Dear Esteemed Reader,
In a time were much of the world lives under lockdown or in isolation and where we are all facing a somewhat (more) uncertain economic and social future, may this issue provide some solace of normality by distracting from the current crisis that has dominated the news and the minds of many and focusing on the many other issues (old and new) that will dominate political, legal and international circles again in the future.
Issue 21(4) spreads its focus and includes papers on the organisation of courts, European (constitutional) law, International Human Rights law and theory, and German criminal law and politics. Dzehtsiarou and Schwartz’s article argues for a holistic approach to the selection of judges to the European Court of Human Rights that does not only take into account the individual qualifications of the candidates but also the value of professional diversity to advance collegial decision-making. Teixeira Gico uses a Law & Economics perspective to analysie the nature of law and courts and offers a fresh perspective on the problem of court congestion. Megliani’s paper on the (proposed) European Monetary Fund engages with the highly topical subject of European Constitutional and Economic Law and introduces new aspects of the ongoing ‘European debt crisis,’ expanding on classical problems of the law of international organisations. Wyatt critically explores the concept of the overriding public interest as interpreted by the Court of Justice of the European Union within the context of disclosure in the EU’s Access to Documents Regime. Heri’s timely and theoretically informed discussion explores what it considers the peasant critique of existing human rights by looking at the differences and interrelations between affectedness and vulnerability-based argumentation and makes a compelling argument for the use of vulnerability theory within this context. Hestermann and Hoven’s analysis of the press releases of the German right-wing populist party, the Alternative for Germany ( Alternative für Deutschland; AfD) demonstrates in impressive fashion how the far-right populist party engages in identity politics by creating an enemy in the form of the foreign offender and exaggerating fears of crime and weakness or inactivity of the state that does not reflect reality.
We are also pleased to include Graver’s book review of Jens Meierhenrich’s The Remnants of the Rechtsstaat: An Ethnography of Nazi Law (OUP 2018).
We conclude this issue with our first of hopefully many special sections on Developments in German Criminal Law offering notes on German criminal law case law and developments to our English-speaking readership.
As always, happy reading!
On behalf of the Editors
Corona is dominating our lives. We hope that you and your loved ones are safe, and we feel with those under distress, in grief, and full of sorrow. Periods of crisis like the current one ask for deep analyses and profound guidance, underlining the need for foundational, contextualizing, and transnational research that the German Law Journal has championed ever since its foundation. We are honored that Armin von Bogdandy in a recent paper deconstructing Schmitt’s legacy for European legal scholarship emphasized the role the journal has played in this regard. We invite you to participate in this conversation – and submit a proposal for a special issue. Our new call for special issue proposals is online. The deadline is 31 July.
In the current situation, we consider it a professional and civic duty to keep other issues in our minds that require our attention. One of the issues deserving of our attention is the plight of tens of thousands of refugees worldwide. Those who are being pushed back and forth at the frontiers of the EU, pounded between the millstones of high politics, may have temporarily disappeared from our TV screens and Twitter feeds, but not from reality. Ironically, one might wish the EU had shown only part of the resolve in reacting to the Corona crisis that it was able to develop against a few thousand men, women, and children desperately seeking refuge at its external borders.
From a legal perspective, one could sometimes get the impression that the fate of refugees at risk of their lives is a matter of the law of the sea, of the intricacies of the Dublin system, or at best of the refugee convention. All too frequently, such accounts sideline human rights perspectives. One does not have to cherish illusions about the potential impact of human rights discourse to realize how this fails the function of human rights as the representation of our moral conscience in the positive law. Overly accommodative human rights perspectives adopted for fear of pushback against human rights institutions from certain authoritarian and quasi-authoritarian governments probably do little but to increase the political capital of those governments.
Our latest special issue on accountability for human rights violations in the context of migration control (vol. 21 issue 3) provides some legal detox in this regard. We are immensely grateful to Cathryn Costello and Itamar Mann, our guest editors, both of them authorities in the field, for collecting an array of thoughtful papers that enlighten the tapped or untapped potential of human rights, but also their limits. Once again, our own Nora Markard, now a full professor at Münster University and herself an expert on the issue, has been instrumental in bringing the special issue to fruition from our side, for which I would like to extend to her my sincere gratitude.
The guest editors Cathryn Costello and Itamar Mann introduce the special issue with the observation that human rights accountability in the context of migration is often deficient and poorly understood. Even in Europe, access to human rights accountability mechanisms is all but a matter of course for refugees. The problems are structural; as the authors hold, the precarious legal status of the right to enter a country, a sign of the limited mobility of people compared to capital; the controversies surrounding the concept of refugee; and the extraterritorial, shared and partly privatized character of migration control (migration governance, actually) provide obstacles to human rights accountability. The special issue takes a cross-cutting perspective on the subject to enable mutual learning across different scenarios and legal orders, even though the focus is on the EU as its policies were mimicked elsewhere.
The contribution by Nikolas Feith Tan and Thomas Gammeltoft-Hansen offers a “topographical” overview that tracks accountability structures across different legal regimes. They use the example of Australia’s offshore refugee detention on Manaus island to show how different legal regimes can be deployed to realize human rights accountability.
Basak Çalı, Cathryn Costello, and Stewart Cunningham then take a look at over 500 decisions of U.N. treaty bodies dealing with non-refoulement, comparing them to the jurisprudence of the European Court of Human Rights. Their disturbing finding is that diverging standards among these institutions open accountability gaps.
Akis Papastavridis compares differences in the concept of jurisdiction between the law of the sea and human rights law. He pleads for reading human rights jurisdiction in light of the law of the sea. Accordingly, human rights accountability might apply even before a state gains effective control of a vessel. A different perspective is offered by Violeta Moreno-Lax. She holds that the decisive criterion for territorial or extraterritorial jurisdiction should be the exercise of public powers.
