bluuebunny/crossref_metadata_2025 huggingface dataset:
Emotion and Law: How Pre-Rational Cognition Influences Judgment
Authors: Haenni Julia
Published: March 2019

This short essay seeks to introduce thephenomenological approachto law and legal decision-making, and to show the role of emotion in guiding the person applying the law. The peculiarity of the phenomenological approach-which substantially refers to the principles of Kantian epistemology-is found in the philosophical analysis of perception: Perception itself contains a specific emotional competence for evaluation, which will be disclosed to the legal context. In this context,phenomena, i.e., the contents that we perceive through our acts of perception, will be exposed as a basis for ethical decisions. Typically, when questions of legal interpretation call forth conflicts between core ethical values, it appears that the competence of a primary, intuitive judgment strongly forms our decision-making process. The phenomenological approach will thus point out the openness of a legal system towards criteria of extra-legal value judgment. Furthermore, this approach will reveal legal practitioners’ emotional competences for judgment as a source of normativity. An emotional ability to judge will finally be-in a series of examples-referred to as the last instance on our quest for justice.
From Compliance to Rulemaking: How Global Corporate Norms Emerge from Interplay with States and Stakeholders
Authors: Dilling Olaf
Published: March 2019

Many industrial practices, such as the organization of working conditions or the use of hazardous substances, are no longer endemic to a specific jurisdiction. Rather, they spread through cross-border production chains or global markets for consumer products. In many cases, such regulatory issues therefore cannot be resolved within a single territory. Instead, they require the involvement of global players, such as civil society, business actors or international organizations, who can often find pragmatic solutions to global problems, even if they lack the formal authority to do so. This seems to conform to a more global trend of national government getting replaced by global governance.
After the War in Bosnia: Radmila's Life Under Handbrake
Authors: Simić Olivera
Published: March 2019

“Ljudski rod ne mrzi toliko one koji čine zlo, ni samo zlo, koliko onog ko imenuje zlo.”

Writer Radmila Karlaš lives and works in Banja Luka, the political and economic center of Bosnia and Herzegovina's (BiH) entity Republika Srpska (RS). Four years ago, Radmila left journalism because, in her own words, journalism had been “reduced to serve only the centers of power in BiH.” Since then she has published two novels,Four Leaf CloverandThe Silence of Mestizos. Both works deal with the direct experience of war in BiH, with the phenomenon of evil in human nature, and attempt to demystify the process that has led her homeland into the situation in which it now finds itself. The novels also analyze the war crimes committed against the non-Serb population in Radmila's hometown, Banjaluka, and in Prijedor, a town in the northern-western part of BiH.
The Personal Scope of the Right to Life Under Article 2(1) of the European Convention on Human Rights After the Judgment inA, B and C v. Ireland
Authors: Kirchner Stefan
Published: March 2019

The right to private life under Article 8 of the European Convention on Human Rights (the Convention, or ECHR) is one of the widest rights in European human rights law. Applicants often rely on the norm when they seek to justify all kinds of behavior, which may be limited or even outlawed through domestic law. Therefore, it comes as no surprise that in the case ofA, B and C v. Ireland, which was decided by the European Court of Human Rights in December 2010, the applicants relied on Article 8 to complain about the restrictive anti-abortion law in the Republic of Ireland. Contrary to predictions thatA, B and C v. Irelandcould become “Europe's Roe v. Wade,” referring to the U.S. case which led to the permissibility of abortion under U.S. law, the European Court of Human Rights (the Court) held that Article 8 did not include a right to have an abortion.
Monitoring the Trial of Onesphore R. Before theOberlandesgerichtFrankfurt
Authors: Bülte Nicolai , Grzywotz Johanna , Römer Tobias , Wolckenhaar Leonard
Published: March 2019

“Twenty years ago today our country fell into deep ditches of darkness—twenty years later, today, we are a country united and a nation elevated.”

