Although Ireland is often cited as part of the vanguard of countries adopting forms of judicial self-governance in the 1990s, this appearance can be misleading: the Irish judiciary are self-governing only in limited respects. The judge-led Court Service is in charge of court estate, non-judicial personnel and provision of information on the court system to the public. Many key matters – discipline, promotions and deployment – remain largely out of the control of the corporate judiciary. Judicial appointments are significantly at the discretion of the government. In the last decade, there have been significant moves towards a more corporate judiciary and these are reflected in the creation of a judges’ representative body, the Association of Judges of Ireland, and a shadow Judges Council. There are currently proposals to create a new independent mechanism for appointing judges and to create a Judicial Council with a significant role in disciplining the judiciary.

The Irish experience highlights the importance of political and cultural factors in establishing and maintaining judicial independence and self-governance. Despite the significant role for the government in judicial appointments, and the presence of a culture of political patronage in these appointments, there is nonetheless a robust culture of individual judicial independence once judges have been appointed. The creation of the Courts Service in 1999 was a significant transfer of administrative power to the judiciary but it was approved without demur by the political branches, who welcomed the depoliticization of controversial decisions about court estate. Conversely, reforms to judicial appointments have been weak because politicians saw value in maintaining a relatively harmless form of political patronage, and proposals for a Judicial Council that have agreed in outline for two decades have yet to be enacted, apparently because they lack sufficient political salience. The defence of judicial independence, and the creation of robust institutional mechanisms for defending it, ultimately requires the goodwill of politicians.

In his lecture on The Repressed State of Emergency, Ernst-Wolfgang Böckenförde argues for the constitutional possibility of a partial superimposition of certain laws in times of emergency. Repressing the state of emergency would ultimately lead to greater and more permanent damage to the rule of law and liberal rights. This warning bears some similarities to Giorgio Agamben's analysis of the emergence of a permanent state of emergency, which loses the feature of exceptionality by becoming “the dominant paradigm of government in contemporary politics.” Agamben thus proposes a shift from structure to practice, which focuses on the features of emergency politics instead of states of exceptions. The European Union's recent financial crisis is a promising object of research in this regard. After a brief discussion of Böckenförde's illuminating lecture on the repressed state of emergency, this Article will analyze a comment written by Böckenförde at the beginning of the Euro crisis. While this comment has sometimes been interpreted as an unconditional defense of unlawful emergency measures, a closer look at this statement reveals a much more nuanced argumentation. Böckenförde concurs with other legal scholars—such as Paul Kirchhof—in emphasizing the danger of an erosion of the rule of law through illegal measures. Böckenförde's intervention, however, leaves room for interpretation that this emergency action could—in principle and under specific circumstances—nevertheless be legitimate, although he was critical towards the handling of the crisis. On a more general level, this Article will discuss if the suspension of law can ever save the legal order it disregards. Next, the legality of EU crisis management—which has not been judged unanimously—will be scrutinized. At least, the circumvention and adaptation of EU primary law involved in this management has crucially changed the law of “normal affairs.” Finally, this Article will argue that the managerial style of emergency politics challenges the EU's project of “integration through law,” hollows out democratic procedures, and enforces, with its one-sided austerity policy, a form of economic integration that bears strong traces of an “authoritarian constitutionalism.”

This paper analyzes the compatibility of intra-EU bilateral investment treaties—intra-EU BITs—with EU law. The status and validity of intra-EU BITs gave rise to a heated debate in Europe, which culminated in the CJEU's recent controversial judgment in Achmea. This Article demonstrates that although the CJEU approached intra-EU BITs from the angle of federalism—where they are both redundant and illegitimate—the reality is that EU law does not provide for the kind of protection afforded by BITs. The paper gives both a positivist and a critical assessment of the Achmea ruling. It argues that the judgment should be construed in the context of the underlying facts and, hence, notwithstanding the CJEU's apparently anti-arbitration attitude, its holding is rather narrow. It gives an alternative theory on intra-EU BITs' fit in the EU internal market—based on European reality—showing that the complete invalidation of intra-EU BITs is flawed because the overlap between BITs and EU law is merely partial: BITs address a subject EU law does not. This Article's central argument is that intra-EU BITs accelerate the internal market and, hence, their suppression does not lead the European integration further, but holds it back. Finally, this Article argues that the prevailing pattern of investment protection is a global scheme that cannot be arrested through regional unilateralism as essayed by the CJEU.

