How many scholarly fields have experienced the disappointing fate of comparative law and continued in the grip of a demonstrably indigent epistemology for decades on end? After the early postmodernity witnessed their protracted servitude to Les Grands systèmes's jejune classifications, facile correspondences, and meagre interpretive return — a predicament which, implausibly, endures in countries as diverse as Brazil, France, and Russia — law's comparatists began taking their epistemic orders from Hamburg and the Hamburgher diaspora. For fifty years or so, they have been gorged on a diet of Rechtsdogmatik, scientism, objectivity, neutrality, truth, and assorted shibboleths. As if these epistemic delusions were not problematic enough, the earlier, obsolete model was eventually revived although tweaked to focus on traditions instead of systems (or families). While critics were occasionally moved to chastise threadbare Hanseatic knowledge-claims — some expressing their concern in conspicuous venues, others harnessing prestigious institutional affiliations — comparative law's orthodoxy, somewhat extraordinarily, has hitherto been able to operate unencumbered by any epistemic challenge whose monographic exposition would have proved decidedly pre-eminent. It is the great merit of Gunter Frankenberg's Comparative Law As Critique, in crucial respects an account at once capital and extensive, that it interrupts, finally, the longstanding deployment of comparative law's mainstream imposture. Frankenberg's refutation is thus well worth restating, and the first part of this review wishes loyally to apply itself to this important representative task not least by affording the author much latitude to express himself in his own voice. Yet, Frankenberg's considerable critical integrity notwithstanding, this essay holds that his epistemic transgression remains too diffident. Specifically, five key concerns at least warranted more subversive epistemic commitments than Frankenberg allows. In the wake of Comparative Law As Critique, the second part of this commentary addresses these contentions with a view to making a case both for comparative law as strong critique and for the paradigmatic epistemic turn that has been persistently deferred within the field.

After the terrorist attacks on the World Trade Center in New York City, it was determined that some of the presumed perpetrators had lived in Germany where they had been studying technical subjects in particular. Public authorities supposed more potential assassins (so-called “sleepers”) were staying in Germany until they received an order to start their mission. In order to discover such persons, data screening was carried out in each federal state of Germany. In the course of it, all universities were obliged to hand over the data material concerning their enrolled students for data alignment by police authorities. Up until now, appeals of affected students against those measures have been successful in Hessen, Nordrhein-Westfalen and Berlin. Those events give reason for a critical reflection of the means of data screening by the police.

A well-known maxim of all kinds of legal realism is that the identity of judges matters a great deal. The most famous account of this tenet is the apocryphal statement attributed to Jerome Frank declaring that what matters in the law is “what the judge ate for breakfast.” While Frank never put that in print, he did say that the “peculiar traits, disposition, biases and habits of the particular judge will, then, often determine what he decides to be the law;” in short, that “the personality of the judge is the pivotal factor in law administration.” A more epigrammatic and elegant summary of this position was given by none other than Carl Schmitt, who declared that “[w]hat matters for the reality of legal life is who decides.”

Legal Positivism is dead, isn't it? We are all legal realists now. We believe, by default, that what really matters in law emerges from some judicial process. We sense that the point of norm-production by adjudication is to accomplish something useful or good for either individuals or society at large. Practice trumps theory and policy implementation overrides respect for some scholarly edifice. What we do when we do law is to unreel formula and rhetoric. We engage in these exercises with the aim to have judges rule in favor of our clients. Should we be judges ourselves, we promote causes we deem to be noble and fine. Law is a tool. Skillfully mastered legal knowledge is a prerequisite for using it well.

Recent German court decisions in the cases of Mzoudi and Motassadeq illustrate the dilemma of dealing with international terrorism in legal terms when politicians and intelligence services believe themselves to be above or beyond the law. These cases have already been discussed in a special edition of the German Law Journal. The focus in this article is to contextualise the outcome of these cases in the “war on terror” and to analyse legal retribution, vengeance and torture on a scale of possible ways to address mass violence. The escalation of Islamist fundamentalism has the potential to rock Western democracies in their very foundations. Counter terrorism-measures in stepping up security legislation is not dealt with as such here, neither is this a fully-fledged discussion of the law of peacekeeping and armed conflict with reference to “new terrorism”. The aim here is much more modest. It is a search for truth and ways out of a dead-lock.

