This Article analyses, through the lens of comparative law, the Oliari and others v. Italy judgment, which was issued by the European Court of Human Rights (ECtHR) in July 2015. The Oliari case is important for being the first judgment in which the ECtHR established the granting of legal “recognition and protection” to same-sex couples as a positive obligation for the Member States of the Council of Europe on the basis of Article 8 of the European Convention on Human Rights. In order to understand the role of judicial bodies in the progressive protection of homosexual rights, this Article combines an analysis of European case law with the national perspective. As it concerns the supranational facet, the authors illustrate Oliari's reasoning and situate the case in the jurisprudence of the ECtHR. Elements of both continuity and innovation emerge from the analysis, as well as a relevant dimension of judicial dialogue supporting the incremental recognition of gay rights in Europe. As it concerns the national facet, this specific case was initially dealt with at the domestic level and was the object of judgment 138/2010 by the Italian Constitutional Court. The judgment is critically put into perspective through the examination of the jurisprudence of other European Constitutional Courts (France, Portugal and Spain) that were called on to decide similar cases in the same period. Therefore, the Article offers a comparative analysis of the Oliari judgment clarifying its relevance and speculating on the potential value of this case for the future recognition of the right to a “gay” family life in Europe.

There is a fundamental disconnect between the public discourse about sovereign and external debt in comparison to private domestic debt. The latter is predominantly viewed through a Humean lens, which sees economic morality in terms of contingent social institutions, justified by the valuable goods they realize; while sovereign and external debt is viewed through a Lockean lens, which sees property, contract, and debt as possessing an intrinsic moral quality, independent of social context or consequences. This Article examines whether this Lockean perspective on sovereign and external debt is compatible with the dominance of Humean approaches to the domestic economy. It considers and rejects the most plausible argument for reconciling these views, which emphasizes the different qualities of cooperation in the international and domestic economies. It further argues that many standard objections to a Humean approach to sovereign debt suggest, not the Lockean approach, but rather a Hobbesian international moral skepticism. Concluding that the Lockean approach is unmotivated, this Article instead advances a Humean account of sovereign debt and default. It shows how taking seriously the demand for institutional justification and the idea of persons and peoples as free and equal provides an account of the duties of states—whether creditors, debtors or third parties—in sovereign debt crises. It further examines the implications of each approach for democratic choice about sovereign default.

The British want to leave the EU and the rest of Europe is shocked. The Europeans may have lost their faith in their common destiny. The large number of strong arguments for a membership in the Union did not convince the majority of the British voters, although those arguments have been clearly demonstrated again and again. Many political fields cannot be ploughed unilaterally. Environmental protection is a global challenge. The tough competition prevalent in the global economy will not be suspended by referendums of ageing, wealth-saturated European societies. The single European market is more resilient against global competitive pressure than an array of small domestic economies on their own. All these reasons do not seem to pervade. EU- opponents see the membership of their country as an act of self-enslavement and the Brexit as a new biblical Exodus incident. Boris Johnson – a modern Moses? The construction of Europe in this perspective is no longer a rational calculation but turns into a question of faith and it congeals into political theology.

The study describes Hungary's policy towards asylum seekers and refugees in the tense period of 2015–2016 before and after the erection of fences at its southern borders of Hungary. It offers a theoretical explanation of the legal measures and practical actions. After briefly reviewing the factual basis, that is the magnitude of the movements and the number of decisions taken in the EU and in Hungary and the pertinent legal changes in 2015–2016 it elaborates the theoretical fundaments. Securitization majority identitarian populism and crimmigration are invoked as explanatory frames. The paper then reassembles the factual elements under six headings showing them in a new light. These are: denial, deterrence, obstruction, punishment, free riding constituting lack of solidarity and breaching the law (international, European, domestic). Finally the question is raised if all these moves are compatible with the duty of loyal cooperation of Member States with each-other and the EU as prescribed by article Article 4 (3) TEU.

Following the article “Marriage, Same-Sex Partnership, and the German Constitution,” which was published in the German Law Journal in 2012 (see Anne Sanders, Marriage, Same Sex Partnership and the Constitution, 13 German L.J. 911 [2012]), this article provides an update on recent developments in relation to same sex partnerships in Germany. The focus of this Article is case law of the German Constitutional Court from 2002 through today, but it also discusses other court decisions in relation to the rights of same sex parents. The Article concludes with an examination of a recent draft law which—if successful—will open marriage to same sex couples. While its chances for success are extremely slim, this Article argues that same sex marriage will eventually be introduced in Germany.

