Virginia Journal of International Law
This Article introduces the Demokratieprinzip. In Part II, I begin by more fully documenting the Euro-skeptical turn in Germany's relationship with Europe, paying particular attention to the central role played by the Constitutional Court's interpretation of the Demokratieprinzip. Part III, in four subparts, provides a doctrinal introduction to the principle of democracy. First, I map the principle's bases in the text of the German Grundgesetz (Basic Law or Constitution). Second, I present the gloss the Constitutional Court has given the principle, making special reference to the Court's recent decisions involving challenges to Germany's participation in measures seeking to advance European integration. Third, I deepen our understanding of the Demokratieprinzip by considering the Court's vision of parliamentary democracy, which has developed into a central component of the broader Demokratieprinzip. Finally, I rebut claims that, for all its rhetorical bombast and headline-grabbing dramatics, the Court's jurisprudence relying on the Demokratieprinzip as the basis for reluctance towards Europe has not served as a practical barrier to further European integration. In Part IV, I provide greater theoretical insight into the Court's interpretation of the Demokratieprinzip by demonstrating that it is a nearly complete realization of Juergen Habermas's theory of discursive democracy. This highlights two important points. First, contrary to Habermas's supranational vision for his discourse theory of politics, the Court insists that the principle of democracy find its expression within the framework of the German state. This might be the final attribute of the doctrine as it has been defined by the Court. Second, to the extent that the Constitutional Court's interpretation of the principle of democracy now constitutes a barrier to European integration, this involves an astounding, historic, and deeply German irony because Habermas has been one of Germany's most determined and visionary advocates for European supranationalism.
Russell A. Miller, Germany vs. Europe: The Principle of Democracy in German Constitutional Law and the Troubled Future of European Integration, 54 Va. J. Int'l L. 579 (2014).