Those were the words of Rwanda's Minister of Foreign Affairs, Louis Mushikiwabo, on 7 April 2014, as he spoke to the Rwandan People at the twentieth anniversary of the beginning of the Rwandan genocide. Thousands of Rwandans gathered at Rwanda's main sports stadium, the Amahoro stadium, in Kigali to mourn their losses together. Ban Kimoon, the UN Secretary-General, lit a flame at the Kigali Genocide Memorial Center and not only expressed his solidarity with all Rwandans, but also emphasized that the United Nations could and should have done more to avoid the most devastating chapter in Rwanda's history.
The Annexation of Crimea and the Boundaries of the Will of the People
Authors: Vidmar Jure
Published: March 2019

The secession of Crimea and—more broadly—the conflict in Ukraine reopened questions concerning the limits of a democratic expression of the will of the people and the use of force in order to procure annexation of a territory belonging to another State. This article seeks to clarify the law governing the change of the legal status of a territory through secession and merger with another state. It argues not only that the right of self-determination does not grant an entitlement to alter the legal status of a territory, but also that general international law does not prohibit such an alteration. The rules of international law favor the stability of theexistinginternational borders and thus the territorial status quo, but this does not mean that a unilateral attempt at altering an existing territorial arrangement automatically constitutes an internationally wrongful act. Any change of the legal status of a territory becomes illegal, however, upon anoutsideuse of force. Such an illegality cannot be “cured” by a democratically expressed will of the people.
The Virtues of Bright Lines: Self-Determination, Secession, and External Intervention
Authors: Roth Brad R.
Published: March 2019

The United Nations Charter-based international order sought to reconcile the self-determination of peoples with the inviolability of state boundaries by presuming sovereign states to be manifestations of the self-determination of the entirety of their territorial populations. This presumption, albeit nationally rebuttable, traditionally prevailed even where states could only by a feat of ideological imagination be characterized as “possessed of a government representing the whole people belonging to the territory without distinction.” But the international reaction to fragmentation in the former Yugoslavia—regarding both the initial “dissolution” and the subsequent struggle over Kosovo—called into question the rigid doctrines of the past and opened the door to secessionist claims theretofore dismissible as beyond the pale. Although no vindication of Russian intervention in Ukraine can properly be drawn from the Yugoslav cases, the Ukrainian crises help to surface the hidden dangers of an emerging jurisprudence that would allow previously inadmissible considerations—whether ethnic, historical, constitutional, or “democratic”—to compromise the territorial inviolability norm.
The Ukraine Crisis, Cold War II, and International Law
Authors: Mamlyuk Boris N.
Published: March 2019

The Ukraine crisis has, yet again, called into question the coherence and stability of international law both as a language for mediating particular types of international disputes—such as conflicts between the so-called Great Powers— and as a set of institutions capable of serving asforafor the resolution of these disputes. Given the scale and intensity of the ongoing war in Ukraine and the magnitude of its regional and global repercussions, a number of policymakers and historians have already made compelling arguments for why the conflict may be the most significant threat to global order since the end of the Cold War—perhaps even since the Cuban Missile Crisis. While policymakers in the U.S. and Russia have cautioned against drawing Cold War parallels, numerous analysts in both countries have proclaimed the start of a new Cold War in light of the rapid deterioration in relations between Moscow and Washington. Beyond bilateral U.S.–Russia relations, and in the words of Dmitri Trenin, director of the Carnegie Moscow Center, Cold War Two (hereinafter “CWII”) has “effectively put an end to the interregnum of [post-Cold War] partnership and cooperation betweenthe Westand Russia.” While sharing the view that a new Cold War has erupted, this article suggest that its causes are far deeper and its likely battlegrounds are far wider than mere antagonism between the United States and Russia over the fate of Ukraine, To the extent that CWII has begun, it may mark a return to interbloc rivalry, East versus West, or even Great Game geopolitics. To complement these frames, the present conflict may also be understood by viewing it through the prism of political economy, particularly the study of “new-statism,” or the new developmental state within the broader context of the development of global capitalism. Thinking of CWII this way allows one to ask whether CWII is actually a war between Western liberal capitalism and various systems of state capitalism, of which Russia's is but one. To be even more precise, one can also ask whether the conflict is better thought of as a contest between different state capitalisms for control over key trade or transit routes, production locales, and markets. Tribes, states, and empires have always waged mortal combat over these material matters. CWII—whether it has started or soon will—will likely rest on similar considerations. And yet, despite the seriousness of the threat, there has been remarkably little academic discussion, and much less public debate, regarding the configuration of global power flows that has contributed to this crisis or the role, and limitations of law in structuring our political imaginations in response to these challenges. This Article is an attempt to call attention to several serious aspects of the Ukraine crisis which have hitherto been underanalyzed, namely the role of information warfare in exacerbating its magnitude.
Secession and Annexation: The Case of Crimea
Authors: Catala Amandine
Published: March 2019

