In three high-profile cases the Bundesverfassungsgericht (BVerfG — Federal Constitutional Court) was recently called upon to exercise its authority to issue a temporary injunction in proccedings referred to as einstweilige Anordnungen (provisional measures). Article 32 of the Bundesverfassungsgerichtgesetz (BVerfGG — Federal Constitutional Court Act) provides: In a dispute the Federal Consitutional Court may deal with a matter provisionally by means of a temporary injunction if this is urgently needed to avert serious detriment, ward off imminent force or for any other important reason for the common good.

The relationship between immigration and constitutional identity is simultaneously obvious and evasive. This Article explores that relationship through a comparative case study of Italy and Canada. It begins with a conceptual analysis of the role of immigration against the backdrop of collective identity, constitutional identity, and constitutional subjectivity. The metaphor of immigration as a mirror of constitutional identity orients this analysis. Then, an empirical comparison of the role of immigration in Italy and Canada demonstrates the very different place of immigration in national and constitutional narratives of “self” and “other.” Yet, when the lens is widened to include their recent startup visa programs, their narratives start to converge as the new metonymy of innovation makes an appearance. This convergence marks a conceptual shift in constitutional identity: From immigration as mirror to immigration as display. As a tool of attraction for innovators, immigration law has both internal and external dimensions, which reverberate with implications for constitutional identity. Ultimately, the startup visa programs enlarge the constitutional “us” and make constitutional subjectivity more fluid.

It has been a long journey from the noble declaration in the Federal Republic's new constitution (Grundgesetz [Basic Law]) that women and men have equal rights, to the establishment of concrete laws and jurisprudence that now assure that women and men actually receive equal treatment and that women are no longer disadvantaged in society (and even more, laws and jurisprudence that assure that women receive support if they encounter structural disadvantages). This article, in looking back on its first fifty years of service, surveys the decisive role that the Bundesverfassungsgericht (Federal Constitutional Court) played in that journey.

With respect to space at least, philosophy is almost unanimous. A space comes into being as soon as a border is established and an observer looks at both sides of the border including at the border separating the sides. Without the border, no space, and the space has none. Without the observer, the same applies, even if there are only observers where distinctions are being drawn. Jacques Derrida was conscious of this. One of his questions is the perennial question of philosophy: what is space if, for a space to reveal itself, there is a boundary to be drawn, such that an observer may emerge looking at the space the boundary is brought forward in.

Like many of the provisions of the German Grundgesetz (Basic Law – GG) the constitutional protection of German citizenship enshrined in Article 16.1 GG is a reaction to the atrocities committed by Nazi-Germany. From early on, the Nazis had abused nationality law not only as a sanctioning device to discipline Germans living abroad but also to ostracize unwanted citizens and confiscate their property, i.e., as a means of large scale political and racial discrimination. This inhuman denaturalization practice culminated in the 11. Verordnung zum Reichsbürgergesetz (11th ordinance of 25 November 1941, issued by virtue of the Reich's Citizenship Law), which stripped Jewish citizens living abroad of their German nationality, aiming inter alia at Jews deported to concentration camps in Eastern Europe. To prevent any kind of political abuse of denaturalization measures in the future, Article 16.1 sent. 1 GG guarantees that no German may be deprived of his nationality. There is a long-standing debate about the precise meaning of this strict ban on any “deprivation” of nationality, because at the same time Article 16.1 sent. 2 GG allows for the loss of German nationality against the will of the person affected if this loss has a statutory basis and the person does not become stateless as a result. Thus, it is unclear whether the constitution permits a revocation of German citizenship, and if so under what conditions. Further, this debate broaches the questions of whether there are, in fact, exceptions to the constitutional protection against statelessness, e.g., in cases of fraud.

In 1971, upon the conclusion of my university studies and my first state examination, and before sitting for my second (final) state examination, I commenced my practical training as a so-called Referendar at the Amtsgericht (local district court) in Gettorf, near Kiel. It was a very small court, employing only one judge who was responsible in this position for all legal cases. In addition, a total of approximately 20 other employees were working there. The court had no electric typewriter, and no copying machine. When a copy had to be made, the document was literally transcribed in the true sense of the word. Later, after my second and final state examination, I started my services as a judge at the Landgericht (regional court) in Bremen, a court with approximately 60 judges and a total of approximately 200 employees. It was not a matter of course that each judge had a telephone of his/her own. Moreover, connections to the outside world were frequently only possible through the general telephone exchange. One office had to be shared by several judges. Dictating machines were available, but not taken for granted. On the contrary, as a rule it was the usual practice for a clerk to take the minutes—even in cases for which the Code of Procedure did not specifically require this.

