Foreign Law, Democracy, and Constitutional Interpretation: A German-American Comparison
Democracy is usually relied upon as an important argument against the excessive influence of international and foreign law on the domestic legal order, and especially on domestic constitutional law. Both in Germany and the United States, skeptics and opponents of the Europeanization or international...
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| Format: | Article |
| Language: | English |
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Cambridge University Press
2019-12-01
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| Series: | German Law Journal |
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| Online Access: | https://www.cambridge.org/core/product/identifier/S2071832219000804/type/journal_article |
| _version_ | 1811156189288857600 |
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| author | Shu-Perng Hwang |
| author_facet | Shu-Perng Hwang |
| author_sort | Shu-Perng Hwang |
| collection | DOAJ |
| description | Democracy is usually relied upon as an important argument against the excessive influence of international and foreign law on the domestic legal order, and especially on domestic constitutional law. Both in Germany and the United States, skeptics and opponents of the Europeanization or internationalization of domestic constitutional law repeatedly raise democratic concerns. From a comparative perspective, this Article examines the German and American democratic arguments against an overreliance on international and foreign law in constitutional interpretations. In exploring the democratic concerns expressed in German and American discussions, this Article focuses especially on the contrast between German dualism on the one hand and American exceptionalism on the other hand. This Article shows that, while the German dualists and the American exceptionalists base their arguments on different understandings of democracy, they share the viewpoint that democracy can only be realized on the national level, whereas international law aims at uniformity und thus inevitably runs counter to democratic self-governance and self-determination of the states. Precisely in this sense, it can be said that there is no qualitative, but rather only a quantitative distinction between German and American democratic arguments. Thus conceived, the alleged contrast between the principle of open statehood emphasized by German constitutional law scholars and the Constitutional Court and the idea of American exceptionalism embraced by a number of critics of the use of foreign law lies only in the extent to which the reference to international or foreign law in interpreting the domestic Constitution is deemed legitimate and justifiable. |
| first_indexed | 2024-04-10T04:46:23Z |
| format | Article |
| id | doaj.art-a26da8f965044c989495075060875197 |
| institution | Directory Open Access Journal |
| issn | 2071-8322 |
| language | English |
| last_indexed | 2024-04-10T04:46:23Z |
| publishDate | 2019-12-01 |
| publisher | Cambridge University Press |
| record_format | Article |
| series | German Law Journal |
| spelling | doaj.art-a26da8f965044c9894950750608751972023-03-09T12:35:10ZengCambridge University PressGerman Law Journal2071-83222019-12-01201119113910.1017/glj.2019.80Foreign Law, Democracy, and Constitutional Interpretation: A German-American ComparisonShu-Perng HwangDemocracy is usually relied upon as an important argument against the excessive influence of international and foreign law on the domestic legal order, and especially on domestic constitutional law. Both in Germany and the United States, skeptics and opponents of the Europeanization or internationalization of domestic constitutional law repeatedly raise democratic concerns. From a comparative perspective, this Article examines the German and American democratic arguments against an overreliance on international and foreign law in constitutional interpretations. In exploring the democratic concerns expressed in German and American discussions, this Article focuses especially on the contrast between German dualism on the one hand and American exceptionalism on the other hand. This Article shows that, while the German dualists and the American exceptionalists base their arguments on different understandings of democracy, they share the viewpoint that democracy can only be realized on the national level, whereas international law aims at uniformity und thus inevitably runs counter to democratic self-governance and self-determination of the states. Precisely in this sense, it can be said that there is no qualitative, but rather only a quantitative distinction between German and American democratic arguments. Thus conceived, the alleged contrast between the principle of open statehood emphasized by German constitutional law scholars and the Constitutional Court and the idea of American exceptionalism embraced by a number of critics of the use of foreign law lies only in the extent to which the reference to international or foreign law in interpreting the domestic Constitution is deemed legitimate and justifiable.https://www.cambridge.org/core/product/identifier/S2071832219000804/type/journal_articleforeign lawdemocracydualism(American) exceptionalismconstitutional identity |
| spellingShingle | Shu-Perng Hwang Foreign Law, Democracy, and Constitutional Interpretation: A German-American Comparison German Law Journal foreign law democracy dualism (American) exceptionalism constitutional identity |
| title | Foreign Law, Democracy, and Constitutional Interpretation: A German-American Comparison |
| title_full | Foreign Law, Democracy, and Constitutional Interpretation: A German-American Comparison |
| title_fullStr | Foreign Law, Democracy, and Constitutional Interpretation: A German-American Comparison |
| title_full_unstemmed | Foreign Law, Democracy, and Constitutional Interpretation: A German-American Comparison |
| title_short | Foreign Law, Democracy, and Constitutional Interpretation: A German-American Comparison |
| title_sort | foreign law democracy and constitutional interpretation a german american comparison |
| topic | foreign law democracy dualism (American) exceptionalism constitutional identity |
| url | https://www.cambridge.org/core/product/identifier/S2071832219000804/type/journal_article |
| work_keys_str_mv | AT shupernghwang foreignlawdemocracyandconstitutionalinterpretationagermanamericancomparison |