A project concerning itself with the effects of the past on the European integration process must also raise the question of the emergence of guiding historical images in the course of this process. As the past is not objective truth, but a perception generated by various actors (e.g., politicians, populist movements) as well as by history as a science in accordance with its own aims and rationality criteria, it appears in very different narratives. Many such historical images of Europe are generated by legal history. Since the Treaty on the European Union brought European integration a deeper, political dimension, a euphoria about Europe has broken out in legal history.

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.

Investment treaty arbitration (ITA) has emerged as a space where the international legal personality of states and foreign investors is continuously created, maintained, and redefined. Focusing on treatment of state-owned enterprises (SOEs), this Article juxtaposes investment law's doctrinal foundations with Roberto Esposito's political philosophy to explore the dynamics, porosity, and ramifications of international legal personality in ITA. Skeptical of gradual conceptualizations of legal personality, this Article frames investment law in terms of Esposito's person/thing distinction and argues for SOEs to form a liminal category that exposes malleability of legal doctrines when ITA tribunals make or break international legal persons. Ultimately, the ITA cases seem to open a distinct dispositif of a SOE that both delineates the exact normative demarcation of the state as international legal person and creates pockets of indistinguishability and politics at its borders—often to the detriment of the Global South. This insight provides a new perspective on the creation of international legal persons in ITA and international law more generally but, at the same time, also adds a new dimension to Esposito's overarching framework resting on the asymmetric relationship between persons and things.

As one of the commentators of Luhmann's oeuvre once rightly put it, “the occasionally authoritative gestures of Luhmann's writing may intimidate all those who do not also perceive his gentle touches of irony.” Luhmann's note at the end of his treatise, Law as a Social System, about law's future in the global society is one of those typical statements of Luhmann, characterized by this mixture of authoritative “coolness” with a touch of irony. Be that as it may, the master seems to be once again right with his prophecy-like statement: Law is indeed undergoing a transformation, the results of which might soon let law appear as nothing more than a “European anomaly, which might well level off with the evolution of global society.”

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.

This article explores the most recent practice, as exemplified by the case of Kosovo, concerning succession to treaties in international law. In doing so, it examines the precise meaning and legal effects under international law of relevant provisions of the Declaration of Independence (DoI) of Kosovo with respect to international treaties concluded by the United Nations Interim Administration Mission in Kosovo (UNMIK) and the former Socialist Federal Republic of Yugoslavia (SFRY) or, as applicable, any other predecessor entity. More specifically, the aim is to identify and comprehend the fundamental principles underlying the existing or developing practice of treaty succession, and to situate it within a broader framework of succession in international law. Kosovo's absence from key multilateral regimes, in particular the United Nations, dictates a focus on succession to bilateral treaties. Kosovo is in the process of establishing with its partners the status of its bilateral treaties undertaken by way of succession.

Based on which values and to what extent does a specific legal system endorse a model of self-government of the judiciary? How is such self-government shaped? Which lessons can be drawn from practical experiences relating to major organizational reforms? This article addresses these questions with the aim of analyzing the influence of reforms of judicial self-government in the Netherlands on the realization of the core values of independence, accountability, legitimacy, transparency of, and public confidence in the judiciary. Furthermore, this article assesses the influence of reforms of judicial self-government on the separation of powers and democracy as organizing principles for the Dutch legal system. The main focus of the article is on the interaction between rule-of-law values and New Public Management (NPM) values for judicial organization, taking into account the meaning and weight of these values over time in the evolving Dutch legal system. Furthermore, the analysis addresses both the legal framework for judicial government and tensions that have occurred between key actors, in particular judges and the Council for the Judiciary, in their experiences with this legal framework in practice. A red thread which runs through this analysis concerns the demarcation of spheres of autonomy for the different actors in the judicial system. The analysis of organizational reforms clarifies that a dynamic interaction has developed between judges, the bodies for judicial self-government in the Dutch system and the Minister of Justice and Security, revolving around claims of autonomy. The evolved framework of rule-of-law and NPM values for the judicial organization provides a theoretical “lens” for understanding this interaction and its outcomes.