In the crusade against organized crime, it has become more and more accepted that the often trans-border crime cannot sufficiently be tackled by enhanced enforcement and cooperation between states alone. An alternative tool may be what can be termed the instrumentalization of the victims to enable the prosecution of organized criminals. This brings to the fore the dilemma that the victims are often themselves offenders, as a rule, breaching provisions of immigration law. Therefore, it is typically not in their interest to bring offences of trafficking and smuggling, of which they are the victims, to the attention of the authorities. Initiatives at the international and EU/EC level, which grant limited residence rights to those victims who collaborate in the prosecution of the offenders, attempt to deal with this conflict of interest. This implies at least a partial recognition of the status of the victim.

We discuss the issue of bringing human trafficking and forced prostitution within the purview of Article 4 of the European Convention on Human Rights. The judgment of the European Court of Human Rights in Rantsev v. Cyprus and Russia marked a turning point by classifying forced prostitution through human trafficking under Article 4. However, in the judgment in S.M. v. Croatia, the ECtHR further reinforced its view that human trafficking and forced prostitution constitute a violation of Article 4.

We explain human trafficking and forced prostitution both theoretically and through a number of international legal acts. We then explain Article 4 of the Convention and provide a comprehensive analysis of the material and procedural guarantees against human trafficking and forced prostitution. We also comment on the positive obligations that the ECtHR set for Member States. The authors believe that, despite numerous criticisms, the ECtHR’s position is correct and that both human trafficking and forced prostitution violate the principles of democratic society. Therefore, victims must enjoy the protection afforded by Article 4 of the Human Rights Convention and other conventions if their life situation falls within their scope.

The article provides a meta-analysis of the structural impact of digitalization on international law. It synthesizes the contributions of this special issue, showing how their findings are interrelated and which cross-cutting trends we can observe. It uses an analytical framework designed to assess structural changes in international law by analyzing the impact that digitalization has on key reference points: Actors, norms, and values. From this assessment, it draws the conclusion that digitalization is changing, and will continue to change structural features of international law.

A new era of responsibility seems poised to overshadow the human rights discourse in international law. On the one hand, introducing the perspective of responsibility must result in an added value when compared to the former predominant approach. In fact, some justifications are inconsistent, and the most radical interpretations jeopardize the very core of the modern theory of social and legal order—namely, the centrality of the individual. On the other hand, the incorporation of responsibility into the discourse on rights may help to overcome some of its most evident shortcomings. Nonetheless, despite some positive outcomes which the new attention on responsibility may bring about, the concept is flawed by at least two major deficits. First, the reference to responsibility tends to presuppose the possibility of taking the position of a privileged observer. This implicitly rejects the idea that the moral and legal community is essentially constituted by human individuals who freely recognize each other as equal members and rightful holders of entitlements. The second deficit is instead related to the intrinsically particularistic character of responsibility, which makes it rather difficult to apply to the field of international law and relations. An analysis shows that we are confronted with a conflict: while responsibility can, in fact, be assumed to bring an added value, the costs for this are exceedingly high, because they amount to no less than the abandonment of the core concept of modern moral and political philosophy. By recurring to the communicative paradigm of rationality and social order, a possible solution is outlined according to which responsibility is reinterpreted in the sense of a time, space, composition, and content-related expansion of mutual recognition.

The article draws lessons for EU non-discrimination law from the protected grounds of religion and belief through a discussion of the CJEU’s headscarf judgments. The article has two ambitions. First, the judgments are used to draw broader lessons for EU non-discrimination law, in relation to the distinction between and the justification of direct and indirect discrimination, as well as the purpose of protecting against (religious) discrimination. Second, these lessons are used to analyze the headscarf judgments and the criticism directed at them. While there is widespread agreement that the CJEU erred in these judgments, there is little agreement as to what mistakes were made. Through a discussion of these judgments, the article clarifies the difference between direct and indirect discrimination and the justification of both forms of discrimination. It is argued that the headscarf cases correctly distinguished between direct and indirect discrimination, and that the problem lies in the justificatory burden for indirect discriminatory measures, which was set too low by the CJEU.

