This article argues that comparative law needs to explore its critical potential when engaging with the European harmonization process and its effects on the law of the Member States. In the first part, the article evaluates existing comparative law methods and their suitability to identify legal and cultural factors that influence the judicial reception of EU harmonized law on a national level. Using EU non-discrimination law as a case study, it questions to what extent traditional methods are suitable to explain differences in the national judicial reception of EU harmonized law, despite the exclusive competence of the Court of Justice of the European Union to interpret EU law. In doing so, it considers the potential of critical comparative law for the development of a deeper understanding of the national courts' reception of EU harmonized law as a key part of the broader legal harmonization process. In the second part, the article develops an original multi-layered culturally informed method to compare EU harmonized law. The proposal goes beyond the existing methods of comparative law by including critical aspects and stressing the relevance of embedding a general normative framework in any comparative critique. It challenges comparatists to reach deeply into national cultural spheres and to identify key influences on the application of EU rules and EU-national legal ‘hybrids’. The method creates room for multi-layered narratives of comparison aimed at gaining a deeper understanding of the national legal and non-legal cultural background that can hinder or facilitate harmonization processes. This enriched comparative critique can offer new insights into the process of legal harmonization in the EU, particularly by focusing on the point of application rather than the previous phases of creation of EU law and its reception by Member States.

This Article analyzes the potential impact of the European Commission’s proposed “European Green Deal” on labor rights, in particular the rights of workers in lower-income EU Member States. It focuses on environmental measures, already part of the EU’s existing environmental policies and further contemplated in the Green Deal, which prohibit or tax certain polluting production processes. Such measures, insofar as they apply uniformly to traded-good industries, are likely to make firms in lower-income EU Member States less competitive and harm their workers’ rights to work and to fair wages. Thus, even though these environmental measures are worth pursuing for the benefits they procure, the distribution of their costs is likely to run afoul of egalitarian norms. This Article puts forward an institutionalist approach to trade theory which recognizes that competitiveness is legally constructed. It argues on the basis of that theory that lower-income countries should be allowed to adopt ambitious industrial policies and subsidize their firms to insulate workers from the disruptions caused by added environmental regulatory costs. More broadly, this Article presents an agenda to pursue radical environmental transformation while remedying, or at least not worsening, inequalities between workers and citizens in the EU.

This Article critically considers the effectiveness of the European Union's (EU) counter-terrorist financing (CTF) strategies. In particular, it concentrates on the use of financial intelligence gathered from the submission of suspicious activity reports (SARs) by reporting entities to Member States Financial Intelligence Units (FIU). The Article identifies a series of weaknesses in the United Kingdom's (UK) reporting regime: Defensive reporting, increased compliance costs, and the definition of suspicion. It concludes by making a series of recommendations that are aimed at improving the effectiveness of the EU and UK CTF reporting obligations.

This Article engages in an empirical analysis of the counter-majoritarian role of the Brazilian Supreme Court, the Supremo Tribunal Federal (STF), in terms of its sharp contrast with the aim of attracting wider participation from civil society in public hearings. Public hearings are an important judicial tool that have recently been introduced and that may influence foreign constitutional courts. A public hearing is a procedure in which the STF can hear experts, scientists, professors, civil servants, and even ordinary citizens when a Justice Rapporteur seeks to elucidate a specific technical aspect of a case, a controversial social issue, or an issue in a field that is generally unfamiliar to the presiding judge or judges. This research aims to address the influence of these public hearings on the deliberation process of the STF based on the democratic theory of representation. First, Section B outlines the main premises of the debate, elucidated the purposes and findings of public hearings. Next, Section C presents a theoretical approach addressing deliberation and representation to explain how information obtained in public hearings might improve the STF's adjudicative process. Section D outlines the chosen criteria and methods for the empirical research; this will demonstrate that public hearings in the STF are not working as envisioned. Lastly, to offer qualitative insight, Section E carefully examines two of the eighteen public hearings analyzed. The Article concludes that the STF has much work to do in terms of rethinking and improving the functionality of public hearings.

