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Comparative Law as Transnational LawA Decade of the German Law Journal$
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Russel A. Miller and Peer C. Zumbansen

Print publication date: 2011

Print ISBN-13: 9780199795208

Published to Oxford Scholarship Online: January 2012

DOI: 10.1093/acprof:oso/9780199795208.001.0001

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Much Ado About Human Rights †

Much Ado About Human Rights †

The Federal Constitutional Court Confronts the European Court of Human Rights

(p.143) 14 Much Ado About Human Rights
Comparative Law as Transnational Law

Matthias Hartwig

Oxford University Press

This chapter presents a case note from 2005, which examines the Federal Constitutional Court's controversial response to decisions of the European Court of Human Rights (ECtHR). The Federal Constitutional Court was less sanguine about that international tribunal's intrusion upon the German legal system. The EtCHR had condemned, as a violation of Article 8 of the European Convention on Human Rights, the limited child custody privileges German law provided for unwed fathers. There has been persistent engagement between the legal systems of Germany and the convention on these questions. The resulting cases, and commentary about them in the German Law Journal, raise interesting questions about Germany's legal culture. The dissonance is tied to the fact that German family law is embedded in the closed and highly revered system of the Bürgerliches Gesetzbuch (BGB—German Civil Code). But these cases also push to the fore questions about the way German and international human rights law perceive gender, and the roles of men and women in family life.

Keywords:   Federal Constitutional Court, German courts, German legal system, European Court of Human Rights, child custody, unwed fathers, German law, European Convention on Human Rights

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