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The Constitutionalisation of the State of Emergency under the German Basic Law – on the Way to a Total Constitution?

Published online by Cambridge University Press:  25 September 2026

Anna-Bettina Kaiser Open the ORCID record for Anna-Bettina Kaiser [Opens in a new window]
Anna-Bettina Kaiser*
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Law Faculty, Humboldt-Universität zu Berlin, Germany, email: kaiserab@hu-berlin.de
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Abstract

Accusations of a ‘total constitution’ in Germany – Alleged excessive constitutionalisation of political life and the narrowing of political processes – The role of constitutional courts in this process – Constitutionalisation of the state of emergency – German emergency constitution – Effectiveness of a high degree of constitutionalisation – Dependence on a specific set of cultural and historical circumstances – Doubts on any attempt to turn the high level of constitutionalisation into an universalisable ‘role model’.

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European Constitutional Law Review , Volume 22 , Issue 3 , September 2026 , pp. 442 - 461
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© The Author(s), 2026. Published by Cambridge University Press on behalf of University of Amsterdam

Introduction

The accusation of a total constitution aims at what it sees as the excessive constitutionalisation of political life and the narrowing of political processes.Footnote 1 Decisions that should actually be entrusted to the democratically legitimised legislature are taken away from it under a ‘total constitution’ with the argument that they are already constitutionally predetermined. In the end, it is the constitutional courts, so the suspicion goes, that make the decisive decisions. From this perspective, the constitutionalisation of the state of emergency must prove to be particularly problematic: if we see the decision whether to declare and how to handle a state of emergency as the incarnation of the political, then its juridification must appear both absurd and illusory. However, for historical reasons, the emergency constitution in the German Basic Law is characterised by such a juridification of even the most exceptional situations – not to mention the high degree of constitutionalisation in the general German legal order arguably influencing European legal culture.

My contribution would therefore like to use the German example to examine the accusation of total constitution in more detail and add a historical dimension to the discussion about ‘total constitutionalism’ that is missing so far. This serves several purposes. First, it shows that the German system, and the state of exception in particular, is indeed highly constitutionalised, and that this state of affairs has been the object of criticism from its beginning. Second, by using a specific example, most notably the German crisis response to the Covid-19 emergency, we can see that even in a highly ‘political’ field such a high level of constitutionalisation can indeed be made to work effectively. Third, however, embedding the question in such a specific environment serves not least as a caution: the fact that it works in Germany turns out to be closely connected to a specific set of cultural and historical circumstances. This casts considerable doubt on any attempts to turn these high levels of constitutionalisation into a universalisable ‘role model’.

I start by explaining how the German high degree of juridification came about historically and outline the theoretical doubts that have been voiced against it from the very beginning. In a third step, I examine the question whether the fears of the critics of the total constitution have come true by analysing the legal management of the Covid crisis in Germany. Here I show that the courts indeed succeeded in squaring a high degree of constitutionalisation with the political demands of a volatile and contested state of emergency. In the last section, I ask what follows from my observations for ‘total constitutionalism’. My thesis is that constitutionalisation is historically determined, however, on a normative level, not discussed in a culture-specific way.

High degree of juridification of the state of emergency in Germany

From a comparative perspective, Germany certainly offers a relatively strong case of a ‘totalisation’ in constitutional terms. It is not for nothing that Martin Loughlin sees the German and US examples as the most blatant examples of such a total constitution, and in fact the German example goes far beyond the US model in that it even constitutionalises private law relationships via the so-called ‘indirect’ horizontal effect.Footnote 2 The state of emergency is not exempt from this far-reaching constitutionalisation. Indeed, the Basic Law provides for a meticulously differentiated emergency constitution. How did this development come about? I would like to explain this historically in four steps.

The state of siege (état de siège)

The German state of exception has its starting point in the French 19th century institution of the state of siege (état de siège): contrary to popular belief, the ‘invention’ of the state of exception in France was from the start a legal development. While Giorgio Agamben and others represent the state of exception one-sided as a legal vacuum,Footnote 3 in a certain sense the opposite was (also) the case: it is true that the French version of the state of emergency, the state of siege, was aimed at loosening constitutional restraints for the public power, especially the restraints of constitutional rights, yet at the same time it attempted to reimpose legal limits even during the greatest crises, war and turmoil.Footnote 4 Thus, the statute on the state of siege, the loi du 1849,Footnote 5 substantiating Article 106 of the French Constitution of November 1848,Footnote 6 progressively stipulated that only the National Assembly could declare and lift the state of siege, while the military was in charge during this period; again, the loi du 1849 provides for the details, e.g. on courts-martial. This semi-legal version of the state of siege migrated to many European and non-European countries – also to Prussia,Footnote 7 and inspired local legislation with the French état de siège as paradigm. In the same year, 1849, Prussia issued a decree law on the state of siege (Belagerungszustand, a loanword from the French), and in 1851, a statute.Footnote 8 The regulations were similar to the French model, although the model was modified in an authoritarian – Prussian – manner. It was the executive, of course, that decided on the state of siege, the two chambers (House of Lords and House of Representatives) only had to be informed. Finally, the new constitution of the Reich 1871 made it possible for the Reich to fall back on the Prussian State of Siege Act; now it was the German Emperor who decided on this special legal regime.

The Weimar constitution

A modified version of the state of siege also found its way into the Weimar Constitution, the first democratic constitution on German soil. At that time, it became common in Germany to talk about the state of exception instead of using the old and misleading term ‘state of siege’. Despite this change in terminology, key features of the old institution were also to be found in Article 48 of the Weimar Constitution, providing for the state of exception.Footnote 9 Thus, this notorious article included the mechanism of suspending several fundamental rights in the state of siege, but now it was the President of the Reich, not the military, who was authorised to take the necessary measures. The further course of history is well known. During the first phase, the Social Democrat Friedrich Ebert, as the first President of the new Republic, made use of these special powers in more than a hundred cases, but used the powers in a faithful manner to support and rescue the state.Footnote 10 In the late phase of the Weimar Republic, however, under the ultra-conservative President Paul von Hindenburg, the state of exception was again used massively, but this time to undermine the constitution. Finally, under Adolf Hitler, who became Chancellor of the Reich in January 1933, the fundamental rights were suspended in the very first month of the Nazi reign until the end of the so-called Third Reich, with the help of Article 48 under the Reichstag Fire Decree.Footnote 11

The Basic Law (1949)

After the war, when the Basic Law was drafted, one of the biggest questions was how to deal with the state of exception. On the one hand, the German democratic forces wanted to learn from the mistakes of the Weimar Constitution at all costs;Footnote 12 on the other hand, they were also unsure whether it would be possible to make do without a general clause at all. In addition, it was unclear what lesson was to be learnt from history. The starkly different use of Article 48 by Ebert on the one side and Hindenburg/Hitler on the other gives evidence of this ambivalence. Or was the real problem not the general clause itself, but the flaws in the construction of the provision, in particular the fact that the President of the Reich had been able to dissolve Parliament even during the state of exception under Article 25 of the Weimar Constitution? The Framers of the German Basic Law, elected by the state parliaments of the 11 West German states, in fact briefly returned to a provision comparable to Article 48 of the German Constitution before the provision suddenly disappeared in the draft. As the protocols contain no indication why the provision was cancelled, we can only speculate about the reasons. While some voices in the literature assume that the Framers themselves had refrained from this article after the Nazi experience, a stronger argument can be made that the Allies intervened.Footnote 13 Consequently, the traditional state of exception remained largely unregulated in the Basic Law.

