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