Vladislava Stoyanova looks into the intended and unintended effects of measures to combat human smuggling. Such measures might aggravate the human rights situation and at the same time undermine human rights accountability as responsibility disappears in a network of extraterritorial actors.
Carla Ferstman takes a sobering look at human rights due diligence policies adopted by the European Union and the UK for the support they provide to Libya. She doubts their robustness and holds them to be insufficiently transparent. Daria Davitti explores the potential of the UN Guiding Principles for Business and Human Rights in respect of private military companies in the context of migration. As one would expect, there is still ample room for improvement.
Lilian Tsourdi takes a look at the growing practice of the European Asylum Support Office to get involved in asylum decisions, thereby creating a glaring accountability gap. To close such gaps, Melanie Fink looks into the potential of actions for damages under EU law. Gabrielle Holly offers a comparative perspective on strategic litigation in Australia.
Ioannis Kalpouzos returns us to Manus Island and Australia’s practice of using violence against migrants as part of its deterrence policies. He wonders whether framing such deeds as crimes against international law might help to close the accountability gap. The final text by Itamar Mann closes the special issue on a hopeful note. If the rights of rescuers can be ensured, he argues, there might be better opportunities to safeguard the rights of migrants.
We look forward to your reactions and comments.
On behalf of the Editors
Wherever you are in these exceptional times, we hope that you and your loved ones are safe. To the sick, we wish a quick and full recovery. To those under quarantine, we stand with you in solidarity and wish you the strength to keep spirits high. As borders are being closed and “social distancing” takes over our daily routines, our virtual community stays together.
In this sense, it is my great pleasure to introduce you to our new Special Issue (vol. 21 issue S1) on the two seminal decisions on the Right to be forgotten handed down by the Bundesverfassungsgericht (BVerfG) on November 6, 2019 (Right to be forgotten I and II).
The practice of forgetting has made a remarkable legal career. Since its earliest origins, law has been nothing but an infrastructure against forgetting. Antique codifications pinned down oral tradition and custom, preserving it until our day. Subjective rights guarantee erstwhile privileges, earned or not, against the eviscerating powers of forgetting, enabling the durability of capital. Criminal law ensures that trespassing is normally not forgotten. And after periods of transition, memory laws attempt to set the record straight.
Paradoxically, in the age of digitalized knowledge, the memory function of the law has taken a decisive turn with the emergence of the right to be forgotten. Carved into law by the Court of Justice of the EU in Google Spain, it immediately got into conflict with other rights, including the freedom of information. As the conflict concerns a crucial area of contemporary technological and social development, it makes the right to be forgotten a formidable candidate for transnational judicial dialogue.
It might therefore be no coincidence that the First Senate of the BVerfG chose two cases on the right to be forgotten for dropping a bomb in matters of judicial dialogue. The decisions unsettle its prior jurisprudence, under which the BVerfG would bite off its tongue rather than use the EU Charter of Fundamental Rights as a yardstick for reviewing how German authorities applied fully harmonized Union law (Right to be forgotten II). To top this up, the BVerfG further held that even if Union law left the member states some leeway, it would control whether the Basic Law meets the standard of fundamental rights protection presupposed by Union law, and exceptionally apply the Charter if it doesn’t (Right to be forgotten I). These decisions put the Charter at the core of the BVerfG’s mandate. Needless to stress that this upsets the “cooperative relationship” between Karlsruhe and Luxembourg in matters of fundamental rights protection, even though the First Senate hastened to add the new case law would remain without prejudice to its – or rather, to the Second Senate’s – Solange, ultra vires, and identity control jurisprudence.
This sensational judgment has raised many questions since. A group of authors, assembled ad-hoc by Karsten Schneider and yours truly, try to answer some of them in this issue. With this, the present issue continues the tradition which made the GLJ great – in-depth debates of transnationally significant case law. Even though law blogs have long taken over the lead in providing first-hand analysis, we believe that maintaining the high quality of legal scholarship requires slow-science, in-depth analysis as well. In tune with the transnational spirit animating the German Law Journal, we invited authors from other jurisdiction to share their views.
By the way, the BVerfG is yet to provide official translations of the full decisions, not just the press statements. If you cannot wait, we have uploaded convenience translations to our website .
The collection begins with Dana Burchardt’s thorough and sobering examination. She remains unconvinced of the key argument of the First Senate, namely that there existed a gap in legal protection, leading her to consider the judgment as a potential source of future conflicts between the courts. It would open the gates for the BVerfG to develop its jurisprudence on the Charter in parallel (or in ignorance) of the CJEU.
Karsten Schneider looks into the consequences of the judgment under national law, which remain all but clear. This contribution shows how the tectonic shifts in the fundamental rights architecture set in motion by the two decisions cause a lot of crunches in the woodwork of the constitution.
Matej Avbelj, by contrast, takes a more optimistic view. For him, the remarkable issue is the court’s integration of the standard of review of another legal order in its own legal framework, a true moment of constitutional pluralism.
Ana Bobic’s argument goes along similar lines, although she senses a risk that the BVerfG will refrain from preliminary references in contravention to the CILFIT criteria as understood by the CJEU. But one should not underestimate the dialogical character of “indirect” referrals and cross-citations.
Jud Matthews analogizes the BVerfG’s step with the breakthrough of the procedural paradigm in US admin law. Like the latter guaranteed citizens some kind of hearing, the BVerfG now ensures citizens will enjoy some kind of fundamental rights protection chosen from among various equivalent alternatives.
