Relevant bibliographies by topics / Military law Constitutional law Germany (West)

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Academic literature on the topic 'Military law Constitutional law Germany (West)'

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Published: 4 June 2021
Last updated: 1 February 2022

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Journal articles on the topic "Military law Constitutional law Germany (West)"

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Lamberti, Marjorie. "General Lucius Clay, German Politicians, and the Great Crisis during the Making of West Germany's Constitution." German Politics and Society 27, no. 4 (December 1, 2009): 24–50. http://dx.doi.org/10.3167/gps.2009.270402.

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This article examines the complex interplay between the American military governor and German political leaders through an analysis of two crises that occurred over the making of the Basic Law. Why did a trial of strength between General Lucius Clay and the Social Democratic Party leadership in March and April 1949 come about? Understanding Clay's intervention in the politics of constitution-making in occupied Germany requires a more probing investigation than references to the temperament of a “proconsul” or a bias against a left-wing party. The analysis of Clay's intervention in this account shows how the Social Democrats evaded and challenged directives from the occupation authorities, and illuminates the limits of his influence over German framers of the Basic Law.
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Jaggi, Stephan. "Revolutionary Constitutional Lawmaking in Germany—Rediscovering the German 1989 Revolution." German Law Journal 17, no. 4 (August 2016): 579–626. http://dx.doi.org/10.1017/s2071832200021374.

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AbstractToday, the 1989 Revolution in East Germany is recognized and celebrated as the event that abolished the German Democratic Republic (GDR) and brought about German unification. What is mostly overlooked, however, is that these are not the Revolution's only and, from the perspective of constitutional law, not even its most important achievements. More important with respect to understanding constitutional lawmaking in Germany is that the 1989 Revolution did not lead to an unconditional adoption of West German constitutional law in the new East German states. Instead, the Revolution had its own constitutional agenda, which went beyond the West German Basic Law and was transferred to unified Germany where it then needed to be integrated into the existing West German constitutional order. The Article reinterprets the 1989 Revolution and shows how a revolutionary popular movement in the GDR developed its own constitutional agenda, which first found legal manifestation in GDR legislation, and then was transferred to unified Germany through the Unification Treaty and the new state constitutions.
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Bodansky, Daniel, and Ilja Baudisch. "Germany v. N." American Journal of International Law 100, no. 4 (October 2006): 911–17. http://dx.doi.org/10.1017/s0002930000032000.

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Germany v. N. Decision No. 2 WD 12.04. At <http://www.bverwg.de>.Bundesverwaltungsgericht (German Federal Administrative Court), June 21, 2005.On June 21, 2005, in Germany v. N, the Federal Administrative Court of Germany (Bundesverwaltungsgericht) acquitted a soldier charged with disobeying an order in violation of his military duty of obedience and loyal service. The soldier, a major in the Federal Armed Forces (Bundeswehr), had refused to participate in a military software project that he feared could support Operation Iraqi Freedom. The major based his refusal on his belief that the Iraqi war was illegal and that, as a result, he was permitted to refuse the order under his constitutional right of freedom of conscience.2 The court held that in view of the serious reservations that exist about the legality of Operation Iraqi Freedom and also about Germany's position in that conflict, the soldier's right to freedom of conscience required that he be offered alternative tasks unrelated to a war that he reasonably believed to be illegal.
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Gunlicks, Arthur B. "Constitutional Law and the Protection of Subnational Governments in the United States and West Germany." CrossRef Listing of Deleted DOIs 18, no. 1 (1988): 141. http://dx.doi.org/10.2307/3330386.

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Geymbukh, Nadezhda G. "FORMS OF EXTREMISM IN THE FEDERAL REPUBLIC OF GERMANY." Vestnik Tomskogo gosudarstvennogo universiteta. Pravo, no. 38 (2020): 25–31. http://dx.doi.org/10.17223/22253513/38/3.

