Document Type
Article
Publication Date
1-1980
ISSN
0038-3910
Publisher
University of Southern California Gould School of Law
Language
en-US
Abstract
Until recently, German constitutional material has been generally inaccessible to the English speaking audience. Professor Kommers' scholarly contributions, particularly his book, Judicial Politics in West Germany. A Study of the Federal Constitutional Court,1 have considerably amplified our knowledge in this area. His Article, The Jurisprudence of Free Speech in the United States and the Federal Republic of Germany2 provides additional insights into and fresh perspectives on German constitutional law. His Article might be of yet more value, however, if it demonstrated keener sensitivity to comparative constitutional law methodology and deeper analysis of the various substantive matters with which it deals.
Essentially, Professor Kommers contrasts what he asserts to be an American political model with a comparable West German model. The first model-asserted to be the American one-reflects a policy which is generally neutral toward moral values, and heavily emphasizes individual autonomy. This model might fairly be characterized as "Lockean," in that the power exercised by government is severely limited and can only be used for the purpose of protecting each individual's life, liberty, and property. The goal of the political system is to structure the machinery of government to prevent either a breach of trust by public officials or their deviation from impartial protection of the rights of the citizenry.
The German model, by contrast, stems from a series of value judgments made by the state and expected to be internalized by the individual members of society. Hence, it posits a lesser degree of individual autonomy in favor of an authoritative ordering of values. This model seems to draw inspiration from the political theory of Rousseau where "the polity itself is a source of individual and social purpose' 4 and accordingly where "the members of the polity have not only a wide autonomy"5 but perhaps more importantly "use that autonomy for crucial tasks of individual and collective self-development.
To illustrate the operational and attitudinal differences between the two models, Professor Kommers describes a number of free speech cases decided by the supreme court of each country. These cases reveal an American judicial tendency toward allowing breathing space to the principle of free expression and a contrasting West German tendency to afford a much narrower protection to speech. Professor Kommers explains this dissimilarity by reference to the underlying political models-the Lockean model's stress on individual autonomy requires considerable latitude for free expression, while the Rousseauist model gravitates toward the subordination of free speech to the authoritatively posited value system.
Questions of both method and substance arise from Professor Kommers' exposition: (1) To what extent do the political models actually represent the value systems of the two polities and what criteria are available for measurement?; (2) To what extent does the decisional material support the hypothesis that the difference in constitutional protection stems from a divergence in political vision?
Professor Kommers acknowledges some of these concerns in his Article, and the first of the two questions may present insurmountable scholarly difficulties. Nevertheless, these problems should be addressed, and I shall do so in the order presented above.
Recommended Citation
Pnina Lahav,
The Art of Comparative Constitutional Law
,
in
53
Southern California Law Review
697
(1980).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/2186
Comments
Symposium Conference on Comparative Constitutional Law