Rainer Grote

The field of comparative constitutional law has seen increasing academic interest in recent times, not least because of its considerable practical relevance. When confronted with questions concerning the drafting and interpretation of constitutions, government officials and high court judges increasingly look abroad for assistance and inspiration. Certain key constitutional principles and guarantees have come to be considered as widely accepted in spite of the prevailing differences between legal cultures. In other cases, states which have experienced internal disturbances and seek to draft a new (or revise an existing) constitution frequently look to other countries' constitutions and overall constitutional trends for inspiration and orientation. In spite of the widely acknowledged societal relevance of the emerging field, reference works are few. The situation is complicated by the fact that the field of comparative constitutional law has attracted lawyers, sociologists and political scientists alike with divergent objectives and seemingly incompatible methodological approaches, leading to a considerable fragmentation of research. The Max Planck Encyclopedia of Comparative Constitutional Law seeks to overcome these difficulties by offering a comprehensive and inclusive comparative survey of the topics and trends which dominate modern constitutional law, a survey which allows scholars and researchers to study constitutional issues both in-depth and in context (historical, conceptual, regional) and highlights the manifold interdisciplinary aspects of contemporary constitutional law. In approximately 500-550 peer-reviewed entries, it will cover all areas of constitutional law from a comparative perspective, involving high-level lawyers and social scientists who represent all legal cultures, and giving due regard to the various methodologies of comparative constitutional law and regionally specific developments. Its purpose is to serve as a go-to source for constitutional scholars and practitioners everywhere.

An Advisory Board provides advice with regard to the conceptual development of the Encyclopedia, the selection of key words and the review of submissions. The Enyclopedia is published by Oxford University Press online, starting in April 2017. As of 31 December 2023, 379 articles had been published (http://oxcon/ouplaw.com/home/MPECCOL). A print version of the Encyclopedia will be published later, once the online version nears completion.

The General Editors of the Encyclopedia, whose launch was supported by a grant of the Thyssen Foundation, are Rainer Grote, Frauke Lachenmann and Rüdiger Wolfrum.

Publication: Max Planck Encyclopedia of Comparative Constitutional Law (MPECCoL), Oxford University Press

Compliance with decisions by international human rights courts and bodies has emerged as one of the key problems in the efforts to promote effective protection of human rights beyond the nation state. While this has been a central issue of human rights law ever since international institutions for the promotion and protection of human rights were created at the global and regional level in the aftermath of World War II, its relevance has increased dramatically with the emergence of regional human rights courts which issue often far-ranging judgments on the scope of human rights obligations under the relevant human rights treaties. With the growing tendency of the courts in the European and American human rights systems not to limit themselves to the decision whether in individual cases a human rights violation has taken place or not, but to assess the structural causes for those violations in the legal systems of the member states responsible and to demand appropriate remedial action, the reluctance of member states to comply with those decisions has grown. The reluctance has sometimes taken the form of implicit or express refusal by the political branches to take the required remedial action and in other cases led national constitutional courts to openly question the obligation to implement decisions by international human rights courts which in their view run counter to the core principles of the national constitution.

This development has turned international human rights law into a major battleground in the debate on the continuing relevance of the liberal paradigm of international law, a paradigm which was widely seen as triumphant in the first decades following the collapse of communism and the end of Cold War but has increasingly come under pressure from a rising number of nationalist and authoritarian regimes  propagating the return to a state and sovereignty-centered understanding of international law. The aim of the project was to provide an in-depth analysis of this debate in the field of international human rights law. While its focus was on the mechanisms and forms of dialogue between international and national (constitutional) judiciaries in promoting compliance, it also addressed the role of the political branches and of civil society as well as the strategies and tools which may be used to overcome non-compliance, making it necessary to abandon a narrow legal perspective in favour of a broad interdisciplinary approach to the subject. The book was published as Research Handbook on Compliance in International Human Rights Law with Edward Elgar in 2021.

