Constitutional and Political Theory: Selected Writings

ISBN : 9780198714972

Ernst-Wolfgang Boeckenfoerde; Mirjam Kunkler; Tine Stein
280 Pages
156 x234 mm
Pub date
Jun 2022
Oxford Constitutional Theory
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Ernst-Wolfgang Boeckenfoerde (b. 1930, d. 2019) is one of Europe's foremost legal scholars and political thinkers. As a scholar of constitutional law and a judge on Germany's Federal Constitutional Court (December 1983 - May 1996), Boeckenfoerde has been a major contributor to contemporary debates in legal and political theory, to the conceptual framework of the modern state and its presuppositions, and to contested political issues such as the rights of the enemies of the state, the constitutional status of the state of emergency, citizenship rights, and challenges of European integration. His writings have shaped not only academic but also wider public debates from the 1950s to the present, to an extent that few European scholars can match. As a federal constitutional judge and thus holder of one the most important and most trusted public offices, Boeckenfoerde has influenced the way in which academics and citizens think about law and politics. During his tenure as a member of the Second Senate of the Federal Constitutional Court, several path-breaking decisions for the Federal Republic of Germany were handed down, including decisions pertaining to the deployment of missiles, the law on political parties, the regulation of abortion, and the process of European integration. In the first representative edition in English of Boeckenfoerde's writings, this volume brings together his essays on constitutional and political theory. The volume is organized in four sections, focusing respectively on (I) the political theory of the state; (II) constitutional theory; (III) constitutional norms and fundamental rights; and (IV) the relation between state, citizenship, and political autonomy. Each of these feature introductions to the articles as well as a running editorial commentary to the work. A second volume will follow this collection, focusing on the relation between religion, law, and democracy. A companion volume entitled Religion, Law, and Democracy is also being published.


Mirjam Kunkler and Tine Stein: Introduction
1. Political Theory of the State
I Security and Self-Preservation before Justice: The Paradigm Shift and Transition from a Natural-Law to a Positive-Law Basis in Thomas Hobbes' System of Law (2004)
II The Concept of the Political: A Key to Understanding Carl Schmitt's Constitutional Theory
III The State as an Ethical State - Der Staat als Sittlicher Staat (1978).
IV The Repressed State Of Emergency. The Exercise of State Authority in Extraordinary Circumstances (1978)
Part 2. Constitutional Theory
Mirjam Kunkler and Tine Stein: Introduction to Part 2
V The Concept and Problems of the Constitutional State (1997)
VI The Historical Evolution and Changes in the Meaning of the Constitution - Geschichtliche Entwicklung und Bedeutungswandel der Verfassung (1984)
VII The Constituent Power of the People: A Liminal Concept of Constitutional Law (1986)
VIII Constitutional Jurisdiction: Structure, Organization, and Legitimation (1999)
Part 3. Fundamental Rights and Constitutional Principles
Mirjam Kunkler and Tine Stein: Introduction to Part 3
IX Critique of the Value-Based Grounding of Law (1990)
X Fundamental Rights as Constitutional Principles: On the Current State of Interpreting Fundamental Rights (1990)
XI The Fundamental Rights: Theory and Interpretation (1974)
XII Protection of Liberty against Societal Power: Outline of a Problem (1975)
Part 4. On the Relationship between State, Citizenship and Political Autonomy
Mirjam Kunkler and Tine Stein: Introduction to Part 4
XIII The Persecution of the Jews as a Civic Betrayal (1997)
XIV State Citizenship and the Concept of Nationality (1995)
XV The Future of Political Autonomy: Democracy and Statehood in a time of Globalization, Europeanization, and Individualization (1998)
XVI Which Path is Europe Taking? (1997)
Part 5. Bockenforde in Context
XVII Biographical Interview with Ernst-Wolfgang Bockenforde (2011)

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