The recent crisis involving the territory of Crimea has been characterized both as a case of wrongful annexation and as one of rightful secession. Territory and competing territorial claims lie at the heart of the normative questions of secession and annexation. Any normative theory of secession or of annexation must therefore address their territorial aspect: It must explain why one agent rather than another has a valid claim to the disputed territory. One of the most interesting, yet controversial, normative accounts of secession has been offered by choice theorists of secession. Choice theorists adopt a rather permissive stance, based on the normative significance of political self-determination. Choice theories, however, have been widely criticized for failing to provide a satisfactory account of what legitimates the seceding group's territorial claim. This article argues that it is possible to remedy choice theories’ failure to address the question of territorial justification adequately. To do so, this article offers a two-tier account of territory that is grounded in the normative significance of self-determination. It defends this account of territory by showing that it is implied by our normative condemnation of annexation. It argues that the same reasons that warrant opposition to annexation provide support for secession, In closing, this article revisits the case of Crimea in light of its two-tier account of territory, and considers what role international law and institutions might play in addressing this type of situation.
“Trust the People”? Democratic Secessionism and Contemporary Practice
Authors: MacLaren Malcolm
Published: March 2019

Using the secession claims in Ukraine and elsewhere as points of reference, this article reflects on the meaning of popular sovereignty and consent of the governed in divided societies.

The article begins by critiquing the approach to secession claims prevailing internationally. It finds that the imprecision of the applicable rules, the plethora of secession claims, and most importantly, the claims’ adverse effects on relations between and within states urge different treatment.

The article then assesses an alternative approach, based on realizing the principles of self-determination and democracy through independence referendums. It finds that a doctrine of democratic secessionism, if conceived consistently and implemented consequently, shows considerable potential as a guide in treating secession claims. Moreover, this alternative proves preferable to the prevailing approach, practically as well as conceptually.

According the principles of self-determination and democracy higher legitimacy than and precedence to other considerations would in some conflict cases lead to striking outcomes. Nonetheless, such an alternative approach could prove not only intrinsically but also instrumentally valuable, contributing,ceteris paribus, to conflict resolution.
Fourth Amendment Rights for Nonresident Aliens
Authors: Walen Alec
Published: March 2019

The U.S. National Security Agency has nearly unlimited authority to spy upon citizens of foreign countries while they are outside the United States. It goes almost without saying that such targeting of U.S. citizens, without any hint of individualized suspicion either of criminal wrongdoing or of being a threat to national security, would be constitutionally prohibited under the Fourth Amendment. However, the dominant view in the American legal community is that there is nothing constitutionally wrong, or even suspect, about such targeting of nonresident aliens.

This article argues that the dominant view of the law is wrong both descriptively and normatively. It is wrong with regard to the proper interpretation of the relevant constitutional case law, because that case law is more open ended and unclear than the dominant view represents it as being. And it is wrong with regard to the underlying legal and moral principles that should guide the interpretation and development of constitutional law. Those principles call for recognizing that nonresident aliens enjoy constitutional protection against unjust harms—a point argued for in a companion paper, “Constitutional Rights for Nonresident Aliens.” And those same principles imply that nonresident aliens enjoy the Fourth Amendment's prohibition on unreasonable searches and seizures.
Federal Constitutional Court Declares Inheritance and Gift Tax Act Unconstitutional
Authors: Kube Hanno
Published: March 2019

In December 2014, the German Federal Constitutional Court declared the Inheritance and Gift Tax Act unconstitutional. The following article presents and discusses the judgment. Instead of trying to comply by changing as little as possible, the legislator should consider a fundamental and consequent alternative: an inheritance and gift tax that treats everybody the same.
The EPPO Draft Regulation Passes the First Subsidiarity Test: An Analysis and Interpretation of the European Commission's Hasty Approach to National Parliaments’ Subsidiarity Arguments
Authors: Wieczorek Irene
Published: March 2019

This contribution discusses National Parliaments’ subsidiarity objections raised in the context of the Early Warning Mechanism (EWM) to the European Public Prosecutor Office proposal, and the European Commission response to them. It argues that National Parliaments raised important points, on how does subsidiarity apply respectively, when the wording of the Treaty grants the Council theoptionto act, as opposed to an obligation to act; on how to assess the inefficiency of the national level; on how does subsidiarity apply in a geographically fragmented context, and on the legitimacy for the EU to regulate non cross-border behaviors. It criticizes the Commission's hasty dismissal of all National Parliaments’ objections, and its decision to leave the proposal's text untouched. It further argues that the Commission's interpreted the EWM as an arena where to test the political feasibility of the proposal, as it had occurred in the past, rather than as a proper subsidiarity policing mechanism. It finally provides some observation on how this interpretation of the EWM has negative implications to terms of subsidiarity policing, of understanding the substance of the principle, and of input legitimacy.
The Decision of the AustrianVerfassungsgerichtshofon the EU Charter of Fundamental Rights: An Instrument of Leverage or Rearguard Action?
Authors: Orator Andreas
Published: March 2019