Matthias Goldmann argues that one should read this judgment in the context of the burgeoning rule of law crisis of the EU. Both the wider context of the decisions and their content yield reading them as deliberate efforts to strengthen the back of the CJEU, currently the last institution standing between our embattled colleagues and the unfettered spread of autocracy in some member states, especially in Poland.
The collection concludes with a piece on the significance Federico Fabbrini and Edoardo Celeste, which situates the BVerfG decisions in the context of disputes about the extraterritorial reach of data protection rules. It argues that greater convergence in data protection rules would be the preferable alternative.
As always, happy reading!
On behalf of the Editors
The year is just six weeks old, but the German Law Journal is already releasing its second issue of the year. After starting vol 21 with a bang, mapping the EU challenges faced in the 2020s with a bumper crop of short essays from prominent EU scholars, our -fully packed- second issue provides a number of more traditional research articles alongside contributions that are somewhat less usual. We hope to continue this path and engage our readers and authors in different and creative ways of disseminating ideas.
The issue covers a wide range of papers engaging with theoretical and practical matters of constitutional law and beyond. Firstly, Tímea discusses the constitutional identity within the EU Member States that can in many ways be shaped by an active and cooperative dialogue between the supranational and national courts. Going beyond Europe, Bassok’s analysis then demonstrates that we may have to rethink our understanding of the constitutional court as the guardian of the constitution, as Schmitt’s ideas regarding the political dimension of the process remain relevant within the current institutional landscape. Moving on to more specific issues within (constitutional) jurisprudence, Petersen critically discusses Alexy’s reconstruction of the fundamental rights jurisprudence of the German Federal Constitutional Court regarding its approach towards proportionality, Lurie considers the interaction between the doctrine of proportionality and the right to equality from a comparative perspective, Riffel discusses the potentially discriminatory nature of the investor-state dispute settlement (“ISDS”) scheme, and Jacobs/Payandeh’s case note discusses the German Constitutional ban on strike actions by civil servants in the light of the ECHR.
In addition, Winter continues our ongoing discussion on judicial decision-making processes by considering the CJEU case law in the light of behavioural economics. Ricci’s work picks up another strand of ongoing debate within the GLJ, by exploring how best practice for admission and stay of vulnerable migrants (e.g. “humanitarian corridors”), could potentially become an alternative model for the willing States and civil society.
Finally, we spend some time considering issues of culture and law that have long been a special interest of the Journal. This includes Bonilla Maldonado’s interview with Paul Kahn (Professor of Law and the Humanities at Yale Law School) on the cultural analysis of law. Also pushing for the recognition of the cultural, historical and political dimension and thus critical perspectives on comparative law, we include two book reviews discussing Frankenberg’s recent contributions to the topic. Curran focuses on Comparative Law as Critique  and Mathews discusses Comparative Constitutional Studies: Between Magic and Deceit .
As always, happy reading,
For the Editors-in-Chief
Happy New Year, and welcome to the new decade! We hope you enjoyed a restful break, and are full of energy to tackle the new year!
The beginning of this new year also marks the beginning of a new decade, the 2020s. It comes after a few turbulent years for the European Union and just a month after a new Commission assumed office. There can be no doubt that the coming decade will be full of challenges for the EU. With this in mind, the German Law Journal decided to do something perhaps unusual. We asked a range of colleagues working in the area of European Union law —young and established; generalists and specialists— for their take on the main challenges for the EU in the 2020s. We asked them to keep contributions very short, and left a choice of topic, style of engagement, and argument up to them. Twenty challenges for the EU in the 2020s, in short. We hoped this would offer an exciting panoply of different visions on the EU in its current guise and its future trajectory.
And it does. In this first issue of 2020, you will find a fascinating range of perspectives on the EU and the role of EU law. Without wanting to spoil too much of the fun of going through the short pieces yourselves, and discovering the views of our contributors, we can say that this range includes environmental destruction, citizens’ assemblies on refugee law, the rule of law crisis, and the role of the ephemeral European ‘public’. It covers the role of artificial intelligence, the role of values in the EU, and the potential for transnational party lists.
We are taking the unusual step of not announcing the authors’ contributions in this message, as we’re afraid it would spoil your fun of discovering them for yourselves. It is, after all, much less fun to open a present once you know what’s in it. Instead, we’re very proud to announce the list of contributors to this exciting project: Michèle Finck & Floris de Witte (introduction), Liz Fisher, Joanne Scott, Cathryn Costello, Gráinne de Búrca, Koen Lenaerts, Alberto Alemanno, Diamond Ashiagbor, Antoine Vauchez, Mark Dawson, Marija Bartl, Franz Mayer, Valsamis Mitsilegas, Mireille Hildebrandt, Orla Lynskey, Silvana Sciarra, Irma Mosquera Valderrama, J.H.H Weiler, and Loïc Azoulai. I know, we are very impressed too!
Many thanks to all editors that helped to get this project off the ground, as well as to Michèle Finck for a smooth and stress-free collaboration.
Floris de Witte
For the Editors-in-Chief
It is my pleasure to announce the publication of the last issue of the German Law Journal’s 20th anniversary year.
It has been a turbulent year in European politics; with the continuing (partly ignored) refugee crisis, European-wide rise of populism ( see the GLJ special issue part 1, part 2 ), and the multiple failed attempts of the UK to leave the economic block. One lesson of the latter may be that we should not underestimate the importance of clear constitutional frameworks that establish broad common principles and values as well as clear and detailed (procedural) norms on competences and separation of powers. With the “Brexit” drama (i.e. UK exit) likely to continue into the next year, and the complex trade negotiations that will follow and occupy European minds for many years to come, issue 20(8) of the German Law Journal is a sober reminder that these challenges are not limited to the UK-EU relationship, but can have wider consequences for the European project and the values it assumes to uphold. Accordingly, the contributions address a wide range of constitutional developments on European as well as (comparative) national level with a focus on the judiciary, national and European cooperation and constitutional values.
