bluuebunny/crossref_metadata_2025 huggingface dataset:
A Response
Authors: Koskenniemi Martti
Published: March 2019

From the preceding essays, but also from the general discussion around From Apology, two themes emerge as a constant source of puzzlement, not least to myself. How does the argument in that book affect – if at all – the way we do international law? And what does the claim to be “critical” really mean? These are, I suppose, aspects of one larger set of problems that permeate the whole of that work. “Oh yes, it does describe the argumentative patterns pretty well. But it does not really change anything, does it?” One might approach this sort of query in different ways. It might be thought of as an expression of the classical theme about the relations of theory and practice in the social sciences. How do academic works influence the social world to which they are addressed? Or one might be more interested in the specific relationship between (academic) doctrines and legal practice – the “outside” and the “inside” of the legal profession.
The Myth of the Neutral State: The relationship between state and religion in the face of new challenges
Authors: Ladeur Karl-Heinz , Augsberg Ino
Published: March 2019

On a global level, we are witnessing a revitalisation of religion, which also includes a re-politisation of religion, particularly within contemporary Islam. Religion has become, once again, a political topos. The secularised western world is thus facing a new challenge, for which it appears to be inadequately prepared. The idea of freedom of religion, guaranteed as a fundamental right, obliges western democratic states to respect the religious activities of their citizens and to secure their free development. Therefore, the state is principally neither allowed to favour nor to discriminate against certain professions of faith. This concept of equidistance is known as the principle of state neutrality: it commits the state to generally withdraw from religious issues, especially the political act of defining what can legitimately be classified as religion and religious behaviour. The leeway given to the self-conception of religious groups by the German Federal Constitutional Court and its wide understanding of what kind of behaviour has a direct relationship to faith and therefore deserves protection by the freedom of religion, is to be understood against the context of this general principle. However, with regard to the new challenges mentioned above, the neutrality principle increasingly serves yet another purpose. The courts use it as an exit-option in order to avoid addressing problems which appear to be too complex for the law relegating religion to sociological study. In this context, state neutrality merely functions as a chiffre for indifference. But this strategy of avoidance, though understandable in the light of the complexity of religious pluralism, undermines the law's function of conflict resolution. Furthermore, it neither corresponds to the historical development nor to the functional aspects of the idea of religious freedom.
Complexity and Cultural Sources of Law in the EU Context: From the Multilevel Constitutionalism to the Constitutional Synallagma
Authors: Martinico Giuseppe
Published: March 2019

In this work I will try to analyse the latest trends of the European integration process in light of the notion of complexity, conceived as a bilaterally active relationship between diversities.

This notion of complexity comes from a comparison among the different meanings of this word as used in several disciplines (law, physics, mathematics, psychology, philosophy) and recovers the etymological sense of this concept (complexity from Latin complexus= interlaced). The effort to find a common linguistic core could cause ambiguity but I would like to take the risk because only a multidisciplinary approach can “catch” the hidden dimension of the European process I argue that the European Union legal order is a “complex” entity that shares some features with complex systems in natural sciences: non-reducibility, unpredictability, non-reversibility and non-determinability.
Mounir El Motassadeq - A Missed Chance forWeltinnenpolik?
Authors: Kost Timo
Published: March 2019

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.
Law on Churches and Religion in the European Legal Area – Through German Glasses
Authors: Heinig Hans Michael
Published: March 2019

Approximately ten to fifteen years ago the “danger of Europeanization” of the German law on churches and religion was hotly debated. The churches in Germany feared that the influence of the European Union would dramatically change their legal framework. But also academic writers worried about the influence of the common market law or European antidiscrimination law on the legal situation of the churches in the member states – sometimes in rather shrill tone. One almost got the impression that Brussels replaced the Marxist Ideologiekritik (critique of ideology) as the main enemy of Christianity in Europe.
The Principle of Proportionality in Comparative Perspective
Authors: Poto Margherita
Published: March 2019

This contribution will contain an analysis of important European dynamics, particularly at this moment when it seems to be necessary to restart the process of a unified European identity, which was, in a way, compromised after the failure of the EU Constitution and the difficulty of giving effectiveness to democracy:

the EC professes democracy without being democratic. Thus the fragility of its political institutions, inherently perilous, necessarily reflects on the legitimacy of its legal order, while the constitutional balance intrinsic to the separation of powers ideal is dangerously absent. In other words, while in every Member State, the administrative law system forms part of a working system, this is not the case in the Community.
ECHR Rules on Illegal Ban of Warsaw Equality Parade: The Case ofBączkowski and Others v. Poland
Authors: den Bogaert Sina Van
Published: March 2019

