In the past sixty years, German judges have occasionally looked at the legal doctrines, laws, and judicial decisions of other countries to help them resolve a legal or constitutional issue. In particular, the Federal Court of Justice (FCJ) and the Federal Constitutional Court (FCC) have included comparative remarks in some decisions. The former is the court of last review for cases on private law and criminal law, and the latter has exclusive jurisdiction over constitutional issues.
This short article will focus on the comparatist endeavors of the FCC. Since its creation in 1951, this Court has become a powerful force in interpreting the Basic Law, the German Constitution that was enacted in West Germany in 1949. The decisions of the FCC have also attracted interest in other countries, and German constitutional thinking had an impact on the European Court of Human Rights (ECtHR) and on the European Court of Justice as, for instance, in the development of the principle of proportionality as a guiding yardstick in the application of constitutional principles.
The FCC also is of interest because it has some communality with the U.S. Supreme Court. In fact, the FCC was modeled to some extent after the U.S. Supreme Court. Like the U.S. Supreme Court, the FCC writes lengthy well-reasoned opinions that draw on a variety of resources, including history and interest-balancing; and, like the justices of the U.S. Supreme Court, their counterparts in the FCC may voice their dissent in a separate opinion. Moreover, in its decisions, the FCC has drawn comparisons to the U.S. Supreme Court and U.S. law more frequently than to the courts and laws of any other countries.
II. Function, Organization, and Procedures of the Federal Constitutional Court (FCC)
The FCC’s jurisdiction extends to various types of constitutional issues. These include disputes between the organs of the federal government and between the federation and the states, judicial review of the constitutionality of federal and state law, and complaints by individuals that their constitutional rights have been violated by an act of government. The Court is composed of two senates of eight justices each and they decide by a simple majority. In case of a tie, the challenged measure is deemed constitutional and the defenders of its constitutionality write the opinion.
The justices of the Court also convene in several chambers of three justices. In these groupings they decide whether to accept or reject constitutional complaints of individuals. This procedure decreases the caseload of the Court, yet not as effectively as the denial of certiorari does for the U.S. Supreme Court, because the German justices still must provide a reasoned response to each individual complaint.
III. The Decisions
Statistics on the number of cases in which the FCC used foreign law as an interpretative tool are not available. In 1974, Mössner counted twenty-four decisions that had employed foreign law comparisons. In 2009, Anna Cárdenas Paulssen counted fifty-nine decisions between 1951 and July 2007 in which the FCC had quoted the courts of other countries.
Cárdenas Paulssen’s count, however, does not include the decisions that draw comparisons to foreign statutory law or doctrinal writing, nor does it include unpublished decisions. On the other hand, Cárdenas Paulssen includes numerous decisions in which the FCC examined foreign law in order to ascertain whether a principle had become part of customary international law or a general rule of international law. These are part of German domestic law, outranking domestic statutory law but being themselves outranked by the Basic Law.
It appears that the FCC was most active in its foreign law comparisons in the first two decades of its existence. Yet, in these and other early decisions, references to foreign law were sporadic and unsupported by citations, often generically referring to developments in other countries or “international developments.” As Sir Basil Markesinis, a veteran observer of the FCC, rightly states, this cursory and sketchy referral to foreign law is in marked contrast to the detailed and well-documented exposition of German law in the same decisions.
This treatment of foreign law in the decisions may indicate that foreign law comparisons are not central to the decision-making process of the Court, but are merely illustrative and anecdotal, rounding out a picture or making an additional point. On the other hand, this sketchy treatment in the opinions may have been preceded by lengthy debates in the deliberations of the Court. Markesinis suspected that this had happened in the Spiegel case, discussed below (Part II(B), The Early Cases).
During the 1980s and 1990s the FCC’s comparative activity slowed down, resulting only in a handful of cases. Since 2004, however, there has been an increase in comparatist decisions, and in these more recent decisions references to foreign law are more comprehensive and specific. Some recent decisions may also be of interest because they show how the FCC deals with human rights that are guaranteed by the European Convention on Human Rights (ECHR) (see Part II(C), below, Recent Decisions).
B. The Early Decisions
The use of foreign law comparisons in the early decisions of the FCC has been ascribed to the need of a new court to look at role models in the Western world when interpreting a new Constitution. The famous decisions of that time include the Lüth case of 1958, citing Justice Cardozo, and the Spiegel case of 1966, referring to Swiss law and the “NATO allies.”
In Lüth, the FCC applied article 5 of the Basic Law, the guarantee of freedom of expression, to repeal an injunction that a German court had issued against Lüth, a German politician who had called for a boycott of a movie made by a producer who formerly made infamous Nazi propaganda movies. In a decision that became famous for extending the protection of the basic rights of the Basic Law to dealings governed by private law, the Court quoted Cardozo’s famous statement on freedom of expression as “the matrix, the indispensable condition of nearly every other form of freedom.” In addition, the Court referred to article 11 of the French Declaration of Human and Political Rights of 1789.
