There has perhaps been no greater thinker of the future than Jacques Derrida. Throughout his entire body of work Derrida constantly returns to the thinking of the “perhaps,” of the arrizant. This thinking of the “perhaps” takes shape as what is “new” and other to our world, something that is therefore unknowable even as a horizon of ideality that both arises out of and points to what ought to be in any given world. I renamed deconstruction the philosophy of the limit so as to emphasize Derrida as the protector of what is still yet to come. My argument was fundamentally that Derrida radicalized the notion of the Kantian meaning of “laying the ground” as the boundaries for the constitution of a sphere of valid knowledge, or determinant judgment. In Kant, to criticize aims to delimit what is decisive to the proper essence of a sphere of knowledge, say for example science. The “laying of limits” is not primarily a demarcation against a sphere of knowledge, but a delimiting in the sense of an exhibition of the inner construction of pure reason. The lifting out of the elements of reason involves a critique in the sense that it both sketches out the faculty of pure reason and surveys the project as the whole of its larger architectonic or systematic structure.

[Editors’ Note: This short note concerns the most recent acquittals in the Mannesmann criminal trial against former Mannesmann CEO, Klaus Esser; Deutsche Bank's CEO (Vorstandssprecher) and then Member of Mannesmann's supervisory board, Josef Ackermann, and other members of the Supervisory Board. The Landgericht [Regional Court] Düsseldorf acquitted all six defendants on 22 July 2004, and this timely note provides but for a first rendition of the circumstances, the reactions and the thrust of the judgment. For more extensive background to the criminal proceedings against Esser, Ackermann et al. and the importance that domestic and international observers have regularly been assigning to this case in the context of a worldwide corporate governance debate, see already Peter Kolla's article in the 1 July 2004 Issue of German Law Journal. German Law Journal will publish a more extensive case commentary in the coming months. Meanwhile, the Mannesmann proceedings have, once more, highlighted to German, European and International observers the particular features of law and politics in “Germany Inc.”, “Rhenish Capitalism”, or “Rhineland Capitalism”. As begun in the aftermath of Josef Ackermann's inthronization at the head of Deutsche Bank and Ackermann's subsequent transformation of the Board's control structure, German Law Journal has published several contributions to the ongoing changes in German corporate governance and its embeddedness within the specific German economic and legal system. In this issue, we are publishing a fine piece by Jürgen Hoffmann, Professor of Sociology in Hamburg, on the current interdisciplinary debate over the future fate of so-called Rhineland Capitalism. In the next issue, to be published on 1 September 2004, Professor Christopher Allen of the University of Georgia will further deepen this inquiry and place the contemporary debate over the possible end of Rhineland capitalism in the historical context of Germany's development in the 20th Century. The Editors of German Law Journal are very pleased and honored to be able to provide for a further forum for this important debate, bringing together lawyers, economists, political scientists and sociologists, for a much needed exploration of the historical and political origins as well as of the legal framework of Germany's much critizised and, at the same time, ardently praised system of corporate governance and industrial relations. We invite our readers to contribute to this debate, which has so far found too little resonance in Germany itself. The Editors.]

CITES is acknowledged as one of the most successful international environmental treaties in the world. CITES is not just a conservation treaty, it is also a trade instrument that attempts to strike a balance between these often competing values.

The term corporate governance has come to mean many things to many people. One important reason is that views continue differ as to the fundamental question of the role the firm. While some believe that corporations can contribute best to society if they do what they do best, namely to provide high quality goods and services to the marketplace, for others corporate responsibilities are much broader.

The German General Act on Equal Treatment (Allgemeines Gleichbehandlungsgesetz, AGG) has been in force for four years now. Academic discussion has so far mainly focused on the scope of anti-discrimination provisions for non-state actors, i.e. on whether there should be private anti-discrimination legislation, what conduct the statute should prohibit, and what exceptions it should allow. In order to fully understand the effects and relevance of anti-discrimination provisions in a legal system, their remedies and sanctions have to be taken into account as well. This article focuses on the remedies provided for in the AGG and, more specifically, on obligations to contract. The issue of whether there is and whether there should be an obligation to contract has – as regards remedies – been the most controversial issue in the academic discussion so far.