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Representatives of German state (constitutional) law define political extremism as "a set of political beliefs and aspirations... which are aimed at denying the democratic constitutional state and its fundamental values". Based on the definition, the criterion for recognising any "political belief or aspiration" as extremist is the notion of a democratic constitutional state. In line with this, the Federal Constitutional Court of the Federal Republic of Germany has given an expansive interpretation of a "free democratic state" that "constitutes a legal state order whose basis is the self-determination of the people according to the will of the majority, freedom and equality. It excludes all forms of despotism or arbitrariness. Among the basic principles of this order are at least: the protection of human rights as laid down in the Basic Law of Germany, the sovereignty of the people, the separation of powers, the responsibility of the government, the legitimacy of government, the independence of the judiciary and the principle of multi-partyism. According to article 21, paragraph 2 of the Basic Law of the Federal Republic of Germany (1949), political parties that "endeavour to harm or destroy the foundation of the free demo-cratic order or to endanger the existence of the Federal Republic of Germany" are declared unconstitutional by the Federal Constitutional Court of Germany. The possibility to ban political parties as provided for in the Basic Law of the Federal Republic of Germany guarantees the development of a democratic political system of the state. It is worth emphasising that the stability and democratism of the German political system and the stability of the constitutional order in the state depend not only on the prohibition provision in the Basic Law of the FRG, but above all on the ability of political parties to reach agreement on the basic principles of a "free democratic state system" and to implement these principles in the minds of the people. To realise these goals, Germany has the Federal Office for the Protection of the Basic Law of the Federal Republic of Germany of 1949, a public authority whose task is to control and supervise the legality of the activities of political parties. The forms of extremism in the Federal Republic of Germany are "left-wing extremism" and "right-wing extremism". In right-wing extremism, the older generation is gradually being freed from the aggressive youth, in an increased willingness to use force. Left-wing extremism has become less focused on global global themes - it has become more local and regional, more relatable and at the same time integrated. Because of the new nature of the development of extremism in a united Germany a left-right antagonism has emerged. At the same time, different tendencies of West and East Germany can be observed: in West Germany the struggle "left vs. right" prevails, in East Germany the struggle "right vs. left" prevails.
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Gehrig, Sebastian. "Cold War Identities: Citizenship, Constitutional Reform, and International Law between East and West Germany, 1967–75." Journal of Contemporary History 49, no. 4 (August 27, 2014): 794–814. http://dx.doi.org/10.1177/0022009414538474.

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Monballyu, Jos. "The force of law of decree-laws in Belgium during and after the First World War." Tijdschrift voor rechtsgeschiedenis 83, no. 1-2 (May 31, 2015): 248–87. http://dx.doi.org/10.1163/15718190-08312p12.

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When Belgium was overrun by Germany in 1914 neither the Belgian constitutional legislator, nor the Belgian legislator had determined how the police powers of the civil authorities could be transferred to the military authorities in the case of a war. Article 130 of the Constitution determined that the Constitution and the constitutional rights and freedoms it provided could never be suspended wholly or in part. This created a problem. There were several statutes which provided merely a limited answer for some situations. When Belgian military authorities instead of civil authorities took measures which invaded upon constitutional rights, disputes arose. In order to avoid these, the Belgian King enacted the decree-law concerning the state of war and the state of siege on 11 October 1916. Many provisions of this decree-law had been taken from the French war laws of 9 August 1849 and 4 April 1878, but – contrary to these French laws – the Belgian decree-law was not based on a formal constitutional stipulation. This decree-law, which contravened the Belgian Constitution of 7 February 1831 and the fundamental rights and freedoms which were safeguarded by this Constitution in several respects, made it possible to take a number of measures during the state of war and the state of siege. As soon as these different provisions were applied, several citizens protested against them. Their protest was mainly aimed at the force of ‘law’ of the decree-law of 11 October 1916 and all of the other decree-laws. The rest of this contribution will detail when and why this protest took place, as well as how the Belgian administration of justice dealt with this protest.
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Bodansky, Daniel, Nina Naske, and Georg Nolte. "“Aerial Security Law.” Case No. 1 BvR 357/05. 115 BVerfGE 118." American Journal of International Law 101, no. 2 (April 2007): 466–71. http://dx.doi.org/10.1017/s0002930000030190.