Corruption should be understood as illustrative of an ethical problem that runs deeper than specific immoral actions. This Article sees corruption as an unethical exchange, a view that can shed light on the economic structure of normative morality (as distinguished from ethics which is the theoretical field that underlies normative morality)—a structure that enables the possibility of exchanging moral values against marketable prices in the first place. To go beyond normative morality, this Article will discuss two profound philosophical concepts and their relation to corruption: (1) a non-economic justice as founded by Aristotle's principle of épieikeia (equity), and (2) Levinas' notion of the Third with the ethical responsibility that is connected to it. In addition, the discussion of the Third will be informed by philosophical theories of gift exchange as proposed by, among others, Marcel Hénaff, who examined the connections between gift exchange, monetary exchanges and corruption. Based on this, a way of thinking about the suspension between ethics and corruption is developed that avoids falling back into the logic of economic exchange which is constitutive for corruption. Instead, an ethical perspective is suggested as the fundamental ability to adequately balance universal normative claims with the individual case. This kind of just balancing opens up new spaces of reflection to confront corruption.

This Article discusses the significance of law in neoliberal theory and practice. Prefaced by a brief look at the role that law plays in the theories of the ordo- and neoliberal thinkers Franz Böhm and Friedrich August von Hayek, the subsequent chapters focus on the work of James Buchanan and his brand of neoliberalism, which combines constitutional economics public choice theory. Buchanan's core demand is a balanced-budget amendment to the constitution. The following Sections examine this measure in its various aspects before the final section switches to the world of “actually existing neoliberalism” with a discussion of the various reforms of the economic governance structure of the European Union in recent years, particularly the “Fiscal Compact”, which amounts to the real world equivalent of a balanced-budget amendment.

Neoliberal tax policies at the local and the global levels risk democracy consolidating economic inequality by allowing and fostering capital accumulation. As a consequence capital owners have increased their political power to influence and decide on local and global tax policies for their own benefit. The Chilean income tax system and the international tax law system (including tax competition among states and tax heavens) are analysed as examples of neoliberal tax policies at the local and the global level, respectively. At the same time, neoliberalism as a normative order of reason has replaced the political aspect of taxation with economic concepts that tend to dissolve the connection between taxes and solidarity. In this scenario, taxes make no economic or political sense as they are not understood as duties of citizenship. In this Article, recent alternatives proposed to diminish global no taxation and inequality, as the OECD BEPS project and Thomas Piketty's proposal for a global tax on capital are analyzed and criticized.

After having invalidated the federal Defense of Marriage Act (DOMA), the U.S. Supreme Court “dropped the other shoe” in Obergefell v. Hodges by declaring the exclusion of same-sex couples from marriage at the state level unconstitutional. Written by Justice Kennedy, the majority opinion heavily relied on the dignity-bestowing character of marriage to show why this exclusion is so harmful. But this strategy comes with a cost: it inflicts a stigma even as it conveys recognition—a drawback that an equality analysis can avoid. Respondents had argued that opening marriage dangerously disconnected marriage from procreation, both the historical reason for and the essence of marriage. In finding that they had failed to provide evidence for the harmful outcomes they described, the majority not only provided the rational basis test with a new kind of “bite.” It also asserted that tradition or religious beliefs were not enough to justify exclusion. Once secular purposes define marriage and rational reasons are required to regulate access, the road to marriage equality opens wide. As the line of cases leading up to Obergefell suggests, and developments in Germany, Austria, and other jurisdictions confirm, equality works as a one-way ratchet—albeit without necessarily including polygamy and incest. Crucially, equality changes the focus: From an equality perspective, the harm lies not in the exclusion from a dignity-conferring institution, but in the suggestion that the excluded group is not worthy of participating in it and does not deserve the recognition and benefits associated with it. Instead of aspiring to achieve dignity through marriage, in this view same-sex couples claim recognition as free and equal citizens. Discrimination on the basis of race, gender, or sexual orientation subsumes an individual under a group category whose purported characteristics are systematically devalued, thus refusing to appreciate a person as an individual. It is this denial of recognition that conveys harm to the dignity of the individual above and beyond the respective disadvantage suffered. Thus taken with equality, dignity does not have the exclusive effect it has in isolation, as struggling against degrading exclusion stresses common traits.

Back in 2007, the year during which, alongside others, Romania and Bulgaria joined the European Union (in January) and the world financial crisis began with the French global investment bank BNP Paribas terminating withdrawals from several sub-prime loaded hedge funds (in August), Perry Anderson concluded a London Review of Books essay entitled, “Depicting Europe,” with words that today must be seen as prophetic: “the long-run outcome of [European] integration remains unforeseeable to all parties. Even without shocks, many a zigzag has marked its path. With them, who knows what further mutations might occur.” The narrow but decisive vote by the UK electorate on June 23 to “take their country back” represents just the latest, and arguably biggest, shock in what can only be described as a decade of seismic activity for the European project. Indeed, it is hard to believe in post-Brexit 2016 that only a little more than a decade ago, in 2004, Jeremy Rifkin could proclaim the “European Dream […] a beacon of light in a troubled world,” beckoning, as it were, “a new age of inclusivity, diversity, quality of life, deep play, sustainability, universal human rights, the rights of nature, and peace on Earth.” Such lofty words must sound no less than ludicrous to the sober and cynical minds of contemporary Europeans who see seemingly entrenched post-War realities, many having to do with European integration, assailed head on. What makes this (again seemingly) dramatic change yet harder to digest is, of course, the fact that much of the damage is self-inflicted. It is decidedly not the same as some external oil-price shock to which an otherwise well-governed and self-conscious incipient political community has suddenly been exposed. Instead, the Brexit vote symbolizes more starkly than anything else the deep crisis that has been building up within the European project for a much longer time than its proponents would wish to admit.