Pollicino and Fichera’s article kicks off the discussion by focusing on constitutional identities and the changing nature of the common constitutional traditions of the Member States and their role within the European integration process. Focusing on these two interrelated discourses, the article reveals the dynamic nature of the European integration process, its inherent contradictions, overlapping themes, and constitutional conflicts.
Hwang then turns the gaze to the national level. Hwang compares how US and German courts limit the influence of foreign law in the name of national democratic values. While the article exposes similarities as well as differences between the two legal orders, it emphasises a common understanding despite different theoretical foundations.
Focusing on the role of democracy within judicial decision-making processes, Henderson analyses national litigation that followed the European Stability Mechanism. She demonstrates that it is in practice a fallacy to strictly distinguish between process-based court review (e.g. for the protection of democracy) and content-based review (as a competence of the legislator), and invites us to look beyond these formalities to find bases for the courts’ legitimacy.Spieker’s and Drinóczi and Bień-Kacała’s articles both deal with democratic backsliding but from rather different perspectives. While Drinóczi and Bień-Kacała consider Hungary and Poland as two unique and distinguishable case studies, Spieker looks at the role of the EU within the context of the ‘reverse Solange’ doctrine and specifically how Article 2 TEU can potentially thwart such national developments. Both articles remind us of our common responsibility to uphold and protect liberal constitutional norms and principles while recognising the constitutional, political and cultural differences of the Member States.
Finally, Jacobs, Münder and Richter discuss the difficulty of a judiciary of the European Union that acts within a multi-lingual, multi-cultural and multi-legal sphere within the context of the preliminary reference procedure, by focusing on the operational level that is crucial for the effective functioning of the judiciary and the preliminary reference procedure.
We hope this will make for some engaging reading under the holiday lights and serve as inspiration for the next research year to come.
As always, we wish you happy reading.
For the Editors in Chief,
Dear Friends of the German Law Journal!
As we have mentioned more often than you probably like to hear, 2019 marks the twentieth anniversary of the German Law Journal (yes, the twentieth anniversary, did we mention that?), and to celebrate the twentieth anniversary of the Journal we have been treating ourselves and the GLJ Community to an inspiring and exciting 20th Anniversary Symposium on Populism and Constitutionalism at the London School of Economics, an event that accompanied a phenomenal double special issue ( part1, part2) (which has brought our guest editors a lot of praise since) and that underscored our aspiration to bring together authors, readers and supporters in an endeavor to immerse in an intense scholarly debate, providing a forum for cutting-edge legal research with a transnational perspective.
And celebrations aren’t over yet! Our own Russell Miller, one of the founders of the GLJ, has launched a year-long speakers series on the other shore of the Atlantic, at Washington and Lee University School of Law on “German Law: Past, Present and Future”. The first talk by Kai Ambos on his new book on the Nazi legacy in German criminal law was already very well received and more lectures as well as a panel discussion will follow throughout the year.
Maybe the current Special Issue on "Solidarity in Diversity? State Responses to Religious Diversity in Liberal and Non-Liberal Perspectives" inspires you to propose a Special Issue from your field of expertise! We are grateful for an excellent gathering of thoughtful scholarship by an international team, namely Jaclyn Neo, Alexander Tischbirek and Thio Li-Ann, who have worked hard in the past months, together with our editor Anna von Oettingen and the student editor team at Washington & Lee, to bring you this fine collection.
So what can we present to you in this issue? The current Special Issue cannot come at a timelier moment and fits wonderfully into the GLJ’s mission to bring together researchers from different legislations, covering a topical subject from different angles. As the world grapples with nationalist aggression against social diversity, which sometimes manifests in outright violence, states, now more than ever, have to seriously examine their approaches to diversity, and how to better cope with this diversity. This Special Issue reflects a contrasting trend that seeks to reinforce cross-border, cross-continental collaborations. Borne out of a joint Humboldt University zu Berlin and National University of Singapore collaboration research grant, the contributions in this issue seek to provide critical reflections on Germany and Singapore — or more precisely on the respective country’s responses to religious diversity — while also drawing comparative lessons from other religiously diverse countries such as the United States and Canada. The liberal versus non-liberal framework is instructive in identifying ideological factors for differences in these various countries. While the liberal approach focuses on protecting individual rights, the non-liberal approach, particularly the communitarian one in Singapore, valorizes the common good framed under the terms “public order” and “religious harmony”. At the same time, it cannot be emphasized enough that states’ approaches to religious diversity are shaped by their specific historical contexts. As such, while the starting point of concern may be the same, the framing devices and approach differ.
Adopting this law-in-context approach, the first substantive Article by Kevin Tan & Matthias Roßbach sets the stage by addressing the historical contexts in shaping state responses to religious diversity in Singapore and Germany respectively. Religious education being an issue of serious concern in Germany, two of the articles in this Special Issue address it from a constitutional perspective ( Fabius Wittmer & Christian Waldhoff ) and provide a comparative study (Amandine Barb). The multiple levels of governance of religion are examined in two further articles; Alexander Tischbirek investigates EU law influences on the German constitutional law on religion, and Noor Aisha bte Abdul Rahman's article focuses on the sub-national governance in the form of a personal law regime for a religious minority. Arif A. Jamal & Daniel Wong Sheng Jie's article looks further north, to Canada, as a self-avowed multi-cultural country, for comparative lessons for critiquing Singapore’s approach to multiculturalism. Jaclyn L. Neo's Article critically examines how state approaches to religious diversity – in Singapore, framed around the idea of religious harmony – could be socialized and internalized by groups and individuals, thus extending its utility beyond the state. Lastly, Thio Li-ann examines the nature, function, source, and content of a constitutional civil religion (CCR) within Singapore’s constitutional experiment to promote solidarity through recognizing and managing the diversity of race and religion.