This Article explores the contemporary governance of religious diversity in the United States and Germany through the case study of religious education in public schools. The United States and Germany have two very different approaches to teaching religion: The subject does not exist at all in American public schools, while in Germany, confessional religious education is explicitly mandated by the Federal Constitution and is still an integral part of the curriculum in the vast majority of Länder. Yet, both countries have recently been confronted with similar challenges—a growing diversification and politicization of religious identities—which have forced them to rethink the place and role traditionally given to faith in the sphere of public education. The Article thus examines how, and to what extent, the American and German historical models of religious education—and thereby, more broadly, the public governance of religion in both countries—have been transformed by the changes in their religio-political landscapes.

… fulfilment of my first ambition – to describe international law in a way that would resonate with practitioner experience – necessitated that I resist the pull of either excessive “formalism” or excessive policy-oriented “realism”. In the course of writing, however, I began to realise that this way of stating the problem also contained the seeds of its resolution … I needed to think about my own experience as far from idiosyncratic and to examine the contrast between “formalism” and “realism” as an incident of the standard experience of any international lawyer in the normal contexts of academy or practice.

The article explores the “strange non-death” of the French statist tradition in matters regarding the judiciary. It traces the formation of the specific French model of government of the judiciary describing the stronghold established by the duopole of the Cour de cassation and the ministry of justice's bureaucracy (the so-called Chancellerie) over time (1810-1993) and the failed attempt of the IVth Republic (1946-1958) to unsettle this power balance. It then considers the new context that emerged in the 1990s and analyzes successive reforms that have tried to undermine this deep-seated tradition. In the last part, the article provides an overall assessment of the impact of these reforms on the independence, accountability, and legitimacy of the French judiciary.

The corporation celebrates its 400th birthday. What Adam Smith treated skeptically concerning relative efficiency in 1776, has become the dominant organizational form, and not only in Smith's home country of Great Britain.

Throughout the world, there is debate about how democratic systems should adapt to the demands of their increasingly emancipated citizenries. More than ever, people desire to take part in the creation of their life circumstances. The demand for participation is paired with a growing discontent with the political elites. This article looks at the challenges in the context of Germany's system of government, discussing the leading debates of democratic reform in the EU's largest member state with some incidental remarks on other countries. Specifically, the study analyzes two core components of representative democracy—the electoral process and the parliamentary decision-making procedure—and shows how they should be reformed to ensure political stability in the long run. As a measure for the analysis, the author develops a system of four preconditions, on which successful democratic government depends: Responsiveness and political leadership on the side of the elected representatives; preparedness for participation and acceptance on the part of the represented. The article shows that optimizing democracy on the basis of these pillars is not just advisable as a matter of political prudence. In fact, Germany's constitution, the Basic Law, contains a normative expectation towards the political elites that they continuously improve democracy and ensure its appropriate functioning.

This Article focuses on the overlap and interaction between the doctrine of proportionality and the doctrines used to assess the constitutionality of state violations of the right to equality. The Article has three main contributions to comparative constitutional literature. First, the Article pinpoints the difficulty that arises when courts try to apply the doctrine of proportionality on claimed violations of the right to equality. Analytically, as shown in this Article, the overlap and interaction between these two doctrines is problematic because they are both relational measures between means and ends. Second, this Article categorizes two models adopted by courts in the application of proportionality in the context of the violation of the right to equality. Third, this Article points out that the choice of the model used by each court is relevant to the ongoing discourse on the advantages and disadvantages of proportionality.

