{"title":"Demystifying autonomy: tracing the international law origins of the EU principle of autonomy – ERRATUM","authors":"Mark Konstantinidis","doi":"10.1017/glj.2024.5","DOIUrl":"https://doi.org/10.1017/glj.2024.5","url":null,"abstract":"","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2024-02-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139683358","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"My Body Is My Temple? Comparing Sexual Crimes and Property Crimes in a Human Rights Tradition – ERRATUM","authors":"Otava Piha","doi":"10.1017/glj.2024.4","DOIUrl":"https://doi.org/10.1017/glj.2024.4","url":null,"abstract":"","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2024-01-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139594075","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The application of the EU Charter of Fundamental Rights to the Member States has given rise both to a controversial phraseology and a controversial case-law. This paper offers a reconstruction of the constitutional intent and proposes a conceptualization in conformity with the structural function and the constitutional contemplation of the pouvoir constituent. As to the phraseological debate, it demonstrates that the Charter’s application to the Member States may occur by reason of either “implementation” or “interpretation” of EU law and the two strands are embraced but not synthetized by “scope” as a collective term. As to the substantive debate, it demonstrates that the CJEU’s case-law on “implementation” is not only amorphous but also inconsistent with the Charter’s constitutional mandate. The paper proposes a novel approach based on the notion that the application to the Member States is accessory to the supremacy of EU law. The paper’s argument is presented in the following steps. First, the paper presents the pristine rationale and constitutional function of the application to the Member State through its emergence and historical context. Second, it provides a taxonomy and critical overview of the CJEU’s amorphous case-law and presents the Court’s futile attempt to create a coherent doctrine that faithfully reproduces the constitutional contemplation behind the diagonal application and that reflects the division of competences between the EU and its Member States. Third, it sets out the proposed doctrine of “displacement.”
{"title":"The Diagonal Application of the EU Charter of Fundamental Rights: From “Displacement” through “Agency” to “Scope” and Beyond","authors":"C. Nagy","doi":"10.1017/glj.2023.94","DOIUrl":"https://doi.org/10.1017/glj.2023.94","url":null,"abstract":"\u0000 The application of the EU Charter of Fundamental Rights to the Member States has given rise both to a controversial phraseology and a controversial case-law. This paper offers a reconstruction of the constitutional intent and proposes a conceptualization in conformity with the structural function and the constitutional contemplation of the pouvoir constituent. As to the phraseological debate, it demonstrates that the Charter’s application to the Member States may occur by reason of either “implementation” or “interpretation” of EU law and the two strands are embraced but not synthetized by “scope” as a collective term. As to the substantive debate, it demonstrates that the CJEU’s case-law on “implementation” is not only amorphous but also inconsistent with the Charter’s constitutional mandate. The paper proposes a novel approach based on the notion that the application to the Member States is accessory to the supremacy of EU law. The paper’s argument is presented in the following steps. First, the paper presents the pristine rationale and constitutional function of the application to the Member State through its emergence and historical context. Second, it provides a taxonomy and critical overview of the CJEU’s amorphous case-law and presents the Court’s futile attempt to create a coherent doctrine that faithfully reproduces the constitutional contemplation behind the diagonal application and that reflects the division of competences between the EU and its Member States. Third, it sets out the proposed doctrine of “displacement.”","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2024-01-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139607665","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Despite recent criminal law reforms to define rape through the lack of consent, practical questions remain about how to regulate different kinds of violations of sexual autonomy. Many common law scholars have found it eye-opening how much more extensive and easily accepted the protection of property rights is compared to the protection of sexual autonomy. But when the rationale of criminalization resides in human rights, such a comparison is alien; protecting human dignity appears separate from protecting instrumental property rights. Considering rape a subversion of our ownership rights to our bodies (the property model of rape) is rightly regarded as problematic. This article argues that comparing sexual crimes and property crimes is not predicated on the property model but rather on autonomy itself. Comparisons based on autonomy could help resolve practical dilemmas of consent-based rape laws while respecting human dignity and thus be fruitful research pursuits within a human rights tradition.