As always: Happy Reading!
Emanuel V. Towfigh
for the Editors in Chief
We are back after a wonderful summer break – and hope you enjoyed yours. And we are back with a bang! The latest issue of the German Law Journal is a very exciting special issue dedicated to the emerging concept of the ‘essence of rights’ in EU fundamental right law.
In the decade that has passed since the EU Charter of Fundamental Rights acquired primary law status, a rich doctrine and jurisprudence has developed with the Charter as its focus. The Charter reflects the EU’s increasingly sophisticated fundamental rights mandate and machinery while the EU continues to grapple with pluralistic approaches to fundamental rights nationally and internationally. In achieving this compromise between the universality of EU fundamental rights and the diversity of approaches to such rights in the Member States and international instruments, the ‘general provisions’ of the Charter – setting out its scope and limits – have taken centre-stage. Often overlooked however is the concept of the ‘essence’ of EU Charter rights, enshrined in Article 52(1).
This special issue, edited by Mark Dawson, Orla Lynskey and Elise Muir , is therefore dedicated to the ‘essence of rights’ as a developing concept in European law. It considers the utility of ‘essence’ in accommodating the constitutionalist and pluralist strands of EU fundamental rights, and queries its contribution to existing EU law concepts. Building on the contributions to a Conference in May 2018, co-hosted by the KU Leuven, the LSE and the Hertie School of Governance, this issue explores the concept of ‘essence’ at a theoretical and comparative level, as well as across different fields of EU law. In their introduction, the editors query what added value the increasing prominence of ‘essence’ in EU fundamental rights law plays. Introducing the compilation of contributions, and inviting readers to delve deeper, they explore the functions of the concept and methods for its derivation, outline some enduring difficulties and reflect on its future role in EU law.
Koen Lenaerts elaborates on his vision of the concept of ‘essence’, understood as granting absolute protection to the core of rights, and explains how to view existing CJEU case in light of this vision. The contrasting views of Takis Tridimas and Giulia Gentile follow. They highlight the limits of an absolute understanding of ‘essence’, while emphasizing that the concept may contribute to a ‘constitutional posture’ thus serving as an ‘element of constitutional identity’.
The next set of contributions investigate how ‘essence’ is being used in specific substantive branches of EU law. Elise Muir points to the inconsistency in the Court’s use of the concept in the equal treatment context. She recalls that this right presupposes a balancing exercise, at odds with an absolute understanding of the concept of ‘essence’. Yet, she acknowledges the Court’s difficulty in consistently identifying limitations to the right in this field given the multiple expressions of the right in EU law. Martin Husovec traverses the CJEU’s case law on intellectual property to conclude that the notion of essence has been of little relevance in this area. Where it has been relevant, its application supports a relative rather than an absolute theory of essence. Maja Brkan looks to the rights to respect for private life and data protection for insights, as it was in the context of these rights that ‘essence’ analysis was first developed and subsequently fine-tuned. In elaborating on these insights, she proposes a generalized methodology to identify interferences with the essence of rights.
Kathleen Gutman, examines the essence of the fundamental right to an effective judicial remedy and to a fair trial in the CJEU case law. She highlights its increasing importance for the EU system of judicial protection, whether in the context of the Common Foreign and Security Policy or in the cases on the rule of law in EU Member States.
Reflecting on the concept beyond the EU legal order, Sébastien Van Drooghenbroeck and Cecilia Rizcallah search for the essence of rights in the ECHR. In so doing, they observe that while the concept has been invoked frequently, its definition and functionality remain elusive. They seek to identify the later through a close examination of ECHR jurisprudence. Pierre Thielbörger identifies distinct conceptions of ‘essence’ in international law: a first distinction depends on whether a right is a civil-political right or a socio-economic right, while a second distinction is between essence at the macro-level and the micro-level.
What emerges from this issue is that while there is not yet a coherent approach to deriving and understanding the essence of rights across the fundamental rights the EU protects, the concept plays an increasingly significant role in demarcating the boundaries between the EU’s legal and political orders, and between overlapping sites of legal authority. Recent developments – such as the rule of law ‘crises’ – are likely to further amplify the importance of ‘essence’ to EU law practice and scholarship.
We would like to thank the guest editors for their great work in assembling this special issue, which is likely to become the starting point for many academic ventures in search of essence!
We have some more exciting news from the HQ of the German Law Journal. In light of our long-standing commitment to strengthen the links between the academic communities of Europe and North America, we are proud to announce that we have expanded our editorial board. We are very happy to welcome some of the most exciting scholars in the US and Canada, working in an impressive range of different areas to our board. A warm welcome to Blake Emerson, Claudia E. Haupt, Heidi Matthews, Derek McKee, Fernanda Nicola and Vanessa Cassado Pérez.
As always, we wish you happy reading,
For the Editors-in-Chief,
Floris de Witte
We bring you best wishes and some light summer reading from the HQ of the German Law Journal. Our latest issue touches on several topical aspects of European Union Law – a field that has begun to entail to many diverse policy areas and disciplinary traditions that it is perhaps meaningless to still pretend some level of overall coherence. At the same time, as this issue’s voyage from anti-discrimination law to questions of taxation; and from the EU’s digital rights regime to the effort to conserve marine mammals shows us; certain questions, tensions, and regulatory responses carry over from policy field to policy field. As the EU’s regulatory, administrative and constitutional machinery expands and becomes more sophisticated, so does the academic research. All contributions to this issue are full of insights into the EU’s functioning, its assumptions and consequences, which will be of great interest for all scholars working on transnational and European law.
