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Resistance to E uropean Law and Constitutional Identity in G ermany: H erbert K raus and S olange in its Intellectual Context
Author(s) -
Davies Bill
Publication year - 2015
Publication title -
european law journal
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.351
H-Index - 54
eISSN - 1468-0386
pISSN - 1351-5993
DOI - 10.1111/eulj.12141
Subject(s) - constitutionalism , congruence (geometry) , context (archaeology) , identity (music) , legal consciousness , law , political science , history , philosophy , democracy , psychology , social psychology , archaeology , politics , aesthetics
This article recasts our understanding of the F ederal C onstitutional C ourt's S olange decision by tracing its lineage within the domestic context and as part of a new history of EU law. The external dynamic of the decision, a moment of judicial discourse between two of E urope's highest panels, has been the focus of many studies. Much rarer are attempts to embed the decision within its internal context: the struggle within the German legal academy to accept the primacy of EU law. Central to this contextualisation is the reinvigoration of the ‘structural congruence’ theory of H erbert K raus, which long shaped the G erman reception of EU law. This article recounts K raus' theory, tracing the struggle for the G erman legal consciousness between three positions: constitutionalists, traditionalists, and the congruence advocates. While H allstein's constitutionalism is most closely associated with G ermany's early E urophilia, even he admitted by 1975 that K raus had won the day.