On 3 May 2007, the European Court of Human Rights in Strasbourg (hereinafter “the Court”) rendered a judgment in the caseBączkowski and Others v. PolandThe Court stated that Poland violated Article 11 (freedom of association and assembly), Article 13 (right to an effective remedy) in conjunction with Article 11 and Article 14 (prohibition of discrimination) in conjunction with Article 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Anti-Corruption Legislation In Turkish Law
Authors: Okuyucu-Ergün Güne
Published: March 2019

Corruption poses an increasingly serious threat against Turkey as well as the rest of the world in many respects. The fight against corruption is crucial, in particular, to achieve an economic and political stability, to attract foreign investors and to establish the rule of law. In addition to those interests, which are common for almost all countries, anti-corruption has a particular importance for Turkey in the achievement of its goal of becoming a European Union member, since anti-corruption is expected to feature prominently in Turkey's talks on European Union accession.
The Juridical Coup d'État and the Problem of Authority
Authors: Sweet Alec Stone
Published: March 2019

This essay is a true working paper, a work-in-progress that raises a set of questions that I am not yet sure how to answer. The questions are not unknown; indeed, they lurk in the shadows of scholarly discourse on the three systems I will examine. They are, however, often ignored in research and commentary on the constitutional law, and they have never been the focus of comparative inquiry. I nonetheless will argue that the answers one gives to them will bear directly on how we should understand the nature, evolution, and political (i.e., normative) legitimacy of legal systems.
Lessons from the Sam Hinga Norman Decision of the Special Court for Sierra Leone: How trials and truth commissions can co-exist
Authors: Nesbitt Michael
Published: March 2019

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.
The ECJ, Volkswagen and European Corporate Law: Reshaping the European Varieties of Capitalism
Authors: Zumbansen Peer , Saam Daniel
Published: March 2019

On its website “The EU Single Market – Fewer barriers, more opportunities”, the European Commission lists the judgments by the European Court of Justice [ECJ] dealing with the free movement of capital under Art 56 EC Treaty (ex 73b). The latest update of this list is the Court'sVolkswagendecision of 23 October 2007 (Case C-112/2005), which the Commission had launched against the Federal Republic of Germany on 4 March 2005. This suit, brought under Art. 226 EC Treaty, had been long coming. That the Volkswagen statute, which effectively gave the Federal government and theLand(federal state) ofNiedersachsen(Lower Saxony) a veto against majority acquisition while only holding a fifth of all shares, would come into the Commission's purview, could hardly surprise, given the Commission's activity with regard to such ‘golden share’ provisions under Portuguese, French, Belgian and English company laws. The most recent decision of the ECJ in the case of Volkswagen is of interest in more than one respect. Not only does it constitute a continuation and further accentuation of a line of argument that the Court has been unfolding over past few years with regard to the Member State provisions in conflict with the EC's guarantee of the free movement of capital as laid down in Art. 56 EC.
Postconstitutional Treaty
Authors: Somek Alexander
Published: March 2019

As is well known, both the drafting and the anticipated ratification of the draft Constitutional Treaty were surrounded by a lively debate. The communicative spectacle created by the “Convention on the Future of Europe” and its ambitious plan to draw up a European constitution served as the major attractors. The debate was conducted, of course, in different settings and at several levels. What interests me here, though, is that the public and the academic debate emphasised different aspects of the overall project.
In the wake ofPupino:Advocaten voor der WereldandDell'Orto
Authors: Herlin-Karnell Ester
Published: March 2019

This paper argues that the third pillar, despite the ECJ's landmark ruling ofPupino(which extended communautaire reasoning to the third pillar terrain) is and remains different from the supranational sphere. In so doing, the paper asks whether a consistent approach to EU law can be derived from the orthodoxy of EC law by focussing on the recent judgments ofAdvocaten voor der WereldandDell'Orto.
Hate Speech in the Background of the Security Dilemma
Authors: Stradella Elettra
Published: March 2019

In this paper I will analyze the relation between the limitations on freedom of speech and the increasingly intense defense of “security” intended as a psychosomatic and material condition of well-being. I will consider, in particular, the evolution of the legal limitations on the freedom of speech, moving from the apparently new dilemma of the protection of self-preservation contrasting with the guarantee of individual liberties. I will describe the transition from an internal foundation of this kind of limitation, caused by the will to destroy the potential enemies of State power, to a new form of “thought control” existing in the international construction of general paradigms of “well-thinking”, in addition to those of a “well-doing.”
The Uniform Civil Code Debate in Indian Law: New Developments and Changing Agenda
Authors: Menski Werner
Published: March 2019