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“Aerial Security Law.” Case No. 1 BvR 357/05. 115 BVerfGE 118. Available at <http://www.bundesverfassungsgericht.de>.Bundesverfassungsgericht (Federal Constitutional Court of Germany), February 15, 2006.On February 15,2006, the Federal Constitutional Court of Germany (Bundesverfassungsgericht) held the Aerial Security Act to be unconstitutional. This act authorized the use of military force against any aircraft intended to be used for the killing of human beings, if the use of such force was the only means to avert an immediate danger. The Court based its ruling on two grounds: first, that the federal level of government had no legislative power to enact such a law, and second, that the act's authorization of military force infringed upon the guarantee of human dignity as embodied in Article 1(1) of the German Constitution, or Basic Law (Grundgesetz).On January 5, 2003, a small airplane circled over the Frankfurt banking district. For a few moments people saw themselves confronted with a terror attack, recalling 9/11 and the pictures of the burning World Trade Center. The police evacuated several buildings and two Air Force fighter jets arrived before it was established that the pilot was not a terrorist but merely a mentally confused person. A year later, in January 2004, the federal government proposed a draft federal Aerial Security Act. The government argued that the attacks of 9/11, along with the Frankfurt incident, made clear that in order to protect against such attacks, it was necessary to clarify the roles of the federal and state (Länder) governments. “This draft is meant to achieve that aim … and to establish quick and efficient mechanisms for information gathering and decision.”
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Shamrai, B. M. "FOREIGN EXPERIENCE OF MILITARY COURT FUNCTIONING AS A CONDITION OF GUARANTEE OF THE CONSTITUTIONAL RIGHT OF MILITARY SERVICES." Actual problems of native jurisprudence, no. 05 (December 5, 2019): 24–27. http://dx.doi.org/10.15421/391950.

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The article examines the experience of military courts functioning in guaranteeing the right to judicial protection to military personnel in foreign countries of the world. The countries in which the military courts operate are highlighted and the activities of these courts are analyzed in countries such as: United States of America, United Kingdom and Federal Republic of Germany. It has been found out that the presence of military courts in foreign countries is conditioned by the fact that military personnel as persons with special legal status are subject to military law in addition to general law. It has been established that the protection of the rights and freedoms of servicemen in the leading countries of the world through judicial protection is becoming more and more universal, which is explained by the high degree of democratic trial and based on the principles of court independence, transparency and openness. The analysis of the national legislation, first of all, of the Constitution of Ukraine and the Law of Ukraine «On Judiciary and Status of Judges» of June 2, 2016 № 1402-VIII and considered the feasibility of functioning during a special period under the conditions of the operation of the United Forces in the system of judicial system of Ukraine military courts whose competence will be to hear cases in criminal proceedings concerning war crimes committed by military personnel, which will facilitate the practical implementation of the guarantees of the rights and freedoms of military personnel and maintaining law and order in the troops. It is established that for the effective implementation of the constitutional right of military personnel to judicial protection, especially during the special period and increasing the number of the Armed Forces of Ukraine and other military formations, the positive experience of the leading countries in which the judicial authorities act as a real guarantor of the protection of rights and freedoms is essential military personnel whose experience can be applied in Ukraine. On the basis of the conducted research the author emphasizes that military courts are a real guarantee of protection of the rights and freedoms of persons who pass military service and the possibility of applying foreign experience in Ukraine.
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Gunlicks, Arthur B. "Campaign and Party Finance in the West German “Party State”." Review of Politics 50, no. 1 (1988): 30–48. http://dx.doi.org/10.1017/s0034670500036123.

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In contrast to the United States, where there is little or no public financing of parties and candidates below the presidential level, the German “party state” grants generous subsidies in a variety of forms to the political parties, though not to individual candidates. The German Basic Law (constitution), various laws passed by the national and Land (state) parliaments, and the Federal Constitutional Court have been important factors in the development of a complex and costly system of public financing for election campaigns, parliamentary parties and party foundations and for free television and radio time and billboard advertising space. In addition, the federal government incurs large tax expenditures through the encouragement of tax deductible contributions to political parties. In spite of the crucial role which public financing has assumed, recent scandals have occurred involving illegal contributions from business interests. A revised party law of 1984 and a Federal Constitutional Court decision in July 1986 have brought about significant changes, but controversy in Germany over public financing and the impact of recent reforms continues.
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Dissertations / Theses on the topic "Military law Constitutional law Germany (West)"

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Anderson, Stephen Frederick. "Establishing US Military Government: Law and Order in Southern Bavaria 1945." PDXScholar, 1994. https://pdxscholar.library.pdx.edu/open_access_etds/4689.

