This article offers a reading of Paul Kahn’s Democracy in Our America that places this intimate “work of local political theory” in a central position in the landscape of his political thought. The article argues that the figure of the volunteer, as it appears in the volume, holds a space for love and meaning—and for political happiness—that secures for it a critical role in the system of beliefs and practices that sustain self-government in the United States. That framing draws the volunteer into relationship with Kahn’s thinking about the family, the veteran, and law. But it also means that the erosion of the volunteer spirit that Kahn traces in his own New England town of Killingworth, Connecticut, is best understood as the loss of the site of action that reflects a reaching for political meaning beyond self-interest and, with it, the loss of the possibility of self-government. Reading the volunteer as a powerful placeholder for the erotic at the heart of the political—and then tracing eros and happiness through Plato, Freud, and Arendt—this article reconstructs Kahn’s link between our unhappy lives and our unhappy politics.

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.

In the past twenty-five years, Ireland has moved from a traditional common law model of judicial administration, in which key aspects of judicial careers and administration were handled informally and politically, to a much more formal system designed along European lines. This transition is driven by Irish judges and politicians and influenced heavily by EU and Council of Europe soft law on judicial independence and the rule of law. In this article I sketch an outline of judicial institutions in Ireland before focusing on two topics that exemplify the transition: Judicial conduct and judicial appointments. I argue that the move to formalize judicial administration in Ireland is rooted in a desire to follow best practice but also to avoid politically difficult reforms in other areas.

This Article critically analyzes seven elements of the Biden administration trade policy: (1) buy American; (2) tariffs; (3) World Trade Organization; (4) free trade agreements; (5) China; (6) technology; and (7) Russia. Although President Biden has made a clean break from Trump policies in many areas, this is not the case when it comes to international trade. Regretfully, Biden has chosen to keep in place most of the failed trade policies of his predecessor—the Trump tariffs and the China trade war. It is not too late to shift ground, to negotiate mutual abolition of the Trump tariffs, to open free trade negotiations with the EU and UK, to join the Comprehensive and Progressive Trans-Pacific Partnership, to adopt a multilateral strategy with allies to check Chinese trade excesses, and to reengage with the World Trade Organization. Topping the list of needed reforms of the multilateral trading system are: (1) subsidies; (2) state-owned enterprises; and (3) forced technology transfer. These are best addressed through a WTO plurilateral agreement and/or preferential trade agreements. The Biden administration should prioritize these urgent reforms. Rather than promoting “free” trade and multilateral trade reforms, the Biden administration continues its predecessor’s nationalistic policies so that trade serves domestic political ends. Such state intervention in trade policy consists of the strategic use of tariffs, subsidies, “buy American” rules, and regional trade arrangements without regard to the rules of the multilateral trading system. These new policies represent a decisive retreat from globalization and openness to trade.

The Congress, directed by the Biden administration, has adopted a far-reaching industrial policy in the form of four laws that subsidize key sectors of the U.S. economy: American Rescue Plan Act ($40 billion); Infrastructure and Jobs Act ($1.2 trillion); Inflation Reduction Act ($369 billion); and Chips Act ($252.7 billion). This subsidization coupled with “buy American” protectionism constitute a departure from the free trade ideal that has characterized U.S. policy since the end of World War II.

If Derrida once praised English for the richness of the expression “to enforce the law,” in this article I return the favor and embrace the ambiguity of the French word endroit. While it means nothing more than place, I suggest one could draw from Benjamin’s work on dwelling to ponder on the meaning of being within the spaces of 19th century (counter) revolutionary internationalism. In this vein, I read Benjamin’s unfinished Arcades Project—and, in particular, its analysis of the rise of iron & glass architecture that accompanied the conquering bourgeois and the persistent aristocracy—to analyze the new built environments of the fin de siècle North Atlantic diplomacy. Despite the growing interest in the history of global governance, for historians and critical legal scholars alike, the spatial dimension of “the international” have been a largely unexplored affair. Conversely, I suggest Benjamin’s insistence on the materiality of architecture reminds us that international law’s castles were not built solely in the air. In this vein, I suggest one can trace a material history of the spaces in which revolutionary and counterrevolutionary internationalisms struggled to fashion a shell for themselves during Europe’s turbulent 19th century.

While digitalization has led to renewed attention to the principle of non-intervention, not the least by Western states rediscovering the protective dimension of sovereignty, it remains plagued by a certain vagueness. Attempts by academics to fill the gaps lead to starkly different results, ranging from the insertion of democratic values to the inadvertent reinforcement of protectionist tendencies. Overall, digitalization has so far had less of an effect on the principle of non-intervention than its renewed importance may have on the type of international law more generally.