However, other provisions had found their way into the Constitution, which are certainly related to the state of exception: the provisions on militant democracy, which include the possibility of a ban on political parties or associations, as well as the possibility of a forfeiture of fundamental rights (which was never used, however). This complex of provisions can be seen as a certain replacement for the traditional state of exception.Footnote 14 For example, it is possible to ban a party at an early stage if it is aggressively and militantly intent on destroying the free democratic basic order. This was meant to prevent an internal state of exception from arising in the first place.Footnote 15

The Emergency Constitution of 1968

The last and most interesting step for our context came when the control of the Allied Forces was about to cease.Footnote 16 This was the beginning of a decade-long debate in Germany about the proper handling of the state of exception that was now most commonly called state of emergency. The period of controversy surrounding the emergency constitution can probably be described as a ‘constitutional moment’ (Ackerman) for Germany. Draft after draft was produced at the time, and each version became even more elaborated and sophisticated. The old version of the state of exception from Weimar times, especially the suspension of fundamental rights, no longer seemed acceptable and, after years of dispute, the new so-called emergency constitution finally came into force in 1968.Footnote 17 However, it can only be understood against the background of the constitutional development under the Basic Law up to that time. The Federal Constitutional Court had since developed into the most powerful constitutional court, in Europe at least, and had set the course for an overall constitutionalisation of the legal system above all with its ruling in the so-called Lüth decision in 1958.Footnote 18 In this decision, the Court ‘invented’ an indirect horizontal effect of fundamental rights (mittelbare Drittwirkung). Ever since, fundamental rights have been applicable between private parties, albeit in an indirect, mediated manner.Footnote 19 Fundamental rights were recognised as having an impact, a ‘radiating effect’ (Ausstrahlungswirkung), on the entire legal system. As a result, the whole legal system had to be interpreted in the light of the constitution; it was constitutionalised.Footnote 20 Further juridification and constitutionalisation driven by the Court resulted from this comprehensive protection of basic rights that the Court postulatedFootnote 21 as well as through the strict control of legislative actions interfering with basic rights using the concept of proportionality.Footnote 22

The emergency constitution was ultimately the logical continuation of this constitutionalisation process which had already been underway since the 1950s. The meaning and impact of constitutional law and thus the legal culture had already changed to such an extent that a short, concise general clause to regulate the state of emergency, as some conservative politicians still may have envisaged at the time, was no longer consensual and would not have found the two-thirds majority that is necessary to change the Basic Law. This was made particularly clear by the fact that the drafts of the emergency constitution triggered enormous protests in society.Footnote 23 There were widespread fears that the planned amendment to the Basic Law would ultimately create a lever, like Article 48 of the Weimar Constitution, to establish an authoritarian state. Enormously sophisticated regulations were the result, in particular on the state of defence, that is, an armed invasion from the outside, and its preliminary stage, the so-called state of tension, which were supposed to anticipate all fears of what could happen in a case of emergency. With Article 20(4), even a right of resistance was introduced in order to create a counterweight to the new emergency powers. Only the internal state of emergency has remained rudimentarily regulated, as will be seen below. It is therefore not surprising that the new emergency constitution (as far as the external state of emergency is concerned) was widely criticised as too differentiated and unsuitable for emergencies when it finally came into force in 1968 after years of debate.Footnote 24 However, all these detailed regulations can only be understood as Germany’s learning process from German history.

It is particularly remarkable that France has drawn precisely the opposite conclusion from history in Article 16 of the French Constitution. With a provision comparable to Article 48 of the Weimar Constitution, the 1958 constitution saw no problem at all in granting the president far-reaching powers in an emergency.Footnote 25 But this provision, too, can only be understood in its historical context. Against the backdrop of the Algerian War and the counter-terrorism operations that were run in this French colony, and not least with regard to Charles de Gaulle as president, the codification conditions were completely different.Footnote 26 And France did not have to struggle with a ‘Weimar complex’ either.Footnote 27 From this moment onwards, the German and French legal situations concerning the state of emergency have diverged fundamentally.

Theoretical criticism, in particular by the Schmitt school

This high level of constitutionalisation has, from its very beginning, invited objections. No one has criticised this German development towards a very far-reaching constitutionalisation more than Carl Schmitt and some of his students.Footnote 28 In fact, many of Martin Loughlin’s accusations against total constitutionalism can already be found in their writings.Footnote 29 Thus, it is not surprising that Loughlin also refers to Schmitt when, for example, he questions the juridification of emergency powers.Footnote 30 Schmitt, Ernst Forsthoff and Ernst-Wolfgang Böckenförde elaborated in great detail the arguments that also drive the current criticism of the total constitution.

After the Federal Constitutional Court had declared in the aforementioned Lüth decision that the fundamental rights of the Basic Law were not only liberal defensive rights, but also formed an objective system of values,Footnote 31 Schmitt reacted. In his pamphlet ‘Tyranny of Values’, the written version of a talk given in 1959,Footnote 32 he summed up the concern about what could happen if fundamental rights were reinterpreted as values or, to be more precise, if a value was always assigned to a right.Footnote 33 However, the focus of his considerations is a critique of the philosophy of values (Wertphilosophie) on which, in his opinion, the new case law of the Federal Constitutional Court is based. The Court’s jurisprudence as such is only mentioned in passing. Schmitt concludes: ‘In a commonwealth, whose constitution forsees a legislator [Gesetzgeber] and statute laws [Gesetze], it is a matter for the legislator and for the statute laws made by it, to define the mediation via calculable and enforceable rules and to hinder the terror of the immediate and automatic enforcement of value.’Footnote 34

In the same year, Schmitt’s student Ernst Forsthoff, professor at the university of Heidelberg, added the legal side to Schmitt’s critique. Forsthoff focused on the case law of the Federal Constitutional Court, in particular the Lüth decision with its aforementioned interpretation of the fundamental rights part of the Basic Law as an objective value system (objektive Wertordnung), leading to the so-called indirect horizontal effect and thus to the constitutionalisation of the whole private legal order. According to Forsthoff, the Court had rejected the traditional hermeneutic methods of interpretation in favour of a ‘humanistic-value hierarchical method’. In doing so, the Karlsruhe court had not only brought about a constitutional transformation, but even a dissolution of the ‘constitution as law’. Constitutional formalism had been replaced by an ‘uncertainty of constitutional law’. According to Forsthoff, there were numerous arguments against such a value-based thinking: On the one hand, ‘value’ was a non-judicial category; on the other, it functioned as a gateway for the prevailing zeitgeist. Fundamental rights were stripped of their liberal content (i.e. the state’s negative duty of non-interference) and, via the doctrine of third-party effect, transformed into obligations. Instead, Forsthoff pleaded for a return to a (mere) liberal understanding of fundamental rights and a method of interpretation that is closer to the interpretation of private (civil) law.Footnote 35