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In May 1945, United States Military Government (MG) detachments arrived in assigned areas of Bavaria to launch the occupation. By the summer of 1945, the US occupiers became the ironical combination of stern victor and watchful master. Absolute control gave way to the "direction" of German authority. For this process to succeed, MG officials had to establish a stable, clearly defined and fundamentally strict environment in which German officials would begin to exercise token control. The early occupation was a highly unstable stage of chaos, fear and confusing objectives. MG detachments and the reconstituted German authorities performed complex tasks with many opportunities for failure. In this environment, a crucial MG obligation was to help secure law and order for the defeated and dependent German populace whose previously existing authorities had been removed. Germans themselves remained largely peaceful, yet unforeseen actors such as liberated "Displaced Persons" rose to menace law and order. The threat of criminal disorder and widespread black market activity posed great risks in the early occupation. This thesis demonstrates how US MG established its own authority in the Munich area in 1945, and how that authority was applied and challenged in the realm of criminal law and order. This study explores themes not much researched. Thorough description of local police reestablishment or characteristic crime issues hardly exists. There is no substantial local examination of the relationship between such issues and the early establishment of MG authority. Local MG records housed in the Bayertsches Hauptstaatsarchiv (Bavarian Main State Archives) provide most of the primacy sources. This study also relies heavily on German-language secondary sources.
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Books on the topic "Military law Constitutional law Germany (West)"

1

Die Struktur der Zweiten Kammer im Rechtsvergleich: Ein Beitrag zur Reform des Bundesrates. Baden-Baden: Nomos, 2006.

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2

Bockslaff, Rafaela. Die Behandlung des "Mephisto-Falles" als Beispiel für die Problematik der Vollstreckung von bundesverfassungsgerichtlichen Entscheidungen. Frankfurt am Main: P. Lang, 1987.

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Bonn, Moritz J. Grundgesetz für die Bundesrepublik Deutschland: Textausgabe. Bonn: Bundeszentrale für politische Bildung, 1994.

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Bonn, Moritz J. Basic law for the Federal Republic of Germany: Promulgated by the Parliamentary Council on 23 May 1949, as amended up to and including 20 December 1993. Bonn: Press and Information Office of the Federal Govt., 1994.

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Bonn, Moritz J. Grundgesetz für die Bundesrepublik Deutschland: Textausgabe. Bonn: Bundeszentrale für Politische Bildung, 1991.

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Bonn, Moritz J. Grundgesetz für die Bundesrepublik Deutschland: Mit Einigungsvertrag (ohne Anl.), Vertrag über die abschliessende Regelung in bezug auf Deutschland, Bundesverfassungsgerichtsgesetz, Konvention zum Schutze der Menschenrechte, Bundeswahlgesetz, Bundeswahlordnung, Wahlprüfungsgesetz und Bundespräsidentenwahlgesetz, Parteiengesetz, Europawahlgesetz, Europaabgeordnetengesetz, parlamentarische Geschäftsordnungen : Textausgabe mit ausführlichen Verweisungen und einem Sachverzeichnis. 5th ed. München: C.H. Beck, 1991.

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Bonn, Moritz J. Grundgesetz für die Bundesrepublik Deutschland: Textausgabe. Bonn: Bundeszentrale für Politische Bildung, 1993.

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1933-, Müller Klaus, ed. Grundgesetz für die Bundesrepublik Deutschland: Textausgabe mit kurzen Erläuterungen. 2nd ed. Köln: C. Heymanns, 1992.

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Bonn, Moritz J. Grundgesetz: Mit Vertrag über die abschliessende Regelung in bezug auf Deutschland, Menschenrechtskonvention, Bundesverfassungsgerichtsgesetz, Parteiengesetz und Gesetz über den Petitionsausschuss : Textausgabe mit ausführlichem Sachverzeichnis und einer Einführung. 3rd ed. München: Deutscher Taschenbuch-Verlag, 1994.