Much ink has been splashed on the ideological, conceptual, and practical challenges that China’s state capitalism has posed to global trade rules. There is a growing perception that the current international trade rules are neither conceptually coherent nor practically effective in tackling China’s state capitalism. This perception has not only led to the emergence of new trade rules in regional trade agreements, but also culminated in the US-China trade war, only further aggravated by the Covid-19 pandemic. This Article contributes to the debate of what trade rules may be needed to counteract China’s state capitalism by unpacking the black box of China’s state capitalism. Based on an analysis of the nature of China’s state capitalism, this Article provides a preliminary evaluation of current trade rules taken to counteract China’s state capitalism, in particular the new rules in the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, and explain why they are unlikely to be successful.

The language of human rights is a prominent tool of choice to push for moral principles such as justice, equity, and fairness in the social, economic, and political spheres. Simultaneously, the concept and practice of human rights have attracted critiques. Relativism is one such enduring critique. Relativists advocate due and reasonable consideration towards cultural diversity and specificity of diverse human communities, within the limits allowed by universality of human rights. The relativist critique featured prominently in the debates surrounding Qatar’s hosting of the FIFA World Cup 2022. Commentators have spoken about Qatar’s scrutiny often moving beyond legitimate human rights criticism, uninformed activism being counterproductive; and the appropriateness of, largely, Western and maximalist ideals of human rights being applied without accounting for local needs and peculiarities. In this Article, I bring together the literature on the relativist critique and the FIFA World Cup Qatar 2022 as a case study, to examine the usefulness and limitation of human rights as a language of critique to achieve meaningful transformative change in sporting contexts. I focus on the debates surrounding the rights of migrant workers and the rights of the LGBTQIA+ community; and argue that while human rights advocacy had a notable impact in relation to FIFA World Cup Qatar 2022, it is a tale full of cautions and lessons.

This article centers on the idea that there is a non-fungible value inherent in local associations. It uses the work of Paul Kahn to animate what that value might be and to consider why law might not have a clear sightline to it. In Democracy in Our America, Kahn, leaning on Tocqueville’s earlier work, reflects on the nature of volunteerism in local self-government and the value of local associations. Drawing on his experience-based account of the practice of local self-government, I suggest that local associations have a non-fungible value which comes in three dimensions: The dimension of care, the dimension of character, and the dimension of forum vibrancy. In The Cultural Study of Law, meanwhile, Kahn considers what the practice of the rule of law looks like and suggests that law is blind to other possible ways of framing and analyzing events. Building on this perspective, I reflect on how the practice of the rule of law ends up being blind to the value that is intrinsic to the local associations that vivify local communities. Through this lens, we can also understand more fully than has been possible to date why legal codifications of the principle of subsidiarity fail to result in a genuine preference for proximity.

The aim of the present contribution is to assess how infringement proceedings under Articles 258 to 260 TFEU have dealt with ‘systemic’ breaches of EU law by the Member States’ authorities. It will be argue that two, or possibly three, strands of case-law appear to specifically concern systemic breaches of EU law.

With the promulgation of the Autonomous Driving Act in summer 2021, Germany took the worldwide lead on regulating self-driving cars. This Article discusses the (non-)regulation of moral dilemmas in this act. To this end, it clarifies the role of the so-called trolley problem, which influenced the report of the German Ethics Commission that paved the way for this act in particular and the relationship between philosophical reasoning, empirical studies, and the law in general. By introducing the international legal community to the (non-)regulation of moral dilemmas in the German act, the Article critically reviews the German goal, which is to serve as a European and international role model. This will be preceded by a discussion as to why self-driving cars should be allowed as well as the moral dilemmas they cause which should be regulated by the law.

Large online platforms provide an unprecedented means for exercising freedom of expression online and wield enormous power over public participation in the online democratic space. However, it is increasingly clear that their systems, where (automated) content moderation decisions are taken based on a platformʼs terms and conditions (T&Cs), are fundamentally broken. Content moderation systems have been said to undermine freedom of expression, especially where important public interest speech ends up suppressed, such as speech by minority and marginalized groups. Indeed, these content moderation systems have been criticized for their overly vague rules of operation, inconsistent enforcement, and an overdependence on automation. Therefore, in order to better protect freedom of expression online, international human rights bodies and civil society organizations have argued that platforms “should incorporate directly” principles of fundamental rights law into their T&Cs. Under EU law, and apart from a rule in the Terrorist Content Regulation, platforms had until recently no explicit obligation to incorporate fundamental rights into their T&Cs. However, an important provision in the Digital Services Act (DSA) will change this. Crucially, Article 14 DSA lays down new rules on how platforms can enforce their T&Cs, including that platforms must have “due regard” to the “fundamental rights” of users under the EU Charter of Fundamental Rights. In this article, we critically examine the topic of enforceability of fundamental rights via T&Cs through the prism of Article 14 DSA. We ask whether this provision requires platforms to apply EU fundamental rights law and to what extent this may curb the power of Big Tech over online speech. We conclude that Article 14 will make it possible, in principle, to establish the indirect horizontal effect of fundamental rights in the relationship between online platforms and their users. But in order for the application and enforcement of T&Cs to take due regard of fundamental rights, Article 14 must be operationalized within the framework of the international and European fundamental rights standards. If this is possible Article 14 may fulfil its revolutionary potential.

