The question of when and how a European consensus or trend contributes to shaping rights guaranteed by the European Convention on Human Rights and its Protocols is controversial. The European Court of Human Rights quite often performs an analysis of the laws and practices of the Council of Europe’s Member States or of relevant international material. However, the cases where rights have actually been shaped by a European consensus or trend are quite rare. In the last twenty-five years, some 27 out of 424 judgments on the merits of the Grand Chamber of the Court established a consensus or trend having a “shaping impact” on these rights. Further, only one advisory opinion based on Protocol No. 16 contained comparative law material having such an influence. This Article assesses the intensity of the impact of a consensus or a trend analysis on a judgment’s or an advisory opinion’s ratio decidendi, shows what shaping a right actually means, and suggests that cases that are more prone to a potentially persuasive consensus or trend analysis will typically deal with matters of political or general policy, sensitive moral or ethical issues, or changes in the case law.

Borders are ubiquitous. As invisible lines, they contribute to a functioning world order and guarantee security for the people. In the form of walls and fences, they divide society and establish strongholds of prosperity that are not accessible to everyone. A similar effect can be observed in connection with the concept of citizenship, which binds people fatefully to a particular territory and thus significantly determines an individual’s life chances. This article shows how borders and their protection as well as the concept of citizenship challenge fundamental ideas of justice and traces discourses that seek to evolve the current border and citizenship regimes into a more universal and just form of human coexistence.

The wide and deep participation into legislation is a crucial means for the CCP to govern the Chinese Party-state. This Article examines how the CCP as a legislating Party acts in the state legislation as well as in its own internal legislation and what influences the Party’s legislating behaviors bring to the socialist rule of law. By a positivist and typological survey, the Article divides the intra-party regulations into three kinds, namely the pure intra-party regulations, the state-parallel intra-party regulations as well as the supra-state intra-party regulations. On this basis, the Article further analyzes how different types of the intra-party regulations influence the state legislation and, ultimately, the socialist rule of law. Finally, this Article points out that the overexpansion of the intra-party regulations leads to the partisanization of the state legislation and the legalization of the Party legislation which renders the existing separation of the Party and the state feebler and the socialist rule of law could afford more pressures in a foreseeable future.

Much has been written on the constitutional overhaul in Israel, and the attendant constitutional crisis in the first nine months of 2023. Since October 7, however, with the breakout of the Israel-Gaza war, the overhaul was seemingly shelved. This Article seeks to connect both events, by comparing the legal-political response to the overhaul with the legal-political response to the war. It asks why, given the intensity of the protest movement generated by the overhaul, there was a dearth of protest activity after the war, even though both events implicated similar values, namely the rule of law and individual rights, championed by the protest movement. I argue that a central reason for the disparity cannot only be explained by the dynamics of war but also due to the tensions and complexities inherent in Israel’s self-professed constitutional identity as a Jewish and democratic state. In particular, I argue that anti-overhaul protests appealed to liberal universalist values to garner bipartisan support, with the effect of bypassing substantive issues such as the occupation of the Palestinian Territories and discrimination faced by Israeli Palestinians. This explains the lack of Arab participation in the protests, as many perceived them to be an internal Jewish Affair. Thus, when post-war repressive measures mostly affected Israeli Palestinians, the protest movement failed to rally in their support. Although anti-overhaul protests could have brought about greater liberal consolidation in Israel, the relative lack of post-war mobilization casts lingering doubts on the possibility of long-term consolidation of liberal values in Israel. Attempts to depoliticize the protests, while perhaps successful in warding off the overhaul, and though impressive on their own, have likely failed in instilling deeper, more resilient, liberal values in Israel.