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Bonn, Moritz J. Grundgesetz für die Bundesrepublik Deutschland: Textausgabe. 2nd ed. Bonn: Bundeszentrale für Politische Bildung, 2001.

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Book chapters on the topic "Military law Constitutional law Germany (West)"

1

Zimmermann, Andreas. "Would the World Be a Better Place If One Were to Adopt a European Approach to State Immunity? Or, ‘Soll am Europäischen Wesen die Staatenimmunität Genesen’?" In Remedies against Immunity?, 219–33. Berlin, Heidelberg: Springer Berlin Heidelberg, 2021. http://dx.doi.org/10.1007/978-3-662-62304-6_12.

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AbstractThis chapter argues not only that there is no European Sonderweg (or ‘special way’) when it comes to the law of state immunity but that there ought not to be one. Debates within The Hague Conference on Private International Law in the late 1990s and those leading to the adoption of the 2002 UN Convention on Jurisdictional Immunities of States, as well as the development of the EU Brussels Regulation on Jurisdiction and Enforcement, as amended in 2015, all demonstrate that state immunity was not meant to be limited by such treaties but ‘safeguarded’. Likewise, there is no proof that regional European customary law limits state immunity when it comes to ius cogens violations, as Italy and (partly) Greece are the only European states denying state immunity in such cases while the European Court of Human Rights has, time and again, upheld a broad concept of state immunity. It therefore seems unlikely that in the foreseeable future a specific European customary law norm on state immunity will develop, especially given the lack of participation in such practice by those states most concerned by the matter, including Germany. This chapter considers the possible legal implications of the jurisprudence of the Italian Constitutional Court for European military operations (if such operations went beyond peacekeeping). These implications would mainly depend on the question of attribution: if one where to assume that acts undertaken within the framework of military operations led by the EU were to be, at least also, attributable to the troop-contributing member states, the respective troop-contributing state would be entitled to enjoy state immunity exactly to the same degree as in any kind of unilateral military operations. Additionally, some possible perspectives beyond Sentenza 238/2014 are examined, in particular concerning the redress awarded by domestic courts ‘as long as’ neither the German nor the international system grant equivalent protection to the victims of serious violations of international humanitarian law committed during World War II. In the author’s opinion, strengthening the jurisdiction of international courts and tribunals, bringing interstate cases for damages before the International Court of Justice, as well as providing for claims commissions where individual compensation might be sought for violations of international humanitarian law would be more useful and appropriate mechanisms than denying state immunity.
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Mattarella, Bernardo Giorgio. "Sentenza 238/2014: EU Law and EU Values." In Remedies against Immunity?, 209–13. Berlin, Heidelberg: Springer Berlin Heidelberg, 2021. http://dx.doi.org/10.1007/978-3-662-62304-6_10.

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AbstractThe relationship between Judgment 238/2014 of the Italian Constitutional Court and EU law is, at first glance, apparently weak, as the subject matter of the former is not governed by the latter, nor there have been any judgments from EU courts regarding the case. However, if one considers the origin and purpose of the EU itself and the state of relations between Italy and Germany, one cannot help but examine the case from a European law perspective. Judgment 238/2014 is relevant to European law in several ways, all of which concern not only military cooperation in the EU but also the protection of human rights, the risk of forum shopping and, above all, how reliable member states are in their mutual relations. European law in turn is relevant to the present case not so much because it offers solutions but because it shows a method for settling clashes between legal systems and illustrates its inherent difficulties. Sentenza 238/2014 is an unpersuasive judgment and can be criticized from different angles: the legal one (international and constitutional law), the factual reconstruction and the judgment’s likely effects. There are, however, two possibilities of resolving the situation that Sentenza has produced: firstly the legal one, which involves the use of all possible tools to limit its effects; and secondly the diplomatic one, which implies further negotiations. European law does not provide a ground for a preference between these two options, but it suggests that none of these ways is neglected.
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Onida, Valerio. "Moving Beyond Judicial Conflict in the Name of the Pre-Eminence of Fundamental Human Rights." In Remedies against Immunity?, 331–35. Berlin, Heidelberg: Springer Berlin Heidelberg, 2021. http://dx.doi.org/10.1007/978-3-662-62304-6_17.

