Study of Theory of Institutional Guarantee---A Comparative Study in West Germany and Japan

Research Project

Project/Area Number	01520018
Research Category	Grant-in-Aid for General Scientific Research (C)
Allocation Type	Single-year Grants
Research Field	Public law
Research Institution	Ritsumeikan University
Principal Investigator	NAKAJIMA Shigeki Ritsumeikan University, Faculty of Law, Prof., 法学部, 教授 (10107360)
Project Period (FY)	1989 – 1990
Project Status	Completed (Fiscal Year 1990)
Budget Amount *help	¥2,100,000 (Direct Cost: ¥2,100,000) Fiscal Year 1990: ¥1,000,000 (Direct Cost: ¥1,000,000) Fiscal Year 1989: ¥1,100,000 (Direct Cost: ¥1,100,000)
Keywords	Institutional guarantee / Institutional basic rights theory / Institutional legal thinking / Carl Schmitt / Peter Haberle / ポ-タ-・ヘ-ベルレ
Research Abstract	The focus of this study is to examine the theory of institutional guarantee of Carl Schmitt under Weimar Constitution, as well as the institutional basic rights theory of Peter Haberle under the Bonn Basic Act. The study tried to mad characteristics of both theories and the relationship between them, and to analyze the problems of constitutional interpretation. The study made clear the following : (1) In proper institutional legal thinking it is critically important that the legal norm should be understood "in relation to the immanent meaning of institutions and with a view of the situation of institutions in the whole legal order". (2) In Haberle's theory of institutional basic rights, "basic rights as institution" are derived from all basic rights by extracting their institutional aspect in his basic rights interpretation. This is a proper conclusion of institutional legal thinking which sees subjective rights of liberty being transformed to objective law. (3) In Schmitt's institutional guarantee theory, it has no methodological point of view by itself for the grasp of law. But Schmitt demands the transfiguration of subjectiv rights to objective law, even though it is found only in a limited aspect of the institutional guarantees. In this thinking it is observed that he clearly expressed his proper intention of institutional legal thinking. (4) Thus not only the institutional basic rights but also the institutional guarantee theories became the theory of vacuumizing, i. e. making meaningless, basic rights because of the uncertainty of the frame of the notion of "institutions" and of the scope of "guarantees". They always involve a danger of changing the liberty to one which the state determines.