Postcolonial India's modernist ambition to have a Uniform Civil Code, impressively written into Article 44 of the Indian Constitution of 1950 as a non-justiciable Directive Principle of State Policy, concerns not just an Indian problem but a universal predicament for lawyers and legal systems. What is the relationship between personal status laws and general state-made laws? To what extent should the formal law allow for, or seek to restrain, the legal implications of religious and socio-cultural diversity? To what extent does a state, whether secular or not, actually have power and legitimacy to decree and enforce legal uniformity? There are many more agendas at play here than simply the central issue of legal authority, focused on the power of the law, or simply “religion” v. “law”, or “culture” v. “law”, as we are often still led to believe.
India's Policy Priorities – Bleak Forecast for a Global Climate Regime?
Authors: Badrinarayana Deepa
Published: March 2019

The future of an effective climate regime, post-2012, depends on three nations—China, India, and the United States of America. While a deadlock persists when it comes to the question of accepting binding international legal obligations for targeted reduction of greenhouse gas (GHG) emissions, all three countries favor action to address climate change. Nationally, each country is exploring a range of policy and legislative options to retard carbon emissions, especially by promoting alternative energy options and energy efficiency.
Global (Non-)Law: The Perspective of Evolutionary Jurisprudence
Authors: Amstutz Marc
Published: March 2019

Globalization and the rules it generates confront legal scholarship with a number of intricate issues. One of these lies at the core of a hypothesis which has been debated for some time in the literature. According to this hypothesis, the legal vacuum left by nation states in the institutional organization of cross-border commerce has been filled by a variety of private governance mechanisms, with the result that regulatory responsibility has been taken over by private or hybrid actors. Testing this proposition requires analytical tools capable of discriminating between private ordering and public law-making. The private, or hybrid, governance regimes that would seem to be the hallmark of what is slowly emerging as global law are a Byzantine mixture of legal and social norms. Because of this, the foremost problem to be solved is that of deciding where to draw the line between legal and non-legal norms. Only if there are unequivocal criteria for distinguishing between law and non-law does it become possible to comprehend how hybrid regimes arise and evolve within the globalization process and, thus, to determine whether private actors have in fact assumed regulatory responsibility.
The Extradition of Nationals: Comments on the Extradition Request for Alberto Fujimori
Authors: Düker Arnd
Published: March 2019

On 31 July 2003 Peru submitted an extradition request to the Japanese authorities requesting the extradition of former President Alberto Fujimori. Along with the establishment of a truth and reconciliation commission, and the numerous penal proceedings against the former presidential councilor and head of the secret service Vladimiro Montesinos Torres, the extradition request is another important effort of the Peruvian government to bring human rights violators to justice. Since Peru's legal system does not allow trials in absentia, Fujimori will escape prosecution if he is not extradited or tried in Japan.
Federal Constitutional Court Grants Interim Legal Protection Against Service of a Writ of Punitive Damages Suit
Authors: Friedrich Bettina
Published: March 2019

On 25 July 2003 the German Bundesverfassungsgericht (Federal Constitutional Court – FCC) handed down an order which is likely to give a new direction in global disputes since it relates to an act that is absolutely necessary when starting litigation: the service of a writ in a suit before a court. The Court's order is an important element in a discussion of the compatibility of German procedural law and conflict of laws with foreign, notably U.S. American class action and punitive damages suits that has been going on in Germany for a long time already. The following case note will provide a brief introduction to the debate and comment on the Court's order before sketching the possible consequences of the FCC's latest decision.
The Scope of Sector-specific Regulation in the European Regulatory Framework for Electronic Communications
Authors: Loetz Sascha , Neumann Andreas
Published: March 2019

The European Community's (EC) regulatory framework for electronic communications contains many detailed and complicated regulations with regard to the content of sector-specific regulation in the field of telecommunications. Remarkably, though, it is rather reticent concerning the question which markets shall be subject to sector-specific regulation. In the ongoing process of transposition, this has caused much confusion and misunderstanding. This article therefore, strives to clarify the mechanism for determining which markets are, at least potentially, subject to sector-specific regulation provided by the Framework Directive (sub B.). At the national level, a draft of the German Telecommunications Acthas been presented by legal experts of the Federal Ministry of Economics and Labour on April 30th, 2003 (Draft German Telecommunications Act), and the subsequent Federal Government's draft act was published on October 15th, 2003 (Revised Draft German Telecommunications Act). These drafts may serve as an example of bringing sector-specific regulation in line with general insights of competition policy within the discretionary scope left by the regulatory framework of the EC (sub C.).
The Defence of “Change of Position” in English and German Law of Unjust Enrichment
Authors: Mächtel Florian
Published: March 2019