The history of Hong Kong is intertwined with British colonialism and China’s Hong Kong policies. This history offers unique and important lessons on the rise and fall of Hong Kong’s constitutional order. In accordance with the 1984 Sino-British Joint Declaration, China declares 12 basic policies regarding Hong Kong and has translated these into the 1990 Hong Kong Basic Law. It is generally held that “One Country, Two Systems” will be the main constitutional architecture of Hong Kong for 50 years, and it will remain basically unchanged even after 2047. However, there are obvious difficulties and enormous differences on the interpretation of Article 5 of the Hong Kong Basic Law concerning the true meaning of “unchanged for 50 years.” Recent years have witnessed the great need for deciphering the time-code of the Basic Law because the question of 2047 draws closer and closer to the central stage for the determination of Hong Kong’s constitutional future. This Article aims to provide legal analysis on Article 5 of Hong Kong Basic Law and the constitutional fate of Hong Kong toward 2047. It distinguishes all sorts of Article 5 interpretations into three broad categories: “Unchanged for 50 years” as international promise, “unchanged for 50 years” as political commitment, and “unchanged for 50 years” as constitutional obligation. Different approaches have been utilized for various constitutional interpretations. But all in all, the constitutional puzzles regarding “unchanged for 50 years” must be addressed within the framework of the temporality of the Basic Law in a fast-paced world. In order to maintain the constitutional stability and endurance, to secure the unamendability of “One Country, Two Systems” in 2047 will be the best blessing for Hong Kong in every possible way.

The “established by law” criterion recently emerged as an independent element of Article 6 of the European Convention on Human Rights (ECHR), through the European Court of Human Rights’ (ECtHR’s) judgment in Ástráðsson v. Iceland. The criterion imposes the obligation on states to appoint judges in accordance with the respective legal framework. Its emergence occurred at a precarious moment in European intergovernmental politics, with illiberal governments in several European states exhibiting tactics aimed at softening obstacles to their governing powers, upheld by their respective judiciaries. Through a dialog between the European Free Trade Association (EFTA) Court, the Court of Justice of the European Union (CJEU), and the ECtHR, the “established by law” criterion has now emerged in the European constitutional repository for thwarting such tactics. In this article, the story of this development is told through highlights from the case law of the European supranational courts and through the Icelandic backstory of the Ástráðsson case. This story reveals important nuances in how the case law needs to be understood with regards to the constitutional forces at stake. The conceptual approach of the ECtHR in Ástráðsson is also analyzed in context with Lon Fuller’s rule of law principle of congruence, which provides a framework for evaluating the merits of the Court’s tactic.

This Article explores the economic nature of law and courts as an explanation for the world’s endemic court congestion problem. The economic theory of goods and services is used to demonstrate that law has a dual nature—coercion and compliance—and that law as coercion is actually a club good that requires a complementary good to be useful, courts. But because courts are private goods in nature, the bundled product will behave as a private good. However, the unrestricted implementation of access-to-justice policies with the objective of increasing the people’s access to courts will transform the bundled product into a common pool resource. The counterintuitive result of this transformation is that granting unrestricted access to justice might actually prevent people from accessing their rights—the tragedy of the judiciary. Two policy implications are explored: The importance of legal certainty for the tragedy mitigation, and the potentially adverse selection problem resulting from court congestion.

Australia's offshore detention regime has been the subject of numerous attempts to seek accountability for harm caused to detainees using legal and other avenues in Australia. This Article examines recent strategic litigation actions against the Australian government and the corporate contractors engaged in offshore detention, including: Kamasaee v. Commonwealth; AUB19 v. Commonwealth; and actions seeking injunctions requiring the Australian government to airlift detainees to Australia for medical treatment. While these actions have vindicated the rights of those in offshore detention in specific ways, and in some instances facilitated compensation for harms caused while in detention, none have proved capable of challenging the underlying basis of the offshore detention regime, nor of providing a foreseeable end to the detention, whether by facilitating credible prospects for resettlement, or by other means. The Article provides an account of the achievements and limitations of these claims and concludes that although certain features of the Australian jurisdiction make it possible to pursue transnational claims, and thus potentially provide remedy for those who have suffered wrongs in Australia's offshore detention regime, such claims need to be pursued with the utmost care and with careful consideration of the complexities of the Australian political and legal environment.

