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.

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.

A common language is indispensible for reaching and maintaining understanding in all inter-subject relations, including international relations. One element of today's common language in the field of international trade in goods is the Harmonized Commodity Description and Coding System (the Harmonized System/HS) which is maintained by the World Customs Organization (WCO). The HS provides for a common vocabulary by classifying all traded goods according to a nomenclature. This common vocabulary facilitates, and avoids misunderstandings in, communications about products. It thus reduces transaction costs and consequently is of eminent economic importance for today's globalized trade relations. Take for example WTO tariff negotiations with respect to chocolate: While one party might assume that the product commonly referred to as white chocolate is included in the negotiations on chocolate, the other trading partner might assume that it is excluded for the reason that it does not contain cocoa and thus does not qualify as chocolate. Reference during the negotiations to specific positions of the HS nomenclature reduces the probability of such misunderstandings. If during the exemplary tariff negotiations parties would refer to the HS heading Chocolate no party could later claim that the negotiated tariff should also apply to white chocolate since the HS classifies the product which is commonly referred to as white chocolate under the heading Sugar Confectionary (and there under a specific sub-position) whereas chocolate containing cocoa is classified under the heading Chocolate. The vocabulary of the Harmonized System is a point of reference for many legal norms which relate to international trade in goods – in my example the legal obligation to comply with the negotiated tariff concession (Art. II GATT) and not to discriminate against like products (Art. I, III GATT). While the HS provides the vocabulary, these norms provide the grammar of a common language of international trade.

On November 29, 1967, Commune I member Fritz Teufel had to face his second day in a West Berlin courtroom. Teufel was charged with breaching the public peace for allegedly hurling stones at policemen during a demonstration against the visit of the Shah of Persia on June 2, 1967– the same event during which West German police officer Karl-Heinz Kurras killed twenty-six-year-old student Benno Ohnesorg with a shot to the head. When the judge entered the courtroom that day in late November, Teufel sat in the same spot in which only one week before Kurras had been acquitted of involuntary manslaughter for his actions on June 2. As everybody stood up, Teufel alone remained in his seat, leisurely browsing through the day's newspaper. Only after the judge repeatedly urged him to stand up, stop his defiant behavior, and pay his respects to the court did Teufel slowly rise to his feet and utter a seemingly spontaneous and sardonic remark, which became a rallying cry for the mocking and disrespectful attitude of the student movement against West German authorities: “Well, if it's gonna help establish the truth…” (Naja, wenn's der Wahrheitsfindung dient).

A prevalent assumption in German Constitutional Law and Community Law reads as follows: »If Europe wants to have a future it needs to become a community of history«. But there is a snag in it: Just as it is difficult, if not impossible, to identify national communities of history, it is unlikely that one European community of history will emerge.

Governments periodically receive accusations of over-spending. These accusations are sometimes warranted. Some commentators propose that strict tax and expenditure limits (TELs) and/or balanced budget requirements (BBRs) may resolve excessive expenditure. Governments can implement TELs and BBRs through constitutional amendments, statutory schemes, or non-binding aspirational goals. They have been proposed as a remedy to allegations of over-spending in some European countries. However, it is not entirely clear if TELs or BBRs are effective or will resolve excess expenditure. I analyze TELs and BBRs as implemented in the United States and Australia. I argue that the Australian model of aspirational TELs and BBRs is beneficial if there is a political will to enforce them. However, if there is no such political will, then statutory (as opposed to constitutional) TELs and BBRs best strike a balance of flexibility and constraint.

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.

By order of 29 November 1999 the Federal Court of Justice (Bundesgerichtshof) referred to the European Court of Justice (ECJ) for a preliminary ruling under Article 234 EC two questions regarding the interpretation of the “doorstep-selling directive”, and the “consumer credit directive”, which arose in the course of proceedings involving Mr and Mrs Heininger, who took out from the Bayerische Hypo- und Vereinsbank AG bank a loan to purchase a flat, secured by a charge on the property (Grundschuld). Five years later they sought to cancel the credit agreement, maintaining that an estate agent had called uninvited at their home and induced them to purchase the flat in question and - at the same time acting on a self-employed basis as agent for the bank - to enter into the loan agreement, without informing them of their right of cancellation.

The main purpose of this paper is to consider the impact of the Treaty establishing the Constitution for Europe (hereinafter: the Constitutional Treaty or CT) on the realization of the Area of Freedom, Security and Justice (hereinafter: the Area or AFSJ). The paper has two parts. The first part deals with the Area in current law, whereas the second part focuses on the provisions of the Constitutional Treaty concerning the Area.

One of the main problems which has emerged in recent years in the debates of legal positivism has been a rather defensive twist in its self-understanding (i.e., its self-affirmation in terms of what it is not). Now, whereas such a negative approach does not in itself pose a problem, in the case of legal positivism it has led to a series of rearguard battles against claims stemming, on the one hand, in more general philosophic developments, and, on the other, in doctrinal legal scholarship. The result has been that some have wondered if between those conceptual and institutional demarcations, between the philosophic and the juridical departments, there actually remains anything for positivism to stand for. Is there anything it actually claims? Accordingly, a perceived dilemma of positivism has emerged along the following lines: insofar as legal positivism makes a sound claim, this claim is very weak and, by itself, not very interesting; insofar, however, as positivism tries to make a strong and interesting claim, this claim can be shown to be fundamentally misguided.