In its § 142(1) theAmerican Restatement of the Law of Restitutionprovides that “[t]he right of a person to restitution from another because of a benefit received is terminated or diminished if, after the receipt of the benefit, circumstances have so changed that it would be inequitable to require the other to make full restitution.” The notion that the recipient of an unjustified benefit must in principle return not more than the enrichment that has actually “survived” in his hands, is not only fundamental to the American law of restitution, but can also be found in English and German law.
A Constitutional Framework for Private Governance
Authors: Engel Christoph
Published: March 2019

Lawyers are the engineers of the social sciences, and their doctors. Neither is good for reputation in interdisciplinary exchange. Social scientists often show contempt for a discipline that seems too close to reality to meet hard methodological standards, and too much concerned by pathologies that are beyond the reach of their methodological tools. As with many prejudices, there is a grain of truth in this one. But not all law is about making decisions and judgements in the face of a reality that is at best partly understood. The legal discipline has its own methodological standards. For the sake of internal clarity, it aims at parsimony. But modelling is not the legal path to methodological rigor. The legal equivalent boils down to one simple question: who asks whom for what? The law splits abstract problems into a series of cases. It reaches parsimony via the selection and sequence of cases. These hypothetical cases are like histological cuts through the social tissue. The legal discipline starts cutting at cases for which existing legal tools seem particularly wellsuited. If these cases are understood, the legal discipline then starts again with the more demanding ones. It is hoped that the sequence of cases leads to an understanding of situations that seemed inaccessible at the outset.
Data Screening as a Means of Preventing Islamist Terrorist Attacks on Germany
Authors: Achelpöhler Wilhelm , Niehaus Holger
Published: March 2019

After the terrorist attacks on the World Trade Center in New York City, it was determined that some of the presumed perpetrators had lived in Germany where they had been studying technical subjects in particular. Public authorities supposed more potential assassins (so-called “sleepers”) were staying in Germany until they received an order to start their mission. In order to discover such persons, data screening was carried out in each federal state of Germany. In the course of it, all universities were obliged to hand over the data material concerning their enrolled students for data alignment by police authorities. Up until now, appeals of affected students against those measures have been successful in Hessen, Nordrhein-Westfalen and Berlin. Those events give reason for a critical reflection of the means of data screening by the police.
Criminal Justice after 9-11: ICC or Military Tribunals
Authors: Mertens Thomas
Published: March 2019

Nowadays, widespread consensus exists that the dramatic events of September 11, 2001 changed not only the country that suffered these attacks but also the way many in the West view the world outside this exclusive circle. For quite a number, it confirmed Huntington's thesis of a clash of civilizations – a vision of a future of ‘us’ versus ‘them'. But as the attackers were being identified, it became clear that in a sense they came from among us; although technically foreign nationals all, they lived and studied inconspicuously in western, multicultural societies. How are we then to deal with this enemy within? How is democracy to fight this so-called War on Terror and survive? Such questions are obviously not new. Bearing De Tocqueville's assertion in mind that a long war is not needed in order to put freedom at risk in a democratic society, this article, using the technique of a thought experiment, seeks to examine the increased prerogatives that governments – fearing the enemy within – have granted themselves in the realm of criminal law to deal with the perceived threat. This experiment will bring the reader, in a non-specialist way, from the criminal justice system of Germany to the possible role of an operational International Criminal Court, and from the criminal justice system of the United States to military tribunals as a means of dealing with what those in power claim is an extraordinary threat.
The Approach to European Law in German Jurisprudence
Authors: Scheuing Dieter H.
Published: March 2019

To adequately assess the approach to European law in German jurisprudence is an impossible task to fulfill, yet one which is indispensable.

The impossibility of such an attempt becomes clear if one realizes the multitude and variety of courts and judicial procedures existing in the Federal Republic of Germany. Our present judicial system is composed of 1,162 national courts with a total of about 21,000 judges.1 Eight of these courts are federal courts, the others are courts of the Länder, i.e. of the sixteen Member States of the Federation.
The Mannesmann Trial and the Role of the Courts
Authors: Kolla Peter
Published: March 2019

The Financial Times billed the Mannesmann trial, which began on January 21, 2004 and where final arguments by the prosecution and by the defense are scheduled for June 30, July 8 and 14, 2004 before the Regional Court (Landgericht) in Düsseldorf, as the “biggest criminal trial in German corporate history.” The backdrop for the trial was the January 2000 hostile takeover of Mannesmann AG, the once massive German telecommunications and engineering company that employed over 130,000 people. Vodafone Airtouch, the British telecommunications giant, had initially offered €101 billion for Mannesmann but only succeeded in their takeover by sweetening the price to €178 billion. Consequently, the Mannesmann takeover is still the largest the world has ever seen. The six defendants include towering figures in corporate Germany, most notably Josef Ackermann, the current chief executive of Germany's largest bank, Deutsche Bank and former member of Mannesmann's supervisory board (Aufsichtsrat). The enormity of the companies and personalities involved stretched the trial's magnitude beyond the confines of this single takeover. Reporting for their global business audience, the Financial Times conflated the trial to an indictment of Germany's entire system of capitalism. “What is on trial here is the free market itself,” wrote Wolfgang Munchau, their continental European business columnist.
The Statute of the Iraqi Special Tribunal for Crimes Against Humanity– Progressive or Regressive?
Authors: Olusanya Olaoluwa
Published: March 2019