This school of thought also clearly recognised that the expansion of the fundamental rights dimension described above would go hand in hand with the rule of judges. ‘Jurisdiktionsstaat’ or ‘Justizstaat’, juristocracy or, literally translated, state of the judiciary, were the terms that they already commonly usedFootnote 36 and which are today again being used against total (global) constitutionalism.Footnote 37 Just one year after Lüth, Forsthoff analysed astutely that the winner of the Court’s methodological revolution was the court itself; according to Forsthoff, the constitutional state had degenerated into a juristocracy. For him, the new jurisprudence was nothing more than a vehicle for a self-empowerment of the court.Footnote 38

Even the idea of a ‘total constitution’ can be found here, avant la lettre, when Forsthoff criticised the German constitution as a legal ‘world egg’ (‘Weltenei’) from which everything else would emerge.Footnote 39 The counter-model of the Schmitt school was developed above all by Ernst-Wolfgang Böckenförde, Schmitt’s social democratic student and later an influential judge on the German Federal Constitutional Court. A limited concept of the constitution, which he called the ‘framework constitution’, was to replace the ‘world egg’ constitution. Böckenförde explained how he envisaged provisions in the constitution:

These are not incomplete, fragmentary provisions, but provisions that are self-contained but deliberately aimed at only a ‘framework’. The reason for this is that certain processes of state-political life, such as the relationship between the leading state bodies, or certain areas of activity, such as foreign and defence policy, defy detailed and rigid standardisation.Footnote 40

This quote already indicates that the concept of the constitution as a ‘framework order’ also had to have an impact on the emergency constitution. Schmitt himself was relatively reticent on this subject, but his enthusiasm for Article 16 of the French Constitution has been passed down. Unlike the Germans, Schmitt found, the French state had understood what the state of emergency really is about.Footnote 41 However, it was Ernst-Wolfgang Böckenförde who stood out in the discussion.Footnote 42 His statements were triggered by the terrorism of the Rote Armee Fraktion (Red Army Faction) in the 1970sFootnote 43 and in particular the German state’s reaction to it. In many countries, terrorist attacks are approached as a question of a state of emergency, as can be seen in the US in 2001Footnote 44 or in France in 2015.Footnote 45 And so the German government would also have liked to have resorted to emergency powers in response to the Red Army Faction attacks. Therefore, this crisis was seen as the first challenge to the still relatively young emergency constitution. Yet, and this is ironic, as elaborate and sophisticated as the emergency constitution was, it had no solution for precisely these cases, because the internal state of emergency in the Basic Law had remained only rudimentarily regulated even after the introduction of the emergency constitution and did not apply to terrorism. Instead, the emergency constitution focused primarily on the case of defence – i.e. armed attacks from the outside. So, the crisis was resolved by exceeding the statutory powers and resorting to a kind of ‘natural law’ or ‘reason of state’ as justification for actions not foreseen by statutory law, for example the bugging of the nuclear scientist, K. Traube, who was suspected of being a terrorist.Footnote 46 The courts partly accepted this justification.Footnote 47

In his inaugural lecture in Freiburg, which he dedicated to Schmitt, Böckenförde harshly criticised this failure of the rule of law and the emergency constitution. He determined exactly the same scenario that Carl Schmitt had already anticipated in his Political Theology, and Martin Loughlin had again in Against Constitutionalism: emergency laws could, if at all, only be regulated through a general clause.Footnote 48 However, Böckenförde’s proposal was never implemented. Until today, there is no proper provision for internal emergencies in the Basic Law.

Schmitt’s and Loughlin’s doubts proved to be correct in the sense that the German emergency constitution’s attempt at broad juridification did not wholly succeed. On closer inspection, however, the case of the internal emergencies remains ambivalent. In this instance, the constitution seems to have left political actors with too little guidance. That is naturally not an argument against the narrow regulation of emergencies. But a form of constitutional perfectionism can apparently prove self-defeating if it leads the relevant actors to sidestep difficult regulatory problems.

The Covid crisis as a second litmus test

The story of internal emergencies does not end here. The recent Covid crisis can be seen as another example of an internal emergency. Accordingly, Martin Loughlin rightly categorises pandemics as an emergency case study.Footnote 49 So how have legal attempts to regulate and curtail the executive’s actions fared in Germany during the Covid crisis? Opinions differ in German literature.Footnote 50 A closer analysis, however, reveals a relatively clear picture that shows an evolution from the experiences of the 1970s. First, the lack of a constitutional regime was, over time, compensated by an increasingly detailed statutory emergency regime. Second, constitutional law did not remain silent either. After initial uncertainties, its general (highly detailed) limits on legislative and executive action stepped in and provided a framework that proved sufficiently malleable to provide constitutional protections within highly volatile times without having to enter a separate constitutional emergeny regime at all. Apparently, even a regime that, for historic and cultural reasons, embraced high levels of constitutionalisation can provide sufficient breathing room for decisive political action.

That is not to say, as mentioned above, that this unusual regime of dealing with internal emergencies formed right from the start. Instead, it had to develop through several steps of institutional learning, which were each marked by initial violations of ‘ordinary’ constitutional restricitions. Freedom of assembly was de facto suspended at the beginning of the pandemic during the spring of 2020 which is not permissible under the constitution. The suspension did not happen explicitly, but implicitly, because the Covid regulations of all states (Länder) stipulated at the beginning of the pandemic that ‘the stay in public spaces is only permitted alone, with another person not living in the household or with members of your own household’.Footnote 51 Although the ordinances did provide for exceptions, the authorities failed to interpret these exceptions in the light of the constitutional right to assembly and banned assemblies. The Federal Constitutional Court ended this practice as early as April 2020.Footnote 52 After the decisions of the Constitutional Court, e.g. in August 2020, mass demonstrations of at least 30,000 participants took place (without masks).Footnote 53

The pandemic was regulated by the aforementioned (and constantly changing) regulations of the 16 federal states. This had the advantage that the executive could and did react quickly to current developments. At the same time, however, this left the parliamentary legislature out of the loop to a large part,Footnote 54 and all of this in a situation in which the regulations led to the greatest restrictions on fundamental rights in the history of the Federal Republic of Germany. In addition, the regulations of the federal states were based on a provision in the Infection Protection Act (Infektionsschutzgesetz) that was vague and therefore, according to legal doctrine,Footnote 55 could not constitute a suitable authorisation basis for the serious encroachments on fundamental rights by the regulations. Again, it was the courts that demanded a precise authorisation by an Act of Parliament.Footnote 56 The legislature finally reacted in autumn 2020.Footnote 57

