Constitutional Requirements for the Treatment of Civil Disobedience

While civil disobedience is widely discussed in political theory, it remains mostly neglected in German legal schol­ar­ship. Bridging this gap, this dissertation examines under what conditions, and in what ways, civil disobedience may be constitutionally protected under German law. My primary research question asked whether and how far civil disobedi­ence undermines majority rule and the rule of law, or whether both, in fact, might benefit from it. Using a methodological blend of doctrinal and theoretical analysis, this dissertation contends that civil disobedi­ence actually protects fundamental constitutional values and serves the rule of law. By convincing the public instead of forcing its hand, civil disobedience does not undermine majority rule or upset the system, but rather enhances democratic legitimacy.
This doctoral project contributes to constitutional law scholarship in at least three significant ways. First, its doc­trinal merit includes connecting conceptions of majority rule and rule of law whilst making a case for civil disobe­di­ence, concepts usually thought of only as conflicting principles. Second, by examining their interaction with fundamental rights doctrine, the project illuminates the ambiguous relationship between subjective rights and objective constitutional provisions on state structure. Third, this research project clarifies how doctrinal analysis and moral/political arguments are related, a question often answered too indistinguishably. Finally, by examining trends involving social fragmentation and its effects on democracy and the rule of law, these matters are a clear reflection of the Department’s primary research priorities and agenda.

 

Research outcome: doctoral dissertation (University of Freiburg); peer-reviewed journal articles (2017–2020)
Project language: German

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