The issue of “constitutional identity” is a topic the relevance of which emerges in contemporary constitutional democracies in the context of constitutional changes. It has already attracted multilayered approaches, but its legal conceptualization is still underexposed. Based on regional European jurisprudence and doctrinal works, “constitutional identity” in a legal context is suggested to be viewed as the “identity of the constitution.” The identity of the constitution is found among provisions of constitutional texts and related jurisprudence that specifically and exclusively feature a status that was constituted during the constitution-making process and shaped by either formal or informal constitutional amendments. The legally applicable “identity of the constitution” comprises those articles that can be employed vis-à-vis EU law and unconstitutional amendments, and which are arguably intended to be applied in the face of international human rights obligations. It is posited that Germany and Hungary exemplify the “confrontational with EU law model,” while the model that emerged in the jurisprudence of the Italian Constitutional Court should be called the “cooperative model with embedded identity.” Today, it seems that the very content of the identity of the constitution of a particular Member State may be shaped and preserved through an active and cooperative dialogue between the supranational and national courts, if there is an inclination to find uniqueness in a community based on common legal traditions and values—Germany and Italy. Another way of determining the content of “constitutional identity” is to fiercely try to demonstrate that uniqueness. This is what Hungary seems to be engaged in, and that is why it may be proposed to call the Hungarian model a model of confrontational individualistic detachment.

In recent years, a new creature has emerged on the institutional landscape: The Schmitelsen Court. This court is the end-product of a combination of the positions presented by Hans Kelsen and Carl Schmitt in their famous debate over the institutional identity of the guardian of the constitution during the Weimar years. The Schmitelsen guardian is a court thus fulfilling Kelsen’s vision of the constitutional court as the guardian of the constitution. Nevertheless, it possesses the mission, the means to achieve it, and the source of legitimacy that Schmitt envisioned for the president as the guardian of the constitution. In this Article, I focus on the Schmitelsen Court’s source of legitimacy that differs greatly from the traditional source of judicial legitimacy that Kelsen envisioned for the guardian. Whereas Kelsen viewed legal expertise as the guardian’s source of legitimacy, Schmitt viewed public support as filling this role. After analyzing these two positions, I explain why it is vital for the Schmitelsen Court to harness public support as its source of legitimacy. I proceed by examining how the Schmitelsen Court model manifests itself in three case studies. In the US, Alexander Hamilton—in The Federalist No. 78—raised the notion of the guardian of the constitution long before Schmitt and Kelsen. He designated the judiciary as the guardian and ascribed its source of legitimacy to expertise. After describing how in recent decades the US Supreme Court adopted the Schmitelsen understanding of judicial legitimacy, I turn to examine the Israeli Supreme Court and the European Court of Human Rights. The relevance of these latter two courts stems not only from their adoption of the Schmitelsen Court’s understanding of judicial legitimacy, but also from the strong influence of the Weimar lessons on their evolution into Schmitelsen guardians.

Robert Alexy is one of the most prominent proponents of proportionality in international legal scholarship. His theory has two dimensions. On the one hand, it is a normative defense of balancing. On the other hand, it seeks to provide a reconstruction of the case law of the German Federal Constitutional Court. This Article focuses on the reconstructive part of his theory. It argues that his reconstruction of the jurisprudence of the German Constitutional Court is only partly accurate. In particular, it does not provide a suitable reconstruction of the decisions in which the Court finds a statute to be inconsistent with the constitution. For this reason, the normative critique of Alexy’s theory does not necessarily translate into a critique of the jurisprudence of the German Constitutional Court’s application of proportionality or even the proportionality doctrine itself. Instead, it targets only one specific interpretation of proportionality.

This Article focuses on the overlap and interaction between the doctrine of proportionality and the doctrines used to assess the constitutionality of state violations of the right to equality. The Article has three main contributions to comparative constitutional literature. First, the Article pinpoints the difficulty that arises when courts try to apply the doctrine of proportionality on claimed violations of the right to equality. Analytically, as shown in this Article, the overlap and interaction between these two doctrines is problematic because they are both relational measures between means and ends. Second, this Article categorizes two models adopted by courts in the application of proportionality in the context of the violation of the right to equality. Third, this Article points out that the choice of the model used by each court is relevant to the ongoing discourse on the advantages and disadvantages of proportionality.

This Article answers the question of whether investor-state dispute settlement (“ISDS”) discriminates against nationals by providing foreign investors with an extra avenue to challenge state measures. The complaint that ISDS is discriminatory as a matter of principle has surfaced before several European constitutional courts—including the German Federal Constitutional Court and the European Court of Justice—in connection with the ratification of the Comprehensive Economic and Trade Agreement between Canada and the European Union (“CETA”). This Article rejects this complaint. The Federal Constitutional Court was able to leave the question of discrimination open in the applications for a preliminary injunction to stop ratification. It will have to take a stand, however, in the principal proceedings. If the Court were to side with the applicants, it would sound the death knell not only for the CETA in its present form, but also for the multilateral investment court system promoted by the European Union and, in particular, Germany. The point made by the applicants in the CETA complaint is not only of importance in a European constitutional law context. Whether ISDS is per se discriminatory is a fundamental issue which requires answering before any reform steps in relation to ISDS are addressed.

