Democracy thrives in that narrow space that divides order from chaos; it is a balance between the order of law and government with the necessary disorder dissent and protest create. The year 2008 marked the 40th anniversary of 1968–when that balance momentarily appeared to shatter in West Germany. The young democracy was still defining itself, shaping its new identity while coming to terms with its past. In 1968 this new government of the old guard, obsessed with order, clashed with a new generation that saw many of the faults of Germany's Nazi past masquerading as democracy. But the new government was built upon the old authoritarian superstructure. The youth of the 60s eventually became the establishment, and now they are turning over power to a new generation. Although the torch has been passed from Clinton and Schroeder to Obama and Merkel, the legacy of the students of 1968 continues to echo through modern times. In December of 2008, the shooting of a teenage boy by Greek police ignited violent protests that rapidly spread across the country. Like the protests of 1968, the purpose of the protests in Greece was greater than the event that sparked it. The shooting tapped a deeper well of unrest. Like the protests of 1968, the goal of the protesters was unclear, but the passion was unmistakable.

Legal certainty requires a balance between stability and flexibility. Following the hermeneutical footsteps of legal theorists such as Aulis Aarnio and Alexander Peczenik, a distinction can be made between formal and substantive legal certainty; between predictability and acceptability of legal decision-making. Formal legal certainty implies that laws and, in particular, adjudication must be predictable: laws must satisfy requirements of clarity, stability, and intelligibility so that those concerned can with relative accuracy calculate the legal consequences of their actions as well as the outcome of legal proceedings. Substantive legal certainty, then, is related to the rational acceptability of legal decision-making. In this sense, it is not sufficient that laws and adjudication are predictable: they must also be accepted by the legal community in question.

Since the European Union (EU) agreed upon the extension of its activities to the fields of foreign, security, and criminal policy in the Maastricht Treaty, the question of the delimitation of those new areas of EU competence towards the “classical” policies under the Treaty of the European Community (TEC) has been present. The broad and rather vague scope of the Common Foreign and Security Policy (CFSP) in the so-called second pillar of the EU and the area of political cooperation covered by the third pillar presents several uncertainties. One such uncertainty is the relationship between the supranational legal order under the TEC and the more intergovernmental and diplomacy-based cooperation under the Treaty on the European Union (TEU). Although the EU was organized within a single institutional structure, the substantial differences with regard to voting procedures, competences of the European Court of Justice (ECJ) and the role of the European Commission rendered a clear separation of competences under the different pillars compulsory: CFSP remains beyond the jurisdiction of the ECJ; the Commission and the European Parliament have only marginal rights of participation; and the legal obligations under the second pillar cannot claim supremacy over national law or direct effect.

The purpose of this essay is to consider the significance of new developmentalism for the field of law and development. New developmentalism refers to a theory and practice of development economics, which appears to have entered mainstream development thinking. Its core elements also seem to have been a factor in the dynamic economic growth that has occurred in a number of emerging economies. This trend is significant for the field of law and development because: (a) conventional economic development orthodoxies are seen to have shaped previous law and development movements; (b) these models and their corresponding law reform projects were arguably inadequately adapted to existing domestic circumstances; and (c) new developmentalism represents a departure from conventional development orthodoxies, as it necessitates both learning and adapting to local settings. Yet such a system also creates new challenges for law reformers and policymakers within the international development community (not to mention domestic reformers), and it remains unclear (if not doubtful) that new developmental states can be engineered by external actors and institutions.

In recent years, a growing chorus of publicists – lawyers, philosophers, political scientists and others – has discussed and often advocated the “constitutionalization” of international law, i.e. the gradual transformation of the whole or at least parts of international law into a world constitution. These “constitutionalists,” many of them having a German background, point to various recent phenomena such as international legal norms with erga omnes effects and peremptory norms (jus cogens) which seem to establish a hierarchical order of global values, going far beyond the classical inter-State relationships of coexistence and synallagmatic exchange. They further list compulsory judicial or quasi-judicial dispute settlement mechanisms (e.g., in the WTO). The constitutionalists put particular emphasis on the human rights revolution since 1945 and the rise of international criminal law that is administered by various international criminal tribunals – phenomena which have transformed individuals into (partial) subjects of international law alongside the states.

