Humboldt-Universität zu Berlin - Prof. Dr. Dr. h.c. Susanne Baer

Humboldt-Universität zu Berlin | Faculty of Law | Prof. Dr. Dr. h.c. Susanne Baer | Knowledge | Fundamental Rights, Human Rights and Comparative Constitutionalism

Fundamental/Human Rights and Comparative Constitutionalism

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...information on fundamental rights, human rights and comparative constitutionalism.

Fundamental rights of the German federal constitution (the Basic Law or Grundgesetz, and of German state constitutions) can be seen not only as limits for state action or as fixed values but also as specific constructions of social and cultural conflicts. Therefore, it is helpful to start from everyday reality, which are the site of such conflicts, when working with constitutional law. Then, fundamental rights are not only from dogmatic interest, but we have to ask how they construct reality, which conflicts are seen, which are not, and which are based. One lead question is which conflicts are reflected in law and which conflicts fall outside the focus or are distorted in a dominant legal perspective.

The comparative perspective adds another dimension. Similar conflicts arise in many countries, as well as in supranational and international legal systems, as human rights catalogues indicate. Which signs, situations, parties, uses, and contexts characterize them? Comparative constitutionalism opens this research field. It looks at how the law deals with crucial social conflicts in different legal cultures, not only reporting but also with a critical analytic look. It is not a matter of Europe or the USA, not even of state national law. As a normative idea, ‘constitutionalism’ also refers to the quest for an ideal constitution – always, however, considering the respective context. Context forces us to look behind the legal scenes as such. Again, this requires transdisciplinary exchange.

Some lead questions in comparative constitutionalism are:

  • How, why and with which results do different constitutional courts decide similar conflicts? Who acts, who is affected in which ways?

  • Why do which cases reach the court? How are which facts of the matter introduced, framed and weighed? Which role do sex, gender, social background, ethnicity, age, way of life or handicap play?

  • Which rights, values, principles are discussed, which and whose interests matter in the decision – and which are not included in the discussion?

  • Which is the social and societal context in which the decision is made – which traditions and which history mark the country, which discussions are going on?

  • So: Who finds which solution to the conflict at which time? Does it convince, and why? How does one’s own legal system appear from a comparative perspective?

The approach chosen here demands a look at fundamental and human rights, that is, constitutional, European and international law, not separately as usual, but together and comparatively. Not only are supra- and international law often directly applicable; there are also debates around human rights that can be fruitful for constitutional rights. The discussion around universalism and cultural relativism or exceptionalism is but one example – especially in the field of women’s rights, with issues such as genital cutting and rules on clothing, like in hi´jab cases. Another example is effective enforcement of rights, reaching from access to constitutional courts to the strategy of shadow reports, but also concerning the question who does actually have the resources to make use of fundamental rights.

Research Material

  • SUSANNE BAER with Norman Dorsen (New York University, USA), Michel Rosenfeld (Cardozo Law School, USA), András Sajó (CEU, Budapest), Comparative Constitutionalism. Cases and Materials, 3rd edition 2016, St. Paul: Thomson/West.
  • Baer, Susanne, Citizenship in Europe and the Construction of Gender by Law in the European Charter of Fundamental Rights, in: Knop, Karen (ed.), Gender and Human Rights. Collected Courses of the Academy of European Law, Oxford 2004, pp. 83-112.
  • Baer, Susanne, Dignity or Equality? Responses to Workplace Harassment in European, German, and U.S. Law, in: MacKinnon, Catharine A./ Siegel, Reva (eds.), Directions in Sexual Harassment Law, New Haven 2003, pp. 582-601.
  • Baer, Susanne, Violence: Dilemmas of Democracy and Law, in: Kretzmer, David/ Kershman, Hazan F., Freedom of Speech and Incitement against Democracy, The Hague 2000, pp. 63-98.
  • Baer, Susanne, Equality: The Jurisprudence of the German Constitutional Court, Columbia Journal of European Law 5 (1999), pp. 249-279.

For Constitutional Courts around the world, see the link-list of the German Constitutional Court, the Bundesverfassungsgericht.