De-democratization may take the form of executive-led attacks as well as incremental decrepitude, gradual emptying of underlying constitutional values, and state inertia. Contrary to general wisdom, both exogenous erosion and endogenous decay are heavily affected by informality. As courts are often the first institutions affected by de-democratization, this Article analyzes informality in erosion and decay of judicial institutions. It argues that such institutions interact with democracy in two core directions. The first one is endogenous and describes the decay of democratic judiciaries as a result of a long-term incongruence between formal and informal judicial institutions. The second direction captures the gradual erosion of informal institutions that have positive effects on judicial democratic resilience. These two processes, decay and erosion of informal judicial institutions, should not be overlooked. While they are less visible, slower, and often unintentional, they are as dangerous as frontal executive-led attacks on courts, because they significantly increase the window of opportunity for politicians who wish to downgrade the substance of democracy or even implement a regime change.

Universal service has a pivotal role in market liberalization and competition on both sides of the Atlantic. It is central to the European thinking on markets and public service and is an inevitable element of market liberalization and sectoral competition rules. The universal service aims at preserving the public service in a competitive environment. The paper analyzes this cornerstone of the European thinking from a comparative and trans-sectoral perspective, demonstrating that the concept of universal services should be fundamentally re-conceptualized in EU electronic communications and energy regulation.

I can hardly begin to express what Brexit means for Britain and Scotland. Like many, I am shocked. I am shocked in part by the result itself, and in part by the very fact that I am shocked by the result, despite all the warning signs. Denial and wishful thinking affect us all, so before Remainers place too much blame on complacent, arrogant, elitist politicians, we should look to ourselves. They are but our mirror.

On 23rd June 2007, after three years of uncertainty, European Union leaders agreed on relaunching the old idea of a Magna Charta for Europe (now called “the Reform Treaty”), a normative structure based on the old ideas of deference to national identities, sovereignty and equality. To many authors, the first time that juridical equality between states was solemnly stated was in the aftermath of the Thirty Years’ War (1618-1648), in the Westphalia Peace Treaties, representing the beginning of modern international society established in a system of states, and at the same time, “the plain affirmation of the statement of absolute independence of the different state orders.” In fact, under an Eurocentric conception of political ideas (which envisages England as an isolated island and Iberia as Maghreb, north of Africa), the modern state emerges with the Westphalia Peace Treaties. However, under a broader conception, the modern nation-state (under the form of absolute monarchy) emerged long before the Westphalia Peace Treaties, in Iberia and England. Nevertheless, it is in these documents which lies the “birth certificate” of the modern sovereignty nation-state, base of the present democratic state, and “founding moment” of the international political system. Far beyond this merely formal aspect, the importance of the Westphalia Peace Treaties is so great to the understanding of the notion of state that Roland Mousnier, in describing the 16th and 17th centuries in the General History of the Civilizations, organized by Maurice Crouzet, asserts that those treaties symbolized a real “constitution of the new Europe,” a multifarious Europe, plural and very distant from the religious unit of Christianity, from the political unit of the Holy Roman Empire, and from the economical unit of the feudal system. Constitutions are especially important because they establish the rules for the political authority, they determine who governs and how they govern: “[I]n codifying and legitimating the principle of sovereign statehood, the Westphalian constitution gave birth to the modern states-system.”

How to reform the American health care system, now dominated by a decreasing number of multi-billion dollar managed care corporations, has occupied the public debate for many years. Recent news reports hefty increases in managed care premiums, benefit reductions, and an ever-growing number of managed care organizations refusing to treat Medicare patients. Numerous “patients’ bills” have been submitted in Congress, attempting to rein in some of the managed care cost containment practices. None have been adopted so far. At best, such bills would superficially treat some of the symptoms of an ill-functioning health care delivery system, poorly serving the population, insured and uninsured, and creating a plethora of ethical conflicts for providers battling to preserve an acceptable standard of care. Since the Clinton health care reform efforts failed in 1994, no one has proposed a fundamental revision of the system, and the United States remains the only industrialized nation without a universal health care system. The literature mainly reports on those – English-language – countries whose cost containment measures have resulted in overburdening the public health care system. There are, however, numerous European governments which succeed in stabilizing health care expenditures by mandating some sacrifices by all participants in the health care system while preserving universal access, comprehensive coverage, and the standard of care.