Many of the ills afflicting democratic capitalism have their source in the current legal architecture of money and finance. At the same time the reimagination of institutions of money and finance promise an avenue for reform to democratize the economy and prevent the perpetuation of austerity politics. Such institutional reimagination requires a perspective that recognizes money as an institution linking state and civil society, politics and the economy. Economics in great part eschews such a perspective and perceives of money as a medium of exchange largely independent of government and politics. Legal analysis, by contrast, should be ideally suited for the endeavor to analyse the various ways in which the institutional design of money configures political economy.

Prior to Britain's popular referendum on whether to remain a member of the European Union, parts of the public in Britain and other European states had already expressed a great range of emotions concerning on-going negotations between the European Union and the United States regarding the bi-lateral Transatlantic Trade and Investment Partnership, more commonly referred to as “TTIP.” In February 2013, the European Commission optimistically projected that TTIP “would be the biggest bilateral trade-deal ever negotiated,” with the potential to “add 0.5% to the EU's annual economic output.” Most notably, TTIP seeks to streamline administrative rules and technical product standards in order to remove trade barriers, and aims to “achieve ambitious outcomes” across three broader areas—(a) market access, (b) regulatory issues and non-tariff barriers, and (c) rules, principles, and new modes of cooperation to address shared global trade challenges and opportunities.

Factortame (Case C-213/89 [1990] ECR I-2433, starting in 1988, ff.) was the case that Eurosceptics felt doomed UK parliamentary sovereignty. Factortame said that, having committed itself to the treaty, a Member State could not then contradict the treaty with contrary domestic action. Specifically, no discrimination against nationality (now TFEU Art. 18) has been permitted since the beginning. Nevertheless, parliament amended the Merchant Shipping Act in 1988 to prevent Spanish fishermen from catching fish in UK waters by requiring, for example, that 75% of the shares in a fishing enterprise must owned by people domiciled and residing in UK. The diehards never accepted that parliament had to exercise its authority within the framework established by the treaty.

Philip Jessup would not be pleased. Exactly sixty years after he published his groundbreaking book on Transnational Law, a majority of voters in the United Kingdom decided they wanted none of that. By voting for the UK to leave the European Union, they rejected what may well be called the biggest and most promising project of transnational law. Indeed, the European Union (including its predecessor, the European Economic Community), is nearly as old Jessup's book. Both are products of the same time. That invites speculation that goes beyond the immediate effects of Brexit: Is the time of transnational law over? Or can transnational law be renewed and revived?

In an essay from 1998 the comparative law scholar Pierre Legrand asked the question “are civilians educable?” It was a theme that had preoccupied him for some years as he agonized over what he regarded as the intolerant, totalizing, and normalizing manner in which civilian legal systems and their acolytes encounter other legal traditions. He had documented, for example, the ways in which Quebec's new 1994 Civil Code constructively sought to suppress and exclude the significant and historically relevant Anglophone community in Quebec. Legrand argued that this domineering posture is a product of the civil law's cosmological and autarkic mentality. “The difficulty,” Legrand lamented, “is that the civil law mind … is reflexively imperialistic … because of its penchant for universalization.” Far more than his disquiet over the precarious future of Quebec's Anglophone community, Legrand came to be concerned about the fate of the English common law tradition in the face of the European Union's convergence agenda. This was, to Legrand's mind, an apocalyptic confrontation between England's still-proud legal culture and Europe's horsemen of convergence: the ECJ, the Commission, the Parliament. With increasing distress Legrand turned his attention to the way in which the European Community (and later the Union) “is liable to achieve … the marginalization of one of the subcultures that have defined western Europe historically.” He would go on to insist that “European legal systems are not converging” and to raise ever-more strident objections to the idea of a European civil code. This would not cease until Legrand had written “Antivonbar,” an incendiary manifesto aimed at salvaging the English common law from what he viewed as the Union's closed-fisted and violent politics of supremacy, which had taken the form of the proposed European Civil Code.

Eurosceptics of all kind feel vindicated by the Brexit. However, their reasons do not only differ, they are actually inconsistent: For leftists like the Greek Prime Minister Alexis Tsipras the vote expresses the failure of a socially unjust political order devoted to austerity and market liberalism. Considering the anti-regulatory bias of the Leave campaign and the strict austerity policy of the newly re-elected conservative majority, this seems like a rather paternalistic interpretation. Many on the left-wingers refuse to accept that there are democratic majorities for inequality. They prefer to treat the voters as the victims of a wrong consciousness instilled by politics or the media.