This article analyzes the transformation in the scholarship of legal ethics that has occurred in Canada over the last decade, and maps out an agenda for future research. The author attributes the recent growth of Canadian legal ethics as an academic discipline to a number of interacting factors: a response to external pressures, initiatives within the legal profession, changes in Canadian legal education, and the emergence of a new cadre of legal ethics scholars. This article chronicles the public history of legal ethics in Canada over the last decade and analyzes the first and second wave of scholarship in the area. It integrates these developments within broader changes in legal education that set the stage for the continued expansion of Canadian legal ethics in the twenty-first century.

Modern western societies are aging—according to statistical analyses, in 2060, every seventh German citizen will be over 80 years old. The challenges of an aging society occupy jurisprudence and the legal practice. Issues specific to aging offenders and aging victims are more relevant than ever and must be analyzed. The question of old age is one of many problematic aspects of two criminal cases recently decided by the German Federal Constitutional Court. In the following, age's relevance to criminal prosecution and material criminal law will be discussed and related to an analysis of the proceedings of John Demjanjuk and Heinrich Boere, two alleged Nazi criminals, tried in their old age. Demjanjuk's case especially has raised questions well beyond the relevance of his age (89 years). The cases open up many interesting facets of German criminal procedural law and material law connected to the crimes of the Nazi era.

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).

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.

Historical evaluations are expected to mark a starting point and, at the end, produce a result, which then shows a “development” from the starting point. This development need not be in a straight line. It may have made detours and suffered set-backs. Altogether, however, it connects beginning and end like a red thread; it is possible to see from this the task of the historian, picking up this thread like a careful housewife, undoing knots and loops, winding up assiduously and finally presenting a tidy ball of work.

The first thing for European lawyers to understand about American law is that the distinction between public and private law is in America seldom noticed. American judicial institutions, unlike those in most other countriees, were not designed merely to resolve civil disputes, but were fashioned for the additional purpose of facilitating private enforcement of what in other nations would generally be denoted as public law. This purpose reflects widespread mistrust of the political institutions and government officials upon whom American citizens would have to depend if private law enforcement were not available, as generally it is. That shared mistrust has ancient roots and is reflected in state and federal constitutional provisions assuring the weakness and ineptitude of American political institutions other than courts, and in the habit of Americans, observed in 1835 by the French observer de Tocqueville, to litigate issues they care most about. As a consequence of these conditions, substantial reliance for the regulation of business is placed on private plaintiffs. Much regulation is done ex post the regulated business conduct in the form of civil money judgments rather than ex ante in the form of official approval or disapproval. It is provided by lawyers serving as private attorneys general. Its aim is to keep business executives alert to the risks their business decisions may impose on others.

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.”

The idea of a European constitution has been a constant refrain in academic and political discourse on European integration, and has recently gathered considerable momentum due to the intervention of politicians and the media and its explicit institutional recognition in the Laeken Declaration on the Future of the European Union. If much of the debate is characterised, tainted even, with a top-down logic of legal-constitutional engineering - a logic which arguably flows from the elitist political roots and philosophy of the project itself - there is nevertheless a growing tendency to examine the theoretical alternatives through which a more open and inclusive constitutional process might be understood. There is considerable irony in an endeavour to ‘democratise’ a postnational polity through a constitutional settlement, brought out when the theoretical underpinnings of the constitutional movement are laid bare, and the alternatives to a hierarchical or legocentric understanding of constitutionalism's reach are examined. The purpose of this paper is to suggest some of the possible pitfalls in a constitutionalist position fixated on a hierarchical or federal arrangement, and highlight some theoretical alternatives which appear accommodating, even demanding, of a more bottom-up approach and conducive to a radical inclusion of civil society, both organised and disorganised, in the structures of constitutional construction and negotiation.

This Article studies the role of law for aligning democracy with a market-based financial order. Jürgen Habermas's discourse theoretical understanding of the role of law in the welfare state establishes a structure for exploring this issue. According to this approach, law needs to be enforceable, law-making and law-application need to be institutionally separated, and public law needs to be distinguishable from private law. The contemporary practice of sovereign debt restructuring reveals some empirical and normative challenges to this understanding of the law. Based on these findings, this Article proposes several conceptual and institutional improvements that might lead to a more stable relationship between democracy and financial order. In particular, we argue that sovereign debt restructuring should tap the legitimating potential of existing transnational discourses that are characterized by cross-border cleavages in public discourse.

The doctrine of legitimate expectation was authoritatively accepted as part of South African administrative law in the landmark case of Administrator, Transvaal v Traub in 1989. In that case Chief Justice Corbett extended the scope of application of the rules of natural justice, specifically the audi principle, beyond the traditional “liberty, property and existing rights” formula to cases where something less than an existing right, a legitimate expectation, required a fair procedure to be followed. This acceptance followed the trend in other Commonwealth jurisdictions to extend the application of the rules of natural justice and hence afford greater procedural protection to individuals affected by administrative decisions. Although Chief Justice Corbett expressly stated that the content of the expectation may be substantive or procedural in nature, the protection of that expectation, if found to be legitimate, was exclusively procedural. Since the Traub decision, the doctrine of legitimate expectation has been deeply entrenched in South African administrative law to extend the scope of procedural rights afforded individuals affected by administrative action. It is now an established principle of South African administrative law that a person, who has a legitimate expectation, flowing from an express promise by an administrator or a regular administrative practice, has a right to be heard before administrative action affecting that expectation is taken. The doctrine, has however, by and large, remained one that provides procedural protection in South Africa. In a number of recent decisions by South African courts, ranging from the High Court to the Supreme Court of Appeal and the Constitutional Court, there have been increasing calls for the application of legitimate expectations beyond procedural claims.