In Spiegel, the Court rejected a constitutional complaint of the editor of the Spiegel news magazine that had been brought after prosecutorial authorities searched the premises of the magazine for evidence of treason, of which the magazine was suspected after publishing sensitive materials. The Court rejected the complaint after balancing freedom of the press with security interests. The Court’s opinion asserted that other democracies would rule likewise, but cited only Swiss law and a Swiss commentator who spoke at a conference in support of this statement. In addition, the Court reasoned that a contrary ruling would make Germany look untrustworthy in front of other NATO members, all of which protect military secrets more thoroughly than Germany.
The dissenters in this four-to-four split decision reasoned that a comparison to the laws of other countries is irrelevant if only an individual provision is compared without evaluating the foreign legal system as a whole as to its suitability for a comparison.
C. Recent Decisions
An FCC decision of 2007 is of interest because the recourse to foreign law in the Court’s opinion and its criticism in the dissent raise, though in less strident tones, the same questions that Justice Scalia addressed in Lawrence v. Texas. In the July 2007 decision, the FCC ruled on the constitutionality of financial disclosure requirements for members of Parliament and held that the then newly enacted requirements were constitutional. The case was decided in the Second Senate, by a four-to-four split among the justices, which, in accordance with the Court’s procedural laws upheld the constitutionality of the challenged measure.
The Court held that, in the German case, the public’s interest in transparency outweighed the privacy interests of Members of Parliament. The Court also found that this balance was in keeping with international developments, because representative democracies had enacted increasingly stricter rules to protect against financial influence on parliamentary decisions. The Court then distinguished between parliamentary disclosure rules, the general publicity of tax returns, prohibitions of outside active income, and a mixture of these restrictions in the surveyed countries.
For disclosure to the public, the Court referred to the United States, Poland, and some unspecified Eastern European countries. For disclosure to the President of the Parliament, the Court referred to Italy. For publicity of tax returns, the Court referred to Sweden, Norway, and some Swiss cantons. For restrictions on outside active income, the Court referred to the Netherlands and Spain. Thereupon, the Court concluded that, in the light of these foreign laws, the German disclosure rules were not objectionable.
The four dissenting justices found that the German disclosure requirements violated the constitutionally mandated independence of the representatives. They also found various flaws in the comparative law remarks contained in the Court’s opinion. They found that the countries that required disclosure were a minority, and that without a closer look at these foreign rules they could not be considered a suitable yardstick for Germany.
The dissent questioned the relevance of comparisons to countries that require income disclosure of its population in general because such countries differed from Germany, where the privacy of personal data is a constitutional principle. In addition, the dissent argued that to restrict Members of Parliament from engaging in professional income-earning activities outside of their parliamentary functions would violate the German constitutional guarantee of the freedom to choose one’s profession. The dissent recommended that the legislature find other means for protecting against financial influence-peddling that would not infringe on constitutional guarantees, and concluded by stating that:
Otherwise the danger would exist that, under recourse to other legal systems, the protection of the private sphere and the right to informational self-determination (Basic Law art. 2(1) in conjunction with art. 1(1)) would at first be treated as a relative value for Members of Parliament, later on for other societal groups, and ultimately for all citizens.[]
An FCC decision of 2008 ruled on the constitutionality of a criminal prohibition of incest between siblings. As compared to the skimpy comparisons of the earlier years, this decision contains a comprehensive and global survey of the laws of twenty countries, describing whether or not they penalize such incest or otherwise discourage it. It also analyzes the decision of foreign courts that had ruled on the constitutionality of such incest. The decision acknowledged that the foreign law survey was made by the Max Planck Institute for Foreign and International Criminal Law.
Some references to recent FCC decisions may help to explain how FCC decisions relate to human rights guarantees of the ECHR. In a decision of 2006 on the right of aliens to make use of German sex change legislation, the FCC dealt with issues that are protected by the ECHR. The FCC held that a provision of the German Sex Change Act was irreconcilable with the German Basic Law and had to be changed by the legislature. The decision included an extensive survey of how other European countries, the ECtHR, and the Court of Justice of the European Union had applied the ECHR to this issue. In this case, the FCC did not compare the foreign laws and decisions for the purpose of interpreting the German constitutional guarantees. Instead, these foreign decisions and enactments were scrutinized to ascertain the content of the human rights guarantees of the ECHR.
In Germany, the ECHR is effective at the level of ordinary statutory law. Yet, the FCC cannot be petitioned to rule on the compatibility of the ECHR with German legislative or administrative acts; to pursue such a claim, the plaintiff must exhaust the national remedies and then file a claim with the ECtHR. The FCC may disagree with a decision of the ECtHR if the latter does not conform to core tenets of the Basic Law. Generally, however, the FCC uses the ECtHR decisions as a guide for interpreting the German Basic law, given that the human rights guaranteed in both instruments are similar. This was last demonstrated in a decision of the FCC of 2008, in which the Court had to rule on an issue balancing privacy versus freedom of the press, a topic on which the ECtHR and the FCC disagree.
