The Future of Staatsrecht: Dominance, Demise or Demystification?
| Author | Jo Eric Khushal Murkens |
| Date | 01 September 2007 |
| Published date | 01 September 2007 |
| DOI | http://doi.org/10.1111/j.1468-2230.2007.00661.x |
The Future of Staatsrecht: Dominance, Demise or
Demysti¢cation?
Jo Eric Khushal Murkens
n
The relationship between the national and the European legalorders is a¡ected by the way it is
theorised by the national constitutional traditions.This article will explorethe opposing consti-
tutional assumptions in Germany that underlie two interpretations of what in Anglo-Saxon
countries i s known as constitutional law: Staatsrecht and Verfassungsrecht.The two contending
visions are generated fromdi¡erent conceptions of the European Union and, especially, the state.
The origins of the German constitutional traditionswil l be historically reconstructed. Although
Staatsrechthas h istoricallyo¡ered the dominant interpretation of public law,Verfassungsrechthas
‘de-mysti¢ed’the state.To continue to o¡er a coherent interpretation Staatsrecht need not aban-
don the state as its centralco ncept,but will needto re-examine the content of the concept in light
of modern forms of constitutionalism and European integration.
In a recent volume
1
three former German judges o¡er their ‘contending legal
visions’ on the constitutionality of the European Union. On the one hand, a
state-centred perspective is presented by Paul Kirchhof,
2
a judge on the Federal
Constitutional Court from1987^1999 and the reporting judge of the Maastricht
decision.
3
On the other hand, Ulrich Everling and Manfred Zuleeg, who were
judges (from 1980^1988 and from1988^1994 respectively) at the European Court
of Justice, discuss European constitutional law from a Euro-centric perspective.
4
Kirchhof’s contribution is sandwiched between Everling and Zuleeg. This
unfortunate positioning conceals the fact that his ‘vision’ of the legal structure
of the European Union could not be more di¡erent from Everling and Zuleeg’s.
Moreover, little guidance is o¡ered to the unsuspecting reader (ie a public/
European lawyer not versed in German constitutional law) who is trying to
make sense of the ‘contending visions’. Anglo-Saxon public/European lawyers
need to bear in mind that the literature on the European constitution and the
issueofthedemos has always had a di¡erent £avour in Germany. Stefan Oeter
notes that
n
Lecturer in Law, London School of Economics. I am grateful toJochen von Bernstor¡, Eric Heinze
and Rainer Nickel fortheir constructive criticisms of earlier versions of this paper, as well as the two
anonymous referees fortheir feedback. Thanks also to Sanmeet Kaur. All translations are myown.
1 A. von Bogdandyand J. Bast (eds),Principlesof EuropeanConstitutionalLaw (Oxford: Hart, 2006).
2 P. Kirchhof,‘The Legal Structure of the European Union as a Union of States’i n von Bogdandy
and Bast (eds),ibid.
3Manfre d Brunn er vThe European UnionTreaty, BVerfGE 89, 155; English translation published at
[1994] CMLR 57.
4 U. Everl ing, ‘The European Union Between Community and National Policies and Legal
Orders’and M. Zuleeg,‘The Adva ntagesof the European Constitution ^ A German Perspective’
in von Bogdandy and Bast (eds), n 1 above.
r2007 The Author.Journal Compilation r2007 The Modern Law ReviewLimited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2007) 70(5)MLR 731^758
It is. . . not surprising thatthe Anglo-Saxon literatureon European integration and on
the set up of EU institutions can refer to the institutional settlement of the Commu-
nity/Union as a‘constitutional system’, whereas German constitutional theory (shaped
by substantively loaded constitutional terminology) has great di⁄culty in doing so.
5
If the language of constitutionalism causes problems for Germanpublic lawyers
working in the European context, what is the subject of the‘contending visions’?
What are the matters being disputed in the ¢nal pages of abook that is dedicated
to the presentation of European constitutional law as binding law? The existe nce
of ‘substantively loaded constitutional terminology’ suggests that the contention
is a principal, rather than peripheral, feature of the European project.This article
will show that the disagreement that separates Kirchhof from Everling/Zuleeg,
but which is highlighted neither by the editors nor by the authors themselves, is
buried within the constitutional traditions that split the German public law dis-
course. A summary of the arguments will illustrate the authors’ disagreement in
relation to the constitutionality of the European Union. At another level, the
summary anticipates the fundamental constitutional schism: the authors’ contri-
butions raise questions relating to ultimate authority (legal sovereignty) and the
proper interpretation of public law (ideology) which will be unearthed in the
main part of this article.
Kirchhof claims that ‘the existence of a constitution is fundamentally attribu-
ted only to the basic order of a state’,
6
and that since the European Union has not
received direct legitimacyeither from the peoples of Europe or a European people,
‘the European Union cannot lay claim to the legitimation, the universal nature
and the power of re-innovation of a constitutional state’.
7
This point seems to be
challenged (implicitly rather than expressly) by Everling, who suggests that‘the
notion of ‘constitution’ can also be applied to an independent inter-state or supra-
state entity, which is organisationally and legally fully equipped’.
8
As a result, a
European constitution would ‘create clearer structures enabling the institutions
to ful¢l their functions more e¡ective[ly] and present an understandable organi-
sation tothe citizens’.
9
Similarly, Zuleeg argues that‘the EU’s constitution is com-
posed of Treaty law and judge-made law’ which is more extensive than national
constitutions. Thereare, therefore,‘good reasons’for referringto a ‘constitution’ for
the European Union.
10
The twocontending visions are clearlygenerated fromdi¡erent conceptions of
Europe: the European Union is either see n as a threat to the constitutional integ-
rity of the nation-state (Kirchhof ),
11
or as the institution that savedthe nation-state
by tying it into a supranational union in order to prevent permanently‘war, des-
potism and genocide’ (Everling).
12
ButthefocusonEuropedistractsfromtheear-
5 S. Oeter,‘Vertragoder Verfassu ng:Wie o¡en la
ºsst sich die Souvera
ºnita
ºtsfrage halten?’i nT. Bruha,
J.J. Hesse, and C. Nowak (ed s), WelcheVerfassungfˇr Europa? (Baden- Baden: Nomos,2001) 246.
6 See n 2 above 768.
7ibid.
8Seen4above703.
9ibid 706.
10 See n 4 above 819^820.
11 See n 2 above 768^769.
12 See n 4 abov e 679.
The Future of Staatsrecht
732 r2007 The Author.Journal Compilation r2007 The Modern Law Review Limited.
(2007) 70(5)MLR 731^758
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