The global effort to establish an effective system of international justice is at an important phase in its history. After close to 50 years of relative stagnation following the Nuremberg trials at the end of World War II, the field of international criminal law has been revitalised. The establishment of the International Criminal Court, the ad hoc tribunals for the former Yugoslavia and for Rwanda, “hybrid” or “internationalised” processes such as the Special Court in Sierra Leone, and national criminal justice systems exercising universal jurisdiction, have all lent substance and credibility to the assertion that the most grievous human rights crimes are subject to international scrutiny and legal action.
The Last Word? – The July 22, 2004 Acquittals in the Mannesmann Trial
Authors: Rolshoven Max Philipp
Published: March 2019

[Editors’ Note: This short note concerns the most recent acquittals in the Mannesmann criminal trial against former Mannesmann CEO, Klaus Esser; Deutsche Bank's CEO (Vorstandssprecher) and then Member of Mannesmann's supervisory board, Josef Ackermann, and other members of the Supervisory Board. The Landgericht [Regional Court] Düsseldorf acquitted all six defendants on 22 July 2004, and this timely note provides but for a first rendition of the circumstances, the reactions and the thrust of the judgment. For more extensive background to the criminal proceedings against Esser, Ackermann et al. and the importance that domestic and international observers have regularly been assigning to this case in the context of a worldwide corporate governance debate, see already Peter Kolla's article in the 1 July 2004 Issue of German Law Journal. German Law Journal will publish a more extensive case commentary in the coming months. Meanwhile, the Mannesmann proceedings have, once more, highlighted to German, European and International observers the particular features of law and politics in “Germany Inc.”, “Rhenish Capitalism”, or “Rhineland Capitalism”. As begun in the aftermath of Josef Ackermann's inthronization at the head of Deutsche Bank and Ackermann's subsequent transformation of the Board's control structure, German Law Journal has published several contributions to the ongoing changes in German corporate governance and its embeddedness within the specific German economic and legal system. In this issue, we are publishing a fine piece by Jürgen Hoffmann, Professor of Sociology in Hamburg, on the current interdisciplinary debate over the future fate of so-called Rhineland Capitalism. In the next issue, to be published on 1 September 2004, Professor Christopher Allen of the University of Georgia will further deepen this inquiry and place the contemporary debate over the possible end of Rhineland capitalism in the historical context of Germany's development in the 20th Century. The Editors of German Law Journal are very pleased and honored to be able to provide for a further forum for this important debate, bringing together lawyers, economists, political scientists and sociologists, for a much needed exploration of the historical and political origins as well as of the legal framework of Germany's much critizised and, at the same time, ardently praised system of corporate governance and industrial relations. We invite our readers to contribute to this debate, which has so far found too little resonance in Germany itself. The Editors.]
Smoke, Mirrors and Killer Whales: the International Court's Opinion on the Israeli Barrier Wall
Authors: Scobbie Iain
Published: March 2019

One of the consequences of the method the International Court of Justice employs to draft its pronouncements is that, at times, its reasoning is less candid than one might desire. The Court's advisory opinion onthe Legal consequences of the construction of a wall in the Occupied Palestinian Territory of 9 July 2004provides a clear example. To reach unanimity, or near unanimity, on the points decided, one can only assume that the judges bargained hard over the discursive normative component of the Opinion.
Agency Work – from Marginalisation towards Acceptance? Agency work in EU Social and Employment Policy and the “implementation” of the draft Directive on Agency work into German law
Authors: Schiek Dagmar
Published: March 2019

During the last few years, agency work has received heightened legislative attention in Europe, on an EU level as well as on national level, since the early 1990s. This interest was spurred by the relative growth of the sector as well as by the hope that agency work might offer solutions to unemployment by providing enhanced flexibility. As a result, agency work is no longer considered as a form of employment to be shunned, but has gained in acceptance. This article undertakes to analyse the legislative development towards acceptance of agency work by comparing the EU approach with the German approach. Over and above the specific issue of agency work, the question whether needs for flexibility of employers and employees are capable of being reconciled by recourse to new methods of organising work and what regulatory policy is most likely to achieve this, forms a background to our considerations.

