This Article reads the work of Martti Koskenniemi—arguably the most significant international legal thinker of the post-Cold War era—as an exercise in (Lacanian) psychoanalysis. Excavating the links between Koskenniemi and French psychoanalyst Jacques Lacan, and analyzing the origins of those links in Koskenniemi's debt to the Harvard branch of the American Critical Legal Studies (CLS) movement, it argues that over almost thirty years Koskenniemi has employed psychoanalytic techniques to rebuild the self-confidence of international law(yers). The success of this confidence-building project explains the acclaim Koskenniemi's work enjoys. As international law's psychoanalyst he has defined the identity of the international lawyer and mapped the structure of international legal argument, stabilizing international law's present reality by synchronizing it with narratives of its past. Any attempt to destabilize that reality or depart from present structures into an alternative future must start from an analysis of Koskenniemi's methods and it is in this sense, and not out of a more pure interest in Koskenniemi's work, that this Article deconstructs Koskenniemi's oeuvre. It situates his method, reveals his choices, and explores their limits in an effort to develop (tentative) proposals for a “new” international law(yer) and an international legal future outside the structure that Koskenniemi has mapped so effectively and affectively.

This Article develops a methodological basis for elaborating an idea of global constitutionalism. It applies this broader understanding of the idea of global constitutionalism to an examination of the specific role played by human rights within the evolving framework of global legal governance. The methodological basis from which the idea of global constitutionalism is developed derives from work in historical sociology that emphasizes the role played by underlying symbolic forms in the structure of social reality. The approach adopted here lays particular emphasis, following Claude Lefort and Marcel Gauchet, on the role of political theology as the principal mode in which symbolic form is constituted. From this perspective, the notion of the global human rights model is scrutinized as central to the symbolic form of global constitutionalism. Developed in critical engagement with the work of Samuel Moyn, human rights can be seen as central to global constitutionalism viewed as the latest political constellation of a distinctively secular understanding of the symbolic form and limits of political authority.

Parallel to exponential proliferation and ever-increasing allegations of human rights violations by transnational corporations, the sparks produced by the friction between the normatively distinct disciplines of business and human rights have invited scrutiny across the media, academia, and industries alike. Given the fact that regulatory capacities of home and host states have evidenced an inability to keep pace with the developments, concerted efforts at the international level are imperative. By constructing its own benchmark of adequacy with reference to regulatory instruments' underlying objectives, this Article explores whether the existing regulatory framework is adequate, with a particular focus on the UN Framework and UN Guiding Principles—currently the most robust regime yet. The Article's analysis centers on (1) the terminologies utilized, (2) the human rights due diligence mechanism, and (3) access to remedies requirements, to reveal their inherent inadequacy with the hope of warning against uncritical acceptance and to inform future developments.

This article discusses the legal concept of the person against the background of technological developments. Emerging technologies are offering radical ways to transform the biological and physical aspects of life. Several legal scholars claim that the technological artificialization of human life also calls for a more artificial, disembodied account of the natural person in law. According to them, the legal distinction between natural persons (human legal subjects) and artificial persons (non-human legal subjects, such as corporations) is becoming diluted and increasingly redundant. This article argues that, in an era of growing technological and postmodern disembodiment, the traditional legal distinction between natural and artificial persons remains important, albeit in a different form. An examination of the legal concept of the person in biomedical law suggests that law's category of the natural person still has its merits, not just despite these technological developments, but, remarkably enough, also because of them.

EU Member States have in recent years designed national schemes to support the development of renewable energy. For example, in systems of feed-in-tariffs the states guarantee for a given period of time plants generating electricity from renewable resources the market price plus a premium. These feed-in-tariffs have normally only been awarded to electricity generated in-state. The preference given to in-state industry has been challenged in court as contradicting the principle non-discrimination on the European internal market. The decision by national legislatures to limit the availability of feed-in-tariffs to electricity generated in-state, however, has—to the surprise of many—been found justifiable by the European Court of Justice. This Article illustrates how the objective to ensure system stability has emerged as the strongest ground of justification in the context of cross-border electricity trade and how similar arguments have actually been used previously in the context of the health care service sector. While the reasoning of the court is defendable, the court could have developed an even more nuanced and informative position if it had taken notice of additional aspects that have popped up in the U.S. debate on similar questions.

The following Article deals with the issue of whether the Federal Republic of Germany is responsible for examining the applications for international protection of third-country nationals who, since the start of the European refugee crisis have arrived at the German land border or, alternatively, whether Germany is obligated to refuse entry to such persons and relegate them to an adjacent transit country. In most cases, this would require Austria, in particular, to examine these applications for protection. The position outlined in this inquiry may be applied to all internal borders between European Union Member States.

As a reaction to the increasing terrorist threat in Europe, the German Parliament (Bundestag) passed a law penalizing the preparation of terrorist acts endangering the state: § 89a German Criminal Code (StGB). The Regional Court of Frankfurt am Main (LG Frankfurt) was the first to apply this section to a case where a young man was accused of building a pipe bomb. Upon his conviction, the defendant appealed to the German Federal Court of Justice (BGH), claiming § 89a StGB to be unconstitutional. The BGH reviewed whether the statute was in conformity with the principles of the German Constitution (GG), including the principle of legal certainty and appropriateness. It held that these principles were fulfilled, if stricter requirements are applied regarding the mens rea in order to counterbalance the broad actus reus. It decided that the Regional Court had not fulfilled this particular requirement and quashed the conviction insofar. This case and § 89a StGB caused ripples amongst legal scholars, especially due to the unusual penalization of preparatory acts and the broad scope of the statute's application. This case also produced an unprecedented change within the judge's bench.

