Judicial Influencers: Scholarly use of foreign law and the convergence of German, Italian and French ideas on the position of national constitutional courts in the EU legal context, 1989-2012

Abstract

This study approaches the flow of constitutional ideas from a new angle. It focuses on scholarly public law communities from a comparative and historical perspective. As case in point, it examines French, German and Italian scholarly use of foreign law in the canonical debate on the position of national constitutional courts in the EU. This investigation reveals the contours of a convergence guided by a judicial influencer. In both Italian and French public law scholarship, the history of scholarly use of foreign law is to a considerable extent the history of referring to the Karlsruhe-based German Constitutional Court. In contrast, German public law scholarship appears to be rather inward-looking. This book explains why, and what consequences this holds for our understanding of the world of European constitutional law and its courts. In a nutshell: the influencer position of the German Constitutional Court reminds us that the Europeanisation of legal systems does not necessarily go in a single unifying direction. At least two knowledge communities exist. Alongside EU lawyers and legal scholars supporting the idea that the European Court of Justice forms the ultimate judicial authority, this study suggests the existence of a transnational ‘Karlsruhe Counter-Culture’. A culture based around the idea that national constitutional courts and national constitutions do not stand hierarchically below the European Court of Justice and EU law.