In this article, I bring together three recent ideas from political theory and constitutional law. The first is the notion developed by Jürgen Habermas and Markus Patberg of a pouvoir constituant mixte. Complex polities such as supra-state federations should be understood as constitutional entities that combine two or more authorizing subjects. The default “mixed” conception is that of dual sovereignty, split between the federations’ member collectives and member individuals. The second idea is that of Stephen Tierney, that sub-state national societies should be seen as involved in struggles over constituent power. The third is the idea and practice of sovereignty referendums, which I illustrate by looking at the 2017 Catalonia independence referendum. I contend that, at a minimum, sovereignty referendums, especially lost ones, should be understood as strategies to bring about, shift or complement constituent powers, in achieving compound or mixed sovereignty. Finally, I venture into some ideas about the criteria of legitimacy for such endeavors, in distinguishing the activation of constituent powers from their articulation and exercise.

This article contributes to the debates on the role of anthropology in refugee law research by showing the added value of an interdisciplinary approach to the understanding of complex asylum claims related to cultural and religious beliefs that are unfamiliar to the Western perspective. Based on the analysis of asylum claims in UK courts involving witchcraftbased persecution in the country of origin—both applicants who feared becoming victims of witchcraft practices and those who could be accused of having engaged in witchcraft practices—I demonstrate how anthropology can provide the tools for bridging the gaps between the law in the books and its implementation in practice and solving issues that are beyond the scope of the law. In particular, anthropology can feed into a broader legal conceptualization that accounts for the realities of our diverse societies and helps explain how fear of persecution due to witchcraft can indeed be real and connected with serious human rights violations. Moreover, cultural expertise can assist in assessing asylum claims in their cultural, historical, and political contexts, affording the claimant a fairer and better adjudicated outcome. Nevertheless, the use of anthropology inevitably comes with some challenges related to the different fields’ epistemologies, languages, and styles, as well as a lack of appreciation for interdisciplinarity in some areas of academia.

The established view in textbooks and legal commentary is that the Court’s case law should be viewed as a coherent whole. In this article, we ask whether European human rights law is as unified and European as is often presumed. Based on a citation network of all Chamber judgments from 1998–2018, we argue that the practice of the Court is to some extent split in different strands of case law, where the Court reuses particular factual and legal arguments against the same state without applying those as precedent against other states. We quantify this phenomenon and exemplify it qualitatively. Our data also suggests that the trend is declining. We explain this by the introduction of the Pilot Judgement procedure and an increasing bureaucratization of the Registry, aligning the citation practices of the Court’s five sections. The article situates itself within a broader debate about both legal pluralism and the principle of subsidiarity inherent to the European human rights system and proposals to bring the Court “closer” to the contracting states. We introduce a new and more diversified view on the Court’s practice, understanding it as perhaps less homogenous than has hitherto been thought.

New Private Law Theory: A Pluralist Approach is a new kind of book. Nevertheless, the book does have forebearers, as innovation is itself an old practice. The best way to understand the book, therefore, is to look farther afield, to a prior effort to produce a new kind of legal book—the first casebook ever published. Christopher Columbus Langdell’s Selection of Cases on the Law of Contracts landed in circumstances that could hardly have been more different from the ones that A Pluralist Approach now engages. But these shallow differences should not be allowed to disguise a shared ambition, which these pages hope to lay bare. Uncovering the book’s deeper ambition will make it possible to assess its prospects for success.

This article considers ways in which human rights law ought to respond to a growingly urban global order of blurred private—corporate—and state power. Fragmented and dispersed power comes together, in different configurations of public and private, in the cities and towns of the world. For this reason, local government presents the appropriate scale at which to re-conceptualize the operation of international human rights norms, also against private power. This requires engaging not only with the reach and leanings of international human rights standards but also with the manner in which they are rendered applicable, through domestic constitutional law, against state and non-state actors at a local scale. The urbanization of human rights law accordingly also requires a second look at the powers, competencies and responsibilities of urban local government under domestic constitutional law.

The article argues, based on results from massive online survey experiments, that, just as the utterances from ordinary conversation, legal rules can convey a surplus meaning, which is more than just the amalgam of the meanings of the words which are employed in the legal rule’s formulation. More precisely, the experiments check whether a typology of the types of this surplus meaning—pragmatic typology—describes adequately the psychological processing of, not only everyday speech, but also legal rules. In two experiments—total N = 733—we find that in morally neutral cases the pragmatic typology adequately describes the psychological processes involved in the interpretation of a legal rule. However, we also find that in morally valenced cases, it is rather the moral inferences carried by participants that shape the pragmatic inferences than the other way around.

In 2020, Germany’s Federal Constitutional Court made a groundbreaking decision on foreign surveillance by the Federal Intelligence Service, the Bundesnachrichtendienst (BND). The Court’s first central finding was that the protection of fundamental rights is not limited to German territory. In addition, the ruling declared unconstitutional the regulations governing the transfer of information to foreign intelligence services. The ruling will therefore also have consequences for the cooperation of intelligence services, making it relevant abroad as well. In the ruling, the Court focused primarily on the role of human rights and ruled that the BND must check whether its cooperation partners respect human rights. The German parliament was given the task of implementing the Court’s demands. The law adopted in response to the Court’s demands came into force at the start of 2022. This article analyzes the ruling and the new law, and addresses the question what concrete requirements must be placed on the BND’s cooperation with foreign intelligence services.