The Federal Constitutional Court has decided that the prohibition to strike for career civil servants, as it has traditionally been part of the German legal order, is in compliance with the German Constitution. The Court thereby put a (provisional) end to a long-lasting debate on how to solve the tension between the fundamental freedom to form associations under Article 9(3) of the Basic Law, which arguably encompasses a right to strike, and Article 33(5) of the Basic Law, which protects the traditional principles of the career civil servants, which arguably encompasses the prohibition to strike. Through recognizing that the ban on strike action by career civil servants is not only allowed but required under the German Constitution, the Constitutional Court navigates the German legal order on a potential collision course with the European Convention on Human Rights and the European Court of Human Rights. In this context, the Constitutional Court on the one hand reaffirms the openness of the German constitutional order towards international law in general and human rights and the European Convention on Human Rights in particular. On the other hand, the Court somehow marginalizes the role of the European Court of Human Rights and threatens to not follow the Court should it hold that the European Convention on Human Rights demands a right to strike also for career civil servants.

This Article analyzes the value of behavioral economics for EU judicial decision-making. The first part introduces the foundations of behavioral economics by focusing on cognitive illusions, prospect theory, and the underlying distinction between different processes of thought. The second part examines the influence of selected biases and heuristics, namely the anchoring effect, availability bias, zero-risk bias, and hindsight bias on diverse legal issues in EU law including, among others, the scope of the fundamental freedoms, the proportionality test as well as the roles of the Advocate General and Reporting Judge. The Article outlines how behavioral economic findings can be taken into account to improve judicial decision-making. Accordingly, the adaptation of judicial training concerning cognitive illusions, the establishment of a de minimis rule regarding the scope of the fundamental freedoms, and the use of economic models when determining the impact of certain measures on fundamental freedoms is suggested. Finally, an “unbiased jury” concentrating exclusively on specific factual issues such as causal connections within the proportionality test is necessary, if the hindsight bias is to be avoided. While it is of great importance to take behavioral economic findings into account, judicial decision-making is unlikely to become flawless based on natural intelligence. Despite bearing fundamental risks, artificial intelligence may provide means to achieve greater fairness, consistency, and legal certainty in the future.

The scope of this Article is to understand to what extent a recent and fruitful private initiative sponsoring a safe alternative legal pathway spread from Italy, called “humanitarian corridors,” may in the future become a general and uniform alternative model for all the European Union States. Such a practice—which currently represents an exceptional route for vulnerable migrants to enter the country without harm after a security screening and to be materially supported by the same sponsors in the crucial initial phase of integration—is at present restricted to a relatively small number of beneficiaries, but it could potentially be extended to other States.

In order to achieve this goal, it is argued that the present model should be slightly adjusted—especially with regard to the actual reference to Article 25 of the Visa Code as its legal basis. The latter seems difficult to be formally maintained after the much criticized 2017 judgment X and X v. Belgium, in which the Court of Justice of the European Union conferred to Member States a wide margin of discretion when requested to grant humanitarian visas by vulnerable people exposed to serious irreversible harm. Against this background, clear obligations to grant humanitarian visas to vulnerable people at risk already exist. This obligation stems from international law—both general and conventional—and constitutes the adequate legal basis both for States and civil society to act in a “multi-stakeholder alliance” to find solutions to the challenges and opportunities deriving from international migration, as indicated in the Global Compact for Migration.

In this interview, Paul Kahn discusses central aspects of his approach to the academic study of law. On the one hand, he reflects on the identity of the cultural analysis of law. In this regard, he points out how his approach differs from other forms of legal scholarship, in general, and from other cultural perspectives of law, in particular. He also makes explicit the philosophical tradition within which the cultural analysis of law is immersed and identifies his main theoretical influences. On the other hand, Kahn discusses the methods of the cultural analysis of law—that is, genealogy and architecture. Finally, Kahn examines the aims pursued by cultural analysis, as well as its contributions to the description and analysis of law. He also responds to some of the main objections that critics have offered against this form of scholarship.

Constitutions traffic in magic and deceit, argues Günter Frankenberg, promising freedom and democracy even as they underwrite the exercise of coercive power on a massive scale. Scholars should approach constitutions with a healthy skepticism, but, Frankenberg contends, most mainstream scholars are too credulous, especially regarding the claims of liberal constitutionalism. Comparative Constitutional Studies serves as his corrective to the perceived blind spots and predilections of mainstream comparative constitutional scholarship, and it gives attention to little-known constitutions, forgotten histories, and alternatives to liberal constitutionalism. It’s a rich, challenging, and valuable book, one that takes the reader to some off-the-beaten-track places and offers some new perspectives on well-studied landmarks. It does not, however, represent such a radical break from mainstream scholarship as the author supposes, both because the book’s own analysis, in practice, is not deeply unconventional, and because mainstream scholarship is more diverse than Frankenberg gives it credit for.

Frankenberg has offered an erudite, critical, humorous, and often sly account of comparative law and its politicized discourses. It is both, as its title indicates, comparative law as critique and equally a critique of comparative law. The assessment of his critique offers some alternative perspectives while endorsing his project and admiring his achievement.