“To be honest,” remarked Lord Scott with dry humor when we left Villa La Pietra, -“to be honest, I passed no single room where I would simply feel comfortable after a long day's labors.” However, the British Lord of Appeal in Ordinary thinks highly of the arts, certainly no less than his colleagues from Washington, Paris, Rome, Karlsruhe and Luxemburg with whom he explored the collections at La Pietra on this midsummer afternoon. But the wealth and variety of the artworks assembled during the course of the last century by English eccentrics and their assemblage according to fairly personal esthetic criteria relieve the visitor barely for a moment of concentrated observation, requiring permanent attention – and considerate behavior in the midst of irreplaceable treasures.

The EU legal system, with its many hands and complex architecture, in which national and European powers are closely interwoven, requires a particular form of cooperation. This delicately developed cooperation may be influenced by the EU's ambition to take a statelike role in international relations. Indeed, the basic assumption underlying this Article is that it is not only the EU's complexity that influences the EU's external actions—usually seen as limiting the EU's capacity to speak with one voice—but also that the EU's external actions influence its internal set-up and cooperation practices. As a result of the EU's participation in international legal regimes, established organizational principles might come under pressure. Furthermore, within the complexity of the European legal order, the potential consequences could be more disturbing for stability than within the—monolithic, in comparison—structure of states.

This article traces the evolution of judicial self-government practices (JSG) in Turkey and argues that the frequent changes in JSG are part of a broader trajectory of experimental constitutional politics. The Council for Judges and Prosecutors has experienced sharp turns since its establishment in 1961, respectively in 1971, 1982, 2010, 2014 and 2017. During this period, Turkey experienced different forms of judicial councils ranging from co-option, hierarchical and executive controlled judicial council models to a more pluralistic model. The Justice Academy of Turkey has also not been immune from this experimentalism. The article discusses the endogenous relationship between these often short-lived experiments of JSG and their impacts on the independence, accountability, and legitimacy of the judiciary and public confidence in the judiciary. The article then turns to the repercussions of JSG on separation of powers and democratic principle. It focuses on the implications of the ambiguous position of the Council in the state structure for the separation of powers, and the revived debate on democratic legitimacy of JSG after the 2017 constitutional amendments.

This Article grapples with the instrumentalization of the past in Romania, in the specific context of “judicial lustration” measures. It argues that decommunization and lustration policies, which could not be pursued in the immediate aftermath of the collapse of state socialism in 1989, were weaponized much later and used in order to advance other purposes. In 2006, an expedited judicial vetting procedure, in the context of the EU-driven fight against corruption, was repurposed by the center-right as a lustration instrument. In the same year, the dismantling of an intelligence service created after 1991 in the Justice Ministry (SIPA) to monitor ‘vulnerabilities’ in the justice system has set in motion a long series of failed attempts to bring closure to the question regarding the service’s archives, fomenting continuities of suspicion until today. More recently, in 2018, a form of ‘mock-judicial lustration’ has been used by the political left to deflect or at least delegitimize repressive anti-corruption policies. The new “lustration procedure” implicitly equated the recent cooperation between prosecutors and intelligence officers, in the context of the fight against corruption, with past practices of collusion between the members of the judiciary and the communist Securitate. These three episodes of ‘dealing with the past’ are reviewed in order to showcase path-dependencies. Such path-dependencies are not linked only with carryovers from or throwbacks to the communist past. Rather, pre- and post-communist deficiencies of modernization, combined more recently with gaps in post-accession monitoring by the EU Commission, create continuities of peripheral instrumentalism. Various narratives, such as decommunization, the fight against graft, judicial reform and the rule of law are used to legitimize short-term consequentialism, evincing a resilient, structural resistance to legislative and legal normativity.

