Clifford Larson – Fulbright Senior Scholar Research Summary

Life is decidedly not the same in all countries, even in countries such as Germany and the United States, which share many cultural traditions. One of the areas in which differences are most prominent is that of the public legal systems - education, health care, criminal law, land use, and others – that provide the essential parameters around which citizens organize our lives and make essential decisions. What is striking to me, as a comparative lawyer, is the dichotomy between the similarities of the public legal systems issues being discussed in Germany and the United States on the one hand, and the radically different approaches that the United States and Germany take with regard to those issues on the other. One major reason for these different approaches is the constitutional law background of each country.

During my time as a Fulbright Senior Scholar in Germany, I am teaching and researching in the field of comparative public legal systems. My focus is on how the implementation of constitutional law principles, such as the German principles of equivalent living conditions and free development of the personality, in public legal systems has a direct effect on the everyday lives of citizens, and results in striking differences between life in Germany and in the U.S.

The German Constitution is significantly different from its American counterpart. In the context of individual rights, the U.S. Constitution focuses largely on "negative" rights, meaning the rights of the individual to be free of the power of the state. As a product of the 18th century, the U.S. Constitution has little to say about positive obligations of the state to citizens. U.S. constitutional thought to this day remains largely loyal to this text and tradition. By contrast, the 20th century German Constitution, the Grundgesetz, addresses not only these "negative" rights, but also "positive" state duties. In conjunction with the overarching constitutional principles of Germany as a social state, and the protection of the dignity of mankind as the duty of all state authority, two further Grundgesetz principles are of particular note. One is that each person has the right to free development of the personality. This principle holds that without access to infrastructure both public (schools, hospitals, etc.) and commercial, freedom is illusory and citizens cannot reach their potential. The second principle is the goal of equivalent (not equal) living conditions for all. This principle is focused not on Luddite-like leveling; rather, it is intended to guarantee access to professional and personal opportunities, all within a reasonable distance of the citizen’s home.

Public legal systems in Germany and the United States reflect these differences in constitutional law. Yet in both countries, public legal systems are in flux. My work involves determining the present and future role, in the following public systems, of the German constitutional principles of free development of the personality and equivalency of living conditions, and comparing those findings with U.S. results.

After the completion of research and publication of articles in these individual fields, my long-term goal is to write what I believe will be the first English-language law textbook on comparative public legal systems and the principles that underlie them. I believe that such a book could make a significant contribution to students, comparative law scholarship and public debate by putting the American constitutional law experience in public legal systems into a comparative context. Such a comparison allows us to better judge our own strengths, weaknesses, and options for the future.