This paper posits a (very British!) call to arms, and does so in five steps. In part A, we address the need for constitutional fictions by which the many surrender political power to the few, in the name of stability, order and security. In part B, however, we will show that conflict is both a necessary and a core principle of political constitutionalism—that it is the latent possibility of conflict, the (re)awkening of the many where the few abuse that power, that acts as the final check on government. In part C, we trace the steps by which recent re-interpretations of the work of J.A.G. Griffith, with a focus on the work of Tomkins and Bellamy, have reduced politics to its parliamentary form, thereby closing—rather than “enlarging”—the “areas for argument and discussion”—a narrow view of the constitution to which, admittedly, Griffith himself might have subscribed. In part D, we will assess the limits of such a narrow reading of the political and argue that a more dynamic and reflexive approach is needed if we are to remain in—or recover to—rude constitutional health. Finally, in part E, we will use the political and constitutional background to the devolution of legislative and executive power to Scotland in order to demonstrate the power of political conflict, in extraordinary moments, to expose, break down and create new constitutional fictions.

On 15 February 2007, the European Court of Justice delivered its judgment in the case Lechouritou and others v. the State of the Federal Republic of Germany. The case concerned the question whether compensation for acts perpetrated by armed forces in the course of warfare can be asserted on the basis of the jurisdictional rules provided for by the Brussels Convention. The Court held that such an action did not fall within the scope of the Convention since it could, due to its origin in sovereign acts, not be regarded as a civil matter in terms of Art. 1 Brussels Convention. Thus, jurisdiction for claims directed at the compensation for damages resulting from the exercise of public power cannot be based on the Brussels Convention. The analysis of the Court's ruling will proceed as follows: First, the history of the case as well as the essence of the judgment will be presented (infra B) before giving a review on the Court's previous case law on the concept of “civil matters” (infra C). This outline will be followed by an analysis and a classification of the ruling in the Court's jurisprudence (infra D), before eventually the results will be summarized (infra E).

Constitutionalism beyond the state concerns itself with the relation among various legal levels and the position of the individual in a multilevel legal system. The question how human rights are protected against international organizations who increasingly take on executive powers cannot be thoroughly answered without confronting a fundamental debate in international law theory: the constitutionalism-fragmentation debate. The European Court of First Instance as well as the European Court of Justice (ECJ) had to deal recently and are still dealing with this complex in a number of cases.

European Directives impose upon Germany the obligation to incorporate antidiscrimination provisions in its civil law. The anti-discrimination legislation is intended to provide effective civil law remedies against discrimination in everyday life by private persons, e.g. access to housing, restaurants and education. For the purposes of this article, discrimination may generally be defined as any treatment – including a refusal to deal with – by a private party that is less favorable than to another person and is conditioned upon a characteristic such as racial or ethnic origin, sex, etc.

Until recently, Australia was firmly committed to the idea of higher education as a public good. The swing from social liberalism to neoliberalism has seen a rejection of this basic principle in favor of values associated with the market. Knowledge, education and credentialism have become highly desirable in the information age, but treating them as tradable commodities has profound repercussions for what is taught and how it is taught. Most significantly, we have moved to a mass education system where the focus is on applied and vocational knowledge. Within this new paradigm, law, business, information technology, hospitality and tourism courses have proliferated.

The law is a living organism, which is reflected by the ever-evolving landscape of international criminal law. Time and again, conflicts demonstrate the many ways in which human beings can hurt each other. The law must be able to anticipate and react to these cruelties. On the one hand, the law must be specific enough to assure legal certainty and prevent arbitrary convictions; on the other hand, it must be broad and general enough to keep up with developments in real life and cover previously unimagined behavior. Forced marriage is an example of such a criminal phenomenon, which, even though the taking of brides by the victor has for centuries been a common occurrence during conflict situations, has only recently appeared in the international limelight. When the international community is confronted with criminal practices that are not codified in the Rome Statute of the International Criminal Court, it is faced with the daunting task of legally characterizing this conduct: can the act in question be brought within the ambit of the core crimes of the Rome Statute? And if so, how is it best criminalized: as a war crime, a form of genocide, or a crime against humanity?

Philip Jessup would not be pleased. Exactly sixty years after he published his groundbreaking book on Transnational Law, a majority of voters in the United Kingdom decided they wanted none of that. By voting for the UK to leave the European Union, they rejected what may well be called the biggest and most promising project of transnational law. Indeed, the European Union (including its predecessor, the European Economic Community), is nearly as old Jessup's book. Both are products of the same time. That invites speculation that goes beyond the immediate effects of Brexit: Is the time of transnational law over? Or can transnational law be renewed and revived?