This Article is dedicated to what is arguably one of the most significant tests to which constitutionalism has been subject to in recent times. It examines the theoretical and practical challenges to constitutionalism arising from the profound technological changes under the influence of artificial intelligence (AI) in our emerging algorithmic society. The unprecedented rapid development of AI technology has not only rendered conventional theories of modern constitutionalism obsolete, but it has also created an epistemic gap in constitutional theory. As a result, there is a clear need for a new, compelling constitutional theory that adequately accounts for the scale of technological change by accurately capturing it, engaging with it, and ultimately, responding to it in a conceptually and normatively convincing way.

The “migration” of Future Generations from a moral to a judicial context represents a captivating development in contemporary legal discourse. Recent years have seen a surge in courts across various nations addressing the intersection of future generations and climate litigation. This nexus, far from being coincidental or sporadic, epitomizes a deeper societal and legal dilemma that necessitates a nuanced articulation for effective resolution. The main objective of this Article is to provide preliminary insights for contextualizing this legal evolution. Initially, the Article delineates the journey towards social legitimacy of climate science. Subsequently, it examines the impact of this social legitimation on judicial rulings, particularly observing an emerging trend in climate litigation to expand the temporal scope of legal relevance. The Article culminates in an exploration of the possible interplay between the legal significance of future generations and the extension of the law’s temporal horizon. This conjectural postulation is substantiated through select historical precedents.

This Article examines scenario analysis, a disruptive argumentation technique used by the German Federal Constitutional Court (GFCC) in recent high-profile cases, such as the so-called climate protection case (Klimaschutz) and other decisions on the fundamental right to intergenerational justice (Grundrecht auf Generationengerechitgkeit). After explaining the basic argumentative steps involved in scenario analysis, for example designing scenarios, identifying stakeholders, relating scenarios to strategies, determining the main driving forces, estimating scenario probabilities, the Article sketches a normative model for rational scenario design. The normative model is used as a lens for evaluating the arguments developed by the GFCC in the climate protection case. Such evaluation also builds on game-theoretic insights and points out some weaknesses in the Court’s argument. Finally, the Article observes that, as scenario analysis is used to assess the future impact of legislative decisions, it has the effect of imposing greater constraints on legislatures.

Climate change stands as the paramount challenge confronting humanity in the contemporary era. Attempting to address the problem, the main sectors responsible for it have been subject to domestic or international policies and laws aimed at reducing greenhouse gas (GHG) emissions, except one: livestock. Given that animal-sourced food production contributes a large portion of GHG emissions, this Article aims to analyze the impacts that the exclusion of the livestock sector, in efforts to tackle climate change, would have on compliance with international treaties on the subject, especially the Paris Agreement. One conclusion reveals that state parties, by ignoring the sector, will violate several articles of the Agreement, which will likely lead to the failure of its main purpose of holding the increase in the global average temperature to well below 2°C.

This Article explores the implications of Artificial Intelligence (AI)-driven innovation across sectors, highlighting the resulting legal uncertainties. Despite the transformative influence of AI in healthcare, retail, finance and more, regulatory responses to these developments are often contradictory, contributing to the opacity of the legal underpinnings of AI business. Our Article notes the common trend of commercializing AI tools amidst legal uncertainty, using innovative contractual solutions to secure claims. Over time, these innovations trigger overlooked legal conflicts, sometimes leading to outright bans on AI products due to negative impacts on some fundamental rights and democratic Governance. The core argument of our Article is that an over-reliance on co-regulatory strategies, such as those proposed by the European AI Act, exacerbates legal instability in emerging technological markets. This panorama creates an ’extended legal present’ when alternative legal expectations coexist, thus causing economic and political uncertainty that may elicit legal instability in the future. The concept of ’competing legal futures’ is introduced to illustrate how economic actors must bet on a legal future in the absence of guarantees that this future will materialize. To help analyze this complex narrative, we propose a theoretical framework for understanding legal, technological, and economic dynamics, highlighting anomalies in market exchanges within the co-regulatory model. Despite the focus on European developments, the practical and theoretical implications extend beyond the EU, making the Article relevant to a broader understanding of the legal-economic challenges posed by AI and digital innovation. We conclude by arguing for a course correction, proposing institutional diversification for resilient governance of legal innovation under uncertainty.