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AbstractSentenza 238/2014 can be criticized insofar as it seems to ground Italy’s refusal to comply with the Jurisdictional Immunities Judgment of the International Court of Justice on the basis of the right of access to a judge for the victims of the conduct of German armed forces during World War II. Indeed, the principle of state’s immunity to the civil jurisdiction of other states regarding the conduct of their own armed forces does not in itself breach a victim’s right of access to a judge, which theoretically in this case might also be granted by a German court. However, Sentenza 238/2014 has the merit of highlighting, in the specific case of the Italian Military Internees (IMIs), the violation of the victims’ right to an effective judicial protection of their fundamental rights, given that German jurisdictions excluded every reparation that favoured IMIs. Such fundamental rights must prevail over the international rules relating to state immunity because, according to the supreme principles of the Italian constitutional order and to international law itself, fundamental human rights violations related to crimes against humanity must benefit from an effective protection. The impasse between Italy and Germany should be solved through a new joint initiative between the two governments (carried out ideally under a common understanding of the two Presidents of the Republic), which should examine the applicants’ cases in order to grant them reparation. Though symbolic, such reparation will have an important moral dimension.
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Nolte, Georg. "Germany: ensuring political legitimacy for the use of military forces by requiring constitutional accountability." In Democratic Accountability and the Use of Force in International Law, 231–54. Cambridge University Press, 2003. http://dx.doi.org/10.1017/cbo9780511494390.011.

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Böckenförde, Ernst-Wolfgang, Mirjam Künkler, and Tine Stein. "A Christian in the Office of Constitutional Judge [1999]." In Religion, Law, and Democracy, 280–87. Oxford University Press, 2020. http://dx.doi.org/10.1093/oso/9780198818632.003.0015.

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In this personal reflection, Böckenförde portrays the dilemma he faced during his tenure as a judge on Germany’s Federal Constitutional Court: trying to bridge his Christian Catholic spirituality with his work as a high-ranking public servant in a secular state. He describes his struggle with the Catholic teachings prior to Second Vaticanum, which at that time still defined the state as ideally Catholic and demanded every believer in public office to act as a vanguard for Christian natural law. But by committing himself to the public good, Böckenförde sidestepped the requirement of the Catholic Church and fully embraced the democratic, religiously neutral political order. Böckenförde justified his position (deviant in the eyes of the Church) by insisting on the strict neutrality demanded from a judge. He pointed to the so-called Church Compromise of the Weimar Republic (Weimarer Kirchenkompromiss), which established the neutrality of the state with regard to religion, and which was re-adopted in West Germany after 1949. He also relinquished his consultative role in the Central Committee of Catholics once he was nominated to the Constitutional Court. Even in cases affecting abortion, he only dealt with the issues at hand as a judge, not as a Catholic. In his view, Christian spirituality can manifest itself in faithfulness to one's office and an integrity that is open to the world.
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Möschel, Mathias. "Diffuse Constitutionality Review in Germany." In Constitutionalism under Stress, 243–58. Oxford University Press, 2020. http://dx.doi.org/10.1093/oso/9780198864738.003.0017.

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This contribution analyses the cases in which ordinary German judges have annulled statutes for being unconstitutional and thus exercise what is also known as ‘diffuse constitutionality review’. In the past, this used to be the case under the Weimar Constitution and in West Berlin. However, what is less known is that even today, certain statutes that are deemed to be pre-constitutional or certain legislative provisions from the former GDR can be declared as conflicting with the German Constitution. This contribution argues that such diffuse constitutionality review might also have contributed to a further strengthening of the rule of law in Germany. Ultimately, from a comparative constitutional law perspective, this contribution also provides a more nuanced view of the German model of constitutionality review, which has been traditionally classified as belonging to the centralized ‘European’ or ‘Kelsenian’ model, with a specific constitutional court, the Bundesverfassungsgericht, having the monopoly over such review.
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