What role do public law and liberal constitutionalism play in an era of political populism? This article approaches this question by exploring the concept of constituent power in the light of recent constitutional developments in countries with populist governments. It attempts to outline and contrast conceptions of constituent power as inherent in liberal constitutionalist and populist thinking, respectively. While constitutionalists draw heavily upon Kelsenian normativism in framing the way political power is generated, populists juxtapose this with a concept of constituent power that is inspired by Carl Schmitt’s ‘decisionist’ view. The complacency of legality inherent in liberal constitutionalist thinking is susceptible to a populist challenge that draws attention to the necessity for the social embeddedness of any legal order. Populism, it is argued, exposes a core tension inherent in constitutionalism: How do constitutionalists reconcile their democratic aspirations with the simultaneous preclusion of certain political choices from the democratic realm? Populists can attack constitutionalism also because of the deficient conception of constituent power that underlies the latter. The article concludes that, where challenged by populists, public law can at some point no longer rely on its own force to defend itself. Its authority needs to be re-established from an extra-legal, pre-positive perspective. In an era of political populism, constitutionalist public law becomes a discourse that can challenge populism by means of the powerful reasons that inhere in the former.

This Article asks the fundamental question of whether the concept of a market-oriented (economic) order can be reconciled with the idea of democracy from the perspective of rational choice approaches to the law. Europe has been facing great economic challenges for the past years—sovereign debt; fiscal and monetary policy; financial market regulation; trade and investment agreements. Some observers argue that prioritizing an economic rationale in the policy response to these challenges comes at the expense of democracy by undermining its most vital preconditions (such as equality and solidarity), while their antagonists state that in fact democratic decision-making is undermining financial stability and long-term welfare of societies. This Article will establish that both positions contribute important insights and yet display too narrow a field of vision. Combining the arguments puts the cart before the horse: Democratic decision-making undermines, among other things, financial stability—and thus long-term welfare of societies—because it follows a logic that is primarily economic.

On 3 May 2007, the European Court of Human Rights in Strasbourg (hereinafter “the Court”) rendered a judgment in the case Bączkowski and Others v. Poland The 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.

Through the recruitment of judges — their selection and subsequent appointment – powerful actors control who enters the judicial ranks and under what circumstances. In this paper I address how are European judges recruited using examples from ten European countries, while paying special attention to the role of the judicial self-government in these processes. Indeed, there are differences between recruitment processes across Europe. In some countries, a central role in the judicial recruitment is played by judicial schools; elsewhere crucial powers belong to judicial councils and/or other bodies of judicial self-government; in the UK or Ireland some of these powers were vested in the hands of specialized bodies; whereas in other countries the process remains less formal with crucial powers resting in the hands of court presidents. Despite these differences, I choose to emphasize similarities recruitment processes share. They operate as funnels where the pool of candidates gradually decreases until only one (or few) remains and is eventually appointed. In order to assume judicial office one usually must (a) meet eligibility criteria, (b) get on selector's radar to be actively considered for the position, (c) get shortlisted for the position, (d) get selected, and (e) eventually appointed. Dividing the recruitment process into these stages, while paying attention to motivations of all involved actors, can help deepen our understanding of how judicial recruitment actually works and how formal and informal rules together shape the composition of judiciaries.

In Ukraine, spheres of political, military, and economic control are contested, non-transparent, and shifting. As the Ukrainian government lost control over the rebellious Eastern oblasts (regions) of the country, Russia denies its authority over various pro-Russian separatists and vigorously rejects any responsibility for the abuses by the unidentified “green men,” both before and after the annexation of Crimea. Even during the decades before this conflict, the rule of law in Ukraine was “thin” at best. Meaningful political control was sporadic and dispersed, often wielded by the mix of public, private, and other shady actors occupying the grey area between a functional and a dysfunctional state. If state actors never effectively took control over the events at the state-level during peaceful times, it is not surprising that it is more difficult once a “hot” conflict breaks out. It is not unreasonable to assume that Minsk agreements—signed in an effort to stop the hemorrhaging of the conflict—will not hold if the signatories do not effectively control the diverse public and private actors who possess the actual capacity to influence the dynamic on the ground. Before rendering any kind of juridical judgment, the complicated political and socioeconomic configuration of the conflict in Ukraine forces us to first confront a factual puzzle: Who and what influence the current situation? Which concrete actors really drive the conflict and what interests animate them?