This comment engages with Somek's account for the cosmopolitan constitution for two distinct purposes. It first builds on its inherent ambivalence to argue that hitherto Europe has experienced at least two different versions of the cosmopolitan constitution. Whereas in the formative period of the process of European integration, the cosmopolitan constitution manifested itself prevailingly in its more benign and democracy-enhancing political face, since the end of the 1970s it has developed a more controversial and democracy-inhibiting administrative profile. Secondly, the comment rejects as potentially regressive the proposal of redressing the biases inherent in the contemporary legal and political order by reviving the idea of a Machiavellian mixed constitution. To fulfill the promise of emancipation inspiring constitutionalism, the cosmopolitan constitution cannot segregate in separate institutions ordinary citizens and a market elite. Rather, the cosmopolitan constitution should be re-imagined with a view to reassert its original democracy-enhancing spirit and adapt it to the evolving circumstances of economic and political interdependence.

What is a real character of judicial (self)-government in Slovenia? Does it live up to the standards established in a well-ordered society, based on the established rule of law and consolidated democracy? This certainly is an impression that an external critical, but uniformed, observer develops when he or she approaches the legal regulation of judicial (self)-government in Slovenia. This also is an impression that has been perpetuated in academic and professional circles prior and after the enlargement of the EU. The article dispels this myth. It does so by providing a comprehensive assessment of all the bodies and processes involved in the judicial (self)-government in Slovenia. Contrary to the prevalent formalistic legal approach, which dominates the legal scholarship concerned with judicial governance and the courts more generally, the article relies on a socio-legal methodological approach. It therefore situates the system of judicial self-government in the Slovenian socio-political context in order to provide an insight into how the judicial self-government really works and to what an extent it falls short of the normative ideals prescribed by the Slovenian positive law.

Otto von Gierke wrote The Social Role of Private Law (Die soziale Aufgabe des Privatrechts) in an age of extraordinary belief in progress and pride. In 1889, the Eiffel Tower was inaugurated, Britain's Royal Navy was required by law to outdo its next two rivals combined, and Germany was forging a massive new Civil Code (Bürgerliches Gesetzbuch). Within a year, Kaiser Wilhelm II had dismissed Otto von Bismarck: The old Iron Chancellor, who had unified a ‘Second’ Reich but no longer moved fast enough to secure a “place in the sun.” Ages of great confidence often see codes of law: Justinian's Corpus Juris Civilis in a reunited West and Eastern Rome; the Code Civil of the Napoleonic Empire; the Penal, Contract or Trust Acts from 1860 to 1882 across the British Empire; and the US Code of 1926. A desire for legal certainty sometimes drives reform, but rarely as much a desire to display superiority. The flicker of history must be made to seem timeless, like laws seem in printed word.

It has become a standard critique of European integration that the upward transfer of sovereignty in market-related matters leads to the fragmentation of statehood between the supranational, European level and the largely incapacitated nation-states that retain jurisdiction over social and distributive policies. My article takes up this critique in the elaborate version of one of Germany's leading post-war constitutional theorists, Ernst-Wolfgang Böckenförde, whose approach has been influential in how German constitutionalism relates to the project of European unification. In this account, vertical integration uses law to sever economics from democratic politics, fragments the concern for the common good of citizens and undermines the unity of statehood. I contrast this account to instances of horizontal fragmentation of statehood, such as those underway in member-states such as Hungary or Poland where the nation state's constitutional structures are coming undone at the hands of authoritarian populists. The European Union's role of defending the rule of law within its constitutive states seeks to restore their normative integrity and, as such, is best understood as a role of vertical de-fragmentation of political and constitutional transformations at the domestic level. The question if statehood can be established at the European level gains greater urgency and complexity in light of these developments.

Ernst-Wolfgang Böckenförde is one of the most eminent German constitutional theorists of the twentieth century. The following article connects with two themes that reappear in Böckenförde's writings. The first theme, which Böckenförde actually borrowed from Hermann Heller, is that democracy presupposes “relative homogeneity.” The second theme is that there would not be any principal objection against Europe growing into a nation state.

My book claims that constitutionalism is about constraining the exercise of public power in a legal manner. What it studies are different renderings of this idea and how one can arrive move from one to the next. What is essential to the success of the enterprise is, first, elaborating the relevant ideal types; second, analyzing how the transitions are made from one to the other; and third, taking public law as a way of conceiving of human practice, namely as activity that is essentially amenable to normative guidance and constraint. The people working and thinking in the world of public law use language that betrays ontological commitments to conspicuous entities such as “powers,” “values,” or “conventions.”