After giving an overview of the definition of agency work with a specific reference to the inherent risks and the potential of enhancing flexibility and resulting regulatory approaches, we will consider the EU strategy on regulating agency work, especially within the conceptual framework of the EU employment policy. The next step is to analyse the German case with reference to the historical development of the approach towards agency work and an analysis of the latest legislative reform and its practical consequences. The conclusion assesses whether the German legislation complies with the draft directive, which national peculiarities shape its practical effects and what recommendations may be referred for the final version of the draft EU directive.
The Power of Monitoring
Authors: Brändle Udo C. , Noll Jürgen
Published: March 2019

The corporation celebrates its 400th birthday. What Adam Smith treated skeptically concerning relative efficiency in 1776, has become the dominant organizational form, and not only in Smith's home country of Great Britain.
Like Ancient Beacons: The European Union and the International Criminal Court – Reflections from afar on a Chapter of European Foreign Policy
Authors: Kemmerer Alexandra
Published: March 2019

That the Law is never frozen in time and space is quite a trivial insight – but one, however, that is nonetheless particularly true for the area of international human rights law and the jurisdiction to see human rights norms respected and enforced. No less is it true for international criminal law and European law. It is, of course, true at the intersection of these three fields of the law as well, exactly the place I intend to explore in this paper. And, as we shall see, poetry, that rarely unveiled subtext of the law, is never steady in its foundations.
Critical Intimacy: Jacques Derrida and the Friendship of Politics
Authors: Orford Anne
Published: March 2019

Since receiving the invitation to participate in this special issue, I have been wondering about whether I can do justice in this brief space to what I have learnt from reading Derrida. And as someone who long ago began to distrust those versions of the history of ideas organized around the names of important individuals, I've also wondered about how and why I would want to link lessons to the proper name “Jacques Derrida.” Indeed the pleasure, and even the reward, I have received from reading Derrida is hard for me to separate out from the experience of living as part of a community that exists within and across the institutions I inhabit, with colleagues, students and friends. I associate Derrida with a way of life, a way of reading, writing, speaking and listening to each other, that is part of the “simple day-to-dayness” and “the intense moments of work, teaching and thinking” that constitutes this community, that allies us. I hope I can communicate a little of what reading Derrida has meant, and still does mean, to me then within this particular institutional life.
Derrida: Survival as Heritage
Authors: Haddock-Lobo Rafael
Published: March 2019

One has never experienced the initial words of “The Ends of Man” spoken so seriously as at the recent colloquium held in Rio de Janeiro, between August 16-18, 2004. The international colloquium “Towards a Reflection on Deconstruction: Issues of Politics, Ethics and Aesthetics” opened with a lecture by Jacques Derrida entitled “Forgiveness, Truth, Reconciliation: What Gender?” It seems to echo incessantly the sentence of the philosopher who claimed in his own Margins of Philosophy: “every and any philosophical colloquium necessarily has a political sense.”
The Thinker of the Future – Introduction to The Violence of the Masquerade: Law Dressed Up as Justice
Authors: Cornell Drucilla
Published: March 2019

There has perhaps been no greater thinker of the future than Jacques Derrida. Throughout his entire body of work Derrida constantly returns to the thinking of the “perhaps,” of the arrizant. This thinking of the “perhaps” takes shape as what is “new” and other to our world, something that is therefore unknowable even as a horizon of ideality that both arises out of and points to what ought to be in any given world. I renamed deconstruction the philosophy of the limit so as to emphasize Derrida as the protector of what is still yet to come. My argument was fundamentally that Derrida radicalized the notion of the Kantian meaning of “laying the ground” as the boundaries for the constitution of a sphere of valid knowledge, or determinant judgment. In Kant, to criticize aims to delimit what is decisive to the proper essence of a sphere of knowledge, say for example science. The “laying of limits” is not primarily a demarcation against a sphere of knowledge, but a delimiting in the sense of an exhibition of the inner construction of pure reason. The lifting out of the elements of reason involves a critique in the sense that it both sketches out the faculty of pure reason and surveys the project as the whole of its larger architectonic or systematic structure.
Force and “Mystical Foundation” of Law: How Jacques Derrida Addresses Legal Discourse
Authors: Gehring Petra
Published: March 2019

In the 1970s and 80s, the philosophical works of Jacques Derrida became known well beyond the borders of France and beyond the limits of the French language. It was a radical and disturbing new form of materialism which made Derrida's thought so notorious: a philosophy of writing, of différance, of the movements of negation which always escape our grasp – with the effect that all theoretical trust in the idea of “presence” is undermined. Derrida develops his thought relentlessly on the border between form and content. It could be said that he balances on this border. And he conceives these diverse, experimental balancing acts, which are portrayed as readings of other texts, as a procedure in its own right – a procedure, called “deconstruction”, which has a distinctly irritating effect on the reader.
Amnesty: Between an Ethics of Forgiveness and the Politics of Forgetting
Authors: Krapp Peter
Published: March 2019