Climate litigation has become a permanent fixture in the climate law and policy landscape. Across jurisdictions, climate litigation takes different shapes, with actions based on administrative, civil, or criminal law. An increasing number of cases incorporate human rights, leading to courts inter alia imposing more onerous mitigation obligations on governments and private actors in light of human rights provisions. Several landmark cases in this domain have come from European jurisdictions and have been argued with reference to both the European Convention on Human Rights (ECHR) and the European Union’s Charter of Fundamental Rights. An analysis of case law from the European Member States shows that the emerging picture is one of the Charter playing a secondary role to the ECHR. Based on this jurisprudential analysis, this article reflects on the future role of the Charter in climate litigation, and by extension, in shaping environmental human rights.

Defining competences in EU law has always been problematic, notwithstanding the inclusion since the Treaty of Maastrict of the principle of conferred powers as central to the constitutional character of the EU. Under the principle of conferral, the Union only has those powers actually conferred by the Treaties. However, the concepts of a common market or of ‘ever-closer Union’ have a conceptual scope that potentially, in effect, negates the principle of conferral. This article argues that the framework of norm conflict offers conceptual insight into the dynamics of determining and limiting EU competence. In particular, it draws on the distinction between lex specialis and lex generalis to understand different ways of treating competence norms in legal reasoning. Following a discussion of the concept of competence norms, this conceptual framework is applied to two case studies: (1) on the right to strike and (2) the general law of external relations.

This Article revisits the role and function of constitutional identity and common constitutional traditions and claims that the latter have had an increasingly stronger influence on the process of European integration—more than may appear at first sight. In addition, the relevance of common constitutional traditions has not been undermined but, on the contrary, strengthened by the emergence of fundamental rights in EU law and the subsequent conferral of binding force on the Charter of Fundamental Rights. Constitutional identity and common constitutional traditions are part of two discourses—security and fundamental rights—which are an expression of the security of the European project as an overarching frame characterizing the EU as a polity and legal system. After an overview of some of the most important rulings of the Court of Justice of the European Union, this Article concludes by emphasizing the importance of the recent conciliatory attitude recently adopted by the Court of Justice, although the more ambivalent attitude of the Italian Constitutional Court indicates how conflictual features are becoming increasingly important and can no longer be concealed as the EU reaches a more advanced stage of integration.

This Article engages the debate over the free movement of same-sex couples and explores what can, and should, be learned from the case law on the recognition of names. These “name cases” provide valuable lessons for both the proponents and opponents of same-sex marriage recognition. These cases show, first, that Member States are under the presumption to recognize marriages performed in other Member States. This Article also considers the importance of the national and constitutional identities of the Member States and suggests that there remains a possibility that Member States may justify the non-recognition of a marriage or deprive same-sex couples of some of the rights heterosexual married couples benefit from. The Article explores how the EU is confronted with a federal clash of values and offers some suggestions on how to solve this clash.

The dominant grammar of public law is a product of abstraction that, at times, overemphasizes certainty and simplicity in a search for systematic coherence within the constitution, even where none exists. In contrast, a concern for and with political and legal practice invites a more tentative and exacting grammar, one that necessitates further questioning, resists generalities and appeals instead to a language of “more or less” and “in one sense but not in another” as part of our public law discourse. We seek a practice-oriented grammar that encourages public lawyers to think and to speak politically about the constitution. We draw on works of prominent political constitutionalists to show how they have had varying degrees of success in nurturing a more practice-oriented grammar of public law.