From the moment of its inception the European Union (EU) has included a court that was entrusted to give coherence and integrity to the interpretation and application of the Union's primary and secondary law. That the Court of Justice of the European Union (CJEU) was to play an important role in settling disputes was clear. But few anticipated how instrumental the Court would become in the development of EU law.

During the last decades, social network analysis has been established as a key technique in a number of disciplines in social science. Its main promise is that it provides tools for researchers to take into account the social context of individual entities or actors. Legal scholars, by contrast, have only recently started to make use of these tools. Nowadays, one particularly prominent application is the use of network analysis to analyze the citation networks of different national and international courts. The contribution by Derlén and Lindholm published in this issue of the German Law Journal forms part of this trend. It is the latest in a series of papers studying citations in the case law of the Court of Justice of the European Union (CJEU). Unlike the authors' previous contributions, the paper specifically addresses the use of precedent by the CJEU and assesses the merits of criticism in the literature arguing that the citation practice of the CJEU lacks an acceptable method. The paper provides novel insights into the use of precedent by the CJEU and thus makes an interesting contribution to the emerging scholarship investigating the decision-making of the CJEU by means of quantitative analysis. At the same time, the design of the research raises severe doubts about whether the authors succeed in providing a conclusive response to the critics of the CJEU's citation practice.

In their contribution in this issue Mattias Derlén and Johan Lindholm use social network analysis to show that the European Court of Justice is a precedent-driven constitutional court that is comparable to the US Supreme Court with regard to the citation of precedents. The article and its use of network analysis as a method provoked a lively debate on the editorial board of the German Law Journal about comparative law theory and methods generally and the place of empirical (including network) analyses in the comparative law discipline. For this reason, the editorial board commissioned this “special section” of contributions dedicated broadly to approaches to comparative law. In his essay in this section, for example, Jens Frankenreiter offers a detailed assessment of Derlén's and Lindholm's analysis. In this piece, we take a broader perspective and look at the utility and the limits of network analysis for legal scholarship generally.

How many scholarly fields have experienced the disappointing fate of comparative law and continued in the grip of a demonstrably indigent epistemology for decades on end? After the early postmodernity witnessed their protracted servitude to Les Grands systèmes's jejune classifications, facile correspondences, and meagre interpretive return — a predicament which, implausibly, endures in countries as diverse as Brazil, France, and Russia — law's comparatists began taking their epistemic orders from Hamburg and the Hamburgher diaspora. For fifty years or so, they have been gorged on a diet of Rechtsdogmatik, scientism, objectivity, neutrality, truth, and assorted shibboleths. As if these epistemic delusions were not problematic enough, the earlier, obsolete model was eventually revived although tweaked to focus on traditions instead of systems (or families). While critics were occasionally moved to chastise threadbare Hanseatic knowledge-claims — some expressing their concern in conspicuous venues, others harnessing prestigious institutional affiliations — comparative law's orthodoxy, somewhat extraordinarily, has hitherto been able to operate unencumbered by any epistemic challenge whose monographic exposition would have proved decidedly pre-eminent. It is the great merit of Gunter Frankenberg's Comparative Law As Critique, in crucial respects an account at once capital and extensive, that it interrupts, finally, the longstanding deployment of comparative law's mainstream imposture. Frankenberg's refutation is thus well worth restating, and the first part of this review wishes loyally to apply itself to this important representative task not least by affording the author much latitude to express himself in his own voice. Yet, Frankenberg's considerable critical integrity notwithstanding, this essay holds that his epistemic transgression remains too diffident. Specifically, five key concerns at least warranted more subversive epistemic commitments than Frankenberg allows. In the wake of Comparative Law As Critique, the second part of this commentary addresses these contentions with a view to making a case both for comparative law as strong critique and for the paradigmatic epistemic turn that has been persistently deferred within the field.

This article argues that comparative law needs to explore its critical potential when engaging with the European harmonization process and its effects on the law of the Member States. In the first part, the article evaluates existing comparative law methods and their suitability to identify legal and cultural factors that influence the judicial reception of EU harmonized law on a national level. Using EU non-discrimination law as a case study, it questions to what extent traditional methods are suitable to explain differences in the national judicial reception of EU harmonized law, despite the exclusive competence of the Court of Justice of the European Union to interpret EU law. In doing so, it considers the potential of critical comparative law for the development of a deeper understanding of the national courts' reception of EU harmonized law as a key part of the broader legal harmonization process. In the second part, the article develops an original multi-layered culturally informed method to compare EU harmonized law. The proposal goes beyond the existing methods of comparative law by including critical aspects and stressing the relevance of embedding a general normative framework in any comparative critique. It challenges comparatists to reach deeply into national cultural spheres and to identify key influences on the application of EU rules and EU-national legal ‘hybrids’. The method creates room for multi-layered narratives of comparison aimed at gaining a deeper understanding of the national legal and non-legal cultural background that can hinder or facilitate harmonization processes. This enriched comparative critique can offer new insights into the process of legal harmonization in the EU, particularly by focusing on the point of application rather than the previous phases of creation of EU law and its reception by Member States.