Publication: Rainer Grote, Mariela Morales Antoniazzi and Davide Paris (eds.), Compliance in International Human Rights Law, Cheltenham/Northampton 2021

The 3rd edition of the ECHR/GG Konkordanzkommentar presents an updated and revised version of the novel commentary on the interrelationship between European human rights law and fundamental rights protection in the domestic legal system which was first published in 2006. By drawing extensive comparisons between the general foundations of individual rights protection, the substantive human rights guarantees and the mechanisms for their implementation in the German Basic Law, the European Convention on Human Rights and the EU/EC human rights regime, the commentary shows how the national and European rules can be understood  as a formative part of an increasingly integrated, multi-tier system of fundamental rights protection. At the same time, it attempts to offer a cross-cutting perspective on the developing structures and salient doctrinal issues of fundamental rights protection in the European legal space which are sometimes difficult to discern from the steadily expanding and ever more complex human rights jurisprudence of the European Court of Human Rights based on the concepts and methodology developed by German fundamental rights scholarship.

To achieve this ambitious goal, the Commentary proceeds in three big steps. In the first step the general issues of fundamental rights protection in both European and German fundamental rights law are discussed from a comparative perspective. The Second Part contains a comparative commentary on the substantive rights protected in the ECHR and the corresponding guarantees in the German Constitution on the basis of the case law of the European Court of Human Rights and the German Constitutional Court respectively. This Part focuses on the structure, effects and scope of the relevant rights as well as their potential limitations and the requirements for the legal justification of the various measures – legislative, executive and judicial – which interfere with the exercise of the protected rights. The Third and Final Part discusses the legal remedies and procedures available for the enforcement of European fundamental rights in both European and German procedural law.

The third edition brings the commentary up to date as of July 1, 2021. It was published with Mohr Siebeck in 2022.

Publication: Oliver Dörr, Rainer Grote and Thilo Marauhn (eds.), EMRK/GG Konkordanzkommentar, 3rd edition (2 volumes), Mohr Siebeck Tübingen 2022

The book project uses the concept of transformative constitutionalism developed by US scholarship to analyze some of the major changes in the fields of constitutional law and constitutional adjudication in the post-World War II era. Following a discussion of the various issues related to the meaning and scope of the concept of transformative constitutionalism and of how the concept is used in the book in the introductory chapter, the second chapter examines the various stages in the  development of constitutionalism from the great liberal revolutions of the late 18th century which gave birth to the modern idea of constitutionalism to the early 21th century when the idea and the practice of transformative constitutionalism stood at their apogee. The following chapter examines more closely the main tools and concepts which transformative constitutions employ in order to achieve their transformative purposes. The developments following World War II have shown that in modern constitutional democracies the courts, and especially the constitutional courts, play a crucial role in shaping and giving effect to the transformative mandates and provisions of the constitution. The fourth chapter therefore looks at the origins and subsequent development of constitutional adjudication, and the different forms in which it has been institutionalized. The procedures and instruments which modern constitutional courts have at their disposal and bring to bear on the interpretation and application of the constitution in order to secure transformative outcomes are discussed in the fifth chapter.

As each transformative constitutional project is decisively shaped by the trauma and legacy of the grave injustice to which it attempts to respond by fundamentally reframing the foundations of the legal and political order, a global analysis of the institutions and principles of transformative constitutionalism and transformative constitutional justice supported by a few more or less randomly selected examples can only go so far. The chapters setting out the historical and doctrinal parameters for the comparative analysis of transformative constitutionalism are therefore complemented by chapters looking more closely at the transformative experiences of individual countries, namely the US (especially during the Warren era), Germany, India, Colombia, and South Africa. A final chapter summarizes the changes which the era of transformative constitutional law and jurisprudence has brought for our understanding of the idea and the main tenets of modern constitutional law, its structural implications and the prospects for further development.

The publication of the book is planned in 2024.