The focus of international humanitarian law scholarship, and that of international law more broadly, has traditionally taken a state-centric focus, for good reason. Moreover, the age-old question of “does international law work” is explored thorough the rubric of state and, more recently, corporate-level compliance. Such endeavors, however, overlook a set of participants in international law: The individual. Diffusion of international law norms through the general populace is a valuable goal in itself, but by leveraging their decision-making as consumers, it may also play an important role in inducing greater compliance by companies and states. This is acknowledged by the proliferation of consumer boycott campaigns, country-of-origin labelling requirements, and increased demands for corporate transparency. However, little is known about whether international law influences consumer choices. Using international humanitarian law as an illustrative example, this article contends that international legal scholarship should be expanded to include the consumer within its ambit, and that one promising pathway to do so is through greater uptake of the methodological approaches and insights offered by behavioral economics.

The European Union’s new regulatory agenda targeting online platforms such as social media has been presented as a progressive watershed moment after a long period of regulatory restraint. The attempt to construct an internal market lends legal competence to the two centerpieces of this agenda—the Digital Services Act (DSA) and the Digital Markets Act (DMA). This Article analyzes the Union’s attempts to govern online platforms as a part of internal market construction. After examining the underlying aims of the internal market, the Article proceeds to analyze how those aims have been operationalized in existing EU electronic commerce law and more recently in the DSA and DMA proposals. The Article argues that the Union regulatory agenda is not particularly transformative. While the DSA and DMA introduce many novel regulatory mechanisms with an equalizing potential, they also remain faithfully committed to the aims and pre-existing mechanisms of internal market construction that have enabled the rise of platform corporations in the first place. Thus, the proposals risk reproducing and legitimizing various inequalities in the European digital economy. The article seeks to connect alternative visions of platforms with the re-imagination of internal market construction.

This article reflects upon the challenges arising from a “pluralistic” approach to private law theory. Having distinguished the different meanings of the notion of “pluralism”, it focuses on epistemic pluralism and stresses the importance of an interdisciplinary stance. At the same time, it criticizes the emphasis put mainly on the dialogue with social sciences, clearly mirrored by the traditional organization of the ERC panels. Finally, it advocates a deeper and more critical engagement with the economic approaches to law.

Quantitative approaches are gaining popularity in German legal research. The analysis of large corpora of legal text may be supported by text mining methods. In this study, we employ topic modeling—which aims at retrieving the “topics” of a corpus—to identify words related to certain areas of law present in the case law of the German Federal Constitutional Court (FCC). This information is then evaluated by legal experts and used to show significant content-related differences between the two most frequent types of proceedings before the FCC. Technical and somewhat unstable areas of law, such as tax law, social law, and civil service law, are significantly overrepresented in referrals for judicial review, whereas areas of law characterized by well-developed case law and judicial doctrine appear substantially more often in constitutional complaints. This insight may come as a surprise due to the fact that the Court’s material scope of review is identical in both types of proceedings. Our considerations do not, however, seem to apply to private law. Though we recognize the methodological and epistemological concerns regarding the heuristic nature of topic modeling, this study exemplifies its productive use in complementing, rather than replacing, more traditional techniques of analysis in legal studies.

This article explores the role of constitutional judges in advancing constitutional literacy, understood as knowledge relating to the functioning of the constitutional order. Part of the inquiry is descriptive and geared towards identifying the modalities that courts today use to cultivate such literacy among the public, or segments thereof. The article also poses normative questions about literacy-boosting efforts. How do these relate to “typical” judicial functions? Are courts well-placed and equipped to disseminate constitutional knowledge? Based on an analysis of judicial practices, it is suggested that lay individuals are increasingly treated as a key constituency by courts, warranting the development of specially curated initiatives crafted with the values of inclusion, accessibility, and transparency in mind. This manifests notably in a turn to social media use and an incipient embrace of legal design thinking. The available literacy-boosting modalities are not without flaws, however, and we should be cognizant of limits regarding what can realistically be expected of courts in furthering popular constitutional knowledge. Notwithstanding room for improvement in the design and delivery of constitutional literacy, the existing judicial efforts when viewed in their entirety should be evaluated positively as making a meaningful contribution in meeting people’s interests in greater constitutional knowledge.

For a long time, discussions on the diversity of international legal academia and practice have not been properly addressed. Protagonists from the Global South were not even considered as relevant issue-setters of international law. However, the situation is gradually changing. More and more academics, practitioners, and students both from the Global South and Global North raise their voices to address pressing issues of discrimination, sexism, and racism that we currently observe in the international legal sphere. This article offers a glimpse into some of these challenges drawing from the author’s personal experiences. It points to existing problems of the diversity in international legal institutions, representation in international legal academia, and publishing practices. This article finally offers suggestions for how international lawyers can help each other to overcome existing inequalities and create a better environment for future generations of international legal scholars and practitioners.