Typically, Germany is portrayed as a persistent objector to Judicial Self-Government in any form. The present paper will demonstrate that this position is untenable: Actually, the German judiciary disposes of a differentiated system of institutions of self-government. The effects of these institutional settings on core values like independence and accountability proves to be mixed at best, however. Furthermore, there are practically no proponents of a stronger version of self-government to be reckoned with. Indeed, the Italian-style model of self-government or the visions of the CCJE are basically contrary to the prevailing German understanding of democratic legitimacy and separation of powers; moreover, the long lasting recruiting pattern of the German judiciary will act as a powerful obstacle. Ultimately, even the introduction of a strong self-government via constitutional amendment remains an open question.

This paper maps judicial self-government in Czechia and argues that although Czechia is sometimes perceived as a black sheep of Europe for not introducing any form of judicial council into its judicial system, there is in fact a substantial amount of judicial self-government exercised by several bodies, the most important being the court presidents, and it is therefore a mistake to conflate judicial self-government with judicial councils. The most notable changes to judicial self-government are then introduced and their impact on values crucial for the functioning of the judiciary assessed. And, as the judicial self-government in Czechia is primarily exercised by court presidents, the narrative of changes to judicial self-government and their impact is presented as a narrative of changes affecting court presidents and of their effects on the wider legal, social and political fields. The dominance of court presidents, built in part on informal powers, is a mixed blessing however, as it can have both positive and negative impact on the crucial values and may prove rather fragile in the future.

In this article we explore the operation of judicial self-government (JSG) at the European Court of Human Rights (ECtHR), paying particular attention to how JSG operates in the judicial selection procedures and in the administration of the court. We find that JSG at Strasbourg is highly variable with relatively weak levels of judicial influence on the selection of judges contrasted with a high degree of control over court administration. We go on to analyze how the dual nature of JSG at the ECtHR (strong post-election and weaker pre-election) promotes or hinders a range of values, namely, independence, accountability, transparency and legitimacy. We argue that the JSG practices at the ECtHR prioritize judicial independence at the expense of accountability. The picture with regard to transparency is mixed and while judicial decision making itself is fully transparent, wider JSG practices at Strasbourg are largely non-transparent. We note that legitimacy concerns were a key motivating factor in many of the key JSG reforms undertaken by the ECtHR in recent years and explore whether these have had the desired impact. We conclude by arguing that the differences in reach and form of JSG at the pre and post-election processes strike a careful balance in respecting the separation of powers and the democratic principle.

This contribution deals with a topic that has so far received scant attention: the administrative governance of the Court of Justice of the European Union (CJEU). Over the course of the last 65 years, the CJEU has developed its own particular version of judicial self-government. This article analyzes its genesis, its characteristic features and provides a comprehensive assessment. Three arguments are put forward: First, self-government at the CJEU can be associated with a number of positive effects for the Court as an institution. It contributes to keeping the Court out of the public limelight, to fostering its judicial authority vis-à-vis key compliance constituencies and to securing its judicial independence. Second, while strong forms of judicial self-government can lead to a lack of transparency and accountability, these problematic side effects have been largely avoided at the CJEU. This is, in many respects, due to the dialogic accountability relationship that has been established with the European Parliament in the context of the EU budgetary process. Nevertheless, third, as regards more recent developments, such as the establishment of an expert panel for selecting new CJEU members and the Court's legislative role in amending its own Statute, from the perspective of transparency, room for improvement exists.

The aim of this paper is to provide a new comprehensive understanding of roles of court presidents in judicial governance in Europe. It argues that in order to better understand the role of court presidents in comparative perspective it is necessary to unpack their power into smaller components that can be analyzed separately. We define seven such components: judicial career, jurisprudential, administrative, financial, ambassadorial, and media power, and ancillary powers as a residual category. Subsequently, we zero in on 13 European jurisdictions and rate them according to the strength of their court presidents' powers. By doing so we are developing a Court President Power Index. Based on this Index we question the claim that Western court presidents are always weaker than their Eastern European counterparts and argue that powers of court presidents diverge both within Western Europe and within Eastern Europe, and hence it is difficult to draw the easy line along the West/East axis on this ground. Finally, we problematize our Court President Power Index and show that powers in the meaning of faculty do not necessarily translate into influence since various contingent circumstances (such as the length of court presidents' terms of office, information asymmetry, the structure of the judiciary, the existence of competing judicial self-governance bodies, the role of individuals, the proximity of court presidents to political leaders, the legal profession, legal culture, and the political environment) affect to what extent court presidents may exploit their powers in practice.

