During the nearly 24 months since the inauguration of Donald Trump as President of the United States of America, it has become commonplace to observe that the actions of this President are ‘not normal’. Examples of his abnormal behaviour are numerous, but for a quick refresher consider the following (very incomplete) list. Calling the director of the National Parks Service to find photos of the inauguration to disprove media claims that President Obama’s inauguration had a larger audience. Launching an investigation into voter fraud over the election he won, without any actual evidence of voter fraud. Hanging up on the Australian Prime Minister because he did not like a pre-existing refugee agreement between the US and Australia. Pressuring the director of the FBI to stop investigating Michael Flynn for his undisclosed dealings with Russia and Turkey. Banning major media outlets from White House press briefings because he did not like the coverage he received from these organisations. Accusing President Obama Continue reading
The great waves of global migration into and out of Europe such as those that preceded World War I, followed World War II, and again drew our attention in 2015 inevitably challenge the fixity or stability of a country’s constitutional identity. Whether official ideologies are those of assimilation, integration, pluralism, or multiculturalism seems not to matter; challenges will arise no matter. Constitutional identities are not just ensembles of laws and an accumulated national jurisprudence. They are grounded in cultural configurations that evolve over long periods of time but are, for the most part, taken for granted. Continue reading
Weit verbreitet ist zurzeit das Argument, liberale Demokratien befänden sich in einer Autoritätskrise. Was aber ist damit gemeint? Ganz grundsätzlich meint eine solche Krise, dass Autoritätsbeziehungen erodieren. Das heißt, autoritative Behauptungen werden von ihren Adressaten nicht mehr als bindend anerkannt. Dies ist der Fall, wenn etablierte Rechtfertigungen des Autoritätsanspruchs versagen oder infrage gestellt werden. Die derzeitige Autoritätskrise kann als eine solche verstanden werden, in zweifacher Hinsicht: als eine Krise der Autorität von Experten und als Krise einer spezifischen Form demokratischer Autorität, Continue reading
Critiques on human rights and comparative law often criticize that an obsession with the universal norm or the “Common Core” erases the diversity and specificity of the local contexts. It is at the same time doubtful, however, that an assertion of “Asian values” could serve as a justification for denying universal human rights to any extent. The ways that tradition or national culture comes into rights practice are more subtle and varied. A constitution is sometimes claimed as an embodiment or representation of national identity and tradition. In other occasions, tradition is challenged as a threat to constitutional rights and principles. This essay examines two illuminating cases adjudicated by the South Korean Constitutional Court Continue reading
Constitutional democracy is a system of government in which all powers are exercised under a constitution which grows out and is dedicated to the protection of equal human dignity. The latter requires that each and every individual is recognized an equal right to self-fulfilment within the scope of the same right recognized and exercised by others. By making equal human dignity a point of departure as well as the ultimate objective of its functioning, a polity characterized as a constitutional democracy is necessarily permeated by pluralism. Continue reading
1. The collapse of “the West”?
A century after the Russian Revolution of 1917 and more than 25 years after the collapse of the Soviet Union and the “Eastern Block”, we may now to be witnessing the collapse of the American Republic and the Western order it created and led after WWII. Whether NATO, the EU and the string of alliances the United States has built across Asia will continue to exist in three or five years is by no means a foregone conclusion, but it has become an open question. Continue reading
Striving for clarity is one of the central tasks of a lawyer, at least so common wisdom tells. Whether lawyers interpret a statute, try to discern the ratio decidenci of a court judgment or seek to identify a norm of international custom, they look for a clear-cut, ideally brief and easily comprehensible underlying rule or principle, ratio or general logic that will present the solution to the legal question at hand. Continue reading