The Concept of the Supremacy of the Constitution

Published date01 January 2001
DOIhttp://doi.org/10.1111/1468-2230.00306
Date01 January 2001
THE
MODERN LAW REVIEW
Volume 64 No 1January 2001
The Concept of the Supremacy of the Constitution
Jutta Limbach*
The article compares and assesses the idea of the supremacy of the constitution
found in Germany with the competing British tradition of parliamentary
sovereignty. It concludes by examining the need for a supreme constitutional
law in the European Union.
The concept of the supremacy of the constitution confers the highest authority in a
legal system on the constitution. Stating this principle does not mean just giving a
rank order of legal norms. The point is not solely a conflict of norms of differing
dignity. The principle of the supremacy of the constitution also concerns the
institutional structure of the organs of State. The scope of the principle becomes
clear if we reformulate it: the supremacy of the constitution means the lower ranking
of statute; and that at the same time implies the lower ranking of the legislator.
1
For the attentive British reader, the immediate association will be the contrary
principle of parliamentary supremacy or sovereignty, which is a salient feature of
English constitutional law. This principle of parliamentary sovereignty means –
according to Dicey’s definition – that Parliament ‘has, under the English
constitution, the right to make or unmake any law whatever; and further, that no
person or body is recognised by the law of England as having a right to override or
set aside the legislation of Parliament’.2Dicey summed up this doctrine in a
‘grotesque expression which has become almost proverbial’: ‘It is a fundamental
principle of English lawyers, that Parliament can do everything but make a woman
a man, and a man a woman’.3
As we all know, time’s gnawing tooth has chipped away even at this principle; or
more exactly, European integration has. Yet in its archetypal exaggeration the
principle is well suited for legal comparison with the doctrine that marks the
German constitution, the supremacy of the constitution. The principle’s practical
consequence may most easily be seen from a concrete example.
In 1957 the Bundestag enacted a law reordering family law in accordance with
the constitutional requirement of sex equality. The Equal Rights Act removed the
ßThe Modern Law Review Limited 2001 (MLR 64:1, January). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 1
*President of the Federal Constitutional Court, Federal Republic of Germany. This is the text of the
twenty-eighth Chorley Lecture, delivered at the London School of Economics and Political Science on 31
May 2000.
1 As pertinently put by Rainer Wahl, ‘Der Vorrang der Verfassung’ Der Staat 4/81, 485.
2 A.V. Dicey, Introduction to the Study of the Law of the Constitution (8th ed, 1915, Indianapolis:
Liberty Fund, 1982) 3ff. Dicey makes clear that, as a legal term, ‘Parliament’ means ‘the King, the
House of Lords, and the House of Commons’.
3ibid, Dicey quoting De Lolme.

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