As modern constitutions bind democratic legislation to entrenched norms, they are in tension with the democratic idea that laws should be open to revision by new majorities. Against a widespread view, constitutional norms cannot be considered to be “more democratic” than ordinary laws due to specific qualities of the constitution-making process. Rather, the higher-level law of constitutions can fulfil a specific function as it may provide standards that ensure that laws made by the majority can be justified to everyone. On that basis, I evaluate for different types of constitutional norms whether there are good reasons for constraining legislation. In particular, entrenching cultural traditions and economic policy is more problematic than guarantees of the democratic process and rights ensuring respect for individuals. In sum, a two-tiered law-making system has important values, but people engaging in constitution-making and constitutional interpretation should be wary that the constitutional form is not abused.

Digital platforms and social media have expanded the ways in which individuals can exercise their right to freedom of expression and obtain and diffuse information. At the same time, they have become a principal means for haters to express and spread their hate in ways that would have been unthinkable some years ago. Responsive to the challenge, the EU has progressively developed a broad range of instruments and tools to counter online hate speech. This chapter discusses the key characteristics of the EU arrangements made to fight digital hate speech, shedding light on what is a multi-faceted and daunting regulatory task.

Rapid, unpredictable ecological changes and the resulting instability that are characteristic of the Anthropocene call for a re-examination of the role of law in governing interactions between humans and ecosystems and facilitating adaptation to ecological change. The scope and scale of environmental change we are experiencing seem to call for a regulatory approach, namely forms of law that are designed to pursue well-defined material objectives, often through instruction rules designed to guide behavior to line up with those objectives. Such forms of law have a crucial role to play. However, the negligence principle at the heart of civil liability law is also capable of absorbing and circulating information about environmental risk and means of addressing it, and of translating that information from empirical to normative terms. The grounding of negligence in domestic civil liability law could be a serious obstacle to its effectiveness given the global, Earth system-wide nature of environmental degradation. However, the negligence principle increasingly operates through networks that traverse jurisdictional boundaries, as well as the boundaries between social systems. I propose such a network approach to analyze interactions between the negligence principle and corporate due diligence obligations embedded in domestic legislation and international texts such as the United Nations Guiding Principles on Business and Human Rights (UNGPs). One important result would be the imposition of expanded epistemic obligations on firms, which would in turn require their serious engagement with domestic, international, and transnational environmental and sustainability norms.

The European Union’s Digital Services Act (DSA) introduces a new regulatory approach to address the societal harms of online platforms: Systemic risk assessments. While a core component of the DSA, the regulation only outlines the standards and processes governing systemic risk assessments in broad strokes. It remains unclear what these systemic risk assesments will entail in practice. This Article develops a proposal of how systemic risk assessments should be implemented. It situates systemic risk assessments as a critical step toward platform accountability as they address societal harms, while existing approaches, such as remedy mechanisms, only protect user rights. Engaging with intangible harms and regulating speech and public discourse, risk assessments also entail significant challenges. Conventional reference points for content moderation regulation, such as terms and conditions, contractual freedom, fundamental rights and expertise, do not provide practical and legitimate bases to concretize risk assessment obligations. Public actors, such as the European Commission, should refrain from defining substantive standards, too, as they are directly bound by freedom of expression guarantees. Instead, the Article argues, the Commission should foster a procedural framework, a “virtuous loop,” which empowers civil society and allows it to specify and refine the standards governing systemic risks over time. Developing this framework, the Article explains how systemic risk assessment can fix “multistakeholderism,” and “multistakeholderism,” in turn, can help make systemic risk assessments work.