“Sozialstaatlichkeit” is a collection of essays dedicated to the author of Negative Freiheitsrechte und gesellschaftliche Selbstorganisation? Reflections on the survival of welfarism in the postnational constellations after his analyses of globalisation and Europeanisation? Affirmative references to the Discourse Theory of Law and Habermasian notions of Proceduralisation at all levels of governance against “Proceduralisation and its use in a post-modern legal policy?” “Are you trying to deliver something like an Anti-Ladeur.” No, neither Sisyphus nor Hercules, let alone Friedrich Engels, has inspired this essay. Its argument should rather be observed in the spirit of conflict-of-laws, i.e. of a discipline which accepts as a normative fact that different academic projects may be worthwhile despite of, or even because of, the differences of their premises and of the logics of their development, which may be inspired by complementary perceptions of a common problématque.

The Bologna Declaration (1999) started a process of reforming European higher education. The major aim of the declaration was to construct a single European Higher Education Area by 2010,

It is a privilege to address such a distinguished audience of judicial and legal professionals, including Minister Zypries and Professors Miller and Zumbansen, and to celebrate with you the 10th anniversary of the German Law Journal. In the past decade the German Law Journal has played an important role in improving our understanding of German, European, and international law and jurisprudence, especially by illuminating the political, historical and cultural context in which legal decisions are made at each of those levels. I would especially like to commend the joint projects that the German Law Journal has initiated with American law students. This is a wonderful way to build links within the transatlantic legal community. And, of course, what many of my American colleagues and I find particularly helpful is that the German Law Journal is published in English!

Sixty years after the promulgation of the German constitution, which from the beginning was distinguished by its “visionary openness towards Europe,” the German Federal Constitutional Court reassessed the historic process of European integration. It reviewed the compatibility of the legal foundations of the European Union with the German Basic Law and provided a thorough overview. The Treaty of Lisbon and its sweeping, integrating reform of the European Union is compatible with the Basic Law, the Court's Second Senate ruled, so long as it is applied within the framework outlined by the Federal Constitutional Court. However, the Court found that the German implementation law is not consistent with the Basic Law. Accordingly, the Court made clear that Germany can continue with the ratification of the treaty only after introducing a new implementation law. The 147-page decision could be summarised in the following way: The European Union is an association of sovereign states and, hence, a secondary political area.

The term “inquisition” has had bad press for a long time. Comparably bad is the reputation of the inquisitorial system, a judicial model that dominated German criminal law enforcement until the beginning of the 19th century. A distinctive feature of inquisitorial proceedings is the eminently strong position of the inquisitor who unifies the functions of an investigator, a prosecutor, and a judge in one and the same person. Although the codes of criminal procedure in the German states – which in 1871 formed the Kaiserreich (German Empire of 1871-1918)– included detailed rules of evidence to prevent arbitrary investigations, at the beginning of the 19th century it was a common opinion that these control mechanisms were practically insufficient and that the inquisitorial system ought to be replaced by a judicial model, which would guarantee more effective protection of the defendant against unjustified conviction.

On November 29, 1967, Commune I member Fritz Teufel had to face his second day in a West Berlin courtroom. Teufel was charged with breaching the public peace for allegedly hurling stones at policemen during a demonstration against the visit of the Shah of Persia on June 2, 1967– the same event during which West German police officer Karl-Heinz Kurras killed twenty-six-year-old student Benno Ohnesorg with a shot to the head. When the judge entered the courtroom that day in late November, Teufel sat in the same spot in which only one week before Kurras had been acquitted of involuntary manslaughter for his actions on June 2. As everybody stood up, Teufel alone remained in his seat, leisurely browsing through the day's newspaper. Only after the judge repeatedly urged him to stand up, stop his defiant behavior, and pay his respects to the court did Teufel slowly rise to his feet and utter a seemingly spontaneous and sardonic remark, which became a rallying cry for the mocking and disrespectful attitude of the student movement against West German authorities: “Well, if it's gonna help establish the truth…” (Naja, wenn's der Wahrheitsfindung dient).

There has not been dramatic reform to legal education for many years. Although changes to the way we train students to be lawyers certainly have been made in the past decades, there has not been occasion to fundamentally re-think the process for educating lawyers.

