Spanien und Deutschland - zwei konvergierende Sonderwege? ; El Estado de Derecho en España (Juridificación / Judicialización). - Lehren und Leerstellen - Schlußfolgerungen

Abstract

Julia Macher / Katrin Stranz Spanien und Deutschland – Zwei konvergierende Sonderwege? The aim of the paper was to verify if there exists a 'special way' (Sonderweg) in Germany and Spain towards modernity and how this concept is being discussed in the national historiographies. Although both historiographies partly defend the thesis of a 'special way' or 'specific evolution', these concepts differ on important points. Moreover, the theory of Sonderweg as formulated by the 'school of Bielefeld' (Bielefelder Studie) - with its inherent analytical problems - proved to be only limited as an analytical instrument of comparison between the two countries in explaining the emergence of the Constitutional State and the predominance of an anti- positivistic concept of law. Following a historical and methodological analysis of the 'Sonderweg' concept, the study aims to provide a comparison between modern Spain and Germany, examining in parts the constitutional history, the history of Ideas (the myth of the Reich/reino and the 'crisis of modernity') and the evolution of the bourgeoisie in both countries. The study shows that despite important structural differences between Germany and Spain, there are indeed similarities in particular as concerns the creation of a national identity in antagonism to France as well as in the discussions amongst liberals of both countries, being closely connected to the political romanticism. In conclusion, the authors of the study put forward recommendations on how the evolution and concept of the Rechtsstaat in both countries can be analysed by a history of law approachment. Emilia Girón Reguera El Estado de Derecho en España (Juridificación / Judicialización) The paper describes the process of juridification of the society and of executive power, which is developed in Spain from the establishing of Rule of Law and Welfare State by the Constitution of 1978. Firstly it is argued, that it is impossible to claim, that there was already a rule of law in the Franco's period. Secondly it is shown, ...