Nudging is a policy tool that steers people’s behavior through noncoercive psychological pushes. This has consequences for people’s lives to varying degrees. For example, the nudge of a sticker of a fly in a urinal encourages peeing inside a urinal, while an organ donation default brings people to agree to donating their organs after their decease. Governments do not yet systematically examine which nudges have to be subjected to all safeguards of the rule of law—for example, parliamentary control, judicial review, or compliance with legal principles such as proportionality. This article argues that a legal doctrine is necessary to carry out this examination. Moreover, it contributes to the development of such a doctrine, using the approach of the European Court of Human Rights as a source of inspiration. The doctrine consists of a “de minimis” principle for nudges: Public institutions only need to ensure that a nudge complies with rule of law safeguards when the nudge has substantial consequences. In addition, the doctrine includes a criterion to determine which nudges have such substantial consequences. In particular, it is argued that a nudge should be subjected to at least some safeguards when it has a serious effect on people’s autonomy.

The odious debt doctrine was envisaged by the Russian jurist Alexander Sack as an exception to the passing rule of a debt in case of state and government succession. An analysis of the practice indicates that this exception was often accompanied by some equitable solution. Although the 1983 Vienna Convention did not acknowledge the doctrine, the equitable distribution of assets and liabilities as a method of settling disputes may allow an application of the doctrine in disguise. This equitable method of settling could come into play if the doctrine found application beyond the strict boundaries of state succession. Such a step would imply the formalization of the doctrine in national legislation, with the result that a loan agreement tainted with odiousness would be illegal and unenforceable. Nevertheless, in common law countries, the laws of which usually govern financial transactions, a claim for recovering what transferred under an illegal contract could be denied based on public policy considerations. This denial of restitution would refrain these countries, traditionally sensitive to creditors’ rights, from acknowledging the doctrine in their legal systems. To overcome this impasse, the formalization of the doctrine should include an equitable approach based on the benefit for the population. This equitable approach would reflect the practice of state and government succession on which the doctrine is usually grounded.

This article explores how the political ideal of data interacts with the legal entitlement of autonomy in the care of pregnant people guided by feminist theory and critical approaches to data. Using Scandinavian legislation and administrative practice, it analyses how the presence or absence of data, namely scientific evidence, interacts with pregnant people’s legal autonomy in healthcare. Data –particularly scientific evidence - is shown as something that is not neutral but open to interpretation and misappropriation. First, administrative complaints illustrate that not only a lack of scientific studies on pregnant people but also patriarchal attitudes have implications for care. Second, Scandinavian legislation authorizes the involuntary detention of pregnant drug users despite an absence of evidence supporting such drastic actions. Third, complaints bodies are found to frame injury to pregnant bodies as a natural consequence of birth, despite clear evidence as to the duties of healthcare professionals in preventing harm. A relational approach that sees the pregnant body and fetus as integrated though quintessentially unequal is needed. Evidence is not the only answer; an approach that recognizes the dignity of pregnant people must be central. This requires eliminating coercion, recognizing the pregnant patient as the decision maker in healthcare choices and prizing the birthing patient’s voice as a valuable data source.

The story of national judges’ participation in the process of dialogue with the Court of Justice of the European Union (ECJ) pursuant to Article 267 TFEU is a well-known one. There have been many scholarly efforts to explain and theorize the—lack of—participation of national courts in the mechanism. Indeed, various constitutional, institutional, procedural, cultural, political, and individual factors are pointed out to explain this engagement. Yet, it may come as a surprise that still much remains unknown. The available empirical data concerning the potential causes of the national judges’—non—participation is limited to a number of EU member states and is mostly confined to lower courts judges. It is the aim of this Article to partly fill the void in the literature and to provide novel empirical data gained in the course of semi-structured interviews among judges and court référendaires of three Belgian highest courts. The interviews provide insight into the possible factors driving concerned national judges when deciding (not) to refer preliminary questions, including the role and significance of the obligation to refer which is to be found in Article 267 TFEU and the Cilfit-criteria.