While considerable thought and effort has been put into exploring and fixing the ethical rights and professional responsibilities of private lawyers, little energy has been directed towards defining and defending the role and duties of government lawyers. As a result, the traditional understanding seems to be that government lawyers are to consider themselves as being under the same regimen and restrictions as their private counterparts. After criticizing this default approach, the article offers a fresh evaluation of what is different about the role of government lawyers and develops a more appropriate model for thinking about their professional responsibilities and ethical privileges. The central thrust of the article is the effort to appreciate legal ethics and professional responsibility as part of a larger democratic understanding of law and justice.

On February 26, 2020, the German Federal Constitutional Court (BVerfG) declared—for the first time in its history—a criminal prohibitory law (strafrechtliche Verbotsnorm) from the German Criminal Code null and void.1 The provision in question—Section 217 of the German Criminal Code—dealt with the controversial issue of assisted suicide. This case study will briefly examine the previous regulation pertaining to assisted suicide in Germany under Section 217, before scrutinizing its subsequent unconstitutionality as a consequence of the BVerfG’s landmark decision. In order to do so, this article will explore the legal background of the decision, the fundamental rights which were held to have been infringed by Section 217, and propose potential ways of regulating assisted suicide in Germany in the future.

There is no point in denying the significance of the Right to be forgotten for the state of judicial dialogue in Europe. It vindicates the position of the BVerfG as a court deserving international recognition for advancing the law in the crucial field of data protection. Nevertheless, restricting the scope of analysis to the narrow context of judicial dialogue misses the wider context of the rise of authoritarian constitutionalism in certain EU Member States. In this respect, it is of the highest significance that the decisions on the Right to be forgotten effectively eliminate the imagined normative hierarchy between domestic and EU law that provided the basis for the BVerfG’s jurisprudence ever since Solange I and Maastricht. Moreover, by reasserting the primacy of EU law, the BVerfG strengthens the position of embattled judges in Poland facing disciplinary action for implementing the primacy of EU law. The concern shown by some members of the First Senate for the situation in Poland corroborates this reading.

In Viking and Laval, the European Court of Justice (ECJ) adjudicated the rights of labor and capital mobility under E.U. law. Both cases strengthen the single European market through economic liberalization to generate greater prosperity for all Europeans as part of the process of European economic and political integration. Labor and capital mobility create greater prosperity for all through more rational market exchanges. Free trade is good for goods and is even better for labor. A liberalized and fully mobilized labor market results in more productivity and greater wealth in the European polity, as well as interdependence, and thereby deeper integration resulting in greater understanding and less conflict. The decisions, wrongly criticized by some as “bad for workers” are justified by the fact that they will benefit workers in Eastern Europe, consumers in Western Europe, and the Community as a whole by deepening integration. A key challenge for the European Union is to economically anchor and deepen the political restructuring of Eastern Europe by enabling the natural labor and capital movements which an open marketplace generates. Europe does this not with the failed neo-liberal model which has ravaged the wealth of the United States and squandered it in illusory booms based on consumer borrowing and deficit spending to fund war for oil. Rather, Europe is developing a neo-corporatist social model. This article uses the Viking and Laval cases as examples of this development.

New Private Law Theory (“NPLT”) offers itself as almost a natural fit for legal education and in particular—I argue—legal education in the climate crisis. Yet, the world climate hardly features in the book and its impressive resource list. Without claiming to fill any existing gaps in the book, the Article seeks to articulate NPLT’s relevance to sustainable legal education and at the same time tease out what facing the, social, fact of the climate crisis would add to NPLT’s already rich framework.

This Article seeks to explore the nature, function, source, and content of a constitutional civil religion (CCR) within Singapore’s constitutional experiment in managing the diversity of race and religion and promoting solidarity. CCR is constructed as a strategy to secure social harmony within the world’s most religiously diverse polity, through recognizing an irreducible plurality in ethnic and religious terms, while maintaining an indivisible unity through nurturing bonds of citizen solidarity. This dovetails with the function of the constitution as an instrument of social integration, involving the articulation and regular affirmation of shared community values and aspirations, as well as process and practices—or public rituals—which regulate dispute resolution or conflict management during instances or crises where racial and religious harmony is threatened. A functional approach is taken towards the idea of a civil religion, and the tasks of integration, legitimation, and inspiration it may play within a constitutional order. The nature of civil religion in general, and the sources of CCR in Singapore, as well as its expression as a public ritual in managing religious disharmony disputes is discussed.