{"title":"My Body Is My Temple? Comparing Sexual Crimes and Property Crimes in a Human Rights Tradition","authors":"Otava Piha","doi":"10.1017/glj.2023.97","DOIUrl":"https://doi.org/10.1017/glj.2023.97","url":null,"abstract":"\u0000 Despite recent criminal law reforms to define rape through the lack of consent, practical questions remain about how to regulate different kinds of violations of sexual autonomy. Many common law scholars have found it eye-opening how much more extensive and easily accepted the protection of property rights is compared to the protection of sexual autonomy. But when the rationale of criminalization resides in human rights, such a comparison is alien; protecting human dignity appears separate from protecting instrumental property rights. Considering rape a subversion of our ownership rights to our bodies (the property model of rape) is rightly regarded as problematic. This article argues that comparing sexual crimes and property crimes is not predicated on the property model but rather on autonomy itself. Comparisons based on autonomy could help resolve practical dilemmas of consent-based rape laws while respecting human dignity and thus be fruitful research pursuits within a human rights tradition.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2024-01-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139530475","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
When establishing constitutional rules that regulate political parties, liberal democracies struggle between civil liberties—thus tolerating anti-democratic parties—and potential threats of democratic breakdown, which can be reduced by prosecuting and prohibiting anti-democratic parties. We suggest that liberal democracies must balance false positives and false negatives by combining ex ante and ex post regulatory mechanisms. By making use of a unique dataset of thirty-seven liberal democracies collected by the authors, we find empirical results consistent with our positive theory. An extensive review of the normative debate and case law provides additional qualitative support.
{"title":"Regulating Parties by Constitutional Rules in Liberal Democracies","authors":"Catarina Santos Botelho, Nuno Garoupa","doi":"10.1017/glj.2023.117","DOIUrl":"https://doi.org/10.1017/glj.2023.117","url":null,"abstract":"\u0000 When establishing constitutional rules that regulate political parties, liberal democracies struggle between civil liberties—thus tolerating anti-democratic parties—and potential threats of democratic breakdown, which can be reduced by prosecuting and prohibiting anti-democratic parties. We suggest that liberal democracies must balance false positives and false negatives by combining ex ante and ex post regulatory mechanisms. By making use of a unique dataset of thirty-seven liberal democracies collected by the authors, we find empirical results consistent with our positive theory. An extensive review of the normative debate and case law provides additional qualitative support.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2023-12-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139002552","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this Article we analyze whether and how the legal reactions to COVID-19 brought permanent changes to three main areas that are at the very basis of the study of comparative constitutional law: the horizontal separation of powers in different forms of government; the vertical separation of powers and its effects on forms of state; and the reviewability of limitations to human rights and personal freedoms by bodies exercising constitutional review. Rather than just examining and categorizing the reactions, we search for the political, institutional, factual, and sometimes even cultural rationales at the basis of each trend. Our claim is that COVID-19 was a driving force for relevant changes in the three analyzed areas, but we also recognize that these changes did not come “out of the blue,” as they were already “latent” in considered legal systems. The analysis demonstrates that the traditional categories we use to classify the forms of government, forms of state, and the mechanisms of constitutional review, although being useful paradigms to study these topics, have in themselves the potential to be “stretched,” and even unhinged, when global and long-lasting emergencies, as COVID-19, are in place.
{"title":"New Dynamics of the “Post-COVID-19 Era”: A Legal Conundrum","authors":"Arianna Vedaschi, Chiara Graziani","doi":"10.1017/glj.2023.116","DOIUrl":"https://doi.org/10.1017/glj.2023.116","url":null,"abstract":"\u0000 In this Article we analyze whether and how the legal reactions to COVID-19 brought permanent changes to three main areas that are at the very basis of the study of comparative constitutional law: the horizontal separation of powers in different forms of government; the vertical separation of powers and its effects on forms of state; and the reviewability of limitations to human rights and personal freedoms by bodies exercising constitutional review. Rather than just examining and categorizing the reactions, we search for the political, institutional, factual, and sometimes even cultural rationales at the basis of each trend. Our claim is that COVID-19 was a driving force for relevant changes in the three analyzed areas, but we also recognize that these changes did not come “out of the blue,” as they were already “latent” in considered legal systems. The analysis demonstrates that the traditional categories we use to classify the forms of government, forms of state, and the mechanisms of constitutional review, although being useful paradigms to study these topics, have in themselves the potential to be “stretched,” and even unhinged, when global and long-lasting emergencies, as COVID-19, are in place.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2023-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139007706","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the Anglophone world of law, the German legal historian and legal theorist Cornelia Vismann (1961–2010) is best known as an acute interpreter of French high theory, especially of Jacques Derrida, Jacques Lacan, and Michel Foucault. This type of reception is, I argue, somewhat distorted. For her English-speaking colleagues, French “poststructuralism” provides the interface that enables Vismann to enter into shared discursive constellations with her Anglo-American critical legal colleagues. But at the same time, such a reception also downplays the very specifically German soil from which her unique scholarship arose. This Article discusses Vismann’s German background as media theory, the discipline that she was mostly associated with by her compatriots. The Article then assesses what Vismann’s media-theoretical contributions potentially offer to the contemporary study of law. For this “other Vismann,” the media-theoretical study of law was, I suggest, a practically oriented critical discipline that focused on law’s “cultural techniques” and how they operated. I also briefly touch upon what is generally known as “German media theory” through key figures such as Friedrich A. Kittler and Bernhard Siegert.
