The Law Inbetween. The General Rules of International Law in the Early Federal Republic

• Applicant: Dr. Laila Schestag
• Subject Area: Principles of Law and Jurisprudence
• Term: since 2024
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 552549452

In their debates on the new German Constitution after World War II, parliamentarians in the constituent assembly, the Parliamentary Council, considered article 25 (the ‘Incorporation Clause’) one of the most important articles of the new constitution. The clause incorporates the general rules of international law into German federal law and lays down their primacy over “the laws”. Originally, this primacy was meant to be ‘absolute’ in the sense that the general rules of international law were supposed to take precedence not only over federal statutory law but also over the Constitution itself. In the first half of the 1950s, the primacy of the general rules of international law, their supra-constitutional status, still met with broad approval. By the middle of that decade, when the western integration of the German Federal Republic was in full swing (NATO membership, Paris Agreements of May 5, 1955), this view slowly began to change: a new legal view refuting the original idea of an ‘absolute primacy’ of general international law evolved. Instead, general rules of international law were now held to take precedence only over federal statutory but no longer over constitutional law. This new legal view is surprising for at least two reasons: First, it attributed a unique rank to general international law – no other form of law in German law ranks between constitutional and statutory law. Second, by replacing the ‘absolute primacy’ of the general rules of international law, it is in stark contrast to the original idea behind the Incorporation Clause of article 25. Over the years, it became more and more popular. Today, it is still considered the prevailing opinion on the subject. The development in the interpretation of the general rules of international law, from supraconstitutional law to intermediate law, as outlined above, is the central concern of my study. It tells the intellectual history of how the peculiar view of a law ranking between statutory and constitutional law developed, hence ‘The Law Inbetween’: When exactly, by whom and especially why, for which reasons, did this legal view prevail? And why, on the other hand, did the ‘absolute primacy’ of general international law not last? My underlying hypothesis is that this seemingly mere theoretical question reflects a process of political reorientation during the early years of the German Federal Republic. As it defines the relation between German law and general international law, article 25 also deals with the constitution’s own normative identity.

• DFG Programme: Publication Grants