Exactly because the crisis was largely responded to with the help of regulations by the federal states, there was no need for a separate legal regime like the one in France, the état d’urgence sanitaire. The crisis was dealt with in a business-as-usual fashion. However, the old Infection Protection Act was amended, introducing the so called ‘epidemic emergency of national concern’ (‘epidemische Lage von nationaler Tragweite’) in section 5,Footnote 58 a term that was taken from the International Health Regulations 2005, provisions adopted pursuant to Article 21 of the WHO Constitution.Footnote 59 The provision stipulated that the Federal Minister of Health should be granted special powers as soon as Parliament declared such an emergency situation, e.g. he was allowed to grant exceptions to the provisions of the Medicinal Products Act by a regulation. Such an authorisation certainly violates the hierarchy of norms and is therefore null and void.Footnote 60 Parliament finally cancelled most of these powers in order to eliminate the constitutional concerns, although not all legal issues have been resolved.Footnote 61 However, despite all these legal reservations in detail, the powers of the Federal Minister of Health were (and are) comparatively modest. They were far removed from a genuine general clause in a state of emergency.

It was not only the legislature (for alleged inactivity) and the executive that were attacked; the courts were also sharply criticised by some legal scholars. For example, the Federal Constitutional Court was attacked by stating that the self-appointed guardians of the constitution had remained too deferential where they would in normal times have found fault with every rule.Footnote 62 The same claim was put forward concerning the administrative courts. This assertion goes hand in hand with the findings of the so-called common law cycle theory that holds that e.g. in the US, courts were deferential in times of crises and strict in normal times.Footnote 63 However, this claim could ultimately not be proven. Certainly, among the tens of thousands of decisions that the administrative courts have made on most of the Covid measures like the quarantines, the shop closures, or the Covid regulations themselves, there will have been wrong decisions. However, no shift in the usual standard can be shown, unlike e.g. in the US.Footnote 64 Further, two studies have attempted to statistically evaluate whether the administrative courts were more deferential than usual, siding with the state but, again, no deviation in comparison to normal times could be proven.Footnote 65 Overall, the view that, after a brief shock phase at the beginning, the courts in Germany have done their job has now become generally accepted.Footnote 66

However, one reason for the disappointment with the court decisions in the Covid crisis may also have to do with the principle of proportionality. In fact, the proportionality principle tends to be a fragile standard of control in situations of crisis:Footnote 67 under these existential circumstances measures will regularly protect matters of such overarching importance as hundreds of thousands of lives that most state actions will turn out to be proportionate. Balancing comes to nothing. A second reason adds to that: with times of emergency there usually comes lack of knowledge.Footnote 68 When courts review whether a measure such as temporarily closing down a daycare centre is suitable and necessary, they normally do not have much more information at their disposal than the executive that issued the rule: they both have to rely on the same sources at any given time, typically – in Germany – the reviews and scientific summaries published by the Federal agency for disease control and prevention, the Robert Koch Institute.Footnote 69 To stay with the daycare example: the role that children played in the transmission of the disease was (and remains) unclear (to this day). Consequently, all a court could (and can) do when reviewing the suitability and necessity of a measure was to defer to the legislator’sFootnote 70 prerogative.

This was also the convincing approach taken by the Federal Constitutional Court in its two major Senate decisions that dealt with the Covid measures, in particular the highly controversial Federal curfew, the Federal ‘contact restrictions’ that limited private meetings such as dinner parties with friends,Footnote 71 both foreseen by a parliamentary statute, and school closures.Footnote 72 When reviewing the proportionality of these three measures, the Federal Constitutional Court merely reviewed the ‘justifiability’ (Vertretbarkeit) of the legislative decision in both decisions. At first glance, this may seem like judicial deference in times of crisis.Footnote 73 However, the court explains this standard with the problem of knowledge:

Where scientific knowledge is tentative and the legislator’s possibilities to draw sufficiently reliable conclusions are therefore limited, it is enough for the legislator to proceed on the basis of a context-appropriate and tenable assessment of the available information and evidence … This leeway stems from the fact that the Basic Law makes it incumbent upon the legislator, with its strong level of democratic legitimation, to resolve conflicts between high-ranking and highest-ranking interests despite uncertainties.Footnote 74

It is remarkable that these considerations did not mean that the Federal Constitutional Court no longer carried out a proper proportionality test with regard to the knowledge problem and the (allegedly) reduced standard of review. Rather, despite the acknowledged leeway for the legislator, a fully-fledged proportionality analysis of 32 (!) pages followed, to examine the proportionality of the contact restrictions, with another 13 pages to analyse the proportionality of the curfew. In those two examinations, the court took into account the importance of the protected rights, the specific numbers of Covid cases and hospitalisations to which Parliament had reacted, the content of the expert testimonies heard before the German Bundestag, the publicly available scientific reports, etc. Finally, the court also obtained its own expert opinions. Even if one does not agree politically with the result reached by the court, it must be recognised that the decision fits more to the ‘total constitution’ narrative even in times of crisis than to a ‘withdrawal of the Court in a case of emergency’ narrative.

All in all, it can therefore be said that despite serious legal mistakes that were made and have been addressed in this analysis, this second test, the Covid crisis in Germany, was mastered within the Basic Law’s ordinary framework. Except for a brief period of time, the courts carried out their work as they would have in normal times and did not shift to lower standards. In contrast to the terrorist crisis of the 1970s, there was no need to have recourse to arguments based on natural law. The German legal system had thus passed the Covid test, by finding ways to bring together high levels of constitutionalisation and executive flexibility.

The limits of the legal system

What does this German case study mean for our overarching question of the limits of constitutionalism? The problem of emergency laws is certainly one that touches the limits of constitutionalisation. But the reverse is also true: the limits of the law can be shifted, as we have learned from systems theory, in particular from Niklas Luhmann.Footnote 75 A certain decision can therefore be assigned to the legal system or left to the political system. Now, depending on legal policy preferences, one can argue for greater or lesser juridification. Even according to Schmitt’s Political Theology, only the genuine state of exception cannot be captured by law (even though he leaves open what he really understands by such a genuine state of exception).Footnote 76 In terms of legal theory, it is probably not possible to draw an exact line as to how much juridification is yet possible. The German example provides insights on how effects and justifications for juridification depend on extra-legal factors.

One reason why it is not possible to draw an exact line when it comes to what can or should be juridified and what should better be left to the political process is that too much depends on the relevant actors. This also corresponds to the current state of research on the Weimar Constitution. Article 48 of the Weimar Constitution saved the Weimar Republic in its initial phase and destroyed it in its final phase.Footnote 77 Hitler lacked the will to uphold the constitution.Footnote 78 Unlike in the past, this perspective therefore focuses less on constitutional design and the alleged errors of the Weimar Constitution, but more on the actors.