This Article explores the similarities between the principles which guide the judiciary nowadays and those typical for the functioning of the Communist justice system, particularly the susceptibility to obedience to the requests, orders, or meeting anticipations. The habitus of the judges typical for the authoritarian regime has persisted until these days and was the main reason for the judicial corruption revealed in the “Threema scandal.” This Article’s argument does not connect the judiciary’s dependency to the Communist legacy embodied in members of the judiciary who served before 1989 and are active today. Still, the argument presumes that the Communist heritage is a key to understanding the current situation. The past heritage is hidden in the habitus of the agents or members of the judiciary. This habitus may be unconscious yet defining for the behavior of the agents. The Article aims to identify which continuities of the judicial habitus are apparent in the current judiciary. To demonstrate changes in the position of the judiciary, it presents a thesis of the development of the judiciary from an instrument of the governing party in maintaining a homogenous and subordinated society to the current situation of the Slovak judiciary, defined as a crisis of mental independence resulting in inappropriate behavior and corruption.

The Article explores the transformations triggered by digitalization in the domain of global trade law and seeks to evaluate the nature and the effects of the unfolding legal adaptation in this field of international law. For this purpose, the Article starts by mapping the sweeping effects of digitalization on trade and trade policies. It then turns to the current regulatory framework for digital trade—first, by sketching the state of affairs in the multilateral forum of the World Trade Organization (WTO) and second, by analyzing the more deliberate regulatory responses to the challenge of digitalization formulated in free trade agreements (FTAs), with a particular focus on some more recent advanced models of digital trade regulation. The Article finally seeks to contextualize and assess the impact of the existing legal framework and its adequacy for the contemporary data-driven economy, pointing also at some current deficiencies and potential setbacks going forward.

The concept of the “essence”—as well as the related concepts of “substance” or “core”—of fundamental rights is absent from the text of the European Convention on Human Rights (ECHR), but regularly appears in the case law of the European Court of Human Rights (ECtHR) since the Belgian Linguistic case of 1968. Yet, fifty years after its explicit emergence in the Convention’s legal order, it must be observed that a clear understanding of this concept and of its practical utility is still lacking. Indeed, the idea of the essence of fundamental rights has never been clearly defined in its case law, which remains essentially pragmatic and unprincipled in this field. This Article will therefore attempt to remedy this shortcoming by sketching out the different functions assigned to the concepts of the essence, substance, and core of rights in the ECtHR’s case law. It is postulated that the concepts of the essence, substance, and core of fundamental rights are invoked for three different types of purposes. First, the concepts of the essence, substance, and core are—apparently at least—used by the ECtHR to fix the “limit on the limits,” for example, the inalienable part of fundamental rights safeguarded from any possible restriction. Second, this concept has been a vehicle for expanding the Convention’s sphere of protection for the purposes of guaranteeing its effectiveness. Third, the concepts of the essence, substance, and core of fundamental rights also constitute a “reviewing tool” used by the Court to determine the intensity of the States’ obligations on the basis of a prioritization among a series of values at stake. Although these three different functions can be identified on paper, the practical usefulness, workability, and desirability of the concepts of the essence, substance, and core will be questioned.

Over the last few years, artificial intelligence (AI) technologies have become embedded in various domains of social life, prompting legislative efforts at both national and international levels. In the European Union (EU), this drive for legislation has been reflected in various legal instruments, notably the proposed AI Act, which is expected to become a global standard through the “Brussels Effect.” This Article argues that while the AI Act will likely produce a Brussels Effect of its own, such an outcome will be accompanied by a side effect that undermines the EU’s ambition to spread legislative text and values in AI governance. Since the AI Act follows EU product safety legislation, its provisions supply limited protection to some of the values the EU policy intends to protect, such as the protection of fundamental rights. These shortcomings are compounded by the EU’s active efforts to shape alternative instruments, such as the Council of Europe’s proposed convention on AI along the lines of the AI Act. As a result, the diffusion of the AI Act as a global standard will have consequences for the EU policy agenda on AI and the conceptualization of the Brussels Effect.