The number and diversity of the European Supervisory Authorities’ (ESAs) soft law acts continue to grow. The recent reform of the ESAs’ founding regulations added two new instruments to their toolbox, “questions & answers” (Q&A) and “no action letters,” both invented and already used by the ESAs in their supervisory practices. The reformed regulations continue to encourage the ESAs to pursue their tasks by developing new instruments and convergence tools. The article assesses the ESAs’ rulemaking and regulatory innovation from a broad governance perspective, asking what type of procedural controls and review mechanisms would best facilitate beneficial forms of regulatory innovation while also controlling its excesses. It is argued that the main shortcoming of the present regime is not the lack of adequate procedural controls so much as the incomplete system of legal remedies. Flexibility should be preserved, but more credible judicial controls are needed to check the ability of soft law to bypass legislative processes.

Preuss' paper significantly advances the critical theory of law. As a side benefit, he provides English-speakers with an excellent introduction to the work of two leading West German participants in the debate, Jürgen Habermas and Gunther Teubner. Preuss' paper reveals considerable common ground between critical legal theorists in Germany and the United States, but also important differences of perspective and concern. I suspect that many American legal critics will think that Preuss' criticisms of Habermas and Teubner do not go far enough, that his criticisms raise a fundamental challenge to the current emphasis on structure and system in the German debate. In any event, Preuss' paper suggests the usefulness of a greater German “reception” of the American emphasis on agency and social construction. No doubt American legal criticism would likewise be enriched by entering into a more sustained dialogue with structuralist and systems theory.

It is difficult to put a label on a historical period. Human history is full of variety, complexities and contradictory developments. Consequently, the precondition of grand theories of history is often their openness to unjustified simplification. On the other hand, some orientation is indispensable, and for this, general descriptions are helpful if one stays aware of their limited function and value. With this in mind it is possible to state that the post-war period is marked by what one may call a universalistic stance.

On March 5, 2003, the Council of the European Union (hereafter the ‘Council’) submitted a request for an opinion to the European Court of Justice pursuant to Article 300 (6) EC. This request was intended to clarify whether the Community had an exclusive or shared competence to conclude a new convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters intended to replace the existing Lugano Convention (hereafter the ‘new Lugano Convention’ or the ‘envisaged agreement’).

Given the scope of authority the United Nations has assumed in order to perform functions of territorial administration both in East Timor and Kosovo, it is, as one commentator remarked, rather surprising that the issue of the legitimacy of the internationalisation of state structures through post-conflict governance has inspired little debate. There are myriad reasons for the erosion of political authority in a territory temporarily administered by the international community – corruption, local obstructionism and internal divisions, failure to promote government transparency, a tenuous link between civil administration and the military command structure, the operation of (inter)national networks of patronage, and general incompetence, to name a few. This article analyses some of the inherent tensions involved in international institution-building. It introduces the variety of actors operating in an internationalised territory as the quest for legitimacy creates tensions between them, and portrays the dynamics that unfold in a process in which notions of legitimacy are subject to institutional contestation.

This Article starts from two premises. The first is that power—particularly regulatory power—is increasingly exercised across and between jurisdictions, in particular as a result of the intertwining of economies via trade. The well-being of those involved in the production and trade in goods and services is determined by rules made in multiple jurisdictions, not just their own. Concern about the environmental and social impact of economic activity is a particular reason for jurisdictions to try and impose norms upon each other. The second premise is that the essence of constitutionalism is constitutional values and principles rather than particular institutional forms. Such forms are contingent and instrumental, in the service of the values and principles. Many of those constitutional values and principles are concerned with the exercise of power (e.g., accountability, due process, and non-oppression).