In Article 7, paragraph 3, the German Constitution provides that religious education shall be a part of the curriculum of public school. This is one of the three approaches of dealing with religious education existing today. Originally, religious education as a regular subject at public schools in Germany was only offered by the two Christian Churches—Catholic and Protestant. As the number of Christians decreased and the number of Muslims increased, the demand for Islamic religious education at public schools grew. Therefore, the question arose whether the constitutional law concerning religion is capable of facing the new challenges of religious diversity. This Article tries to answer this question with regard to the introduction of Islamic religious education as a measure of adaptiveness. In the first step, the requirements of Article 7, paragraph 3 of the Constitution posed to religious education will be outlined in order to be able to examine in the second step whether Islamic religious education may be introduced at public schools as a regular subject. In this regard, the issue of the qualification of an umbrella association as a religious society and the constitutionality of the advisory board model will be discussed.

This article argues that the ECtHR uses two conflicting tests to assess the same types of hate speech. This results in legal uncertainty at best, and arbitrariness and double standards at worst. To remedy the present situation, I propose a two-track strategy. To begin with, the Court should abandon its “bad tendency” approach, a test prone to abuse by governments to silence political dissent under the guise of fighting hate speech, for a set of uniform criteria to assess hate speech-restrictions, in line with its current incitement approach. In addition, however, to compensate for the loss of protection against severe forms of vilification which do not meet the incitement-criteria, the Court should formulate a new category of unprotected speech, to be defined as intentional intimidation or harassment.

In Traghetti del Mediterraneo SpA in Liquidation v. Italian Republic, the European Court of Justice (EG) ruled that Community law precludes the existence of two types of national rules that limit State liability: (1) rules that exclude liability for damages due to an infringement of Community law that arises out of an interpretation of legal provisions or an assessment of facts or evidence carried out by a court adjudicating at last instance, or (2) those limiting liability solely to cases of intentional fault and serious misconduct on the part of the court, if such a limitation were to lead to exclusion of the liability of the Member State in other cases where a manifest infringement of the applicable law was committed. This article, while recognizing that the ruling in Traghetti del Mediterraneo is in line with previous case-law on Member States' liability for breach of EU law, casts some doubts as to whether such an invasion of an area traditionally regulated by national law is in fact desirable. It questions what the foundations are of the procedural rights conferred by European law, and, in doing so, the extent to which European law can tamper with the constitutional balance of a state. Finally, it provides some tentative solutions to the dilemma faced by Italian law following the delivery of the Traghetti del Mediterraneo judgement.

This special issue of the German Law Journal showcases through concrete examples the conceptual and methodological toolbox that social anthropology has to offer and the added value of applying an anthropologically informed approach to legal thinking, argumentation, and practice. The contributions address a wide variety of highly topical, controversial social issues that are at the heart of the human condition, including gender recognition for non-binary people, family disputes brought before international courts, non-majoritarian language use in administrative settings, forced migration, and the impact of climate change and infrastructural development on local communities worldwide. This introduction outlines the research program into which the contributions gathered here fit; the choice of topics; and finally, the challenges the authors face in the process of integrating their intellectual encounter with anthropology into their reflections on law. The article concludes that taking recourse to anthropology can help jurists trained in state law to develop a more refined understanding of today’s societal complexity and challenges and, ultimately, to reach more nuanced, sensitive, and just decisions.

This Article provides a novel insight into how earlycareer scholars in the UK may combine different theoretical tools in their research, and the implications that this may have for the socio-legal discipline. This Article draws upon the author’s experience of combining theoretical tools from different schools of thought: Feminist legal theory, Bourdieusian theory, and Actor Network Theory, within the context of recent research into experiences of those representing themselves in family court hearings in England and Wales. Combining these theories for the first time, this Article explores the difficulties, tensions, and benefits of combining tools within socio-legal research and reflects upon the influence of the pedagogical and institutional resources that characterize the socio-legal research environment in the UK. This Article argues that the task of combining different tools provides scholars with the opportunity to work politically, because the process of reconciling tensions between different approaches requires researchers to reflect upon the worldviews that underpin their selected theories. In this sense, it argues that combining different theories within socio-legal research is a political activity, because researchers are required to reflect not only on how theoretical choices may contest, expand, or develop dominant assumptions that characterize socio-legal scholarly traditions.

