Political Economy and Abstract Review in Germany, France and the United States

Abstract

This chapter attempts to illustrate the value of the concept of 'political economy' - defined below with help from the 'new institutionalise literature of political science as the combination of political and economic ideology and structure that characterizes a given country - to explain important differences among legal systems. As an example, this chapter deals with the device of abstract review - facial challenges to the constitutionality of legislation at the behest of certain official parties with automatic standing - which is rejected in the USA but enthusiastically accepted in Germany and France. The rationales given in all three systems suggest that there are good reasons for and against abstract review, but what counts as a weighty argument on one side of the Atlantic is dismissed as unimportant on the other. Conversations between lawyers from different systems usually stop here, often in mutual bafflement. Comparative analysis rarely gets much farther. This chapter argues that the differences make sense in view of the contrast between the state-centered political economies of the German and French states and the market-centered political economy of the USA.