Even experienced scholars will have to think for quite a while when asked to remember whether a similar situation has ever occurred: A tiny constitutional provision in the organisational part of the Grundgesetz (GG – Basic Law), not exactly neglected by learned writers but definitely never seen as a source of major problems, became the starting point of one of the most emotional outbursts German politics has ever experienced. The said provision, Article 51.3(2) of the Basic Law, dealing with the voting procedure in the Bundesrat innocently says that the votes of one Land's representatives “can” (“können”) be cast only unanimously. In order to understand the causes for the earthquake that struck the German political and constitutional system in the 774th session of the Bundesrat on 22 March 2002 it is essential to shed light on the structure and the constitutional role of the Bundesrat.

As Europe forges its legal order, constitution, and self-understanding, many appear to believe that identifying and enacting laws and a legal framework that correspond to shared concepts of justice and human rights will solve the problem of legalized barbarism which once plagued Europe and which has been a recurrent feature throughout time and across the globe. The historical propensity of courts, even in democratic states, to legitimate and enable policies of persecution and discrimination provides compelling evidence that the current level of faith in law is misplaced.

International law has come unstuck in time. It has gone to sleep stressing a normative future based on state “obligations owed towards all the other members of the international community,” and has awakened in a bygone world in which the state is “susceptible of no limitation not imposed by itself.” The opposing time zones seem now to exist in unison. Thus, for example, the European Court of Human Rights, in examining the impact of the Torture Convention, can split 9:8 on whether national self-interest trumps universal rules of cooperation, or the other way around. Likewise, England's House of Lords can opine in the Pinochet case that, as between a reinvigorated national jurisdiction and the developing concept of universal one, “international law is on the move.”

On July 18, 2001, the Bundesverfassungsgericht (German Federal Constitutional Court) will issue its ruling in the application for a temporary injunction, brought by the Länder (Federal States) of Bavaria and Saxony, to block the August 1 effective date of the new federal Lebenspartnerschaftgesetz (LPartG — Registered Lifetime Partnership Act for Homosexual Relationships). This act has been the subject of considerable controversy including the claims at the heart of the Federal States' challenge to the constitutionality of the statute. This article will: (a) briefly survey the social evolution that has necessitated the regulations in this statute; (b) describe some of the statute's provisions; and (c) end by summarizing some of the sometimes harsh and often very emotional arguments involved in the debate over the LPartG and raised as part of the challenge to the statute's constitutionality in the proceedings before the Federal Constitutional Court.

One of the prominent questions surrounding Weimar Theory of the State was that of the significance and influence of the political parties within the state. From the perspective of constitutional law, parties were as undesirable as they were an “inescapable” fact of modern statehood. They appeared to be an absolutely necessary consequence of the emancipation of all classes and social strata: Legitimation of state rule was no longer conceivable merely as a natural rule from above; on the other hand, there was no longer a unified bourgeoisie, and it thus seemed impossible for the political whole to be represented by people who felt beholden exclusively to the common weal. The homogeneous “people” had become a heterogeneous “mass.” The parties seemed to be a necessity, on the one hand, for active citizens to articulate themselves in the political system and, on the other hand, for state unity not to be torn apart by the power of a plurality of interests leaning in many different directions. Parties could therefore be conceived of as a prerequisite for state organisation: The idea of the “party state” was born. One important protagonist in the discussion on the status of parties within the state structure was the constitutional legal scholar Gerhard Leibholz (1901–1982). In Weimar times, he was the most prominent representative of party state theory (Parteienstaatslehre), and as someone who “had somehow fallen between the eras,” he also actively shaped the party state of the Bonn Republic for over twenty years (1951–1971), as a judge at the Federal Constitutional Court (Bundesverfassungsgericht), by significantly influencing legislation on parliamentary, party, and electoral law. His persona was therefore a particularly important bridging link between the Weimar Republic and the Federal Republic of Germany, and even today, his theses are highly topical: “Beyond all eras, Gerhard Leibholz stands for the great tradition of German constitutional theory.”