在以英语为母语的法律界，德国法律历史学家和法律理论家科妮莉亚·维斯曼(1961-2010)最为人所知的是她对法国高级理论的敏锐阐释，尤其是对雅克·德里达、雅克·拉康和米歇尔·福柯的阐释。我认为，这种接受方式有些扭曲。对于她说英语的同事来说，法国的“后结构主义”提供了一个接口，使维斯曼能够与她的英美批判性法律同事进入共同的话语星座。但与此同时，这样的接待也低估了她独特的学术成就产生的特殊的德国土壤。本文将维斯曼的德国背景作为媒介理论来讨论，这是她的同胞们最常联想到的学科。文章随后评估了维斯曼的媒体理论贡献对当代法律研究的潜在贡献。对于这个“另一个维斯曼”，我认为，法律的媒介理论研究是一门以实践为导向的批判学科，它关注法律的“文化技术”及其运作方式。我还通过弗里德里希·基特勒(Friedrich A. Kittler)和伯恩哈德·西格特(Bernhard Siegert)等关键人物简要介绍了所谓的“德国媒介理论”。
{"title":"Media, Cultural Techniques, and the Law: The Other Cornelia Vismann","authors":"P. Minkkinen","doi":"10.1017/glj.2023.115","DOIUrl":"https://doi.org/10.1017/glj.2023.115","url":null,"abstract":"\u0000 In the Anglophone world of law, the German legal historian and legal theorist Cornelia Vismann (1961–2010) is best known as an acute interpreter of French high theory, especially of Jacques Derrida, Jacques Lacan, and Michel Foucault. This type of reception is, I argue, somewhat distorted. For her English-speaking colleagues, French “poststructuralism” provides the interface that enables Vismann to enter into shared discursive constellations with her Anglo-American critical legal colleagues. But at the same time, such a reception also downplays the very specifically German soil from which her unique scholarship arose. This Article discusses Vismann’s German background as media theory, the discipline that she was mostly associated with by her compatriots. The Article then assesses what Vismann’s media-theoretical contributions potentially offer to the contemporary study of law. For this “other Vismann,” the media-theoretical study of law was, I suggest, a practically oriented critical discipline that focused on law’s “cultural techniques” and how they operated. I also briefly touch upon what is generally known as “German media theory” through key figures such as Friedrich A. Kittler and Bernhard Siegert.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2023-12-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138603404","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract In 2021, the German and Namibian governments published a Joint Declaration as a result of their negotiations on reparations. Ovaherero and Nama representatives strongly criticized the violation of their participation rights during the negotiations and the reproduction of colonial racism. In 2023, a lawsuit was filed with the Namibian High Court. This litigation could become a milestone in the history of legal struggles for reparations for colonial crimes worldwide. In addition to the litigation, several United Nations Special Rapporteurs were contacted and published their joint communication in April 2023, essentially confirming the lack of effective participation and the obligation to grant reparations. This Article gives an overview of the most important historical events during German colonial rule and the most significant efforts to legally come to terms with it since 2006. It analyzes the main legal issues in this context: Have the acts committed by German colonial troops violated the laws in force at the time? Is the current application of the doctrine of intertemporal law by the governments a reproduction of racism? Might it be a new act of racism? What challenges and limits do courts face when they attempt to retrospectively reconstruct legal systems and legal norms in force 100 years ago? Does the German state have a legal obligation to enter into negotiations over reparations? What participation rights do affected communities have in processes of legal reappraisal of colonialism? In view of the growing demands for reparations worldwide, it is timely to deal with the underlying legal issues in an exemplary manner. The legal intervention of the German-Namibian reappraisal could set a precedent. The Article aims at establishing minimum legal standards for reparations processes for colonial crimes worldwide.