In announcing the decision of the Bundesverfassungsgericht (BVerfG - Federal Constitutional Court) on the constitutionality of the Lisbon Treaty, the Presiding Justice of the Second Senate summed up the judgment by proclaiming: “Das Grundgesetz sagt ‘Ja' zum Vertrag von Lissabon.”

The following elaboration has two purposes. One is to invite further reflections on the recent incident of the German sports car manufacturer, Porsche, revealing its until-then unknown substantive holdings in Volkswagen, its much larger competitor. The Porsche incident provoked a host of reactions, ranging from satisfaction to outrage to consternation. The essay's second purpose is to stimulate considerations about likely policy responses and their implications. While the remarkable Porsche incident illustrates the particular nature of the embeddedness of global financial markets, meaning that while investors can inject and pull out of nationally located business opportunities in a seemingly uninhibited fashion, this activity is nevertheless occurring within a complex regulatory setting. As this intervention shows, such transnational settings often require sophisticated regulatory structures and responses. But it is crucial to ensure that – especially in times as the current financial crisis – no excessive accumulation of regulatory actions occurs. Consequently, blind regulatory spots as the ones revealed in this paper will ultimately occur. Nevertheless, it is important that market participants and potential investors are aware of them because then it those blind spots can be used efficiently.

The new Aussenwirtschaftsrecht generates new insecurity with regards to M&A transactions: On the one hand every industry may be affected by a prohibition, whereas certain sectors (telecommunications, energy incl. oil or natural gas, universal postal services, railway nets, banks, pharmaceutical industry or chemicals industry) are presumably of special importance. On the other hand, vendors should preventively ask any potential buyers from abroad but also German based prospects (given the fact that external investors could be one of their main shareholders) for a written declaration that they comply with the new law or that they have received an Unbedenklichkeitsbescheinigung from the BMWi. Additionally, investors from outside the EU or EFTA seeking to purchase of at least 25 percent of a German enterprise should consider an Unbedenklichkeitsbescheinigung at an early stage, ideally in combination with passing on the complete transaction files to the BMWi. Only in this way is a high level of legal and transaction safety possibly achieved. Conversely, investors prepared to risk of prohibtion and considering the intended purchase as unproblematic should desist from an announcement to the BMWi but bear in mind that the BaFin or the Bundeskartellamt could inform the BMWi, thereby triggering an assessment.

Due to the new law, the BMWi will get an improved overview of planned or ongoing M&A transactions in Germany, given that many investors or vendors will apply for an Unbedenklichkeitsbescheinigung as a precaution. But the German state gains this increased level of regulation only through significant administrative efforts.

First and foremost, in the name of the German-American Lawyers' Association (DAJV) I wish to congratulate the German Law Journal on its 10th anniversary! The German Law Journal has contributed extensively to the reversion of the “one-way traffic” of the transfer of law, at least on some points, which typically flowed from the U.S.A. to Europe. I can still remember quite well that, at the time Germany gradually arose from the shadowy existence of an “emerging market” in the area of capital markets, time and again it was emphasized that German law was indeed compatible with a world market—if only it was available in the English language. The German Law Journal recognized this deficiency and has contributed significantly to the spread of awareness and understanding of German law abroad.

In order to introduce the riddle that is at the heart of my contemplations, I would like to tell a story taken from Ibn Arabis' myth of creation: God existed all alone in an eternity that has no beginning and no end. Yet, the names that were hidden within him, the most beautiful names of God that are found in the Koran in Sure 59, 24 yearned to manifest themselves. So God said: “I was a hidden treasure and wanted to be recognized; so I created the world”. The names within him heeded their yearning to be recognized and broke free from the hidden, godly being, as breath that has been held too long leaves the body.

“The world truly shares a common fate.” These words seem to resonate with Immanuel Kant's famous statement that “a violation of right on one place of the earth is felt in all.” Yet, they are not from his Toward Perpetual Peace but from the UN Millennium Project report. What makes our world one of “overlapping communities of fate” are first and foremost the “interconnected threats and challenges” we face in our globalizing age. During the last fifty years we witnessed an enormous growth of transboundary problems – climate change, migration, terrorism, infectious diseases, violent conflicts etc.