“The world truly shares a common fate.” These words seem to resonate with Immanuel Kant's famous statement that “a violation of right on one place of the earth is felt in all.” Yet, they are not from his Toward Perpetual Peace but from the UN Millennium Project report. What makes our world one of “overlapping communities of fate” are first and foremost the “interconnected threats and challenges” we face in our globalizing age. During the last fifty years we witnessed an enormous growth of transboundary problems – climate change, migration, terrorism, infectious diseases, violent conflicts etc.

For some years now, reproductive medicine has been capable of performing the act of human procreation in vitro, fusing the female ovum and the male semen outside of the human body. The embryo created by this process is then “implanted” into the uterus of the woman who had previously provided the ovum. This technique serves to overcome certain physical defects - such as a malfunction of the fallopian tubes - of a couple that wants to have children.

As a system of managing environmental and social risk in the sector of large-scale international project finance, the Equator Principles (EPs) have generated increased interest and critical engagement in the private, public, and academic spheres. Particular research in the field of transnational governance is especially concerned with assessing the degree in which private and public actors are revolutionizing the methods and procedures of governance in the wake of the decline of the welfare state, and rise of the post-regulatory state. Social scientists and legal theorists alike have begun analyzing the effects of a shift in the “emphasis of control, to a greater or lesser degree, from traditional bureaucratic mechanisms towards instruments of regulation.” Within this context, the EPs present an opportunity to analyze and assess the structure, procedures and effectiveness of a self-regulatory governance system, voluntarily established by private actors in the international project finance sector, to mitigate social and environmental risks.

This article begins the task of outlining the impacts of the COVID-19 pandemic in relation to matters of citizenship, using what is termed a “syndemic analysis.” This type of analysis places both the pandemic and citizenship in their wider contexts. The synergistic or intersectional thinking encouraged by the characterization of the pandemic as a syndemic, which links together health, socio-economic issues, and political questions, is useful for highlighting how much more vulnerable to many of the negative impacts of the pandemic in the sphere of citizenship are those who are also more vulnerable both to catching and suffering more seriously from the virus and to experiencing negatively the externalities of the measures taken to restrict social contact by shutting down economies. While the scope of the review is relatively broad and encompasses many different domains of “pandemic life,” what emerges from the analysis are important insights into how many of the impacts of the pandemic in fact operate at the intersection of citizenship and constitutional law and thus play out in the form of changes in relation to constitutional citizenship, both as ideal and as practice. The article takes an important step towards developing the use of constitutional citizenship as a framing device for understanding citizenship as putative full membership in a given society.

The German Bundesgerichtshof (Federal Court of Justice) has to frequently adjudicate cases related to terrorism. The “War on Terror” has reached the German judiciary shortly after its proclamation as a reaction to the 9/11-attacks. Ever since, German criminal law is grappling with the question of how to harmonize security interests on the one hand with individual rights and liberties on the other. The expansion of the criminal law is a real threat for the previously liberty-oriented criminal law. The court decision discussed in this case addresses a specific aspect of terrorism: the financing of terrorist activities. As there is no special law prohibiting such kind of behavior, the judges had to apply section 263 of the German Criminal Code, which deals with fraud, and combine this with sections 129 a and b of the German Criminal Code, which makes being merely a member of a criminal organization into a criminal offence. A highly sensitive field of law that is put under scrutiny by anti-terrorism measures is procedural law. As secret investigation measures through electronic surveillance become more prevalent and sophisticated, the admissibility of the evidence, which was gained mainly by intelligence, becomes more and more questionable. The court decision discussed in this paper proves the willingness of the Federal Judges in Germany to reduce individual liberty rights in order to enhance the effectiveness of criminal prosecution.

Typically, Germany is portrayed as a persistent objector to Judicial Self-Government in any form. The present paper will demonstrate that this position is untenable: Actually, the German judiciary disposes of a differentiated system of institutions of self-government. The effects of these institutional settings on core values like independence and accountability proves to be mixed at best, however. Furthermore, there are practically no proponents of a stronger version of self-government to be reckoned with. Indeed, the Italian-style model of self-government or the visions of the CCJE are basically contrary to the prevailing German understanding of democratic legitimacy and separation of powers; moreover, the long lasting recruiting pattern of the German judiciary will act as a powerful obstacle. Ultimately, even the introduction of a strong self-government via constitutional amendment remains an open question.

The Bologna Process is a dramatic development that is less than ten years old, but already it has significantly reshaped higher education in Germany and in Europe. This article is based on my research regarding the history and objectives of the Bologna Process and Bologna Process implementation in Germany. It contains my reflections about the Bologna Process and German legal education and my recommendations to the German legal education community. In order to understand these reflections and recommendations, one needs a certain amount of background information about both the Bologna Process and German legal education. The sections that follow provide that background.

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.

The rise of right-wing extremism in Germany since the beginning of the 1990s corresponds with an increasing number of propaganda offences, escalating from 8337 reported cases in 2004 up to 10881 in 2005. Also, the provision against the use of symbols of unconstitutional organizations, Section 86a Strafgesetzbuch (Criminal Code [StGB]), became increasingly important. The following essay will explain the aims and structure, the constitutional background and the main practical problems of applying this prescription.

