This collaborative project between scholars and practitioners provides a systematic, rigorous and comprehensive study of the different approaches to comparative public law within the German legal system. It starts from the premise that a comparative study of law is not only beneficial, but perhaps even necessary, to fully comprehend one’s own legal system and traditions. Therefore, while the project is anchored in the German public law discourse, it is understood that the latter is embedded within a larger regional and global constitutional context. In the spirit of comparative learning, this project then, brings the nuances of German public law, especially constitutional and administrative law to the wider English speaking world.
Three broad set of questions and motivations underlie the project. First, the project revisits the historical development of comparative public law thinking in Germany and traces the rise and fall of this tradition in different points in history. It finds that although, Germany has had a long tradition of comparative law scholarship, the story of its development has not been linear – characterized by several periods of asymmetry and ‘self-isolation’.
From history, the project then turns to the present and investigates what role comparative law thinking has played in the Federal Constitutional Court (Bundesverfassungsgericht) since its inception. Has it taken comparative law seriously? Or has the Court confined itself to its own siloed space, looking inwards as the world seeks to learn from each other? Alongside perusing the reported decisions of the Court, this project also looks for answers in background structures and documents such as written opinions, exchange among judges, and voting patterns and procedures.
Finally, this project is not only confined to the Court itself, but is also an attempt to understand how one must do comparative law research and scholarship more generally. Thus, a big chunk of the present project is devoted to questions of method and methodology in comparative law. Here, self-reflectivity and introspection on one’s inherent premises, biases and ideologies remains important as one embarks on the task of embracing and interacting with other traditions and cultures.
Kanad Bagchi, Research Fellow