A second reason why an abstract line of the limits of law cannot be drawn is that the limits of law very much depend on the legal and cultural context. So, while the German society is a very legalistic one, maybe overly legalistic,Footnote 79 and the trust in law may seem exaggerated from an outside perspective,Footnote 80 a high level of juridification of emergency laws might fit in this very specific context. It is part of the German political and legal path dependency. The same is true for the German concept of constitutional patriotism.Footnote 81 As we have seen, these specific path-dependent and culturally relative choices can be made to work over time, even in situations where direct and imminent executive and legislative action is required. During the Covid crisis especially, the German system managed to learn from earlier blockages and recourses to extra-legal action to combine, step by step, flexible political action with a detailed legislative regime and high levels of ‘ordinary’ constitutionalisation. But this at least partial success does not mean that this very specific German solution could be an adequate solution in other legal contexts. In my view, the very often quite negative experience with legal transplants has shown the context dependency of legal concepts.Footnote 82

In the end, every legal culture has to decide for itself what degree of juridification or constitutionalisation seems appropriate to it. Indeed, it is this over-generalisation, the desire for a one-size-fits-all solution, that is highly questionable. Rather, the degree of constitutionalisation that is considered adequate in each society is path-dependent and must always be renegotiated in politics and legal scholarship. In Germany, at any rate, a debate has begun in recent years about the limits of the German Constitutional Court.Footnote 83 A comparable discussion can be seen on the European level, questioning the role of the Court of Justice.Footnote 84 The problem of over-constitutionalisation is also intensely discussed on both levels, only framed differently than in Martin Loughlin’s work. In the German context, the question is raised as to how to deal with the problem that the German Federal Constitutional Court has now been ruling for many decades,Footnote 85 increasingly narrowing the scope of the democratic legislator. Could the legislator’s room for manoeuvre be increased again by historicising and contextualising these (older) decisions?Footnote 86 Against this background, it should also be viewed critically that the Karlsruhe court not only reviews the security laws of the federal and state governments so closely that even legal scholars can no longer understand all the ramifications of the case law, but also provides the legislator with pages of precise guidelines in its decisions as to what a proportionate regulation should look like.Footnote 87 Here, the German discussion can still learn a lot from the international debate on the limits of constitutionalism.

Acknowledgements

I am grateful to Dr. Dominik Rennert and Dr. Jan-Henrik Herchenröder for the discussions on previous versions of this article. I am also grateful to the editors and the reviewers for their constructive comments and suggestions.

Financial support

This article grew out of my research project as a Senior Emile Noël Global Fellow at the Jean Monnet Center, New York University School of Law, in the academic year 2023/24.

References

1 M. Loughlin, Against Constitutionalism (Harvard University Press 2022); see, on a defence of a strong (global) constitutionalism, M. Kumm, ‘Who is Afraid of the Total Constitution? Constitutional Rights as Principles and the Constitutionalization of Private Law’, 7 German Law Journal (2006) p. 341.

2 The leading case is BVerfG 15 January 1958, 1 BvR 400/51, Lüth (BVerfGE 7, 198); on this see J. van der Walt, The Horizontal Effect Revolution and the Question of Sovereignty (De Gruyter 2014) p. 107 ff; Loughlin, supra n. 1, p. 130 ff.

3 E.g. G. Agamben, State of Exception (University of Chicago Press 2005).

4 A.-B. Kaiser, Ausnahmeverfassungsrecht (Mohr Siebeck 2020) p. 130 ff.

5 The original text can be found at https://www.legifrance.gouv.fr/loda/id/LEGITEXT000006070693/1849-08-09, visited 29 July 2026.

6 The official text of the constitution can be found at https://www.conseil-constitutionnel.fr/les-constitutions-dans-l-histoire/constitution-de-1848-iie-republique, visited 29 July 2026.

7 Kaiser, supra n. 4, p. 132 ff.

8 Statute on the State of Siege (Gesetz über den Belagerungszustand, 4 June 1851), Preußische Gesetz-Sammlung 1851, p. 451, published in E.R. Huber, Dokumente zur deutschen Verfassungsgeschichte, Vol. 1, 3rd edn. (Kohlhammer 1978) p. 527 ff (document no. 199).

9 An English translation by the German Historical Institute, Washington, DC, can be found at https://ghdi.ghi-dc.org/sub_document.cfm?document_id=3937, visited 29 July 2026.

10 See W. Mühlhausen, Friedrich Ebert 1871–1925. A Social Democratic Statesman (Dietz 2015) p. 82 ff.

11 Verordnung des Reichspräsidenten zum Schutz von Volk und Staat, 28 February 1933, RGBl. I, p. 83. An English translation by the German Historical Institute, Washington, DC, can be found at https://ghdi.ghi-dc.org/sub_document.cfm?document_id=2325, visited 29 July 2026.

12 S. Ullrich, Der Weimar-Komplex. Das Scheitern der ersten deutschen Demokratie und die politische Kultur der frühen Bundesrepublik (Wallstein 2009) p. 269 ff.

13 First, only action by the Allies can explain why there is no debate in the minutes of the Parliamentary Council and why the article was deleted without comment. Second, it is highly plausible that the Allies insisted on their reservation rights. See Kaiser, supra n. 4, p. 145 ff.

14 On this connection see E. Forsthoff, ‘Die Bundesrepublik Deutschland‘, 14 Merkur (1960) p. 807 at p. 821; C. Schmitt, [additional remark from 1958 to] ‘Die staatsrechtliche Bedeutung der Notverordnung, insbesondere ihre Rechtsgültigkeit‘ [1931], in C. Schmitt (ed.), Verfassungsrechtliche Aufsätze aus den Jahren 1924–1954. Materialien zu einer Verfassungslehre (Duncker & Humblot 1958) p. 235 at p. 261.

15 Kaiser, supra n. 4, p. 154 ff.

16 Art. 5 para. 2 of the Convention on relations between the Three Powers and the Federal Republic of Germany, signed in 1954, held: ‘The rights of the Three Powers heretofore held or exercised by them, which relate to the protection of the security of armed forces stationed in the Federal Republic and which are temporarily retained, shall lapse when the appropriate German authorities have obtained similar powers under German legislation enabling them to take effective action to protect the security of those forces, including the abilitiy to deal with a serious disturbance of public security and order’, see BGBl. II 1955, p. 301 ff.

17 Kaiser, supra n. 4, p. 171 ff.

18 BVerfG 15 January 1958, 1 BvR 400/51, Lüth. English version: Decisions of the Bundesverfassungsgericht – Federal Constitutional Court – Federal Republic of Germany, Vol. 2, Part I: Freedom of Speech (Freedom of Opinion and Artistic Expression, Broadcasting Freedom and Communication Freedom of the Press, Freedom of Assembly) 1958-1995 (Nomos 1998) p. 1–20.

