Drawing from Roberto Esposito's recent work on persons and things, this Article studies recent attempts to rethink international legal personality. Esposito's work resurrects the claim that personhood operates like a mask, splitting the legal and philosophical world into persons and things. International law differs from domestic law in that international legal personality has traditionally been the prerogative of states, not of (rational) individuals. Yet, this has not completely dismantled the persons/things logic, because the exclusive legal personality of states has continuously threatened to reduce individuals into things in the eyes of international law. It is perhaps for this reason that international legal theorists have long sought to extend international legal personality to individuals and other non-state actors. This Article addresses the most recent attempt, namely an attempt to shift international law towards a law of humanity. Without taking a stance on whether this project is a good idea or not, this Article raises some doubts about whether the concept of international legal personality can help in fulfilling the project's aim, namely to help increase human freedom and wellbeing. This is especially relevant because, regardless of whether legal personality is attributed primarily to the state or the individual, we still remain—according to Esposito—within a theoretical framework in which the dispositif of person necessarily excludes some forms of life in protecting or empowering others.

Public Officials are bound by the fundamental rights when they are acting in their political function. Acting as such they cannot, in general, claim the freedom of speech for themselves as normal citizens do. If they give statements regarding other political parties they have to abide by the principle of neutrality. Statements that could be understood as negative will be — especially if they are made during the election process — a violation of the right of political parties to equal opportunity, which is an indispensable element of the free and open process of forming popular opinion. The delineation of whether a public official is appearing as such, as a “party politician” or “private individual” can, however, be difficult and it is the obligation of the public official to leave no doubt about the role he is exercising. Different from any other public official the Federal President needs not comply with the principle of neutrality. He has a broad margin of assessment and only transgresses his legal boundaries if he violates the integrative task of his office in an arbitrary manner.

The German Federal Constitutional Court has issued its long-awaited judgment in the Gauweiler Case. The Court ruled that the policy decision on the Outright Monetary Transactions programme (OMT programme) does not manifestly exceed the competences attributed to the European Central Bank (ECB) and does not manifestly violate the prohibition of monetary financing of the budget, if interpreted in accordance with the preliminary ruling of the European Court of Justice (Court). This article surveys the Court's decision and offers a critical commentary on this important case.

The 800th anniversary of Magna Carta offers a study in how the foundations of law have been visualized in the United Kingdom. The fact that the British sense of identity as a free nation has historically been based on its commitment to “unwritten” law means that it lacks a foundational text and has hence traditionally figured the law through a plurality of images without a core. The absence of a singular image on which to focus national identity became acute in the early twenty-first century as the multiplication of sources of legality and justice in a globalized and multicultural world put pressure on the United Kingdom's sense of sovereignty. The tensions manifest in this crisis can be seen across a range of images produced for the anniversary, each bearing different values. Yet the rival narratives are able to coexist in the same commemorative space, their differences subsumed within Magna Carta's status as a postmodern “icon,” the consecration of the reciprocal identification between the protection of liberty and the rule of law. The Article concludes by examining a court battle over land on the borders of the commemorative site, and at another commissioned artwork. Both, in their different ways, bring into view the boundaries and bonds imposed by the rule of law that the iconic image elides.

The recent trend in East Central European jurisprudence is that courts apply an ethnocultural understanding of identity, thereby putting European integration in peril. Although the EU is clearly committed to shared values and principles, Article 4(2) of the Treaty on European Union emphasizes that “the Union shall respect the national identities of the Member States.” Due to the recent migration flow in Europe, the Member States are currently attempting to (re)define themselves and offer a legal definition of identity. East Central European Member States, by labelling ethnocultural national identity as constitutional identity, apply Article 4(2) as a means of derogating from some of their obligations under EU law. Despite the vast literature available on national identity and its role in EU law, little attention has been paid to the recently emerging trend of judicial reinvention of identity in East Central Europe. This is what this Article offers. It focuses on the Visegrád Group, which consists of the Czech Republic, Hungary, Poland, and Slovakia. The Visegrád countries (V4) are united in their views on rejecting migrant relocation quotas in the EU and define their exclusionary constitutional identities accordingly. The main subject of the Article is the relevant case law of the V4 constitutional courts. These courts have the authoritative role in enforcing nation-state policies based upon ethnocultural considerations. The Article provides a comparative-analytical description of the judicial interpretations of constitutional identity in these countries based on which we can better understand the recent East Central European trend of disintegration.