This paper examines the role and importance of the freedom to conduct a business enshrined in Article 16 of the Charter of Fundamental Rights of the European Union (CFR). With the entry into force of the Lisbon Treaty, the CFR became legally binding, gaining the same legal value as the Treaties. It will be argued here that Article 16 CFR, which recognizes the right to economic initiative, can be an important force for European integration by acting as a new engine of European social, economic, and political integration. That said, Article 16 should be read bearing its limitations in mind.

A concern was voiced in commentaries after the PSPP judgment that the BVerfG’s position regarding the refusal to apply in Germany the CJEU judgment as issued on an ultra vires basis might be used in EU Member States infringing the rule of law, and the independence of the judiciary in particular. This issue is presented in relation to Poland. The article sets out the constitutional provisions which proclaim openness to European integration, as well as the union-friendly case-law of the Constitutional Tribunal (CT) until 2016. The CT jurisprudence at that time provided, however, for the possibility of refusing to apply EU law in exceptional situations, even though this never happened. Next, the article discusses endeavors of the new Polish authorities since the end of 2015 which drastically breach the rule of law in the field of the judiciary, as well as the measures taken by EU institutions to counteract these adverse phenomena. The Polish authorities argue that the competence to define the legal position of the judiciary has not been conferred on the Union and remains within the exclusive competence of the Member States. Such a stance was also taken by the politically dependent CT in April 2020. The PSPP judgment was therefore welcomed with joy by Polish politicians. There are major differences, however, between the rulings of the BVerfG and those of the Polish CT in its current composition, and the hopes pinned on the PSPP judgment by the Polish authorities are unfounded.

It is no semantic accident that the word government derives from the Latin word, gubernare which means to steer or pilot a ship, and that gubernare derives from the Greek word for rudder, kybernaei. The ship as pictorial and linguistic metaphor for the state dates back to at least the fifth century B.C., when we find explicit reference to the “whole ship of the polis” in Aristophanes' (ca. 445–388 B.C.) play The Wasps, and seems to have maintained a place in the collective Western psyche throughout the millennia.

Criminal Justice is never only about identifying and sentencing unwanted and thus, outlawed behaviour. As one of the closest contacts between state and citizens, Criminal Justice implies also a system of values and more or less subtle messages which the state wants to transmit to the people. In all modern legal systems, Criminal Law is about society as a whole being deterred from crime, educated and moreover ensured of the state's power, its efficiency and above all its benevolence. In other words, Criminal Justice does not only deal with offenders and victims but additionally with its own presentation in public and the citizens’ perception of it.

The concept of “vulnerability” has become all-pervasive in EU asylum law and the ECtHR case law on asylum seekers and migrants, where it has acquired various legal meanings and functions. But many controversies remain on the legal nature, definition, and consequences of “vulnerability.” Based on lessons learned in the process of establishing the overall research design of the Horizon 2020 VULNER project and coordinating its implementation, this article identifies the contribution that anthropological knowledge can bring to ongoing legal debates and reflects on the conceptual and practical challenges that emerge when engaging in such an endeavor.

First, the article shows the potential of anthropological research methods and concepts to shed light on the experiences of vulnerability as they are lived by migrants, and to reveal and question the underlying social and political dynamics behind the increased success of vulnerability in legal reasoning. Second, it argues that anthropology can only bring a useful contribution to legal debates on “vulnerability” if the knowledge it produces is adequately translated into legal reasoning—which requires acknowledging the differences between the goals of anthropological analyses, which are all-encompassing and seek to depict human experiences in all their complexities, and legal conceptualizations, which require establishing clearly defined notions that can be operationalized in—relatively—certain ways by decision-makers on the ground and that allow them to strike a balance between competing interests.

The most eye-catching effect of digitalization on the law of enforcement jurisdiction is the fading into irrelevance of territoriality. Insofar as the “physical” location of digital data—on a server—may be entirely fortuitous and may in fact not be known by the territorial state, it appears unreasonable for that state to invoke its territorial sovereignty as a shield against another state’s claims over such data. To prevent a jurisdictional free-for-all, however, it is key that the exercise of extraterritorial enforcement jurisdiction in cyberspace becomes subject to a stringent test weighting all relevant connections and interests in concrete cases. Introducing such a weighting test means that extraterritorial enforcement jurisdiction is no longer governed by binary rules (allowed and not allowed), but becomes a matter of degree, requiring a granular, contextual assessment. It remains the case that such a flexible attitude towards extraterritorial enforcement jurisdiction is not universally shared, and that relevant state practice and expert opinion in favor of the “un-territoriality of data” has a particular Western slant.