Given the remarkable consistency in Jacques Derrida's work over several decades, it is not hard to draw a line from “Force of Law: The ‘Mystical Foundation of Authority’” to his last seminars, on pardon and forgiveness. The aporias of forgiveness are analogous to those of the gift and of justice he had analyzed in detail in previous decades, as Derrida states in “To Forgive: The Unforgivable and the Imprescriptible” — to that extent his last seminars and lectures were part of the same deconstructive project on the possibility of justice. At the same time, Derrida postulates that forgiveness is an experience outside or heterogeneous to the rule of law. In considering this juncture in Derrida's work, this paper will juxtapose the logic and history of amnesty with Derrida's analysis of pardon: the latter pivots on a monotheistic heritage, a Biblical-Koranic sense that is demarcated from the former concept, that of amnesty between an ethics of forgiveness and the politics of forgetting.
Present-ing the Past: Political Narratives on European History and the Justification of EU Integration
Authors: Larat Fabrice
Published: March 2019

“Die Geschichte ist Gegenstand einer Konstruktion, deren Ort nicht die homogene und leere Zeit sondern die von Jetztzeit erfüllte bildet.” wrote Walter Benjamin. “So war für Robespierre das antike Rom eine mit Jetztzeit geladene Vergangenheit, die er aus dem Kontinuum der Geschichte heraussprengte.” (“History is the subject of a construction whose site is not homogeneous, empty time, but time filled full by now-time. Thus, to Robespierre ancient Rome was a past charged with now-time, a past which he blasted out of the continuum of history.)
Constitutional Identity and the Politics of Homogeneity
Authors: Mahlmann Matthias
Published: March 2019

The identity of the European Union has, for some years now, been the topic of many debates. The recent enlargement of the Union has stirred this debate and has not appeased it. There are various key topics that inspire the discussion, which included, for example, conceptions of citizenship. The following remarks will offer a sketch of some of the issues that come to the fore in this respect. Of particular interest here are the connections between the process of the constitutionalisation of Europe and the question of the desirability, or even necessity, of a homogenous European identity. I will first name some exemplary concrete problems that are connected with questions of politics of identity. I will then undertake a short illustrative look into the history of ideas to trace back some of the lines of thought that are relevant in the discussion. Finally, I want to suggest a possible normative perspective of how to proceed.
Europeanization as a Challenge to Legal History
Authors: Keiser Thorsten
Published: March 2019

A project concerning itself with the effects of the past on the European integration process must also raise the question of the emergence of guiding historical images in the course of this process. As the past is not objective truth, but a perception generated by various actors (e.g., politicians, populist movements) as well as by history as a science in accordance with its own aims and rationality criteria, it appears in very different narratives. Many such historical images of Europe are generated by legal history. Since the Treaty on the European Union brought European integration a deeper, political dimension, a euphoria about Europe has broken out in legal history.
Corporate Practices and National Governance Systems: What do Country Rankings Tell Us?
Authors: Cornelius Peter
Published: March 2019

Nations compete for investment capital, and the assurances investors seek as they decide to provide that capital are universal. Motivated by the growing appetite for a global benchmark of corporate behaviour, this paper examines the relationship between the measured quality of corporate governance at the firm level and national competitiveness. It begins by analyzing the perceived quality of institutions in the 23 largest capital markets. Hypothesizing that good corporate governance at the company level may compensate for perceived weaknesses in the institutional framework, the paper then focuses on the pilot governance index developed by the Financial Times and ISS and compares it with new survey evidence from the World Economic Forum's Global Competitiveness Report. Finally, the paper discusses corporate governance in the EU accession countries and the extent to which the quality of governance has affected the mode of entry for foreign investment.
Torture in Abu Ghraib: The Complaint against Donald Rumsfeld under the German Code of Crimes against International Law
Authors: Fischer-Lescano Andreas
Published: March 2019

The thesis that, after September 11, 2001, there were categorical differences between Europe and the U.S. in their approaches to the dangers of terrorism, rests essentially on the claim that “Old Europe's” constitutional pacifism has failed. In this view, the globalpax americanahas a Hobbesian commitment to military power, and this is said to be the form adequate to realize the universal concept of peace. In principle, this is not an especially original notion. Robert Kagan, who nevertheless helped it gain a certain prominence, is merely the intellectual beneficiary of a series of classical theorists ofrealpolitikwho agreed that conflicts could, “at the end of the day,” only be settled politically and not legally. Ironically, the prophets of this thesis were confessed Old Europeans. Carl Schmitt as well as Hans Morgenthau laid the cornerstone of these forms of cosmography, insisting that, on a global level, it is not law that rules but the free interplay of state-forces.
Internet-Auctions versus Consumer Protection: The Case of the Distance Selling Directive
Authors: Spindler Gerald
Published: March 2019