Through the recruitment of judges — their selection and subsequent appointment – powerful actors control who enters the judicial ranks and under what circumstances. In this paper I address how are European judges recruited using examples from ten European countries, while paying special attention to the role of the judicial self-government in these processes. Indeed, there are differences between recruitment processes across Europe. In some countries, a central role in the judicial recruitment is played by judicial schools; elsewhere crucial powers belong to judicial councils and/or other bodies of judicial self-government; in the UK or Ireland some of these powers were vested in the hands of specialized bodies; whereas in other countries the process remains less formal with crucial powers resting in the hands of court presidents. Despite these differences, I choose to emphasize similarities recruitment processes share. They operate as funnels where the pool of candidates gradually decreases until only one (or few) remains and is eventually appointed. In order to assume judicial office one usually must (a) meet eligibility criteria, (b) get on selector's radar to be actively considered for the position, (c) get shortlisted for the position, (d) get selected, and (e) eventually appointed. Dividing the recruitment process into these stages, while paying attention to motivations of all involved actors, can help deepen our understanding of how judicial recruitment actually works and how formal and informal rules together shape the composition of judiciaries.

Judicial councils are often presented as a panacea for many disorders of judicial systems, including low public confidence in the judiciary. Nevertheless, the assessment of their impact has so far been neglected. The article offers a unique view on the relationship between judicial councils and the level of public confidence in courts. It draws a novel conceptual map of factors influencing public confidence in the judiciary, stressing its complex and multifaceted character. Situating the judicial councils on the map, it explores how they can help to potentially increase the level of public confidence in the judiciary, and assesses to what extent this has been true in the countries that have adopted them. The results reveal a considerable gap between the promises, expectations, and practice, and raise doubts about the ability of judicial councils to enhance confidence in courts. Judicial councils rarely manage to substantially improve institutional performance: they can enhance the quality of judicial systems which have already functioned quite well, but they do not tend to bring about change in the judicial systems that have been previously significantly flawed. The analysis of the longitudinal Eurobarometer data showed that, on average, the EU countries without judicial councils are better off in terms of public confidence. Although the existence of judicial councils does not make a difference regarding public confidence in the judiciary in the new EU member states, in the old EU member states, judicial systems with judicial councils enjoy lower levels of public confidence than the ones without them.

The phenomenon of judicial self-government at international courts has thus far been vastly understudied. Our article fills this gap and systematically explores its personal dimension, both from formal and informal perspectives. Specifically, we focus on the selection, promotion, and removal of international judges. We build our analysis on studying legal instruments, such as constitutive treaties, statutes, and rules of procedure, which we subsequently supplement by anecdotal evidence of how they work in practice. We show that each international court is unique in terms of the forms and extent of participation of its judges in deciding on international judicial careers. There is a variation as regards the forms and degree of judicial self-government across international courts and across the relevant areas of decision-making for each court. However, some broader patterns and trends emerge from our examination of relevant provisions and practices. First, some courts display consistently low degrees of judicial self-government across all these areas of decision-making, while other courts display relatively higher degrees. Second, judicial self-government does not manifest itself at the international level in entirely the same way as it does at the national level. We found that while judicial self-government manifests itself relatively strongly in the areas of promotions and removals of international judges, it is limited in the area of selection of international judges. International courts are not, strictly speaking, self-governing in the latter area, because the sitting judges of these courts are rarely members of the bodies that decide or advise on selecting new judges. However, sitting judges of some international courts have become involved in the formation of the bodies screening candidates and/or in selecting the members of such bodies. Hence, judicial self-government has started manifesting itself in selection processes internationally, albeit in a limited fashion, with only indirect involvement of sitting international judges.

States have a significant influence on the selection of judges to international courts. This raises the concern that judges will be biased in favor of their home states, a concern backed by some empirical research. To counter that danger, international courts usually sit in large and diverse panels. Scholars have argued that this gives judges only rare occasions to tip the balance in favor of their home states. The problem begins, however, when judges start forming coalitions among themselves, giving judges with national biases a practical possibility to change the result of cases. To assess the magnitude of this threat to judicial independence, the paper draws on decades of scholarship in the field of judicial behavior. By understanding how judges behave, scholars can come closer to deciphering the true impact of judicial selection to international courts on international judgments.