It is hardly controversial that the modern law is a pivotal element in the process of societal rationalization. But the concept of rationality (or rationalization) is rather vague and ambiguous; even beginning to clarify it requires elements of a social theory. The law is not a quasi-technical, neutral “instrument” which can be applied in any society for any purpose. Rather, as an element of a society's structure it not only codetermines its specific mode of reproduction but informs us about the standard of civilization a society has attained. Throughout this essay I shall take the position that, for reasons of politics, morality, and what I understand to be ongoing requirements of justification in stable societies, we wish to privilege law in some way. This position is closely connected with the quest for legal rationality.

Drawing from Roberto Esposito's recent work on persons and things, this Article studies recent attempts to rethink international legal personality. Esposito's work resurrects the claim that personhood operates like a mask, splitting the legal and philosophical world into persons and things. International law differs from domestic law in that international legal personality has traditionally been the prerogative of states, not of (rational) individuals. Yet, this has not completely dismantled the persons/things logic, because the exclusive legal personality of states has continuously threatened to reduce individuals into things in the eyes of international law. It is perhaps for this reason that international legal theorists have long sought to extend international legal personality to individuals and other non-state actors. This Article addresses the most recent attempt, namely an attempt to shift international law towards a law of humanity. Without taking a stance on whether this project is a good idea or not, this Article raises some doubts about whether the concept of international legal personality can help in fulfilling the project's aim, namely to help increase human freedom and wellbeing. This is especially relevant because, regardless of whether legal personality is attributed primarily to the state or the individual, we still remain—according to Esposito—within a theoretical framework in which the dispositif of person necessarily excludes some forms of life in protecting or empowering others.

The controversy over the planned anti-discrimination laws in Germany, specifically the new provisions in private law to be discussed here, rages on unabated. Publications on this planned law are numerous. And, whether Pro or Contra, they turn out notably more engaged and heated than is suited to the lawyers’ traditional temperament. The fact that the formal discussions and rounds of debate, which were long ago extended to non-lawyers, continue to multiply shows symptomatically to just what extent the topic is now able to get experts and laypeople alike worked up. The principle of equality of human beings, for centuries “one of the pillars of European democracies”, is about to gain currency in new fields of significance: it now aims beyond the binding of states, to bind their citizens as well.

The issue of how democratic and constitutional nation states shall square international cooperation with their commitments to constitutionalism, democratic accountability and fundamental rights is a persistent problem that becomes ever more pressing with increasing international integration. The German Federal Constitutional Court (FCC) is well-known for having developed a detailed case law on the extent and forms of delegation of powers from the German state to inter-and supranational organizations.

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.

Does Derrida's death justify a special issue of this Journal, preceded immediately by a special edition on human rights? Can death justify anything at all? And what does this mean for the authors of this volume; are their texts doomed to remain unjustified, if no authority steps in to legitimate our endeavour to gather texts by friends in the name of Derrida?

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

Climate change has become a household term. As the climate crisis grows increasingly pressing, climate litigation has proven instrumental as a driver for change. Brazil is an important jurisdiction for climate matters: It is the sixth largest global greenhouse gas emitter, responsible for 3.2 percent of global emissions,1 and home to the largest extension of the Amazon rainforest. Climate litigation has been gaining traction, but it is still far less frequent than environmental litigation at large. Against the backdrop of the state and trends of climate litigation in the country, this article explores theoretical and practical avenues to further expand the strategic deployment of climate cases in Brazil. First, it analyzes how climate claims can be construed with arguments that are impervious to the political question doctrine. Second, it explores possibilities of bringing claims against private entities, challenging more granular obligations arising out of Environmental, Social and Governance (ESG) frameworks. Third, it discusses the role of lawyers in bridging theoretical and practical gaps, namely those between environmental law and climate law, between scientific experts and courts, and between international and domestic climate change regimes.

The reference for preliminary ruling concerns the validity of Article 5(2) of Council Directive 2004/113/EC of 13 December 2004, implementing the principle of equal treatment between men and women in the access to and supply of goods and services (hereinafter “Directive 2004/113”). The legal issue is the hotly debated question of whether and to what extent the sex of an insured person can be taken into account as a risk factor in the formulation of private contracts in insurance and related financial services.

The Gesellschaft mit beschränkter Haftung (GmbH - Private Limited Company) is the most popular organizational form for businesses in Germany – numbering almost one million entities in 2007. The GmbH is not only popular for entrepreneurs, but also serves a role in corporate groups and can be more or less easily upgraded to an Aktiengesellschaft (AG - public corporation). Nevertheless, few changes have been made since its inception in the late 19th century, leading to complex case law that would most certainly put a smile on the face of any corporate lawyer. The Gesetz zur Modernisierung des GmbH-Rechts und zur Bekämpfung von Missbräuchen (MoMiG - Law for the Modernization of the GmbH and to Combat its Abuse), the most fundamental reform of the German GmbH, tries to replace much of that case law with statutory rules, while also eliminating certain formalities.

This work draws from accounts on the nature and legal effects of soft law instruments in EU and international law with the ultimate aim to construct a theoretical framework for recognition of EU competition soft law—guidelines, communications, notices, and the like—in the judicial discourse of national courts of the European Union. “Recognition” is used to encompass instances in which the national judiciary either explicitly interprets—that is, agrees or disagrees with—the content of competition soft instruments, or treats their substance in a roundabout, implicit way—without explicit reference to soft law in the judgment proper. This second option is called “the persuaded judiciary scenario.” Importantly, a foundational assumption of the current work is that courts do not transform soft law into hard law when subjecting the former to judicial interpretation/recognition.2