In 2007, the member states of the European Union approved the Treaty of Lisbon, which was intended to strengthen that entity's political organization. In 2008, the German Bundestag approved the treaty by an overwhelming majority. An odd assortment of German actors, including representatives of both Die Linke on the left and the Christian Social Union (CSU) on the right, appealed the parliamentary decision to the German Constitutional Court, arguing that it violated basic principles of German democracy, indeed the “identity” of the German state. The Court's 2009 decision upheld the treaty, but, in so doing, demanded that the Bundestag rework the procedures for approving future changes. Most important, the court sought to draw lines that the process of political unification could not cross, since to do so would impinge on German sovereignty and democracy. It asserted that the European Union suffered from a democracy deficit, partly because it did not have state-like qualities; at the same time, it held that the Union could not develop into a “federal state.” As commentators at the time noted, the court thereby created a “catch-22,” based on its own concepts of state, sovereignty, and democracy.

Murkens's analysis centers on the terms that structured the Court's response: “state,” “sovereignty,” “democracy,” and “identity.” Each term, he argues, carries specific, historically developed connotations within the German jurisprudential tradition. This important decision on the future of Germany in Europe therefore cannot be understood without an understanding of the trajectories of constitutional jurisprudence in Germany itself. Going beyond a historical contextualization of the concepts, however, Murkens argues that the residues of earlier thinking—which play such a central role in any jurisprudential tradition—actually harmed the ability of the court to recognize what was really at stake in the process of European political unification, and revealed an underlying ideology at odds with an increasingly pluralistic and complex legal world. That ideology assumed that “democracy” implied both a sovereign state and a homogeneous nation. The court, he concludes, referred to “meta-constitutional values” in order to assert “its political power in relation to the Court of Justice” (154).

“State” and “sovereignty” have a special significance in the development of German public law, where the “state” as the embodiment of power held by a monarch preceded, and indeed imposed, constitutions in the nineteenth century. With the unification of Germany in 1871, the jurist Paul Laband led the way in asserting that sovereignty rested with “the state,” implying both an abstract, unified entity holding power and something clearly distinct from the people; after the democratic revolution of 1918, Carl Schmitt reasserted this state-centered interpretation, focusing on the moments when sovereign power could transcend mere law. While state-oriented jurists in the Federal Republic avoided such open justifications for a coup d'état, influential lawyers such as Ernst Forsthoff, Ernst-Wolfgang Böckenförde, and Josef Isensee continued and continue to start with the state in their analyses. Another tradition, with its origins in the Weimar Republic, stresses “democracy”—defining it often, however, as having a foundation in a “nation” characterized by a certain objective “homogeneity.” This notion, too, Murkens connects to Carl Schmitt, but he notes how the concept became more fluid and constructed through the decisive contributions of Rudolf Smend and Hermann Heller. Lawyers such as Horst Ehmke, Konrad Hesse, and Peter Häberle fall into this tradition.

These ways of thinking may not, Murkens argues, do justice to the legal realities of the contemporary world, which is characterized by overlapping legal jurisdictions, multiple sites of power instead of the individual state, and “democracy” not rooted in a fixed, homogeneous population, but as part of procedures and issues that often transcend state borders. Lawyers such as Armin von Bogdandy and Ulrich Preuss, political theorists such as Helmut Willke, and social thinkers such as Jürgen Habermas and Niklas Luhmann become more important in this third strand of thought, which Murkens associates with a developing “European Public Law.”

To my knowledge, there is no other work in English that develops the traditions of German constitutional thinking in such detail. In a relatively short space, Murkens manages to mention hundreds of individual scholars, making this a very useful reference work. At the same time, the sheer mass of citations leads the author at times to cram strange bedfellows into the same pigeonhole. Dieter Grimm, for example, may advocate limits to the European Union for the sake of “democracy” and “state,” but is he really to be named in the same breath with the followers of Carl Schmitt? The writing suffers, too, as the author attaches one quotation or summary to another: at times, one loses the author's own voice. And finally, the author (and editors!) would have done well to spend more time making sure that each sentence was perfectly clear, and that sentences proceeded logically to form clear paragraphs. The book's necessary abstractions at times become obscure.

Finally, there is something jarring in the combination of careful analysis of historical concepts and the blunt condemnation of Constitutional Court arguments as, for example, “confusing, wrong, and lazy” (200). Certainly it is right for scholarship to be critical. But Murkens is also seeking to explain what he criticizes. If the court was merely “lazy” in some aspect of its judgment, then why provide the historical context to explain the judgment? Nonetheless, this is an important book and a useful one. The theories of postnational law, legal pluralism, and non-state constitutionalism that have developed over the past decades are not abstractions; as the book shows, they are relevant to the developing legal reality of the European Union.