EU institutions have argued on several occasions that national and EU citizenship should not be awarded without any genuine link with the Member State concerned. Some scholars have adopted the same position, justifying their position referring to the genuine link requirement established by the International Court of Justice in Nottebohm. This has prompted criticism from legal scholars, who point out that Nottebohm was wrong as a matter of international law and moral principle. This paper shows that supporters and critics have failed to recognise that they have been talking with different conceptions of the genuine link requirement in mind. The question of whether to apply a genuine link requirement for the recognition of nationality is altogether different from the question of whether to apply a genuine link requirement for the acquisition of nationality. Nottebohm concerns the first; the arguments of EU institutions the second. The argument of EU institutions cannot therefore be dismissed by dismissing Nottebohm. I subsequently explore the normative arguments for predicating the boundaries of national membership on a genuine link requirement. There are weighty moral reasons for member states to condition the acquisition of national and EU citizenship on the presence of a genuine link. Finally, moving from the normative to the practical, I argue that such a requirement would have far-reaching consequences (targeting not just investor citizenship schemes) and cannot be enforced as a requirement under EU law.

It has been argued that the best possible constitution is a short constitution. If so, then the Draft treaty establishing a constitution for Europe is a spectacular failure: at more than 250 pages, comprising some 450 articles and a handful of protocols and declarations, the Draft constitution is anything but short.

The result of the Brexit referendum sends shockwaves through the political fabric of the UK, Europe and beyond. It is the latest instance in a series of anti-systemic shocks to hit the EU, but will almost certainly not be the last, as discontent with the status quo and a disconnected elite continues unabated across the Continent (and is replicated across the Atlantic), and the European Union provides a convenient target for voters to express their anger and resentment.

The Memorandum of Understanding (MoU) concluded between the UK and Ireland in May 2019 provides one of the few clear legacies of Theresa May’s premiership. The Common Travel Area (CTA) between Ireland, the UK, the Channel Islands, and the Isle of Man provides the basis for domestic immigration and nationality laws which permit Irish citizens to reside in the UK and for them to be treated as “not foreign” in the context of UK domestic laws concerning access to healthcare, employment, social security, political participation, and education. Yet it has long lacked legal definition. The UK and Ireland reciprocate, to a rough extent, these rights for each other’s citizens. The MoU and related developments mark the first steps towards clarifying the CTA’s scope. The rush to conclude this MoU and alter parts of both countries’ domestic law relating to the CTA nonetheless illustrate the fragile state of Ireland–UK relations with Brexit looming. This Article explores whether these reforms will enable people who rely upon the CTA as a foundation of life outside their home country to protect their interests through litigation, and reflects upon the relationship between these arrangements and the protections for EU citizens proposed under the UK–EU Withdrawal Agreement.

The central purpose of this paper is to show that there are no major differences in the methods of constitutional interpretation in countries with varying degrees of judicial review. Despite the fact that legal culture and traditions, underlying political theories, and values all affect methods of interpretation, there is no big gap in constitutional interpretation in practice in view of wide interpretive discretion. Obviously all legal systems require compliance with some fundamental interpretive standards irrespective of the legal system, and in a democratic society judicial decisions should be justified at least to avoid arbitrariness. The question is what are the limits beyond which judges cannot go in constitutional democracies? Hence, the style and method of legal argumentation that are used to justify the decision may differ in the countries belonging to different legal systems. Whether there are significant differences between the common law and civil law, constitutional interpretation will be assessed through the comparative analysis of the United States Supreme Court and the German Federal Constitutional Court.

In the following Article I will develop seven ideal-typical role models for (or caricatures of) legal scholars: the Oracle Scientist, the Prophet, the Law Reformer, the Humble Clerk, the Wise Pragmatist, the Self-Reflective, and the Media Star. Ten features will be used to characterize the ideal for each model: primary audience, ideal function, perverted form, influence on the law, prestige, measure of success, time scale, use of non-legal (moral or social/economic) arguments, precondition of existence, typical countries, and famous lawyers (representing themselves or at least proposing to other legal scholars to follow that specific role model).