This Paper considers the jurisprudence of the Court of Justice in relation to the free movement provisions of European Community law in relation to goods, persons, services and capital within the European Union. It examines the bases used by the Court in its application of Community free movement provisions to national measures that may seek to hinder the exercise of such rights. From limited enquiry originally founded on considerations of non discrimination based on nationality, to one most recently focussed on the ‘restriction’ to the free movement right, the Paper examines the methods employed by the Court of Justice in its scrutiny of the national measure appearing to conflict with Treaty free movement rights.

The examination of the applicable free movement jurisprudence attempts to demonstrate the want of a thematically consistent underpinning within free movement case law. The Paper draws attention to the complexities and even the confusions that appear to be inherent within free movement jurisprudence and arguably evidenced within the Court's journey from ‘discrimination’ to ‘restriction’ as the basis of the enquiry with regard to the application of Treaty free movement rights. In its consideration of Case C-110/05 Commission v Italy, Case C-142/05 Åklagaren v. Percy Mickelsson v. Joakim Roos, recent jurisprudence with respect to the free movement of goods, the Paper notes that in the context of the ‘measure having equivalent effect’, the emphasis in the assessment of the national rule has shifted to an examination of the effect on market access, rather than a distinction based on the type of rule.

Modern global food supply chains are characterized by extremely high levels of concentration in the middle of those chains. This paper argues that such concentration leads to excessive buyer power, which harms the consumers and food producers at the ends of the supply chains. It also argues that the harms suffered by farmers are serious enough as to constitute violations of the international human right to food, as expressed in the Universal Declaration of Human Rights and more specifically, in the International Covenant on Economic, Social and Cultural Rights. World competition law regimes cannot ignore these human rights imperatives. To a certain extent, these imperatives can be accommodated under existing consumerist competition law theories by the interpretive mechanism of conform-interpretation. However, when one comprehends the truly global scale of modern food supply chains, it becomes obvious that conform-interpretation alone will not suffice. Instead, the protection of a minimum level of producer welfare congruent to those producers’ right to a minimum adequate level of food must find a place among the aims of any credible theory of competition law. Moreover, the same globalized nature of these food supply chains means that current doctrines of extraterritorial jurisdiction of competition control have also to be revised.

In recent times, an increased awareness in public international law of the significance of human rights has given rise to the idea of direct access to compensation claims by individuals in the case of severe human rights breaches. This development has led to a number of actions for compensation in various jurisdictions. The Bundesgerichtshof (BGH – Federal Court of Justice) recently joined the series of decisions from higher courts addressing compensation claims for human rights breaches, handing down its landmark decision on compensation claims by Greek citizens whose parents were killed in a massacre in Distomo during the Second World War.

The article presents the normative case for the new Commonwealth model as a novel third way of organizing basic institutional arrangements in a democracy and an alternative to the conventional dichotomy of legal or political constitutionalism. In so doing, it engages with the latest contributions to the debate about the merits of judicial review, and argues that the new model radically and compellingly permits a form of “proportional representation” among the best arguments for and against the practice rather than the “warts-and-all” of the traditional either/or approach. In this way, the new model is to forms of constitutionalism what the mixed economy is to forms of economic organization: a distinct and appealing third way in between two purer but flawed extremes. Just as the mixed economy is a hybrid economic form combining the core benefits of capitalism and socialism while minimizing their well-known costs, so too the new model offers an alternative to the old choice of judicial supremacy or traditional parliamentary sovereignty by combining the strengths of each while avoiding their major weaknesses. Like the mixed economy's countering of the lopsided allocation of power under capitalism to markets and under socialism to planning, the new model counters legal and political constitutionalism's lopsided allocations of power to courts and legislatures respectively.

Both internationalists and national constitutionalists are currently reflecting on changes in the basic structures of public law. From the national perspective, the process of globalization puts into question the hitherto generally accepted position of constitutional law as being at the top of the pyramid of norms. In international law, the development of subject-oriented régimes has led to a proliferation of international courts and other bodies entrusted with the resolution of disputes. This tendency entails a danger of fragmentation which contrasts with the current tendency to discover processes of constitutionalization in international law. Starting from the functions of the constitution in national law, the following paper develops in the first part elements of constitutionalization in international law in general (I.). In the second part, the identified problems are elaborated upon in more detail with respect to the law of the World Trade Organization (II.).

