Within less than two months, three court decisions were rendered that seem to be the last step in the seemingly never-ending story of Mounir El Motassadeq before German criminal courts. First, on 16 November 2006, the German Federal Court of Justice (Bundesgerichtshof - hereinafter BGH) found Motassadeq guilty for being a member of a terrorist organisation and for abetting the murder of 246 people, according to sections 129 and 211 (27) of the German Criminal Code (Strafgesetzbuch - hereinafter StGB). The court sent the case back to the Higher Regional Court of Hamburg (hereinafter OLG Hamburg), which sentenced Motassadeq to 15 years imprisonment on 8 January 2007. Following the decision of 16 November 2006, Motassadeq lodged a constitutional complaint to the German Federal Constitutional Court (Bundesverfassungsgericht - hereinafter BVerfG), which declined to hear Motassadeq's case on the grounds that the complaint was both inadmissible and unsubstantiated.

“For, he reasons pointedly, that which must not cannot be:” the last two lines of a famous poem by Christian Morgenstern bring the crux of normativity to the point: what is the relationship between facts and norms? The research of the past decades has increased rather than reduced the complexity of this fundamental question for legal theory. First of all, the relationship between facts and norms is still less than clear. Hans Kelsen had argued that facts and norms were to be clearly separated, but once the Grundnorm (basic norm) had turned out to be fictitious, the search for an appropriate description of the relationship between facts and norms began anew. Positivists after Kelsen based normativity on different facts, such as social acceptance or social discourse. Secondly, research on new modes of governance, in particular in the fields of European and international law, has revealed that behaviour can be influenced by “soft” norms and non-normative forms of governance just as much as by “hard” law. These results prompted some to consider legal normativity a matter of degree instead of an on-off issue.

On 23rd June 2007, after three years of uncertainty, European Union leaders agreed on relaunching the old idea of a Magna Charta for Europe (now called “the Reform Treaty”), a normative structure based on the old ideas of deference to national identities, sovereignty and equality. To many authors, the first time that juridical equality between states was solemnly stated was in the aftermath of the Thirty Years’ War (1618-1648), in the Westphalia Peace Treaties, representing the beginning of modern international society established in a system of states, and at the same time, “the plain affirmation of the statement of absolute independence of the different state orders.” In fact, under an Eurocentric conception of political ideas (which envisages England as an isolated island and Iberia as Maghreb, north of Africa), the modern state emerges with the Westphalia Peace Treaties. However, under a broader conception, the modern nation-state (under the form of absolute monarchy) emerged long before the Westphalia Peace Treaties, in Iberia and England. Nevertheless, it is in these documents which lies the “birth certificate” of the modern sovereignty nation-state, base of the present democratic state, and “founding moment” of the international political system. Far beyond this merely formal aspect, the importance of the Westphalia Peace Treaties is so great to the understanding of the notion of state that Roland Mousnier, in describing the 16th and 17th centuries in the General History of the Civilizations, organized by Maurice Crouzet, asserts that those treaties symbolized a real “constitution of the new Europe,” a multifarious Europe, plural and very distant from the religious unit of Christianity, from the political unit of the Holy Roman Empire, and from the economical unit of the feudal system. Constitutions are especially important because they establish the rules for the political authority, they determine who governs and how they govern: “[I]n codifying and legitimating the principle of sovereign statehood, the Westphalian constitution gave birth to the modern states-system.”

In October 2005 the German Law Journal published my article which reviewed the major characteristics of German federalism, some common criticisms, and efforts to reform the system in recent decades. These efforts culminated in a Federalism Commission (Kommission von Bundestag und Bundesrat zur Modernisierung der bundesstaatlichen Ordnung [KOMBO]) that was formed in the fall of 2003 and met until December 2004, when the co-chairs announced that the Commission was unable to reach agreement on several issues, in particular the respective roles of the federal and Land (state) governments in higher education policy. The failure of federalism reform was lamented by most observers, and many regretted especially the fact that the Commission had agreed on far more issues than those on which it had disagreed.

Sierra Leone is a poor nation in the midst of a laudable campaign to bring justice and reconciliation to a people desperately in need of it. Having suffered through the scourge of a decade long civil war, the nation employed two distinct yet related institutions to take a leading role in this campaign. Uniquely, the Government of Sierra Leone (GoSL) sought the assistance of the United Nations (UN) in setting up the world's first “hybrid tribunal”, named the Special Court for Sierra Leone (SCSL), to work alongside the already conceived of Truth and Reconciliation Commission (TRC). These two institutions were to employ different procedures and, to an extent, different objectives in the hopes of achieving peace, justice and reconciliation.