In a landmark decision of 2012 on the relevance of the EU Charter of Fundamental Rights (CFR) in domestic constitutional adjudication, the AustrianVerfassungsgerichtshof(Constitutional Court) substantially extended the applicable yardstick, according to which the constitutionality of ordinary laws and administrative action may be assessed, to certain Charter rights. At the same time, theVerfassungsgerichtshofclaimed its active commitment to judicial dialogue with the Court of Justice of the European Union (CJEU) through the preliminary reference procedure pursuant to Article 267 TFEU to effectively protect Charter-based fundamental rights of individuals. Arguably, both the domestic and Union-wide ramifications of this “instant classic” case of a domestic constitutionalization of the Charter are substantial, delivering insight not least as to the transformative role of the Charter for domestic fundamental rights protection and the adaptations of domestic constitutional courts in such a changed environment.
The Spanish Constitutional Court and Fundamental Rights Adjudication After the First Preliminary Reference
Authors: Serrano Miryam Rodríguez-Izquierdo
Published: March 2019

The purpose of the preliminary reference procedure is to ensure a uniform application and interpretation of Community law across all the Member States, including European fundamental rights as enshrined in the Charter of Fundamental Rights of the European Union. The entry into force of the Charter has reinforced the authority of the Court of Justice of the European Union (CJEU) in the field of fundamental rights adjudication. But the Charter may also be a new source of conflicts between the jurisdiction of the CJEU and the jurisdiction of national constitutional courts. Indeed, compliance with the indirect rulings over national law contained in the CJEU decisions became something logical for the national ordinary courts from the beginning of the integration process, but it was not the same for national constitutional courts. Most of them have always disliked the idea of asking for the CJEU's opinion on a conflict of law involving national constitutional provisions. The CJEU succeeded in establishing a legal doctrine through principles of Community law—supremacy and direct effect being the pioneers—that meant a material constitutionalization of the European Union (EU) law system. And for the national constitutional courts, such an understanding of EU law made a rival of the CJEU.
European Integration Through Preliminary Rulings? The Case of the Bulgarian Constitutional Court
Authors: Vatsov Mihail
Published: March 2019

The preliminary reference procedure under Article 267 of the Treaty on the Functioning of the European Union (TFEU) is instrumental for the so-called “judicial dialogue” within the European Union (EU). The goals of the preliminary reference procedure are to ensure the uniform interpretation and application of EU law and to contribute to the harmonious development of the law throughout the EU. It was through the preliminary reference procedure to the Court of Justice of the European Union (CJEU) that the principles of direct effect and supremacy were developed. It took many years before the first request by a Constitutional Court was sent to the CJEU. So far, the Constitutional Courts of Belgium, Austria, Lithuania, Italy, Spain, France, Germany, and most recently Slovenia, have sent requests for preliminary rulings to the CJEU. By far the most active of these in sending requests has been the Belgian Court. The Portuguese Constitutional Court has indicated that it can request preliminary rulings from the CJEU but is yet to do so. In the other Member States (MS) with Constitutional Courts, references have not been sent yet, although worthy occasions in terms of EU-law-related cases have occurred, as also observed in various contributions in this special issue. These MSs include Bulgaria.
The Return of the Huron, or Naïve Thoughts on the Handling of Article 267 TFEU by Constitutional Courts when Referring to the Court of Justice
Authors: Astresses Pierre-Vincent
Published: March 2019

He was a Huron, but a particular one. Lulled during his childhood by the stories of the public law teacher of his Tribe who had the chance to get a scholarship enabling him to mix with intricacies of the French recourse for misuse of power—a real first!—he had seen some of his friends cross the Ocean.
Bending the Rules: A Dutch Approach to Improving the Flexible Application of Environmental Standards
Authors: Tolsma Hanna , de Graaf Kars
Published: March 2019

