rechtssoziologie am Ende des Recht, Religion, Politik Book 4 editions published in in German and held by 80 WorldCat member libraries worldwide. Vortrag gehalten vor der Juristischen Gesellschaft zu Berlin am 8. September by Horst Dreier Book 10 editions published between and in German and English and held by 74 WorldCat member libraries worldwide.
German English 1. Author , Editor , Creator , Other. Project Page Feedback Known Problems. The debate started with respect to the European Community, but now, given the increasing impact of other institutions, is becoming increasingly generalized. The most discussed issue is the extent to which international organizations are bound by human rights. Since these institutions are not contracting parties to human rights pacts, obliging them requires doctrinal constructs that have become as common as they are convincing.
The situation is similar with respect to the various elements of the rule of law. Many international organizations possess complex institutional and procedural rules, which, however, hardly operate in the sense of a developed rule of law principle. General statements are difficult to make because the legal situation differs from organization to organization.
Even more difficult is the question whether, and to what extent, there exists a public international law democracy principle for supranational and international organizations. The mandatory character of the democratic principle for the EU is anchored in the EU treaties, an analogous provision is absent from the statutes of international organizations. It would be too positivistic, however, to banish democracy within international organizations from the sphere of legal thought and consign it solely to the realm of political theory.
In view of these difficulties, many authors conversely prefer to discuss this legitimating feedback loop under the term accountability. The debate covers a variety of issues, interconnected by the tradition of democratic thought. It seems safe to say that the principle that international organizations are bound by their constitutive legal acts is to be understood in light of the democratic principle.
Principles relating to the protection of human rights, the rule of law, and, albeit to a limited extent, democracy, can be identified in German law, EU law, and public international law. Moreover, they apply not only to the institutions of their own legal order but also to those of interacting ones. For this reason, these principles form the vertices of an overarching discourse about the basics. Their concurrence bears considerable potential to develop overarching and general frameworks.
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A similarly unequivocal rule is missing from these novel contexts of conflict and interpretation. These fundamental issues raise a series of different, albeit interconnected, questions. In the context of acts of public international law, it is their validity, rank, and effect within the territorial scope of the application of EU law and national law that is at issue, i. As regards acts of EU law or national law the issue is somewhat different: It is not the validity, the rank, or effect of EU law or national law within the public international legal framework but instead the question whether EU or domestic institutions can assent to international legal acts or whether and how an act of public international law is relevant in the operation of the internal legal order.
Given that principles normally do not lead to direct conflicts, the question then arises how the different understandings and peculiarities of the principles, as they were developed in the positive law, jurisprudence, and legal scholarship of the respective legal orders relate to each other; the same question can be posed with respect to the insights of comparative law. Pondering the relationship between principles of different legal orders suffers from the defect of being spellbound by two theoretical offerings of the early twentieth century: The German case is emblematic: Germany, at that time a rather authoritarian and belligerent state, has transformed into a liberal democracy.
It no longer seeks to rival its neighbors for colonies or superpower status, but instead is embedded together with them in a dense fabric of supranational and international organizations, precisely in order to overcome such rivalry. However, monism is not persuasive, either—whether as a doctrinal or as a theoretical offering. Whenever questions of validity, rank, effect, or legitimacy of a legal act are to be resolved, it has to be first situated within a specific legal order; hence legal practice clearly does not proceed from an amalgam of legal orders.
All essential questions are always answered by reference to a specific legal order. Neither monism nor dualism are useful any longer as specific doctrinal constructs, since they neither can offer plausible solutions to any of the relevant legal questions. They also lead into a dead end from the point of view of theories designed to capture the entire legal constellation, both analytically and normatively. Dualism ultimately shares the fate of the traditional principle of sovereignty.
Monism with public international law at its apex shares the weaknesses of world constitutionalism as a paradigm for grasping the existing law. In constitutional law, one can encounter monism that puts the state on top, for instance when principles of national constitutional law form the center of the normative universe. Examples might include A.