19 See the literature cited in n. 2; further, focusing on the role of the Federal constitutional court, see D.P. Kommers and R.A. Miller, The Constitutional Jurisprudence of the Federal Republic of Germany, 3rd edn. (Duke University Press 2012) p. 59 ff. On the historical context see A. Gaillet, La Cour constitutionnelle fédérale allemande. Reconstruire une démocratie par le droit (1945–1961) (la mémoire du droit 2022) p. 263 ff; J. Collings, Democracy’s Guardians. A History of the German Federal Constitutional Court 1951–2001 (Oxford University Press 2015) p. 49 ff; M. Hailbronner, Traditions and Transformations. The Rise of German Constitutionalism (Oxford University Press 2015) p. 102 ff; J.-H. Herchenröder, Die Selbsterfindung des Bundesverfassungsgerichts (1951–1958) (Mohr Siebeck 2026) p. 455 ff.

20 G.F. Schuppert and C. Bumke, Die Konstitutionalisierung der Rechtsordnung. Überlegungen zum Verhältnis von verfassungsrechtlicher Ausstrahlungswirkung und Eigenständigkeit des ‘einfachen’ Rechts (Nomos 2000) p. 18 ff, 51 ff.

21 BVerfG 16 January 1957, 1 BvR 253/56, Elfes. A summary of the facts and the legal reasoning of the Court can be found in C. Bumke and A. Voßkuhle, German Constitutional Law. Introduction, Cases, and Principles (Oxford University Press 2019) p. 101 ff.

22 BVerfG 11 June 1958, 1 BvR 596/56, Pharmacies. A summary of the facts and the legal reasoning of the Court can be found in Bumke and Voßkuhle, supra n. 21, at p. 247 ff.

23 For a contemporary analysis see C.C. Schweitzer, ‘Emergency Powers in the Federal Republic of Germany’, 22 Political Research Quarterly (1969) p. 112 ff.

24 See the contemporary critique in D. Sterzel (ed.), Kritik der Notstandsgesetze. Mit dem Text der Notstandsgesetze (Suhrkamp 1968).

25 On the connection to the Weimar Constitution see C. Skach, Borrowing Constitutional Designs. Constitutional Law in Weimar Germany and the French Fifth Republic (Princeton University Press 2005) p. 104.

26 Skach, supra n. 25, p. 96 ff.

27 See n. 12.

28 On the Schmitt school see F. Günther, Denken vom Staat her (Oldenbourg 2004) p. 112 ff.

29 E.g. W. Weber, Weimarer Verfassung und Bonner Grundgesetz (Karl-Friedrich Fleischer 1949); E. Forsthoff, ‘Die Umbildung des Verfassungsgesetzes’, in H. Barion et al. (eds.), Festschrift für Carl Schmitt (Duncker & Humblot 1959) p. 35 ff; E.-W. Böckenförde, ‘Critique of the Value-based Grounding of Law’ [1990], in M. Künkler and T. Stein (eds.), E.-W. Böckenförde, Constitutional and Political Theory: Selected Writings (Oxford University Press 2016) p. 217 ff.

30 Loughlin, supra n. 1, p. 129 ff. Further detailed references to Schmitt’s constitutional thought can be found in chs. 3 and 5. The ECtHR started to describe the rights of the European Convention on Human Rights as ‘values’ in 1976: see ECtHR 7 December 1976, No 5095/71, 5920/72 and 5926/72, Kjeldsen, Busk Madsen and Pedersen v Denmark, para. 53. In its famous Soering decision, the Court also applied human rights as values: see ECtHR 7 July 1989, No. 14038/88, Soering v The United Kingdom, para. 88. On the role of values in the consecutive jurisprudence see, inter alia, C.E. Lewis, ‘The European Court of Human Rights and its Search for Common Values’, 4 European Convention on Human Rights Law Review (2023) p. 179 at p. 183 ff.

31 BVerfG, supra n. 2, at 205. The system was called ‘objective’, because no subjective rights can be derived from this construction directly.

32 On the origins of the text see C. Schönberger, ‘Werte als Gefahr für Recht? Carl Schmitt und die Karlsruher Republik’, in C. Schmitt, Die Tyrannei der Werte (Duncker & Humblot 2020) p. 57 at p. 58 ff.

33 C. Schmitt, ‘Die Tyrannei der Werte’ [of Values], in Festgabe für Ernst Forsthoff zum 65. Geburtstag (C.H.Beck 1967) p. 37–62 [first published in 1960 as a private printing]; English translation: S.G. Zeitlin and R.A. Berman (eds.), Carl Schmitt, The Tyranny of Values and Other Texts (Telos Press Publishing 2018) p. 26 ff.

34 Schmitt, The Tyranny, supra n. 33, p. 40.

35 Forsthoff, supra n. 29.

36 C. Schmitt, Verfassungslehre, 11th edn. [1928] (Duncker & Humblot 2017) p. 132; Weber, supra n. 29, p. 27; Forsthoff, supra n. 29, p. 54, 60; Böckenförde, supra n. 29, p. 231 ff.

37 Loughlin, supra n. 1, p. 129 ff; further R. Hirschl, Towards Juristocracy. The Origins and Consequences of the New Constitutionalism (Harvard University Press 2004); see also M. Tushnet, Taking the Constitution away from the Courts (Princeton University Press 2000).

38 Forsthoff, supra n. 29, p. 54, 60.

39 E. Forsthoff, Der Staat der Industriegesellschaft (C.H. Beck 1971) p. 144. On this see Kumm, supra n. 1, p. 344 ff.

40 E.-W. Böckenförde, ‘Die Eigenart des Staatsrechts und der Staatsrechtswissenschaft‘, in E.-W. Böckenförde, Staat, Verfassung, Demokratie (Suhrkamp 1991) p. 11 at p. 17 ff.

41 On Schmitt’s view on the French regulations see Kaiser, supra n. 4, p. 186, fn. 312.

42 Especially E.-W. Böckenförde, ‘Der verdrängte Ausnahmezustand’, 31 Neue Juristische Wochenschrift (1978) p. 1881 ff; English translation: ‘The Repressed State of Emergency: The Exercise of State Authority in Extraordinary Circumstances’, in M. Künkler and T. Stein (eds.), E.-W. Böckenförde, Constitutional and Political Theory: Selected Writings (Oxford University Press 2016) p. 108 ff.

43 On the goals and actions of the Red Army Faction see K. Hanshew, Terror and Democracy in West Germany (Cambridge University Press 2012) p. 111 ff.

44 As a reaction to the attacks on 11 September 2001, the state of emergency was declared on 14 September 2001, see Declaration of National Emergency by Reason of Certain Terrorist Attacks, https://georgewbush-whitehouse.archives.gov/news/releases/2001/09/20010914-4.html, visited 29 July 2026. On the praxis of prolonging this state of emergency see A. P. Sherwood, ‘Tracing the American State of Exception from the George W. Bush, Barack Obama, and Donald Trump Presidencies’, 8 Western Journal of Legal Studies (2018) p. 1 ff.