We begin our summer, as all best trips do, at the seaside. Ilja Richard Pavone’s article on the conservation of marine mammals highlights that conservation rules (such as the banning of hunting of certain marine mammals) must be supplemented by fisheries rules in a way that centers on the notion of fish welfare. Next, Uladzislau Belavusau and Kristin Henrard offer a bird’s eye view of the first 18 years of the EU’s non-discrimination directives, and argue that their maturity both offers opportunities for more meaningful protection of different vulnerable groups in society, as well as entailing risks of proceduralization of the EU’s commitment towards equality. Boryana Gotsova ’s contribution focuses on EU asylum law, and more specifically on the resumption of the transfers of asylum seekers to Greece under the Dublin system. Boryana argues that the Commission’s recommendation to resume transfers fails to take the human right protection of asylum seekers seriously, and prioritizes the functioning of the Dublin regime over the rights that protect those subject to it. The contribution by Jussi Jaakola focuses on the possibility of a European-wide tax regime. He explores the interaction between democratic authority and the power to levy income tax, and suggests that the asymmetries in European integration make this interaction particularly salient for the EU’s future.
Our next stop, where we will linger slightly longer, is the field of EU data privacy law. Damian Clifford, Inge Graef and Peggy Valcke analyze pre-formulated declarations of data subject consent. They run through different regulatory responses to these declarations, analyzing their legality and suitability from the perspective of data regulation, consumer protection, and competition law. Valentin Pfisterer ’s article, instead, focuses on the CJEU’s understanding of the right to privacy. Despite (or due to?) its rapid and high-profile rise, it is still ill-defined. Valentin explores the ensuing inconsistencies and flaws in the conceptual understanding of the right to privacy in the case law.
If all of that is not sufficiently exotic for your summer reading, our next destination is South-America. Paulo Emilio Vauthier Borges de Macedo’s article explores new ground: the question of how the creation of Mercosur is based on a foundational myth that overstretches the analogy with the European Union. He argues that the contemporary focus on the supranational nature of regional integration is at odds with the more recent history of Mercosur.
The last two contributions to our summer issue are development pieces. Jan Keesen and Jacob Ulrich report from this years’ Assistententagung – the little brother of the Staatsrechtslehrertagung (try saying that five times in a row..). In what has become a tradition for our journal, we publish the conference proceedings of the annual meeting of German-speaking public law assistants. Jan and Jacob offer an excellent overview not only of the themes covered, but also of the interests, insights, and questions that the younger German-speaking public lawyers are engaging in. The final words for this issue go to Malcolm MacLaren, a trusted member of our advisory board. His book review of Michael Ignatieff’s ‘The Ordinary Virtues: Moral Order in a Divided World’ shows how the very best academic writing manages to use insights from a range of disciplinary traditions to shed a light on the assumptions and traditions of other disciplines. It is a must-read for those liberals and cosmopolitans disoriented in world of 2019.
Floris de Witte
on behalf of the GLJ editors
The GLJ’s symposium on Populism and Constitutional Law took place at the London School of Economics on 25/26 April 2019. Beyond the critical engagement with the themes explored in our double special issue vol 20(2/3), the event gave us a chance to celebrate our 20th anniversary and our new cooperation with Cambridge University Press. CUP generously sponsored the symposium. We would like to thank all the contributors and participants for the compelling, timely, lively discussions around the different notions of populism.
The anniversary year marks many new beginnings for the Journal. Most significantly, we begin our innovative publication partnership with Cambridge University Press while preserving our pioneering commitment to open-access scholarship and our innovative, independent culture. But anniversaries also are an invitation to reflect on the Journal’s past accomplishments and to look back at our humble beginnings. Our established place in the scholarly discourse makes it easy to forget that the German Law Journal started as a simple, English-language newsletter on the German Constitutional Court’s case law. As research assistants of the Court, the co-founders, Russell A. Miller and Peer C. Zumbansen, shared their thoughts on the cases with the world and, for the first time, gave English-speaking scholars regular and timely access to developments in the German Constitutional Court’s case law. Very quickly the newsletter evolved into a proper law journal, but with its base in the Internet. The coverage expanded to include scholarship and commentary on comparative, transnational, and European law. The founders also expanded the Journal’s community and welcomed the support of a young and energetic editorial team. They were not short on ambition for this new journal. The editors fostered European-American (transnational) intellectual engagement, published risky but creative new projects, and supported young and emerging scholars. While much has changed since then, we are determined that the Journal continue to motivate emerging voices and diverse scholars to explore uncharted waters, to leave their comfort zones, and to imagine new and exciting projects with us. In the words of the co-founders: “do not ask for permission or if it is even possible, if you have an idea, no matter how big or small, just do it!”
One obvious way to work with us is as a guest editor for a special issue. For that purpose, please consider our call for special issue proposals for volumes 21 (2020) and 22 (2021). The submission deadline for the proposals is the 10th of October 2019.
The current issue provides a selective view of the German Law Journal’s intellectual journeys and ambitions.
Recognising the German-American relationship that lies at the heart of the Journal’s foundation, we acknowledge with deep sorrow the passing of Professor Donald P. Kommers, a pioneer of comparative constitutional law who introduced American academia to German constitutional law. With our memorial collection – including reprints of several of Donald P. Kommers' excellent articles and memorial essays from a number of scholars including Russell A. Miller, Federal Constitutional Court President Voßkuhle, Dieter Grimm, Kim Lane Scheppele, Vicki C. Jackson, Peter E. Quint, Gary Jacobsohn, and Justin Collings– we hope to recognize his contribution to German-American relations, his contribution to comparative constitutional law, and his role as mentor and colleague. He will be missed.
Beyond that impressive but sobering collection, the current issue explores methodological as well as substantive concepts of international and European law.