As a reaction to the increasing terrorist threat in Europe, the German Parliament (Bundestag) passed a law penalizing the preparation of terrorist acts endangering the state: § 89a German Criminal Code (StGB). The Regional Court of Frankfurt am Main (LG Frankfurt) was the first to apply this section to a case where a young man was accused of building a pipe bomb. Upon his conviction, the defendant appealed to the German Federal Court of Justice (BGH), claiming § 89a StGB to be unconstitutional. The BGH reviewed whether the statute was in conformity with the principles of the German Constitution (GG), including the principle of legal certainty and appropriateness. It held that these principles were fulfilled, if stricter requirements are applied regarding the mens rea in order to counterbalance the broad actus reus. It decided that the Regional Court had not fulfilled this particular requirement and quashed the conviction insofar. This case and § 89a StGB caused ripples amongst legal scholars, especially due to the unusual penalization of preparatory acts and the broad scope of the statute's application. This case also produced an unprecedented change within the judge's bench.

This paper explores a novel equality mainstreaming tool in EU spending—the “ex-ante conditionality”—as introduced in the 2014–2020 European Structural and Investment Funds. It shows that conditionality is a response to the modest achievements of prior equality-mainstreaming action in spending, but that its current legal construct and operation risk propagating similar shortcomings. The article concludes by emphasizing the importance of mainstreaming as a crucial tool for progressive achievement of equality and social justice in the EU, and highlights four essential elements to be addressed for a successful equality mainstreaming policy in EU spending.

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.

The history of the “Integration through Law” (ITL) project, conducted by Mauro Cappelletti at the European University Institute in the late 1970s and 1980s, unfolded in this Article, provides clarity on the nature of the power-knowledge nexus in European law, as it pulls the curtain on the close collaboration between academia and the Community institutions in the ITL project. It demonstrates that the ITL was an academic expression of a constitutional vision, which had flourished in the Commission and the European Court of Justice (ECJ) for decades, but had never truly been adopted in the emerging academic discipline of European law. Alongside the studies of Eric Stein, the ITL project was the impetus behind the constitutional discourse in academia turning into a paradigm in the 1980s, but the ITL project had an unparalleled impact. Firstly, because of the scholarly environment at the European University Institute (EUI), and secondly, because of the notion of “Integration through Law,” which has proved to be an extremely powerful concept, providing a field of scholars, law professors, civil servants from the Community institutions, and ECJ judges with a flattering self-image and a raison d'être expressed in three little words.

Although over the last thirty years an increasing number of scientific articles and books with diverse approaches have been published on the practice of constitutional adjudication, several methodological problems still prevail. The main deficiency of the systematic empirical research on constitutional adjudication consist in an unsophisticated dichotomous approach that separates the merely positive and negative decisions of constitutional courts, i.e. decisions that concluded in declaring the constitutionality or unconstitutionality of a given legislative act. This approach has been deeply inconsistent with the worldwide practice of constitutional adjudication, since the latter shows a widespread differentiation of judicial decisions over the last thirty years. In this study, we have elaborated a more sophisticated methodology for systematically mapping the manifold reality of constitutional adjudication, and measuring the strength of judicial decisions. In order to fit the research to reality, we have elaborated a scale to measure the strength of judicial decisions. This scale seems to be an appropriate tool to answer the main descriptive research question of our project: to what extent have decisions of constitutional courts constrained the legislative's room for maneuver? The present methodological paper focuses on the problem how to measure the strength of judicial decisions vis-à-vis the legislation and shows, by means of the first results of a pilot project, how this new methodology might be applied.

There is an increasing, or increasingly visible, societal trend in the EU and beyond—often followed by constitutional changes—that challenges inclusive constitutional values. The discourses underlying these changes emphasize the inviolability of national identity and redefine it with a strong reliance on exclusive constitutional values. This Article asserts that exclusive constitutional values—that are defined as values that question the moral equality of some members of the community—necessarily shrink the room for inclusive values, and a critical mass of exclusive values can lead to a hallowing out of a democratic order, both on the national and on the supranational level. The Article presents Hungary as a case where the populist-exclusivist elements of political rhetoric—that are also present elsewhere—became part of constitutional law and have transformed the political system. The case study shows how the redefinition of Member States' constitutional identities, along recent societal trends and exclusive constitutional values, could clash with the inclusive values of the European Union and relegate European institutions to the position of “the Other,” thereby endangering constitutional democracy. In particular, the Article shows how the rule praising and recognizing diverse Member State constitutional identities can work to embolden the already strong trend to challenge inclusive constitutional values.