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.

The democratic dialogue model is a domestic constitutional model of rights protection, which is used to explain and evaluate the relationship between domestic courts and legislatures. It is characterised by there being some capacity on the part of the legislature to respond to a court decision and it claims, among other things, to produce a ‘better protection of human rights’. This paper examines whether the democratic dialogue model can be, and should be, applied to the relationship between state legislatures and, respectively, the European Court of Human Rights and the Court of Justice of the European Union (the European Courts). The paper first demonstrates that this proposed application of the model differs from other accounts of dialogue hitherto applied at the transnational level. It examines how exactly the model can be applied to the relationship between national legislatures and the European Courts and it demonstrates that the model provides an explanatory framework for the interactions between the institutions. It argues that the normative claims of the domestic dialogue model are achieved when the model is applied in the proposed way, but it acknowledges that the achievement of those normative claims might not always be desirable at the transnational level.

This reflective article maps out the findings of a socio-legal study on language use in administrative settings in Belgium’s Dutch-language area. It explains how the author arrived at a socio-legal approach to this study object. Thereafter the article focuses on the methods used and the conceptual framework. It discusses the various methodological choices regarding data collection and the use of methods stemming from anthropology in this study. It also illustrates how anthropological literature on concepts such as discretion and multiple embeddedness provide conceptual tools for building a framework around which to structure and present the empirical data.

The last part of the article sketches the findings of this socio-legal study. Drawing on the conceptual framework, it illustrates that even when practice deviates from statutory law, the relationship between the law and the practice cannot be easily captured in a dichotomic relationship. The author furthermore deduces some relevant findings in light of general human rights. The article concludes with some reflections on research that combines law and anthropology, both as separate disciplines and as a combined endeavor.

This article analyses the US and the EU systems of risk regulation through the lens of two ideal models: evidence-based and socially acceptable risk approaches. The examination is conducted against the backdrop of these ideal regulatory paradigms, which broadly inform US and EU risk governance. The article employs an analysis of transatlantic divergencies in the regulation of pesticides and agricultural biotechnologies to illustrate that neither approach can lay claim to neutrality and objectivity; non-scientific normative frames are always at stake in the field of risk regulation. Through these case studies, the article thus challenges the narrative that transatlantic divergencies result from a focus on “risks” or “hazards,” “science” or “politics.” The US and the EU systems reflect different approaches to scientific uncertainty, the pursuit of different levels of protection, and consideration of different non-scientific factors. They also have very different implications. The conclusive section of the article sketches out some final considerations on the strategic vision of the Biden administration. Environmental and public health protection are high on President Biden’s agenda; further, public interest litigation is thriving in the US. Will this be sufficient to break regulatory path dependency and lay the foundations for a paradigm shift in US risk governance?

This Article studies the change in behavior over time for the professional actors in the international investment arbitration system. Using the results from a large-scale computational analysis, I find indications that the actors have increased their use of citations and their use of terms that originate outside of the litigated treaties. In light of these findings, I argue that the actors are increasingly challenging the insulated structural outset of international investment law with a more systemic approach to legal reasoning. Subsequently, I explore if theories from the realm of cognitive science may provide explanations for why the actors are changing their behavior and what consequences such cognitive mechanisms may have on the systems development.

Taking as a starting point the book by Grundmann, Micklitz and Renner, New Private Law Theory, the author briefly examines the methods practised today in the most important legal systems for studying private law. There is no unanimous consensus on the definition of “private law”, nor on its functions. The formalistic method prevails, using terms, concepts, dogmas stratified over time, with an apparently technical content. In reality, as the three authors demonstrate, and as has been preached in Italy for more than half a century, law is a social science and its function can only be fully understood by combining the formalistic method with economic, sociological and political analysis and considering its historical development.

The concept of “vulnerability” has become all-pervasive in EU asylum law and the ECtHR case law on asylum seekers and migrants, where it has acquired various legal meanings and functions. But many controversies remain on the legal nature, definition, and consequences of “vulnerability.” Based on lessons learned in the process of establishing the overall research design of the Horizon 2020 VULNER project and coordinating its implementation, this article identifies the contribution that anthropological knowledge can bring to ongoing legal debates and reflects on the conceptual and practical challenges that emerge when engaging in such an endeavor.

First, the article shows the potential of anthropological research methods and concepts to shed light on the experiences of vulnerability as they are lived by migrants, and to reveal and question the underlying social and political dynamics behind the increased success of vulnerability in legal reasoning. Second, it argues that anthropology can only bring a useful contribution to legal debates on “vulnerability” if the knowledge it produces is adequately translated into legal reasoning—which requires acknowledging the differences between the goals of anthropological analyses, which are all-encompassing and seek to depict human experiences in all their complexities, and legal conceptualizations, which require establishing clearly defined notions that can be operationalized in—relatively—certain ways by decision-makers on the ground and that allow them to strike a balance between competing interests.