Burchardt’s article offers a critical picture of the functions of international law. She challenges us to appreciate the particularities that the potential functions of law encounter in the international context. Moreover, she suggests a new analytical lens to conceptually frame and locate current developments. A rather different methodological angle is put forward by Pirker and Smolka . Cognitive science, or more specifically cognitive pragmatics, is used to shed light on the interpretation of international law. The article puts the interpreter at the centre of the international law enterprise. From that perspective, cognitive insights help to explain how international courts, academics, or lawyers process legal texts and approach their conclusions. Pirker and Smolka discuss, for example, how international law interpreters are influenced by their socialisation and the framing of the issue with which they are confronted. Both articles highlight the various methodological contextual challenges we face when engaging with international law. As such, the relevance of these insights is not limited to international law. They inform other fields such as comparative law research.
Turning towards concepts of international law, Dellavalle discusses the difficulties with a newly emerging discourse on responsibilities within international human rights and suggests instead a modified idea of the autonomous communication community based on mutual recognition. Moreover, within the context of EU law, Willems ’s article discusses the concept of mutual trust within EU criminal law and the Court of Justice’s role in establishing, upholding, and qualifying the mutual trust assumption to ensure a high level of fundamental human rights protection within the EU.
Last but not least, we continue to follow recent developments in German law by publishing an essay by Görlitz et al. on the German concept of “entrapment” following the ECtHR’s decision on the subject . The issue concludes with Möschel’s review of James Whitman’s book Hitler’s American Model. The United States and the Making of Nazi Race Law.
As always, happy reading!
on behalf of the Editors
The bad news is that our teenage years are over – the German Law Journal turned twenty these days. The good news is that we do not waste this opportunity to celebrate. It is with enormous pleasure that we unveil to you a special gift marking our anniversary: a double special issue on populism and constitutional law. By the way, the celebration will shift from the online world, our natural habitat, to the real world at our Symposium on Populism and Constitutional Law at the London School of Economics on 25/26 April 2019, generously sponsored by Cambridge University Press, our new publisher.
On the one hand, the topic of this double special issue and of the Symposium epitomizes the origins and programmatic orientation of the German Law Journal. Most importantly, the special issues adopt a comparative perspective that reaches beyond the surface of the black letter of the law and takes account of the historical, cultural, and social embeddedness of the law. “Deep law”, if you want. At the same time, this perspective is non-parochial and seeks to entice self-reflection rather than self-celebration. In this sense, the German Law Journal, notwithstanding our long-standing habit of tracking legal developments in Germany, has been as much about Germany as the Harvard Law Review has been about Harvard.
On the other hand, the topic invites us to look back in awe and bewilderment like a millennial watching their childhood on a magnetic videotape. The sepia color, far from arousing any sense of nostalgia, reminds us how far we have moved away from the context of our cradle. In 1999, transnational euphoria was still in full swing, and critics of globalization were just about to catch the eye of a larger public. Many of their concerns seemed entirely hypothetical, including to the legal discipline. Hence, the latter saw multiple calls for a new transnational law, occasionally connected to calls for the demise of the state, or at least for stateless law. Many took for granted the progressive effects of constitutional thinking in international, European, and private law alike. The German Law Journal is guilty as charged, having participated in both the movement and its counter-movements, such as the turn to critical histories and postmodern scholarship.
I believe that this legacy, and the ambiguity it creates for our understanding of the law, is now at the heart of current debates about populism and constitutionalism, as the two special issues, edited by Oran Doyle, Erik Longo, and Andrea Pin (issue 20.2), and Bojan Bugaric, Gábor Halmai, and Paul Blokker (issue 20.3), amply demonstrate. Both special issues pursue three questions, which Rosalind Dixon identifies in her introduction to issue 20.2: What is the relationship between populism and constitutionalism?; Did constitutionalism contribute to the rise of populism?; And which means of redress might constitutionalism have on offer?
Concerning the definitional question, most authors agree, albeit to different extents, that strict dichotomies between populism and constitutionalism are problematic. As Doyle, Longo, and Pin elaborate in their reaction to issue 20.3 (we asked each team of guest editors to react to the other special issue), a binary distinction between populism and non-populism (encouraged by popular definitions of the phenomenon in the political sciences), or populism and constitutionalism, risks entrenching the populist narrative of “us, the people” against “them, the elites”. Zoran Oklopcic even points to the responsibility of legal scholarship for “staging” populism as a bugaboo, a pretext for deflecting from deeper problems in constitutional regimes. Paul Blokker in his introduction to issue 20.3 therefore calls for more granular historical and contextual analyses. In this sense, Kim Lane Scheppele provides a meticulous account of the ideological mindset of Hungary’s Fidesz party, drawing on the writings of Orban’s chief spin-doctor Lanczi. Gábor Halmai dissects the authoritarian character of Orbán’s regime, which used religion and the nation as covers for the nearly complete dismantling of effective checks and balances. Mark Tushnet demonstrates the blindness of a concept of populism that glosses over crucial differences between left-wing social welfare populism and right-wing xenophobic nationalism.
Regarding the quest for constitutionalist causes of populism, Erik Longo in his analysis of the European Citizenship initiative connects the well-established democratic deficit of supranational institutions to the rise of populism, while Andrea Pin and Gonzalo Candia carve out the responsibility of courts, in particular by promoting integration by law in Europe, and by doing too little too late in Latin America. Julian Scholtes argues that a truncated, legalistic understanding of constituent power lies at the heart of the ineffectiveness of the tools of militant democracy.Théo Fournier describes how Orbán in Hungary and Le Pen in France divert constitutional means to unconstitutional ends. In the case of Japan, Satoshi Yokodaido finds constitutional ignorance by the political elite, rather than constitutional overkill, to bear the responsibility for dwindling faith in the constitution.