The most immediately striking aspect of the ICJ's recent ruling on Kosovo's unilateral declaration of independence is the divergence between what the Court actually said and how its decision is being read in the media and by political actors. Typically the Court is said to have found secession by Kosovo to be “legal” or “lawful” under international law. According to Kosovo President Fatmir Sejdiu, “The decision finally removes all doubts that countries which still do not recognize the Republic of Kosovo could have.” The angry reaction to the decision by Serbian nationalists likewise supposed that the Court had endorsed a right to secession. In fact, what the Court did was to read literally—and some would say narrowly or pedantically—the question it was asked, and thus to avoid opining on the major legal (and related policy) issues raised by the act of secession, including whether there is a right to proceed with a unilateral act of secession, and to whom such a right may or may not belong. On the literal reading, the Court was not asked, and thus it did not rule on, whether international law requires that the final status of Kosovo protect the group and individual rights of minorities, whether Kosovar Serbs or Roma. Likewise, the Court did not rule on whether Serbia or, indeed, any other State in the world community is required to recognize Kosovo as an independent State. Nor did the Court's decision address the borders of an independent Kosovo, or whether and under what circumstances force could legally be used either to impose independence or to resist it.

Most contemporary constitutionalists exhibit a highly critical attitude toward populism, seeing it as one of the main reasons for the “erosion” of liberal democratic institutions in a growing number of countries around the world. Other constitutional theorists, who are less hostile to the populist phenomenon, remain open to the prospect of a genuinely populist constitution. Irrespective of their differences, both camps take the existence of populism—itself a highly contested concept—for granted. In challenging this implicit consensus in constitutional theory about the actual existence of some observer-independent “populism,” this essay proceeds from two assumptions. One: like all political concepts, populism is a concept which, irrespective of the intentions of those who articulate it, has polemical implications. Two: like all polemical concepts, populism is a concept that must be “staged”. What that means are, again, two things. First, populism is staged because its meaning emerges against the backdrop of dramatized scenes that confront us with concrete political actors, impersonal technological tendencies, important historical events, elusive cultural atmospheres and broader socioeconomic landscapes. In most constitutionally relevant depictions of those scenes, populism emerges as a grave, if not yet existential, threat to liberal democracy. Which brings us to the second sense in which populism ought to be understood as “staged”: not just as an abstract concept propped up by concrete imaginings of protagonists, events, tendencies, and challeneges, but as a stage-prop: a polemical device whose function is itself dramatizing. Portrayed as a “regime,” painted in dark colours, and situated in opposition to liberal democracy, populism is a figure whose role is to make the face of liberal democracy look more appealing. If so, there is no reason not to look at populism as a rhetorical distraction from other, potentially more fruitful questions such as: What are the actual institutional features of liberal democracy—not as some abstract template of legitimate government —but as a specific, historically mutable, socio-economic and psycho-social regulatory regime? In what sense do such regimes have a “constitution”? In whose interest are constitutional theories that remain indifferent to those regimes’ realities? Offering a fresh look at how liberalist critics of populism project this “ideology” or “regime” on a stage on which it appears as a threat to liberal democracy, this article offers a vantage point from which to begin systematically confronting these questions.

Estimates of the number of Muslims in EU Member States vary widely, depending on the methodology and definitions used and the geographical limits imposed. Excluding Turkey and the Balkan-regions, researchers estimate that as many as 13 to 20 million Muslims live in the EU: That is about 3.5 - 4% of the total EU population. Muslims are the largest religious minority in Europe, and Islam is the continent's fastest growing religion. Substantial Muslim populations exist especially in Western European countries, including France, Germany, the United Kingdom, Spain, Italy, the Netherlands, Belgium and the Scandinavian Countries. Europe's Muslim populations are ethnically diverse and Muslim immigrants in Europe hail from a variety of Middle Eastern, African, and Asian countries, as well as Turkey. Most Muslim communities have their roots in Western Europe's colonial heritage and immigration policies of the 1950s and 1960s used to counter labor shortages during the period of reconstruction after World War II. These policies attracted large numbers of North Africans, Turks, and Pakistanis. Furthermore, in recent years, there have been influxes of Muslim migrants and political refugees from other regions and countries, including the Balkans, Afghanistan, Iraq, Somalia, and the West Bank and Gaza Strip.