45 Ministère de L’Intérieur, Décret n° 2015-1475 du 14 novembre 2015 portant application de la loi n°55-385 from April 3, 1955, Journal Officiel de la République Française Nr. 0264, 14.11.2015, texte n°44, p. 21297. The state of urgency has been prolonged several times since.

46 See the precise analysis by R. Grote, ‘Regulating the State of Emergency – The German Example‘, 33 Israel Yearbook on Human Rights (2003) p. 153 ff.

47 On the jurisprudence of the courts see Kaiser, supra n. 4, p. 267 ff.

48 Böckenförde, supra n. 42, p. 1888 ff (German version) or p. 119 ff (English translation); C. Schmitt, Politische Theologie. Vier Kapitel zur Lehre von der Souveränität, 2nd edn. (Duncker & Humblot 1934, 1st edn. 1922), p. 12 ff, English translation by G. Schwab, Political Theology. Four Chapters on the Concept of Sovereignty (The MIT Press 1986); Loughlin, supra n. 1, p. 158 ff.

49 Loughlin, supra n. 1, p. 158.

50 For an overview see A.-B. Kaiser and R. Hensel, ‘Federal Republic of Germany: Legal Responses to Covid-19’, in J. King et al. (eds.), The Oxford Compendium of National Legal Responses to Covid-19 (Oxford University Press 2021) paras. 40, 43 ff; A.K. Mangold, ‘Germany and Covid-19. Expertise and Public Politial Deliberation’, in J. Grogan and A. Donald (eds.), Routledge Handbook of Law and the Covid-19 Pandemic (Routledge 2022) p. 336 ff; W. Merkel, ‘Who Governs in Deep Crises? The Case of Germany’, 7 Democratic Theory (2020) p. 1 ff.

51 That is the example of the state of Baden-Württemberg which was the basis for the first decision of the Bundesverfassungsgericht, discussed in the main text before n. 52, see s. 3(1) of the Verordnung der Landesregierung über infektionsschützende Maßnahmen gegen die Ausbreitung des Virus SARS-Cov-2 (Corona-Verordnung - CoronaVO) from 17 March 2020 (GBl. Baden-Württemberg p. 120).

52 Federal Constitutional Court, Order of the First Chamber of the First Senate of 17 April 2020, 1 BvQ 37/20; see also Order of the First Chamber of the First Senate of 15 April 2020, 1 BvR 828/20.

53 On freedom of assembly during the pandemic see esp. B. Völzmann, ‘Versammlungsfreiheit in Zeiten von Pandemien’, 77 Die öffentliche Verwaltung (2020) p. 893 ff.

54 A detailed analysis by S. Kropp et al., ‘Landesparlamente in der COVID-19-Krise’, (2022) Berlin University Alliance Policy Brief 1, https://www.berlin-university-alliance.de/commitments/knowledge-exchange/_media/policy-brief-landesparlamente.pdf, visited 29 July 2026, came to a more nuanced conclusion, pointing at the fact that state parliaments did indeed debate regularly on these issues. Later in the pandemic, some parliaments actively took part in the issuance of regulations by the executive; on this see Kaiser and Hensel, supra n. 50, para. 38.

55 The legal doctrine behind is a kind of essential questions doctrine (theory of materiality, Wesentlichkeitstheorie) that demands that Parliament has to take the (essential) decisions when it comes to the encroachment of fundamental rights: see A. Lang, ‘Proportionality Analysis by the German Federal Constitutional Court’, in M. Kremnitzer et al. (eds.), Proportionality in Action. Comparative and Empirical Perspectives on the Judicial Practice (Cambridge University Press 2020) p. 22 at p. 55 ff.

56 On this discussion see H. Dreier, ‘Rechtsstaat, Föderalismus und Demokratie in der Corona-Pandemie’, 74 Die öffentliche Verwaltung (2021) p. 229 at p. 230 ff. On the case law see in more detail Kaiser and Hensel, supra n. 50, para. 58 ff.

57 The Infection Protection Act was modified (by the introduction of s. 28a) in Autumn 2020. On this reform and the following discussion in the German scholarship see A.-B. Kaiser, ‘Legitimacy of Executive Power Shifts in Times of Crisis’, in A. Klafki (ed.), Patterns of Legitimacy (Nomos 2024) p. 133 at p. 137. The functioning of the federal legislature, heavily criticised at first, was analysed in more detail by S.T. Siefken, ‘The Bundestag in the Pandemic Year 2020/21 – Continuity and Challenges in the Covid-19 Crisis’, 32 German Politics (2023) p. 1 ff. His conclusions are more nuanced; he convincingly shows that the legislature assumed its main tasks but did not manage to properly communicate its actions.

58 See German Bundestag, Plenarprotokoll 19/154 (25 March 2020) p. 19169C.

59 See Art. 12(1) International Health Regulations (2005): ‘public health emergency of international concern’. The full text can be found at https://iris.who.int/bitstream/handle/10665/246107/9789241580496-eng.pdf?sequence=1, visited 29 July 2026.

60 See the references in Kaiser and Hensel, supra n. 50, fn. 20.

61 Kaiser and Hensel, supra n. 50, para. 20.

62 U. Volkmann, ‘Heraus aus dem Verordnungsregime. Die erheblichen Grundrechtseingriffe der Corona-Krise bedürfen endlich einer tragfähigen Rechtsgrundlage’, 73 Neue Juristische Wochenschrift (2020) p. 3153 ff; J.F. Lindner, ‘Justiz auf Linie’, Die Zeit, 28 January 2021, p. 11. Cf. for France S. Hennette-Vauchez, ‘Taming the Exception? Lessons from the Routinization of States of Emergency in France’, 20 International Journal of Constitutional Law (2023) p. 1793 ff.

63 B. Ackermann, ‘The Emergency Constitution’, 113 The Yale Law Journal (2004) p. 1029 at p. 1042; W. Rehnquist, All the Laws but One. Civil Liberties in Wartime (1998); A. Vermeule, ‘Our Schmittian Administrative Law’, 122 Harvard Law Review (2009) p. 1095 ff.

64 L.F. Wiley et al., ‘United States: Legal Response to Covid-19’, in King et al., supra n. 50, para. 12 ff.

65 For an assessment of the German administrative courts’ jurisprudence see A. Klafki, ‘Kontingenz des Rechts in der Krise. Rechtsempirische Analyse gerichtlicher Argumentationsmuster in der Corona-Pandemie’, 69 Jahrbuch des öffentlichen Rechts (2021) p. 583 at p. 589 ff. See also J. Kruse and J. Langner, ‘Covid-19 vor Gericht: Eine quantitative Auswertung der verwaltungsgerichtlichen Judikatur’, 74 Neue Juristische Wochenschrift (2021) p. 3707 ff; in more detail now M. Zitzmann, Rechtsschutz in der Pandemie (Duncker & Humblot 2026) p. 47 ff.