Environmental standards should not be a hindrance for economically relevant projects — especially in the fields of sustainability and green energy. Therefore, the Dutch legislature implemented experimental instruments in the Crisis and Recovery Act to improve the flexible application of environmental standards. They did this by allowing competent authorities to deviate from these standards. This article analyzes this Dutch approach, which can be characterized as “bending the rules.” Are these instruments legally sound and how are the relevant provisions applied in practice? Dutch government is currently working on a fundamental change of the system of environmental law with a new Environment and Planning Act. Should this new system of environmental law include a general permanent provision to deviate from environmental standards? This article provides environmental scholars with some lessons that can be learned from the Dutch Approach.
Neoliberalism and Law: The Case of the Constitutional Balanced-Budget Amendment
Authors: Biebricher Thomas
Published: March 2019

This Article discusses the significance of law in neoliberal theory and practice. Prefaced by a brief look at the role that law plays in the theories of the ordo- and neoliberal thinkers Franz Böhm and Friedrich August von Hayek, the subsequent chapters focus on the work of James Buchanan and his brand of neoliberalism, which combines constitutional economics public choice theory. Buchanan's core demand is a balanced-budget amendment to the constitution. The following Sections examine this measure in its various aspects before the final section switches to the world of “actually existing neoliberalism” with a discussion of the various reforms of the economic governance structure of the European Union in recent years, particularly the “Fiscal Compact”, which amounts to the real world equivalent of a balanced-budget amendment.
An Alert from the Left: The Endangered Connection Between Taxes and Solidarity at the Local and Global Levels
Authors: Francisco Saffie G.
Published: March 2019

Neoliberal tax policies at the local and the global levels risk democracy consolidating economic inequality by allowing and fostering capital accumulation. As a consequence capital owners have increased their political power to influence and decide on local and global tax policies for their own benefit. The Chilean income tax system and the international tax law system (including tax competition among states and tax heavens) are analysed as examples of neoliberal tax policies at the local and the global level, respectively. At the same time, neoliberalism as a normative order of reason has replaced the political aspect of taxation with economic concepts that tend to dissolve the connection between taxes and solidarity. In this scenario, taxes make no economic or political sense as they are not understood as duties of citizenship. In this Article, recent alternatives proposed to diminish global no taxation and inequality, as the OECD BEPS project and Thomas Piketty's proposal for a global tax on capital are analyzed and criticized.
Territoriality, Democracy, and Borders: A Retrospective on the “Refugee Crisis”
Authors: Gärditz Klaus Ferdinand
Published: March 2019

The so-called refugee crisis has triggered a broad and divisive political discussion about overrun national borders, crumbling state sovereignty, and the disintegration of democratic governance resulting from an alleged disregard for the law by the German Federal Government. Many critics have advanced arguments that are nothing more than hot-tempered polemics based on blunt legal or theoretical misconceptions. Nonetheless, it is obvious that external boundaries played—and will continue to play—a pivotal role in managing the inflow of migrants into the European Union, which is surrounded by areas of political instability, authoritarianism, poverty, civil war, and religious extremism. This Article addresses the function of territorial borders for a liberal democracy from the perspective of constitutional theory. It demonstrates that effectively controlled outer boundaries are an adequate democratic answer to an instable, fragmented, and fragile world, while avoiding the pitfalls of defining political and social membership by substantive and inescapable criteria, such as ethnicity.
What Does It All Mean?
Authors: Davies Gareth
Published: March 2019

What does Brexit mean for the European Union? One can try to predict the consequences, but one can also ask what messages the vote reveals, what it tells us about the state of integration. Is Europe a market, a project of identity-building, or one of political integration? What does Brexit tell us about each of these?
On the Continent Alone
Authors: Di Fabio Udo
Published: March 2019

The (still) United Kingdom has voted against remaining in the EU. The divide between London City and the countryside, between young and old, between Scotland and Wales –all of this will keep this nation occupied for a long time, if it does not tear the nation apart. At the very least it will be a nation under significant tension. But what about the Continent? Recently a truculent suggestion has been making the rounds in Brussels, Paris and Berlin. In principle it would be a good thing if the English leave. This would clear the way for “more Europe.” Maybe, with a divorce, Europe will at last be free to take step toward a federal state. Some, a bit more tactfully, wonder if Brexit should not have consequences for the EU as well. Should the EU become more “social” with decidedly more transfers? Or, should competences now be returned to the Member States? Others, to the contrary, have floated the idea of a new subsidiary balance: they want to transfer additional sovereign authority and reduce the veto-opportunities for the Member States.
Brexit: Time for a Reflection Period about the Finalitè of European Integration
Authors: Nettesheim Martin
Published: March 2019

