The Invisible Constitution in Comparative Perspective

ex post facto application of criminal law.

114

 After reunification the complain-

ants had been convicted of murder for the shooting deaths of East Germans 

attempting to flee across the border to West Germany. Of course, the mortal 

109 

Ibid.

, 6.

110 

See e.g., Hermann Kantorowicz, “The Battle for Legal Science” (2011) 12 German Law Journal 

2005 (Cory Merrill trans.) (“[t]he reigning ideal image of the jurist is as follows: a higher civil 

servant with academic training sits in his cell armed only with a thinking machine, certainly 

one of the finest kinds. His cell is furnished with nothing more than a green table on which 

the State Code lies before him. Present him with any kind of situation, real or imaginary, 

and with the help of pure logical operations and a secret technique understood only by him, 

dutifully he is able to deduce the decision with absolute precision from the legal code that is 

predetermined by the legislature”).

111 

See e.g., Vivian Grosswald Curran, “Romantic Common Law, Enlightened Civil Law: Legal 

Uniformity and the Homogenization of the European Union” (2001) 7 Columbia Journal of 

European Law 63.

112 

Civil Servant Case, 3 BVerfGE 58, 119 (1953) (Russell Miller trans.).

113 

Radbruch, Supra note 106, 7.

114 

Grundgesetz für die Bundesrepublik Deutschland [Grundgesetz] [GG] [Basic Law] May 23, 

1949, BGBl. I., Article 103(2).

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Russell A. Miller

defense of East Germany’s “anti-fascist barrier” was legal under – was man-

dated by – East German law.

115

 The defendants could be convicted by courts 

in a newly unified Germany that were applying old West German criminal law 

only if the civilian formalism “a law is a law” were to be rejected. That is what 

the ordinary courts did.

116

  And that is how the Constitutional Court upheld the 

convictions in the Wall Shooting Case.

117

 The Constitutional Court explained 

that the lesson of the Radbruch formula is that the “fundamental principle 

of legal certainty,” which is the promise of civilian formalism and positivism, 

“can be given less weight than material justice if the law would otherwise 

lead to an intolerable violation of justice.”

118

 The Constitutional Court’s Wall 

Shooting Case decision was regarded as a profound victory for justice over 

civilian legal formalism and positivism. At the same time it was a victory for 

the justices – and the common law tradition that gives them priority.

The myth has no less force with respect to more commonplace jurispru-

dence that does not involve the constitutional reckoning with Germany’s 

totalitarian pasts. The mere exercise of unexceptional judicial review is a 

species of the same common law judicial power, and it is a significant depar-

ture from the formalist and positivist tradition in the German legal cul-

ture.

119

 The German Constitutional Court has assumed this new role with 

great enthusiasm and confidence. It is no exaggeration when the German 

Federal Constitutional Court is characterized as the “most powerful consti-

tutional court in the world.”

120

 Elsewhere, I have remarked that the “Court’s  

115 

See Kif Augustine Adams, “What is just?: The Rule of Law and Natural Law in the Trials of 

Former East German Border Guards” (1993) 29 Stanford Journal of International Law 271, 

289–93; Peter E. Quint, “Judging the Past: the Prosecution of East German Border Guards 

and the GDR Chain of Command” (1999) 61 The Review of Politics 303; Peter E. Quint, “The  

Border Guard Trials and the East German Past-Seven Arguments” (2000) 48 American Journal