The recent years saw the rise in discourse to undo the liberal-democratic amendments introduced between 1999 and 2002 and restore the Indonesian 1945 Constitution to its original 1945 version. Some Indonesian public figures believe that these amendments are not legitimate, because they are deemed to have eliminated the basic values of the original 1945 Constitution which was built on the “integralist” concept as propounded by its main architect Soepomo. According to the integralist conception, the state should be seen as a family in which the government played a role as a wise father who can bring its people to the right choice. This article seeks to prove that these amendments are legitimate although they constitute a “dismemberment” of the original 1945 Constitution. This is because the original 1945 Constitution was formed only by a handful of elites in an institution established by the Japanese occupying power in early 1945. By contrast, the Majelis Permusyawaratan Rakyat (People’s Consultative Assembly) who was in charge of the four amendments to the 1945 Constitution had a greater democratic legitimacy compared to the drafters of the original Constitution given that they were elected through the 1999 elections. Furthermore, the original 1945 Constitution was never intended to operate beyond the Indonesian revolutionary period, which ended in 1949. It was expected that the document be significantly changed or even replaced by the People’s Consultative Assembly through the amendment process.

One of the most prominent informal institutions that affect access to the judicial career is the system of coaching to prepare for the state exams to access the judiciary. This Article focuses on the relevance and impact of that informal institution, together with other informal aspects that affect the process of judicial selection. It is claimed that the system of preparation for judicial state exams has a crucial impact on the composition of the judiciary. Its informality and peculiar features however raise important democratic concerns due to its lack of transparency, the important economic barriers it imposes, and its longstanding impact on judicial culture.

Informality has long been valued in England, and this is true of the political process as well as the institution of the judiciary. In both cases, it is assumed that the senior figures will have absorbed unwritten conventions and will by osmosis naturally understand their respective role in the UK constitution. Much is now starting to change, at least as far as the English judiciary is concerned. It is, first, argued that informal judicial institutions did not become redundant when the separation of powers was formally introduced with a program of modernization of the judiciary in the Constitutional Reform Act 2005. Selected illustrations of persisting informal judicial institutions are then discussed in relation to the deliberative processes in senior courts; to judicial selection and appointments; and to the disciplinary process. Second, informal judicial institutions are deeply connected with the UK constitutional tradition. The Brexit litigation laid bare the challenges of containing political behavior within certain boundaries, and the unwritten conventions which have bound the judiciary and the executive might now be instinctively understood and shared by only one of these two parties.

As homo socius, the man lives in a community. Because the law deals with relationships between people, it is necessary to know the fundamental characteristics of these relationships, which are established in a community between people. Because all major social changes involve crowds, legislation and regulation must know how to address collectives, how they are influenced, how collective emotions are formed, and how they can effectively deal with external behavior in and between groups. This Article presents basic elements of crowds that should be included in legal decisions, especially in general ones. The Article shows potential applications of crowd elements in the law presented as a systemic arrangement of complex adaptive systems that can be reflected in the determination of public opinion through crowds. When a legal system in the right meaning of the word “system” determines public opinion and implements actions through crowds, it could be more effective and efficient and thus also more legitimate.

This Article critically analyzes the main legal and policy issues that are likely to determine the development of the EU’s trade policy concerning rules on State intervention in the market, specifically on subsidies and SOEs. The article assesses the aforementioned issue especially within the context of the new trade strategy entitled “An Open, Sustainable and Assertive Trade Policy” set out by the European Commission in February 2021, at the core of which stands the concept of strategic autonomy. The focus of our analysis is on key elements of the current EU competition and trade policies and normative initiatives, namely: the relaxation of the usual State aid regime under Articles 107 and 108 TFEU to give Member States more flexibility in supporting their economies and strengthen EU industrial policy; the likelihood of EU proposals resulting in any substantial change to international trade law on subsidies and SOEs at the multilateral (WTO) level; a systemic horizontal investigation into the relevant trade rules promoted by the EU in its most recent practice of PTAs; and, finally, the EU pursuing stronger protection of its companies with its recently announced new regulation on foreign subsidies, on the basis of which the European Commission can investigate foreign subsidies and impose remedies. Even though, at first sight, it may seem that the current evolution of the EU trade policy on these issues seems inconsistent, the Article argues that the unilateral, bilateral, and multilateral approaches are indeed strictly intertwined, and they reveal a significant shift in the most recent EU trade policy objective in relation to the role of State in the market.