Some events seem to be outside the scope of political imagination, even if they are not improbable. That the United Kingdom, one of the European Union's (EU) largest and politically most influential Member States, might leave the EU, is one of these events. The outcome of the referendum of June 23, 2016 has evoked surprise and notions of doom. “Catastrophe”, “explosion of a bomb”, “drama,” are only some of the terms used by politicians and media observers to express their surprise and to signal that they are overwhelmed by the outcome. Reactions in the immediate aftermath of the referendum were uncoordinated, conflicting, and did not show a strong spirit of European integration. For example, it is not self-evident why the foreign ministers of the six founding Member States should gather to strategize over the response to the referendum, thus effectively excluding the 21 other Member States.
Safety Valves and Complete Exits in European Treaty Politics
Authors: Phelan Will
Published: March 2019

It is common to describe the European Union as “new,” “unique,” “sui generis,” and hard to fit into existing categories of institutional arrangements, national or international. Indeed, debates on how to describe the EU are often lively and sometimes illuminating. In concrete terms, however, one of the best ways to understand the EU's distinction from other forms of treaty-based trade and integration regimes is the EU's distinctive lack of unilateral safeguard and escape valve mechanisms available to policy-makers in the various Member States.
Citizenship, Migration and Free Movement in Brexit Britain
Authors: Shaw Jo
Published: March 2019

Regardless of what happens in the next few months and years in the post-referendum UK, much of the harm has been done. The uncertainty, in particular, is killing. It will have a significant impact on many of the UK's most productive economic sectors including universities and financial services. It will cast a shadow over inward investment and over the willingness to take risks of those responsible, for example, for building new infrastructure. There will be a brain drain. Already in some respects the EU is acting as if the UK were no longer a Member State. It has no Commissioner since Jonathan Hill's resignation. After the EUCO summit on 29 June which took pace without the UK's presence, EU27 conclusions were issued.
Chronicle of a Death Foretold? Thinking About Sovereignty, Expertise and Neoliberalism in the Light of Brexit
Authors: Tzouvala Ntina
Published: March 2019

“The true nature of the international system under which we were living was not realised until it failed.”

Karl Polanyi

The Great Transformation: The Political and Economic Origins of Our Time (1944)

There is a certain degree of irony in writing about Brexit for a law journal- a read put together, hosted and read mostly, if not exclusively, by ‘experts’. The irony lies in the fact that the outcome of the UK referendum on the EU was, amongst other things, a rejection of experts; or rather, of current mobilizations of expertize and the political allegiances of a large number of experts. Despite this irony, or precisely because of it, I will reflect on three interrelated questions that, in my mind, determined the content and outcome of this historic referendum. First, I will discuss the discourse of ‘sovereignty’ and ‘control’ at the centre of the Leave campaign. Secondly, I will focus on the role of expertize and (technocratic) knowledge both in the construction of the European project and in the revolt against it. Finally, I will argue that given neoliberal hegemony and its heavily unequal distributive outcomes, revolts against contemporary structures of power, both national and inter/supranational are to be expected. Therefore, the question for progressive lawyers is how to mobilize our expertise so that these revolts do not become the exclusive playing terrain of the extreme right with unforeseen consequences.
The Brexit Referendum and the Crisis of “Extreme Centrism”
Authors: Wikinson Michael
Published: March 2019

The result of the Brexit referendum sends shockwaves through the political fabric of the UK, Europe and beyond. It is the latest instance in a series of anti-systemic shocks to hit the EU, but will almost certainly not be the last, as discontent with the status quo and a disconnected elite continues unabated across the Continent (and is replicated across the Atlantic), and the European Union provides a convenient target for voters to express their anger and resentment.
Ne Bis Interpretatio In Idem?The Two Faces of theNe Bis In IdemPrinciple in the Case Law of the European Court of Justice
Authors: Rosanò Alessandro
Published: March 2019

The meaning ofidemin thene bis in idemprinciple is controversial in the case law of the Court of Justice of the European Union. In interpreting the provision of Article 54 of the Convention Implementing the Schengen Agreement, the court has emphasized the necessary requirement in the identity of the material acts while in antitrust law three requirements have been deemed necessary: (1) Identity of the facts, (2) unity of offender, and (3) unity of the legal interest protected. Despite the opinions of some Advocates General, the court has confirmed different interpretations of the same principle, depending on differences of the legal scope in question. A few years ago, however, the European Court of Human Rights proclaimed the criterion based on the identity of the material acts as the most suitable. This might push the Court of Justice of the European Union to correct its position in the antitrust field. Should this happen, this adjustment might serve as grounds to recognize the existence of a regional custom concerning thene bis in idemprinciple.
Counterfactual Reasoning: An Effective Component of the International Law Methodological Armor?
Authors: Mushkat Roda
Published: March 2019