There have been many conceptual attempts to capture the larger setting, which is the object of this contribution. Mehrebenensystem , Netzwerk , Verbund. There are two pluralist camps. The more radical approach starts from the premise of conflict and reads the interaction as a struggle for power; juridical rationality is rather a mask.
Fundamental conflicts are the big exception; the intensive and oftentimes fruitful collaboration is the norm. Of course, the concept of dialogue is so far not much elaborated and can be misread as supposing a friendly or even a cozy relationship between institutions. This contribution does not suggest this, but rather offers distinction from a form of relationship that is mere interaction, as one could see between the US courts and the ICJ in the LaGrand case.
Dialogic pluralism is so far mostly applied to the relationship between institutions of the various legal orders, but it can be extended to the relationship between the founding principles themselves. While the EU framework prescribes some common elements, the specific meaning is determined in light of the basic constitutional principles of the member state in question. Along similar lines, international sovereignty could be reconstructed with a composite legal status, responding to the constitutional understanding a country has of its place in the regional and global order; thus sovereignty becomes a relative concept.
Of course, the emerging international sovereignty will be far more nuanced and variegated. But for this very reason, such a concept of sovereignty fits better with the pluralistic world order while furthering the basic principles discussed here where political communities are disposed to advance on that path.
For all the difficulties, the basic principles can provide a beacon for political action and legal reconstruction in this novel constellation, both for what is in common as for what should remain different. In order to advance scholarly core competencies such as abstraction, specification, comparison, transfer, and conflict resolution are demanded in light of dialogic pluralism.
Nevertheless, under the premise of dialogic pluralism, linking them is as probable as it is necessary, since this furthers the principles of principles, namely the protection of the core of human rights, the stabilization of normative expectations, as well as the connection to the values, interests, and convictions of those affected: Oxford University Press is a department of the University of Oxford.
Staatslehreas constitutional theory? (Chapter 11) - European Constitutional Language
It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide. Sign In or Create an Account. Close mobile search navigation Article navigation. The contemporary field of research regarding basic principles. Individual basic principles and their legal foundations. Common principles for a plurality of orders: A study on public authority in the European legal area Armin von Bogdandy.
Translated by Marc Jacob and Blake Emerson. This text is part of a research project on international public authority, available at http: Abstract Public law was once exclusive to the type of social organization called state. The article provides an excellent idea of the essence of traditional Staatsrecht. A Philosophical Proposal 29 et seq.
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Kleine politische Schriften , et seq. Now, monumentally in ten volumes: Recall only the many pertinent events of the Vereinigung der deutschen Staatsrechtslehrer the Association of German Constitutional Law Professors and the contributions in the Handbuch des Staatsrechts, supra note 2. Three excellent examples from recent Ph.
This was rather different only twenty years ago. Outside Europe, things may be different: Hegel, Brief an Niethammer vom Cohen, Constitutionalism Beyond the State: A Pluralist Approach , 2 Humanity , Armin von Bogdandy, Zweierlei Verfassungsrecht. The concept Staatsrecht law of the state states well this presumed necessary link. Germany is not the only one to use this terminology: Just very few scholars argue that a European or world state is emerging, but see Mathias Albert, Einleitung: Neubestimmungen des Politischen in der Weltgesellschaft , in Weltstaat und Weltstaatlichkeit: Georg Jellinek, Die Lehre von den Staatenverbindungen 16 et seq.
Rudolf Bernhardt ed , with a cautious opening to human rights law. Think only of the fundamental importance of the concept of parliamentary supremacy in the United Kingdom. Czech ; Constituzione Const. Rainer Wahl, Herausforderungen und Antworten: In a comparative perspective, see Stephan Hobe, Art. Elemente einer Demokratietheorie The internal metamorphosis of the state concept is not dealt with here. It is not argued that the sovereignty principle no longer has a role to play. That would be untenable. See only Jurisdictional Immunities of the State Ger.
A classic exposition is SS Lotus, Fr. This is not an attempt at a totalizing definition.