66 See A.-B. Kaiser, ‘Have the German Courts Been too Deferential in their Covid Cases?’, in F. Gárdos-Orosz and Z. Szente (eds.), Crises, Emergencies and Constitutional Law (Routledge 2026). Insights on the work of the Constitutional Court in the pandemic are offered by the former Judge Susanne Baer; see her book Rote Linien. Wie das Bundesverfassungsgericht die Demokratie schützt (Verlag Herder 2025) p. 235 ff.

67 Kaiser, supra n. 4, p. 234 ff. On proportionality in the pandemic see in more detail A.-B. Kaiser, ‘The State of Exception under German Law and the Current Pandemic: Comparative Models and Constitutional Rights’, 7 e-Pública (2020) p. 5 at p. 10 ff, and Kaiser, supra n. 57, p. 144 ff. The discussion in the German literature on the performance of the proportionality principle in the pandemic is extensive: see e.g. A.K. Mangold, ‘Relationale Freiheit. Grundrechte in der Pandemie’, 80 Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer (2021) p. 7 at p. 23 ff; M. Wendel, ‘Leistungsfähigkeit des Verhältnismäßigkeitsprinzips’, 84 Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer (2025) p. 277 at p. 320 ff; D. Murswiek, ‘Die Corona-Waage – Kriterien für die Prüfung der Verhältnismäßigkeit von Corona-Maßnahmen’, Neue Zeitschrift für Verwaltungsrecht (2021) p. 281 ff; J. Froese, ‘Das Verhältnismäßigkeitsprinzip in der Krise’, Die öffentliche Verwaltung (2022) p. 389 ff; A. Leisner-Egensperger, ‘Die Leistungsfähigkeit des Verhältnismäßigkeitsprinzips’, Neue Zeitschrift für Verwaltungsrecht (2024) p. 1455 ff; particulary critical O. Lepsius, ‘Ausnahme als Rechtsform der Krise’, Deutsches Verwaltungsblatt (2023) p. 701 at p. 708; J.F. Lindner, ‘Thesen zur Weiterentwicklung des Verhältnismäßigkeitsgrundsatzes’, 74 Neue Juristische Wochenschrift (2024) p. 564 at p. 566.

68 H.-H. Trute, ‘Ungewissheit in der Pandemie als Herausforderung’, Zeitschrift für das Gesamte Sicherheitsrecht (2020) p. 93 ff.

69 See s. 4 of the Infection Protection Act.

70 Under German law, the doctrine of the legislator’s prerogative applies to parliamentary legislation in the first place, but also to executive rulemaking such as the aforementioned German Covid regulations.

71 The so-called Federal emergency brake decision I, BVerfG 19 November 2021, 1 BvR 781/21, Federal pandemic emergency brake I (curfews and contact restrictions); English version: https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2021/11/rs20211119_1bvr078121en.html, visited 29 July 2026.

72 BVerfG 19 November 2021, 1 BvR 971/21, Federal pandemic emergency brake II (school closures); English version: https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2021/11/rs20211119_1bvr097121en.html, visited 29 July 2026.

73 O. Lepsius, ‘Der Rechtsstaat wird umgebaut’, FAZ, 10 December 2021, https://www.faz.net/aktuell/feuilleton/corona-notbremse-entscheidung-des-bundesverfassungsgerichts-17676024.html, visited 29 July 2029; K.-H. Ladeur, ‘Das Bundesverfassungsgericht ist zu staatsgläubig’, FAZ, 13 January 2022, https://www.faz.net/einspruch/exklusiv/das-bundesverfassungsgericht-ist-zu-staatsglaeubig-17730738.html, visited 9 February 2024; M.H.W. Möllers and R.C. van Ooyen, ‘Bundesnotbremse – das Bundesverfassungsgericht bleibt ‘etatistisch’: Neue Grundrechte, weniger Freiheit und eine “Kontrollinszenierung”?’, 58 Recht und Politik (2022) p. 58 ff.

74 BVerfG 19 November 2021, supra n. 72, para. 171.

75 N. Luhmann, Soziale Systeme. Grundriß einer allgemeinen Theorie [Social Systems. Outline of a General Theory] (Suhrkamp 1984).

76 Schmitt, supra n. 48, p. 11 ff.

77 C. Skach, Borrowing Constitutional Designs. Constitutional Law in Weimar Germany and the French Fifth Republic (Princeton University Press 2005) p. 30 ff.

78 Konrad Hesse speaks of the ‘Wille zur Verfassung’: cf K. Hesse, Die normative Kraft der Verfassung [The Normative Power of the Constitution] (Mohr Siebeck 1959) p. 12 ff.

79 Merely anecdotal, but perhaps significant: the response of the French minister at the time, Christine Lagarde: ‘Forget about the treaty’ to the German Finance Minister Wolfgang Schäuble when he expressed concerns under European law with regard to the EU’s financial aid to Greece in 2010: see N. Tait, ‘EU Ministers Back Harder Lines of Fiscal Rules’, Financial Times, 21 May 2010, https://www.ft.com/content/3d53b8e6-64cb-11df-aa4d-00144feab49a, visited 29 July 2026

80 On the specific German legal culture see R. Miller, An Introduction to German Law and Legal Culture (Cambridge University Press 2024).

81 For an introduction to this concept from a theoretical and historical perspective see J.W. Müller, Constitutional Patriotism (Princeton University Press 2007).

82 A classic critique on the concept of legal transplants is P. Legrand, ‘The Impossibility of “Legal Transplants”’, 4 Maastricht Journal of European and Comparative Law (1997) p. 111 ff. An alternative conceptualisation has been offered by G. Frankenberg and framed as ‘constitutional transfers’ rather than transplants: see ‘Constitutional Transfer: The IKEA Theory Revisited’, 8 International Journal of Constitutional Law (2010) p. 563 at p. 570 ff.

83 M. Jestaedt et al., The German Federal Constitutional Court. The Court without Limits (Oxford University Press 2020). However, it should be noted that in the early years of the Court, critics in both scholarship and politics asked the court to respect its ‘limits’; see e.g. E. Kaufmann, ‘Die Grenzen der Verfassungsgerichtsbarkeit’ [The Limitis of Constitutional Jurisprudence], 9 Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer (1952) p. 1 ff.

84 From the German discussion see e.g. the contributions of two former Judges of the Federal Constitutional Court: D. Grimm, Europa ja – aber welches? Zur Verfassung der europäischen Demokratie (C.H. Beck 2016) p. 95 ff; P.M. Huber, Warum der EuGH Kontrolle braucht (Jan Sramek Verlag 2022).

85 So far, 172 volumes of decisions have been handed down.

86 O. Lepsius, ‘The Standard-Setting Power’, in Jestaedt et al., supra n. 83, p. 70 at p. 91 ff.

87 An instructive example is the Court’s recent judgment on the Federal Criminal Police Office Act, see BVerfG 20 January 2016, 1 BvR 966/09, 1 BvR 1140/09, BKA-Gesetz. Excerpts of the main passages from the judgment can be found in an English translation at https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2016/04/rs20160420_1bvr096609en.html, visited 29 July 2026.