The European Union (EU) acts in the area of international trade through the community's commercial policy regulated by the European Community (EC) Treaty. The position of the Union in external trade relations is dependant on the unique legal character of this entity. By developing a legal order which is supreme to the law of its Member States, and creating a complex system of institutions and modes of decision-making, the Community has ceased to be a mere representative of the countries it comprises. The increasing transfer of competences from the Member States onto the community allowed it to aim at the realization of common objectives as opposed to merely collective ones. As a result, tensions between the EC and dissatisfied Member States occur and the delineation of competences may turn out to be crucial when interests of an individual Member State are involved. Therefore, the paper which considers the situation of the “new” European Union in the area of international trade, in light of the Treaty Establishing a Constitution for Europe (Constitutional Treaty), should necessarily investigate how the position of the EU will be strengthened vis-à-vis its Member States.

On May 22, Mr Rolf-Ernst Breuer, until then speaker of the managing board of Deutsche Bank AG (“Bank”), stepped aside to let Mr Josef Ackermann take his place in the small circle of leading managers of Europe's biggest banking institution. Mr Breuer takes the chair of the Bank's supervisory board, as is often practice for the departing Speaker in German stock corporations. This would – in and by itself – be less noteworthy were it not marking, at the same time, possibly a fundamental change in German company structure. The French newspaper, Le Monde, asked already ahead of time whether the event ought to be seen as a cultural revolution and other commentators are readily applying likewise vocabulary. Mr Ackermann has, for some time now and under immense press coverage, been ventilating his strong desires to change the inner workings and structure of the Bank's managing board and it is all but easy to decipher whether or not he ultimately will succeed in doing so and which other changes his initiatives eventually will bring about. The structural overhaul inside the Bank certainly takes place at a time where the Bank is facing financial pressure.

During the last decades, social network analysis has been established as a key technique in a number of disciplines in social science. Its main promise is that it provides tools for researchers to take into account the social context of individual entities or actors. Legal scholars, by contrast, have only recently started to make use of these tools. Nowadays, one particularly prominent application is the use of network analysis to analyze the citation networks of different national and international courts. The contribution by Derlén and Lindholm published in this issue of the German Law Journal forms part of this trend. It is the latest in a series of papers studying citations in the case law of the Court of Justice of the European Union (CJEU). Unlike the authors' previous contributions, the paper specifically addresses the use of precedent by the CJEU and assesses the merits of criticism in the literature arguing that the citation practice of the CJEU lacks an acceptable method. The paper provides novel insights into the use of precedent by the CJEU and thus makes an interesting contribution to the emerging scholarship investigating the decision-making of the CJEU by means of quantitative analysis. At the same time, the design of the research raises severe doubts about whether the authors succeed in providing a conclusive response to the critics of the CJEU's citation practice.

The Bundesverfassungsgericht (Federal Constitutional Court) is a constitutional body charged with the task of ensuring that all state institutions, i.e. the legislator as well as the judiciary and executive branches, obey the constitution of the Federal Republic of Germany. Its review standard is the Grundgesetz (Basic Law). Since its foundation in 1951, the Court has helped to secure respect and effectiveness for the free democratic constitutional order. The decisions have far-reaching repercussions, which becomes particularly clear when the Court declares a law unconstitutional. Given the large number of cases handed down every year – at present nearly 5,000 constitutional complaints come before the Federal Constitutional Court annually – it is nearly impossible to give a representative summary of the comprehensive case law. Therefore, the report will concentrate on a selection of four decisions that have drawn the most attention over the course of the years 2005 and 2006.

This Article looks for signs of Anglo-German life in the literature and practice under-pinning the current move to use “designerly ways” in socio-legal research; and asks whether design has a role to play in nurturing a sense of Anglo-German socio-legal community. It argues that a “sociological imagination” is essential if we are to fully understand possible synergies between design and socio-legal research, and the risks and rewards of activating them; and that while we cannot know what socio-legal research will or ought to look like in the coming months and years we must pay more attention to designing those moments that we are lucky enough to share in person.