—Richard Albert, Boston College Law School
Bruce Ackerman’s theory of “constitutional moments” has traveled the world as scholars have applied it outside the United States. Juliano Zaiden Benvindo has drawn from the theory to examine recent constitutional changes in Brazil, Sujit Choudhry has applied the theory to Canada in connection with Quebec secession, and Dario Castiglione has explored whether the theory can help us understand what is at stake in the constitution-making project for Europe. Dozens of other examples abound.
In his new book on “The Forgotten Revolution? The 1989 Revolution in East Germany and its Impact on Unified Germany’s Constitutional Law” (Nomos: Hart Publishing 2016), Stephan Jaggi draws from Ackerman as well, but it is the Ackermanian theory of “intergenerational synthesis” that takes center stage. Jaggi argues that East Germany’s peaceful popular movement of 1989 was a revolution whose values the Federal Constitutional Court subsequently incorporated into its interpretation of the Basic Law after reunification.
The upshot of Jaggi’s book is that the jurisprudence of post-reunification Germany is the product of both East and West German influences, contrary to the conventional view that Germany’s post-reunification jurisprudence continued exclusively in the tradition of the constitutional law of pre-reunification West Germany.
Here is Jaggi in his own words:
My thesis is that German unification was much more than an unconditional adoption of the GG. It was a process during which the East Germans applied legal instruments in order to preserve at least some of their revolutionary constitutional achievements by transferring them to unified Germany. Such legal instruments were the Unification Treaty and the constitutions of the new states. They included revolutionary constitutional principles that were not in, and sometimes even contradicted, the GG and transferred them to unified Germany’s constitutional order. (pp 129-30)
For Jaggi, this transfer of principles did not occur “because it was necessary for German unification in the sense of a conditio since qua non but because it was the will of an important part of the German people who had spoken in a constitutional voice and whose statement demanded respect.” (p 130)
Jaggi concludes his book by answering the question he poses in the title of the book. Is the 1989 Revolution a forgotten revolution? The meaning of the 1989 Revolution is not lost, Jaggi writes, because its principles are alive in the jurisprudence of the Federal Constitutional Court. But he cautions that two fundamental challenges stand in the way of remembering the 1989 Revolution well into the future: the present conservative effort to undermine the revolutionary achievements of 1989 and the difficulty of establishing a culture of “public freedom” in ordinary politics.
Jaggi’s book ensures that those who seek to preserve the memory of the 1989 Revolution will always have a compelling account of its unfolding and its impact.
Suggested Citation: Richard Albert, Book Review, Constitutional Revolution in Germany–A Review of “The Forgotten Revolution?” by Stephan Jaggi, Oct. 13, 2016, at: http://www.iconnectblog.com/2016/10/virtual-bookshelf-constitutional-revolution-in-germany-a-review-of-the-forgotten-revolution-by-stephan-jaggi