Germany’s German Constitution

By: Russell A. Miller

Comparative lawyers, working with blunt taxonomies such as “legal families,” have been satisfied with characterizing Germany as representative or a member of the “Germanic-Roman” law tradition. The life of the Federal Republic’s post-war legal culture, however, reveals a richly more complicated story. The civil law tradition, with its emphasis on abstract conceptualism and codification, remains dominant. But it has had to accommodate a new, vigorous constitutionalism that bears many of the traits of the common law tradition, including judicial supremacy and a form of case law. This is the encounter of discrete legal traditions within a particular legal system that H. Patrick Glenn imagined. The dialogue between the civil law and common law traditions in the German legal system has produced symbiotic effects. In this article, I suggest a number of ways in which Germany’s prevailing civil law culture uniquely shapes and marks its constitutional law regime, producing Germany’s distinctly German constitutional law.

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