A shareholder vote on executive compensation, the so-called “say on pay”, has become one of the most prominent corporate governance tools for regulators in their urge to tackle excessive executive remuneration. Its implementation in the United Kingdom in August 2002 has triggered–not least because of a Recommendation of 2004 by the European Commission–a broader discussion of this instrument which gradually led to the adoption of related rules throughout Europe. In Germany, a “say on pay” was enacted by the German Parliament (Deutscher Bundestag) as part of the Act on the Appropriateness of Management Board Compensation (Gesetz zur Angemessenheit der Vorstandsvergütung–VorstAG) on 18 June 2009, it passed the second chamber of the German Parliament (Deutscher Bundesrat) on 5 July 2009 and was promulgated in the legal gazette (Bundesgesetzblatt) on 31 July 2009. The new law became effective on 5 August 2009. In the meantime, the United States also enacted provisions with respect to a shareholder vote on executive compensation. The Dodd-Frank Wall Street Reform and Consumer Protection Act, often only referred to as the “Dodd-Frank-Act”, introduced a mandatory, non-binding “say on pay”, as well as a more specific shareholder vote on payments in the context of a change of control (“golden parachutes”). The SEC recently adopted rules in order to implement these provisions.

The European financial crisis has called many of the assumptions of the constitutional structure of the European Union (EU) into question. The market-based model of the European Monetary Union (EMU) led to an improper assessment of the borrowing capacity of the euro-area Member States and a mispricing of their default risk. Another design flaw of the EMU that has been exposed by the crisis was the weakness of the existing framework for economic policy coordination. The factual interdependence of the participating economies in the monetary union was so strong that the denial of some form of assistance to the debt-distressed countries triggered a domino effect in the Eurozone as a whole. The quest for instruments to address the sovereign debt crisis brought a European constitutional crisis to the forefront: the EU did not possess the appropriate mechanisms to help the states in need and to guarantee financial stability in the EMU.

Going after terrorists, often means “fighting the unknown”. The so-called “new threat” cannot be tracked back to known terrorists plotting against known government officials within national boundaries. The need for early investigation is clear, nothing more urgent than to forestall further terrorist actions. Today's sleeper can be tomorrow's terrorist. Hence, the argument herein is that new developments remain as consequent continuation perfecting well-known terrorist strategies and techniques. Instead of predating criminal responsibility the unknown needs to be identified. In refusing such identification current criminal law turns into a soft law reflecting actual social needs by preventing a future wrong. Current German criminal law on terrorism overextends appropriate borders in criminalizing chains of preparations. Punishment is carried out for “thinking different” by way of pre-crime, just symbolizing the wrong. The paper argues that even if criminal responsibility is predated in order to identify the unknown, it has to base on behavior, which can be understood as disorder outside the offender's interim sphere to qualify as criminal wrong. This applies to suspected terrorists and also to all other suspects of crime.

The emergence of private actors in setting standards and sometimes contributing to monitoring and enforcement functions is a key feature of contemporary transnational regulation. Transnational private regulation fills significant gaps in governmental and intergovernmental capacity, offering the potential of public goods which both provide some coordination for global markets and address some of the externalities associated with globalization such as environmental degradation and exploitation of workers.

In the context of the encounter of UK and German socio-legal studies in this issue, this Article develops preliminary thoughts on a research agenda for the comparative interdisciplinary empirical study of legal doctrine. Based on a working definition of doctrine as an institutionally legitimized practice of making statements on the law, it presents an overview of sociological and comparative theorizing about doctrine in Germany, and of the data and methods being used to study it, in order to identify similar or diverging trends in the UK and elsewhere. This Article aims to show that legal doctrine, which is often regarded by non-lawyers as arcane and/or tedious, is an interesting and important subject for comparative socio-legal research.

On 22 July 2010, the International Court of Justice (hereinafter the “ICJ”) delivered its advisory opinion on the accordance with international law of the unilateral declaration of independence in respect of Kosovo. The ICJ concluded that the declaration of independence dated 17 February 2008 did not violate any applicable rule of international law consisting of general international law, UNSC resolution 1244 (1999) (hereinafter the “Resolution 1244”) and the Constitutional Framework for Provisional Self-Government in Kosovo (hereinafter the “Constitutional Framework”). The ICJ delivered the advisory opinion in response to a question set out in resolution 63/3 dated 8 October 2008 of the General Assembly of the United Nations Organization (hereinafter the “General Assembly”), which asked if “the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo is in accordance with international law.”