The exploration of international legal patterns is an increasingly multifaceted enterprise. As such, it inevitably entails recourse to a progressively broader array of analytical instruments designed to place the process on a firmer scientific, or quasi-scientific, foundation. This expanding set consists predominantly, albeit not exclusively, of qualitative techniques relied upon in seeking generalizations about complex realities that are shrouded in uncertainty. The cluster of tools employed or deemed potentially usable includes, although tentatively, counterfactual thinking. The latter may be regarded as a research vehicle of “last resort,” underpinned by a soft substructure, but it may facilitate the quest for better grasp of phenomena observed in the international law domain and more effective action in that realm.
Introduction: Mapping the Pluralist Character of Cultural Approaches to Law
Authors: Olson Greta
Published: March 2019

This introduction explains the title of this special issue as a call for transdisciplinary and culturally-oriented research on law in Germany. In an initial overview of pluralism, the text asserts that a German discussion of the pluralistic nature of legal authority predates the twentieth-century one within legal anthropology, legal theory, and political philosophy. The first part of the text reviews the early discussion of legal pluralism in the context of debates about state formation and an appropriate balance of forms of normative authority. This discussion points to the inherent plurality and affectivity of law. The second part of the introduction, in turn, is devoted to an argument in favor of the culturally-embedded and - mediated nature of legal phenomena made through an analysis of images relating to the so-called refugee crisis. On the basis of this analysis, it is posited that critical cultural methods and concepts are needed to comprehend current processes such as the so-calledEuropeanizationof law, the increasing heterogeneity of legal systems and cultures, and to critically bracket the idea of “legal culture” in and of itself. The last part of the introduction offers an overview of the essays in this special issue. On the one hand, each essay contributes to the thesis that law is pluralistic and has to be investigated interdisciplinarily, using a plurality of methods. On the other hand, all of the contributions make a different kind of claim for how law transpires and is transported through theatrical, visual means, narratives, and affects.
Imagining the Foundations of Law in Britain: Magna Carta in 2015
Authors: Kayman Martin A.
Published: March 2019

The 800thanniversary of Magna Carta offers a study in how the foundations of law have been visualized in the United Kingdom. The fact that the British sense of identity as a free nation has historically been based on its commitment to “unwritten” law means that it lacks a foundational text and has hence traditionally figured the law through a plurality of images without a core. The absence of a singular image on which to focus national identity became acute in the early twenty-first century as the multiplication of sources of legality and justice in a globalized and multicultural world put pressure on the United Kingdom's sense of sovereignty. The tensions manifest in this crisis can be seen across a range of images produced for the anniversary, each bearing different values. Yet the rival narratives are able to coexist in the same commemorative space, their differences subsumed within Magna Carta's status as a postmodern “icon,” the consecration of the reciprocal identification between the protection of liberty and the rule of law. The Article concludes by examining a court battle over land on the borders of the commemorative site, and at another commissioned artwork. Both, in their different ways, bring into view the boundaries and bonds imposed by the rule of law that the iconic image elides.
To Allow or Refuse Entry: What Does the Law Demand in the Refugee Crisis at Europe's Internal State Borders?
Authors: Peukert Alexander , Hillgruber Christian , Foerste Ulrich , Putzke Holm
Published: March 2019

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.
The Constitutionality of § 89a of the German Criminal Code (StGB) and the Concept of a Serious Act of Violent Subversion: The German Federal Court of Justice (Bundesgerichtshof), Judgement of 8thMay 2014 - 3 StR 243 / 13
Authors: Ohnesorge Christopher , Wilkes Julia , Eichfelder Marius , Rastegar Jinnus , Derra Matthias , Balmer Julia
Published: March 2019

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.
New Challenges for European Comparative Law: The Judicial Reception of EU Non-Discrimination Law and a turn to a Multi-layered Culturally-informed Comparative Law Method for a better Understanding of the EU Harmonization
Authors: Mulder Jule
Published: March 2019

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.
“Same Legal Value as the Treaties”? Rank, Primacy, and Direct Effects of the EU Charter of Fundamental Rights
Authors: Rossi Lucia Serena
Published: March 2019