Being so closely associated with the rise of populism, it would appear rather difficult for constitutionalism to come up with a cure. Nick Barber proposes reinvigorating political parties – a point to which Paul Blokker suggests in his response to issue 20.2 to shift the function of political parties to other actors. Possible candidates might include transnational movements advocating inclusive forms of populism, as Paul Blokker elaborates in his own contribution. In any case, relying on courts and adjudication might be counter-productive, as David Prendergast argues. Oran Doyle, relying for that purpose not without irony on the constitutional theory of the alt-right’s patron saint Carl Schmitt, proposes dissociating the concept of constituent power from any reified, pre-constitutional idea of the people. Ultimately, Bojan Bugaric points to the Elephant in the room, the constitutional entrenchment of austerity, and calls on lawmakers to adopt policies fostering, rather than defeating, solidarity among the peoples.
In the end, it is therefore not all doom and gloom. The double special issue combines sobering analyses with carefully dosed glimpses of hope for our current predicament. You will certainly have your reservations, objections, and suggestions. Bring them to London and join us on 25/26 April. Or bring them on paper and share them with all our readers. It is this community of readers/authors to whom we are immensely grateful for their support during the past twenty years. We hope very much you will continue reading, writing, and bearing with us, in good times and in bad, at least for the next twenty years.
As always, happy reading!
On behalf of the Editors
Winter has been short, but we have used time well and can happily announce: this Issue of the German Law Journal, marking its twentieth anniversary, is the first one published jointly with Cambridge University Press — for all friends of this remarkable project truly a moment to rejoice!
Along these lines, we are happy to report that the transition process, moving the Journal under the roof of Cambridge University Press, was completed smoothly, and we are incredibly thankful to all the great individuals at CUP who have helped to manage this. A shout-out first and foremost to Rebecca O’Rourke and Andrew Hyde, and also to Beatrice Carrigan-Maile, Jennifer Malat, Richard Horley, Alison Fox and Adam Blow at Cambridge: It is a true treat to be working with you, and we are thrilled to embark on this joint endeavour to cultivate open access publishing. All of this would not have happened without the diligent, even sacrificial, work of the team of Student Editors at Washington & Lee University School of Law, under the serene guidance and oversight of Quentin Becker and Caroline Diemer.
So everything is up and running, and you will probably notice a few changes: The most obvious is the fresh new layout of the articles, along with a facelift for our logo. Our website will also undergo an overhaul in the coming weeks, next to our publication-focused presence on CUP’s platform it will focus on strengthening the ties with the vivid community that flocks around the Journal. We have also implemented a new submission process, relying on ScholarOne Manuscripts — if you are interested in publishing with us, please go to http://mc.manuscriptcentral.com/glj, as we can no longer accept email submissions.
To celebrate the Journal’s anniversary and the cooperation with CUP, there will be a symposium on Populism and Constitutionalism, hosted by the London School of Economics and Political Science on 25 and 26 April 2019. Nicola Lacey will give the keynote. If you haven’t done so already, mark your calendar and plan the trip. Full details and registration can be found at https://www.cambridge.org/glj/symposium20.
With Europe still being under the impression of the aftermaths of the refugee emergency, the first Issue of 2019 features articles that tackle the pertinent topic of Immigration Law. These entail a thorough analysis of the legal bases in EU Law for exclusion from refugee status. Janja Simentić concludes, that through EU legislation and the CJEU’s case law the EU has already left the basis of the international law provisions; she anticipates further developments and changes with regard to the principle of non-refoulment.
Johan Rochel focuses on labour immigration and identifies a strategy how a joint application of the general principle of proportionality with the right to a reasoned decision might transform the way procedural guarantees are applied to immigration cases under the Single Permit Directive.
With a focus on a specific issue of immigration in Germany, Susan Willis McFadden takes on the prevailing prejudice against dual citizenship in Germany. For her it is a main factor why only a very small percentage of Turkish migrants have naturalized as German citizens and therefore nurture the perception they were failing to integrate. Not only for the sake of Turkish immigrants but for all foreigners in Germany she recommends giving up resistance and permit dual citizenship for all foreigners willing to naturalize in Germany.
Looking at the current condition of the international community, one notices that a rising number of derogations from the European Convention on Human Rights have been declared under Article 15 of the Convention. By reference to the examples of Ukraine, Turkey and France, Triestino Mariniello outlines the difficult balance between defending national interests and protecting individual rights during public emergencies. However, he urges the European Court of Human Rights to adopt a more rigorous approach in examining the conditions of the derogation under Article 15 of the Convention in order to effectively protect individual rights and judicial authority.
The article “Law, Language, and Knowledge: Legal Transplants from a Cultural Perspective” by Julio Carvalho certainly will draw the interest of our readers from the field of Comparative Law. Analysing the philosophical grounds for Legal Transplants, he concludes that they are bound to be unsuccessful as they convey an erroneous conception of law, language and legal knowledge. This surely will bring a new aspect into the prevalent discussion on Legal Transplants.
Marnix Snel’s article on the quality standards for traditional legal scholarship goes right into our own business of editing. The article identifies a lack of clear standards for evaluating legal scholarship, and by analysing the international literature on evaluative standards, as well as through interviews with 40 law professors, the author tries to come up with a catalogue of criteria that could help researchers meet those standards — and that should enable journal editors, faculty boards or publishing houses to clarify their own evaluation measures.
Spring is in the air, tempting us to leave the desk and to enjoy the first warm rays of sun! So take this Anniversary Issue to a quiet and sunny corner, wherever you are: And happy reading!
Emanuel V. Towfigh
for the Editors in Chief