Legitimation und Dogmatik im nationalen und internationalen Rechtsvergleich 81 et seq. The specific problems concerning the exercise of public authority by international courts will not be discussed in this contribution. Most illuminating is the discussion concerning the law of the Catholic Church in the sixteenth century: Thomas Duve, Katholisches Kirchenrecht und Moraltheologie im Joseph Raz, The Authority of Law 28 et seq.
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Some center on the fulfillment of public function. See Matthias Ruffert, Perspektiven des Internationalen Verwaltungsrechts , in Internationales Verwaltungsrecht , supra note 47, , at This does not rule out obliging private actors, in particular multinational corporations, to abide by human rights standard. See Basic Law, art. Guiding Principles on Business and Human Rights: The Evolving International Agenda , Am.
Frank Meyer, Strafrechtsgenese in Internationalen Organisationen et seq. Friedrich, Constitutional Government and Politics et seq. A Reply to Benedict Kingsbury , 20 Eur. Die miteinander verbundenen Entwicklungen von Rechtsordnungen als ganzen , in Allgemeines Verwaltungsrecht , supra note 40, at , Council Regulation EC No.
Eyal Benvenisti, Reclaiming Democracy: Filippo Ranieri, Die Rechtsvergleichung und das deutsche Zivilrecht im Jahrhundert , in Ins Wasser geworfen und Ozeane durchquert: Mario Ascheri et al. See Decision of the Constitutional Court of Nov. Studi di teoria e metateoria del diritto et seq. Ein Normtyp im Grundgesetz For details, see Alexy , supra note 77, at 47 et seq. The reasons for this ample legal concept coincide with those for the ample concept of public authority: John Rawls, A Theory of Justice 60 et seq. On the relevance of this constitutional legal concept, see Tobias Herbst, Legitimation durch Verfassungsgebung Vergleich , in 3 Handbuch Ius Publicum Europaeum , supra note 36, at Wahl , supra note See only the contributions in Herzkammern der Republik.
Die Deutschen und das Bundesverfassungsgericht Michael Stolleis ed. For a seminal work, see Vogel , supra note 29; from the newer literature, see Wendel , supra note See the Dutch constitution which provides in art. Far-reaching is also art. Certain requirements are also to be found in art. Wendel, supra note 72, at et seq. Similar requirements may be found in art. Bundesverfassungsgericht, Judgment, 22 Nov. L , art 34 no. This is reflected in the debate concerning the interpretation of the Charter of Fundamental Rights of the European Union, O.
On a restrictive approach, see, e. Anwendbarkeit und Auslegung , Europarecht 3 []. For an attempt, see Armin von Bogdandy et al.
Given the recent developments in Hungary and Romania, this is an important current issue: Governance 1 , available at http: A Contradiction in Terms? A Superpower in the Making et seq. Commission , , E. A New Constitutional Paradigm? Geburtstag , et seq. Weiler, Editorial , 19 Eur. Recently, an interdisciplinary journal, Global Constitutionalism , was even founded: Antje Wiener et al. On the development as well as an overview, see Kleinlein , supra note Anne Peters, Compensatory Constitutionalism: See Anne Peters, Rechtsordnungen und Konstitutionalisierung: From the European judicial area, see only Const.
Meaning of "Legitimität" in the German dictionary
Similarly, see new provisions in the Latin American constitutions, e. Gordon Anthony et al. See Steven Wheatley, The Democratic Legitimacy of International Law on the right to self-determination as jus cogens and as an erga omnes obligation, but also without equating it with a right to democracy. Covenant on Civil and Political Rights: Its normativity is damaged by the constitutional practice of states such as China or Russia, but it is not destroyed. For a detailed discussion, see Petersen , supra note An International Law Perspective , 17 Eur. Blokker, International Institutional Law et seq.
VI; from the European legal area, see, e. Jackson, Constitutional Engagement in a Transnational Era — Netzwerke dogmatisch gedacht , in Netzwerke: Zur Emergenz eines transnationalen Rechtspluralismus , 15 Rechtshistorisches J. The Pluralist Structure of Postnational Law Habermas , supra note 77, at ; Luhmann , supra note 85, at — Ein Essay 54 For permissions, please e-mail: Email alerts New issue alert.
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