Article 6 of the TEU states that the EU Charter of Fundamental Rights “shall have the same legal value as the Treaties.” This Article investigates the Charter's real status in the EU legal order. To this end, the Charter's force will be analyzed relative to EU institutions, the Member States, and individuals. The resulting picture will enable consideration of the Charter's place in the EU hierarchy of norms, as well as the question of its primacy and direct effect.
National Higher Courts and European Integration: A Survey of Six Decades of Academic Inquiry
Authors: Ortiz Pablo José Castillo
Published: March 2019

Boosted by landmark decisions such asCrotty, Solange, orMaastricht-Urteil, academic literature on National Higher Courts in the context of European integration has undergone an exponential growth in the last decades. In this Article, I aim at mapping this emerging subfield in order to explore the three patterns that structure it. First, a trend towards the consolidation and expansion of literature on the higher courts of the Member States, which has gained relative autonomy from general studies on European law and politics. Second, a clear tendency towards the internationalization of this subfield, which has developed in parallel to the national scholarship on the topic. And third, the emergence of a pattern of transdisciplinary dialogue in a subfield featured by the diversity of approaches, methodologies, and epistemological backgrounds.
Mainstreaming Equality in European Structural and Investment Funds: Introducing the Novel Conditionality Approach of the 2014–2020 Financial Framework
Authors: Vițăr Viorica
Published: March 2019

This paper explores a novel equality mainstreaming tool in EU spending—the “ex-ante conditionality”—as introduced in the 2014–2020 European Structural and Investment Funds. It shows that conditionality is a response to the modest achievements of prior equality-mainstreaming action in spending, but that its current legal construct and operation risk propagating similar shortcomings. The article concludes by emphasizing the importance of mainstreaming as a crucial tool for progressive achievement of equality and social justice in the EU, and highlights four essential elements to be addressed for a successful equality mainstreaming policy in EU spending.
Animals, Slaves, and Corporations: Analyzing Legal Thinghood
Authors: Kurki Visa
Published: March 2019

The Article analyzes the notion of legal “thinghood” in the context of the person–thing bifurcation. In legal scholarship, there are numerous assumptions pertaining to this definition that are often not spelled out. In addition, one's chosen definition of “thing” is often simply taken to be the correct one. The Article scrutinizes these assumptions and definitions. First, a brief history of the bifurcation is offered. Second, three possible definitions of “legal thing” are examined: Things as nonpersons, things as rights and duties, and things as property. The first two definitions are rejected as not being very interesting or serving any heuristic function. Conversely, understanding legal things as property is meaningful, useful, and helps to understand what it means to say that animals are legally things. Defining things as property has certain rather important implications, which are analyzed at the end of the Article. For instance, not everything needs to be either a person or a thing: The historical institution of outlawry involved treating individuals neither as legal persons nor as legal things. One must conclude that the person–thing bifurcation is less fundamental than is often assumed.
Approaches for Dealing with the “Natural Person” in the Chinese Legal System: A Statutory Way and a Principled Way
Authors: Yu Tuo
Published: March 2019

Along with numerous ethical and legal questions prompted by advancements in technology, there is a strong call for protection of “persons” in a broad sense. This Article discusses how such developments emerge in China. Chinese courts are often confronted with disputes concerning prenatal injuries, the disposition of frozen embryos, and infringements on the reputation of the deceased. After examining these cases, their underlying tensions, and the upcoming Chinese Civil Code, this Article reflects on the evolving concept of a natural person within the Chinese civil law context. The Article further asks how law deals with new problems while at the same time maintaining stability and coherence when viewed against a rapidly evolving biotechnological background.
A Cyborg Turn in Law?
Authors: Viljanen Mika
Published: March 2019

This Article deploys cybernetic theory to argue that a novel legal impact imaginary has emerged. In this imaginary, the subjects of legal interventions are performed and enacted as cybernetic organisms, that is, as entities that process information and adapt to changes in their environment. This Article, then, argues that in this imaginary, law finds its effectiveness—not by threatening, cajoling, educating, and moralizing humans as before, but by affecting the composition of cybernetic organisms, giving rise to new kinds of legal subjects that transcend the former conceptual boundary between humans and non-humans, or persons and things. The cybernetic interventions work to change the cyborgs' behavioral responses, thus giving law a new kind modality of power. This Article develops a model for understanding cyborg regulation through case studies and argues that cyborg regulation deploys three distinct strategies. Cyborgs can be controlled through affecting the informational inputs the entities receive, through agencement practices that intervene in the material constitution of the cyborg cognitions, and, finally, by psycho-morphing humans to make them useful components of the cyborg cognitive machineries. The Article ends with a discussion of the theoretical implications of the transition to the cyborg imaginary.