It has long been disputed whether a consumer under the Distance Selling Directive has the right to revoke a contract concluded as the result of an Internet auction. There is no doubt that contracts concluded by means of electronic trading platforms are to be qualified as distance selling contracts if there is a business-to-consumer-situation. Hence, at first glance, contracts entered into in the course of an Internet auction should be treated in the same manner so that consumers may exercise their right to revoke the contract. On the other hand, a right to revocation would hamper significantly an Internet auction because this form of trading depends on its character as a game and, thus, on the finality of the resulting contracts. If buyers are enabled to revoke their contracts after the end of an auction there would be no risk for a buyer in making the highest possible bid, thus rendering the auction a farce.
A New Era for Private Antitrust Litigation in Germany? A Critical Appraisal of the Modernized Law against Restraints of Competition
Authors: Wurmnest Wolfgang
Published: March 2019

On July 1st, 2005, the 7thAmendment to the Law against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen– GWB) became effective. The modernization of the GWB was indispensable in bringing German law in line with Regulation (EC) No. 1/2003. Regulation 1/2003 decentralized the enforcement of EC competition rules and aimed to pave the way for effective private antitrust litigation in Europe. Thus far, private parties have invoked Art. 81 and 82 EC Treaty primarily as shield by arguing that certain agreements were void. Only in very few instances were those rules used as sword to sue infringers for injunctive relief or damages. To stimulate private enforcement, Regulation 1/2003inter aliaabolished the European Commission's exclusive power to exempt practices which are prohibited pursuant to Art. 81 (1) EC Treaty and entitled national competition authorities and courts to apply Art. 81 (3) EC Treaty. Moreover, it empowered the European Commission to make written submissions in antitrust cases pending before national courts. In line with the new European approach, the German legislature has overhauled the hitherto existing rules of German competition law considerably. This article will briefly describe the general changes brought by the reform and take a closer look at the amended rules relating to private antitrust litigation before German courts.
A “Global Theory of Federalism”: The Nature and Challenges of a Federal State
Authors: Gamper Anna
Published: March 2019

Innumerable attempts have been made to explore the theoretical nature of federalism. Due to the long history, worldwide existence and interdisciplinary character of federalism, a plethora of literature has been written on the topic. Yet, these endeavours have not even resulted in a clear and commonly used definition of the term. Surely, it is one of the great dilemmas of this field of research that despite so much discussion, there is no settled common denominator of ‘federalism'. Whereas practical studies and exchange of experience between the various federal systems offer a more conventional research arena, comparative theoretical approaches are much more seldom. This is not the least because of the tremendous semantic challenges of a comparative theoretical approach. At first glance, it is sometimes difficult to understand the terminology of federalism, the meaning of which differs according to the perspectives of constitutional law, political science or economics. Even more difficulty arises when the substance of federal theories is discussed. Again, differences between theories may be due to different academic approaches, particularly between understanding federalism as an overall principle or as a more concrete concept of a federal state and, in particular, whether the constituent units of a federal state are states, and, if states, whether they are sovereign.
The Constitutional Treaty as a Reflexive Constitution
Authors: Bast Jürgen
Published: March 2019

The “Treaty establishing a Constitution for Europe” elicits divergent scholarly responses. An apologetic view holds that it is the best of all possible constitutions, given the current constellations of political forces. Such a viewpoint is countered by a mixed choir of critics for whom the document is simply another treaty, a “nostalgic project,” or a merely “semantic constitution.” Some even believe that the recourse to constitutional rhetoric endangers the rational substance of the European status quo; others fear that this very conceptuality could be damaged. The present chapter endeavors to find a third approach. It offers a critical stance as regards the unfortunate, phraseological, sometimes even ideological language of the Constitutional Treaty. Simultaneously, the constitutional text is taken seriously in its normative statements. This approach aims to reconstruct the document from a point of view which depicts it, despite its contradictions, as a project with a rightful place in the tradition of Western constitutionalism.
Thoughts on a Methodology of European Constitutional Law
Authors: Dann Philipp
Published: March 2019

Constitutional law is special not only for the salient importance of its substance, but also for its concentrated yet open form and terminology. Hardly surprising, therefore, the issue of how to interpret and analyze constitutional law is a commonly and sometimes hotly debated topic in most constitutional systems.