IV. Scholarly Doctrines
The FCC’s limited recourse to foreign law comparisons has spawned a limited amount of scholarly interest. Whereas scholars have readily endorsed the judicial use of the comparative method in the realm of private law, the opinions on the use of this method for constitutional interpretations have varied. A cautious approach was adopted by Jörg Mössner in 1974. He would limit the use of the comparative method to the interpretation of existing rules, and he suggests that comparison with foreign countries works best if they have similar constitutional systems.
In 2005, Bernd Wieser suggested that the comparative method is justified in constitutional cases because constitutions contain so many broad and abstract concepts that benefit from concrete examples in their interpretation. Yet, he also recommended that comparison should be limited to foreign countries with compatible constitutional values, and he rejects the comparative method as a tool for creating transnational uniformity in constitutional law. Although Wieser is an Austrian scholar his work is relevant for German scholarship due to his detailed involvement with German theories.
The other end of the spectrum in the range of German opinions on the use of foreign law in constitutional decisions is reflected in the work of Susanne Baer. In 2004 she summarized her thoughts on the desirability of and methodology for foreign law comparisons in constitutional law as follows:
In comparative constitutional law, method is as crucial as it is underdeveloped. The article proposes to apply methodologies developed in gender studies, critical race theory, post-colonial theory, and intercultural settings to comparative law. Namely, it is a call to develop intersubjective [sic] competence and abilities in order to properly deal with the “other.” Encounters with the “other” are frequent in comparative law and, looked at in detail, come with almost every term discussed in comparative constitutionalism. Questions like “what is a court,” “how important are economic and social rights?,” or “which right is at stake in cases of abortion?,” then deserve answers based on a reflexive understanding of one’s legal system. Such an understanding is needed in a world in which we see more uses and growing acceptance of comparative legal reasoning in higher courts, in a world in which transnational legal practice constantly confronts us with a variety of legal systems and cultures, and in a world in which legal education calls for “key qualifications” to become, after all, a good lawyer able to deal with differences, inequalities, and similarities on the globe.[]
The FCC itself stated its position on the use of comparisons to foreign law by other courts in 1953, in relation to decisions of the German courts that had developed family law in accordance with the then new constitutional guarantee of equal rights of men and women. The FCC stated that the courts proceeded correctly when they applied the existing laws, to the extent that they were compatible with the new constitutional requirement, and when, in cases that required legal interpretation and the filling of gaps, they employed tried and tested judicial techniques, among them, comparisons to foreign law.
The FCC has at times resorted to foreign law comparisons in its interpretation of German constitutional principles. In the first two decades of the Court’s existence, these references to foreign law were cursory and sketchy, and they mostly looked to other Western democracies. In recent years, the Court has adopted a more methodical and global approach when drawing comparisons to foreign law. Throughout the Court’s existence, however, dissenting opinions have disagreed with the relevance of the chosen foreign law comparisons.
The FCC surveys foreign law not only as an aid in the interpretation of the Basic Law, the German Constitution of 1949, but also to ascertain the content of international law principles and human rights guarantees expressed in international treaties. This activity reflects the increasing importance of international human rights standards.
 T. Jeremy Gunn, Deconstructing Proportionality in Limitations Analysis, 19 Emory Int’l L. Rev. 465 (2005).
 Marcel Kau, United States Supreme Court und Bundesverfassungsgericht 52 (Heidelberg, 2007).
 Donald Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany 48 (Durham, 1989). Among the major differences to the U.S. Supreme Court is the absence of stare decisis in Germany and a lack of interest in the subjective will of the framers of the Constitution as an interpretative tool. Id. at 49.
 Kau, supra note 8, at 482.
 In the fifty-nine decisions that quoted foreign courts and that were issued between September 1951 and February 2007, U. S. courts were cited twenty-six times. See Aura Cárdenas Paulsen, Über die Rechtsvergleichung in der Rechtsprechung des Bundesverfassungsgerichts 181-86 (Hamburg, 2009).
 BVerfG , Feb. 26, 2008, docket no. 1 BvR 1626/07, available at juris (by subscription).
 Anmerkung, Gewerblicher Rechtsschutz und Urheberrecht 2008, 547.
 Markesinis & Fedtke, supra note 1, at 168.
 Mössner, supra note 17, at 195.
 Id. at 241-42.
 Bernd Wieser, Vergleichendes Vrfassungsrecht 35 (Wien, 2005).
 Id. at 35-37.
 Id. at 4-5. In BverfGE 118, 277, the dissent quoted Wieser, supra note 50, at 398.
 Susanne Baer, Verfassungsvergleichung und reflexive Methode: Interkulturelle und intersubjektive Kompetenz, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 2004, 735.
 Id. at 758 (summary by Baer).
 BverfGE 3, 225, 244.
 GG, art. 3(2).
 For a translation of this passage, see Markesinis & Fedtke, supra note 24, at 76.