{"title":"Minimum Legal Standards in Reparation Processes for Colonial Crimes: The Case of Namibia and Germany","authors":"Karina Theurer","doi":"10.1017/glj.2023.81","DOIUrl":"https://doi.org/10.1017/glj.2023.81","url":null,"abstract":"Abstract In 2021, the German and Namibian governments published a Joint Declaration as a result of their negotiations on reparations. Ovaherero and Nama representatives strongly criticized the violation of their participation rights during the negotiations and the reproduction of colonial racism. In 2023, a lawsuit was filed with the Namibian High Court. This litigation could become a milestone in the history of legal struggles for reparations for colonial crimes worldwide. In addition to the litigation, several United Nations Special Rapporteurs were contacted and published their joint communication in April 2023, essentially confirming the lack of effective participation and the obligation to grant reparations. This Article gives an overview of the most important historical events during German colonial rule and the most significant efforts to legally come to terms with it since 2006. It analyzes the main legal issues in this context: Have the acts committed by German colonial troops violated the laws in force at the time? Is the current application of the doctrine of intertemporal law by the governments a reproduction of racism? Might it be a new act of racism? What challenges and limits do courts face when they attempt to retrospectively reconstruct legal systems and legal norms in force 100 years ago? Does the German state have a legal obligation to enter into negotiations over reparations? What participation rights do affected communities have in processes of legal reappraisal of colonialism? In view of the growing demands for reparations worldwide, it is timely to deal with the underlying legal issues in an exemplary manner. The legal intervention of the German-Namibian reappraisal could set a precedent. The Article aims at establishing minimum legal standards for reparations processes for colonial crimes worldwide.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-11-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135635168","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Contrary to predominant European constitutional narratives assuming the alignment between the European Union legal framework and national constitutional orders, this Article points at the current misalignment between the prevailingly purposive European Union institutional order and the prevailingly open character of the Democratic and Social Constitutional State. The evolutionary trajectories leading to the current status quo are examined by distinguishing an age of openness, in which the institutional frameworks of both the European Economic Communities and the Democratic and Social Constitutional State lent themselves to a range of competing legislative renderings, from an age of purposiveness opened by the Treaty of Maastricht, in which a neoliberal policy agenda was gradually entrenched in the Treaties, with the result of undermining the adaptability and inclusiveness of European public law structures. To counter this development, this Article identifies in a drastic deconstitutionalization of the Economic and Monetary Union the key move to favor the realignment of the European Union and the Democratic and Social Constitutional State.
{"title":"Openness, Purposiveness, and the Realignment of the EU and the Democratic and Social Constitutional State","authors":"Marco Dani","doi":"10.1017/glj.2023.79","DOIUrl":"https://doi.org/10.1017/glj.2023.79","url":null,"abstract":"Abstract Contrary to predominant European constitutional narratives assuming the alignment between the European Union legal framework and national constitutional orders, this Article points at the current misalignment between the prevailingly purposive European Union institutional order and the prevailingly open character of the Democratic and Social Constitutional State. The evolutionary trajectories leading to the current status quo are examined by distinguishing an age of openness, in which the institutional frameworks of both the European Economic Communities and the Democratic and Social Constitutional State lent themselves to a range of competing legislative renderings, from an age of purposiveness opened by the Treaty of Maastricht, in which a neoliberal policy agenda was gradually entrenched in the Treaties, with the result of undermining the adaptability and inclusiveness of European public law structures. To counter this development, this Article identifies in a drastic deconstitutionalization of the Economic and Monetary Union the key move to favor the realignment of the European Union and the Democratic and Social Constitutional State.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-11-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135819906","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract With the promulgation of the Autonomous Driving Act in summer 2021, Germany took the worldwide lead on regulating self-driving cars. This Article discusses the (non-)regulation of moral dilemmas in this act. To this end, it clarifies the role of the so-called trolley problem, which influenced the report of the German Ethics Commission that paved the way for this act in particular and the relationship between philosophical reasoning, empirical studies, and the law in general. By introducing the international legal community to the (non-)regulation of moral dilemmas in the German act, the Article critically reviews the German goal, which is to serve as a European and international role model. This will be preceded by a discussion as to why self-driving cars should be allowed as well as the moral dilemmas they cause which should be regulated by the law.
{"title":"How to Regulate Moral Dilemmas Involving Self-Driving Cars: The 2021 German Act on Autonomous Driving, the Trolley Problem, and the Search for a Role Model","authors":"Lando Kirchmair","doi":"10.1017/glj.2023.83","DOIUrl":"https://doi.org/10.1017/glj.2023.83","url":null,"abstract":"Abstract With the promulgation of the Autonomous Driving Act in summer 2021, Germany took the worldwide lead on regulating self-driving cars. This Article discusses the (non-)regulation of moral dilemmas in this act. To this end, it clarifies the role of the so-called trolley problem, which influenced the report of the German Ethics Commission that paved the way for this act in particular and the relationship between philosophical reasoning, empirical studies, and the law in general. By introducing the international legal community to the (non-)regulation of moral dilemmas in the German act, the Article critically reviews the German goal, which is to serve as a European and international role model. This will be preceded by a discussion as to why self-driving cars should be allowed as well as the moral dilemmas they cause which should be regulated by the law.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-11-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135819737","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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