In the present situation, law's Öffentlichkeit, or its principal “openness to the public,” needs to be distinguished from its being the object of publicity as dominated by modern media. Law's public openness has historically been dependent on, and determined by, two theatrical modes of appearance: The theatrical-proper and the dramatic. Paradoxically, in both cases the jurisdictional “openness to the public” works not only through forms of visibility but also forms of invisibility. These two theatrical modes—and their dynamic play with visibility and invisibility—have been portrayed in works of art that have influenced the way general audiences imagine the law to work. These works also correlate with the different histories and public appearances and openness of the European and the Anglo-American systems of law. Historically speaking, the European system has been more theatrically inclined, in the context of a distinctly imperial trajectory that has been dominated by the desire to stage the law and to follow correct procedure. The Anglo-American one, by contrast, is more dramatically inclined, and has followed a distinctly anti-imperial trajectory—whether anti-royal or anti-state—influenced by the desire to stage trials in which peers determine the dramatic outcome. Although both systems are basically open to the public, they both work via a dynamic of protective invisibility. Yet due to current developments, the elements of invisibility in both systems tend to predominate over the elements of visibility. This suggests that both systems are moving toward a form of legal closure that is averse to the original theatrical and dramatic appearance and openness of law.

From the moment of its inception the European Union (EU) has included a court that was entrusted to give coherence and integrity to the interpretation and application of the Union's primary and secondary law. That the Court of Justice of the European Union (CJEU) was to play an important role in settling disputes was clear. But few anticipated how instrumental the Court would become in the development of EU law.

This Paper investigates legal subjectivity in the European Union. It takes seriously the principle according to which the individual is at the heart of the Union's activities and asks what kind of legal and political subjectivity the EU can render possible. The analysis draws on the work of Jean-Luc Nancy and his conception of singular plurality. What comes to the fore is the interrelatedness of subjects and community. This implies that the subject should not be understood simply as an individual, nor as part of a communitarian whole. Neither view is ontologically plausible nor ethically sound. By conceptualizing subjectivity as both singular and plural, it may become possible to rethink the relationship between subjectivity and community in the Union. This is important because potential solutions to fundamental problems of legitimacy, solidarity, and the lack thereof, hinge on how the relationship is understood.

Legal metamorphoses between persons/things have been recurrent in history: Persons can become things, animals can turn into persons, and even ghosts can obtain personhood in the legal domain. Law would work then as a form of magic, a powerful instrument to create realities that, although fictional, have very real effects. Drawing on anthropology and legal scholarship, I will show the links between law and magic. In this endeavor, I examine two groups of legal cases from Argentina where people and animals respectively obtained personhood through the magic of law. First, I analyze the so-called human rights trials that are judging the crimes of the last military dictatorship (1976–1983), and I argue that these are working to restore the legal personhood of those who enforcedly disappeared. Second, I examine a series of judgments that have recently ruled—for the first time in modern legal history—that orangutans, chimps, and elephants are “nonhuman persons.” I conclude this Paper by contrasting legal magic with shamanic practices. I argue that even if these two are linked, it is possible to find in some forms of shamanism a different way of framing the relationship between persons/things that can offer an alternative (to) law.

Law needs a force; without its force, it would be nothing. This article proposes a conceptualization of the force of law as affective by examining the political aesthetics of “Forensic Architecture,” a project based at Goldsmiths, University of London. The novelty of Forensic Architecture's analytical approach arises, on the one hand, from its use of technologies of power that are otherwise employed by states and their military forces—thus reversing the direction of the surveillant gaze towards a disobedient practice of seeing and sensing. On the other hand, the notion of a “force field” operates as a particular critique of European border policy. The force of law appears to merge into, and at the same time emerge out of, a complex arrangement of technological devices, legal regulations, and human actions. This essay re-traces the political aesthetics of the “left-to-die-boat” case, where a boat filled with migrants was left without any assistance despite the legal regulation that obliges obliging seafarers to rescue anyone in distress in the Mediterranean Sea. Forensic Architecture's case-work unsettles human-centered “norms of representation” typically used in critical writings on the European Union (EU) border regime; instead, the law is demonstrated to be enfolded within an affective force field that operates with “touch” and “connectivity” and that allows us to see and sense the law in a newly pluralistic manner.

A four-year-old Muslim boy was brought to a local Cologne emergency room by his mother, who was concerned about minor bleeding around the site of a circumcision. A District Court there found that circumcision, notwithstanding parental consent or religious motivation, constituted a criminal bodily injury and child abuse. Ultimately, on July 19, 2012 the Bundestag resolved that “Jewish and Muslim religious life be viable in Germany,” and in December a bill was passed that legislatively overrode the ruling of the District Court and recognized circumcision as a non-punishable undertaking when undertaken for religious reasons by someone professionally trained. Two years of rancorous debate revealed a whole range of historical and contemporary fissures. This essay examines the dynamics of the debate and its various outcomes. In particular it asks whether the conflicts generated by practices like male circumcision can in immigrant societies be assimilated to prevailing religious freedom models. The key questions aired were: (1) Germany's relations with its Muslim immigrants; (2) Germany's relations with its fragile Jewish minority; (3) proper weightings of the relationship among parents, child, and state; and (4) the deference owed medical thinking. Immigrant integration, religious freedom, group rights, and the meaning of “enlightenment” all remain sharply contested.