When the true scale of what would later be called ‘crimes against humanity', ‘genocide’ and, specifically, ‘the Holocaust’ became clear in the aftermath of the Second World War, a number of questions were raised. First, is this a new type of crime, in which evil manifests itself in a radically different way than it had earlier? Some disputed this. Evil exists at all times and it has always confronted people with an abyss of atrocities. With Rawls, one might then say that every ‘great evil’ is sufficient in itself and that making comparisons is not necessary, even if the Holocaust cannot be detached from earlier ravages of evil such as the Inquisition and antisemitism. Others thought this question ought to be answered positively. Adorno and Levinas formulated their philosophies in part as a response to the unique character of the Holocaust. Even now, more than a half a century later, the events associated with the Holocaust form a rich source for public debate, scientific inquiry and literary expression. Secondly, the question has been raised as to how one is to cope with this modern form of political evil and with a new type of criminal offender. Some argued in favour of the familiar recourse to politics and international law. Specifically, political crimes ought either to be dealt with politically or to be considered in the light of the principle of international law: par in parem non habet jurisdictionem. So, ordinary criminal law is not applicable where the mutual conduct of states is concerned. Others, however, including the Allied governments in the period immediately following the termination of hostilities, argued that these crimes were such that punishment would be inevitable. This might give rise to legal problems, but these crimes ought to be dealt with to the extent possible by means of ordinary criminal procedure.

On February 14, 2002, the International Court of Justice (ICJ) rendered a judgement in Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium). The dispute had arisen after a Belgian investigating judge issued an international arrest warrant - based on charges of war crimes in an internal armed conflict and crimes against humanity - against the incumbent Minister for foreign affairs of the Democratic Republic of the Congo (DRC), Mr. Abdulaye Yerodia Ndombasi. The arrest warrant was issued under the Belgian Law of 16 June 1993 (as amended by the Law of 10 February 1999) which establishes that Belgian courts shall have “pure” universal jurisdiction in respect of serious violations of international humanitarian law. The Court found that Belgium violated its legal obligations towards the DRC in that it failed to respect the immunity from criminal jurisdiction and the inviolability which the then Minister for Foreign Affairs of the DRC enjoyed under international law. The Court also found that Belgium must cancel the arrest warrant and so inform the authorities to whom it was circulated.

In recent years, a new creature has emerged on the institutional landscape: The Schmitelsen Court. This court is the end-product of a combination of the positions presented by Hans Kelsen and Carl Schmitt in their famous debate over the institutional identity of the guardian of the constitution during the Weimar years. The Schmitelsen guardian is a court thus fulfilling Kelsen’s vision of the constitutional court as the guardian of the constitution. Nevertheless, it possesses the mission, the means to achieve it, and the source of legitimacy that Schmitt envisioned for the president as the guardian of the constitution. In this Article, I focus on the Schmitelsen Court’s source of legitimacy that differs greatly from the traditional source of judicial legitimacy that Kelsen envisioned for the guardian. Whereas Kelsen viewed legal expertise as the guardian’s source of legitimacy, Schmitt viewed public support as filling this role. After analyzing these two positions, I explain why it is vital for the Schmitelsen Court to harness public support as its source of legitimacy. I proceed by examining how the Schmitelsen Court model manifests itself in three case studies. In the US, Alexander Hamilton—in The Federalist No. 78—raised the notion of the guardian of the constitution long before Schmitt and Kelsen. He designated the judiciary as the guardian and ascribed its source of legitimacy to expertise. After describing how in recent decades the US Supreme Court adopted the Schmitelsen understanding of judicial legitimacy, I turn to examine the Israeli Supreme Court and the European Court of Human Rights. The relevance of these latter two courts stems not only from their adoption of the Schmitelsen Court’s understanding of judicial legitimacy, but also from the strong influence of the Weimar lessons on their evolution into Schmitelsen guardians.