In recent years, scholars of international legal history have demonstrated much newfound interest in C.H. Alexandrowicz, a Polish jurist renowned for his anti-Eurocentric revisionist account of Asian and African agency within the meta-narrative of international law. Building on efforts to link his Polish origins with his studies of the Afro-Asian world, especially on matters of imperialism and state personality, my purpose in this Article is to explore these connections through a materially grounded historical sociology of international legal thought. Centering the issue of whether sovereignty is divisible, I situate the historic Polish-Lithuanian Commonwealth—extinguished by a series of Partitions in 1772, 1793, and 1795—as a unique divided sovereignty-based polity that provided a basis for Alexandrowicz’s study of the juridical status of non-European sovereigns. This analogy united his overarching critique of nineteenth-century international legal positivism as an unjustifiable denial of both Polish and Afro-Asian sovereignty. In deciphering the materiality of Alexandrowicz’s imagination against this presumption, I build a narrative of the Polish-Lithuanian Commonwealth and the evolution of its distinct approach to sovereign divisibility. Through analysis of the interplay between internal and external factors, I account for the Commonwealth’s medieval origins, its development in opposition to the consolidating indivisible sovereignty of its absolutist neighbors, its attempts to maintain independence in the face of Partition, and the continued assertions of its variegated legacies following its destruction. This, I argue, provides a novel means of assessing Alexandrowicz’s theory, and the materiality of international law more generally.

Malicious cyber activities are on the rise. States and other relevant actors need to constantly adapt to the evolving cyber threat landscape, including by setting up effective deterrence mechanisms. This is what the European Union (EU) has done through the adoption of Common Foreign and Security Policy (CFSP) Decision 2019/797, which allows it to impose targeted sanctions to deter and respond to cyberattacks that constitute an external threat to the EU or its member states. However, in contrast to other horizontal regimes of restrictive measures in force within the EU, foreign governments are not included as potential targets of cyber sanctions. Moreover, the recital of the Decision specifies that the adoption of restrictive measures does not involve attribution of international responsibility for cyber-attacks to a third State. This article aims at identifying the rationale behind the inclusion of these distinctive features. It starts by considering the legal uncertainty that surrounds attribution of international responsibility for cyber operations. Next, it explains why the EU is not well placed to invoke third-State responsibility, and the reasons behind its reluctance to do so. It will then illustrate the risks inherent in the lack of a clear legal framework to attribute the responsibility of cyber-attacks to third countries. This may have serious consequences in terms of legal certainty when a cyber-attack amounts to a breach of the prohibition on the use of force in international relations. Then, we explore recent developments in EU legislation in the area of cyber security and the possibility to strenghten the powers of the European Union Agency for Cybersecurity (ENISA). We draw two conclusions: first, the Union might develop the capacity to attribute cyber attacks to specific actors and there is an interest to do so. However, Member States are probably still reticent to take this step. Two, despite the advantages of establishing a reliable attribution mechanisms, it is submitted that the majority of States prefers to take advantage of a regulative gap that allows them to react to cyber incidents as they see fit.

In recent years, the emerging field of comparative constitutional law has been swept by a new approach with a scientific allure known as the Large-N approach. The methodology of this approach requires flattening the world of constitutional law by reducing the meaning of constitutional determinations into countable data. One of the difficulties in resisting this trend is that while many constitutional scholars have offered accounts that do not flatten the world of constitutional law, their methodology remains unarticulated and rarely discussed. Paul Kahn is one of the few scholars who offered an account of how to conduct non-doctrinal research of constitutional law. This Article aims to distil several principles of Kahn’s methodology, discuss its limitations, and demonstrate why it is superior to the Large-N approach. To achieve these goals, I chose to focus on three books on the German constitutional system that are based on dissertations written at Yale University, where Kahn teaches. Based on my discussion of these three books, I argue that Kahn’s methodology offers an approach which I dub the “Rich Picture” approach (or Rich-P). The Rich-P approach exposes that participants in a constitutional discourses understand constitutional materials, such as constitutional documents or judicial opinions, through a conceptual array that varies between legal orders. Without acknowledging the conceptual “eyeglasses” we wear when investigating constitutional determinations, measurements of the entire world of constitutionalism may lead to catchy soundbites and tweets, but to conclusions that are misleading at best.