The volume “Von Staat zu Staatlichkeit”, edited by Gunnar Folke Schuppert, wants “to supplement the overly narrow concept of the state with the concept of statehood” – or even to replace it and thus pursue “Staatlichkeitswissenschaft” (statehood studies) rather than the traditional “Staatswissenschaft” (state studies). It aims at overcoming the problem that many political entities – nowadays, yet also throughout history – do not fulfil criteria such as full sovereignty, territorial integrity, a legitimate government or efficient bureaucracy, derived from the idealised, so-called post-1648 ‘Westphalian State’ or its OECD update. The semantic shift from state to statehood provides a means to avoid a simplifying either/or-approach, enabling a nuanced view on forms of governance, because most, if not all these supposedly deficient entities will show at least some degrees of statehood. Instead of counting the deficits an empire, a ‘failed’ state, Continue reading
The Age of Constitutional Barbarism
In January 2011, we organized a mini conference about the Hungarian constitutional transformation at Humboldt University. We described the chain of events, from the landslide victory of the then-opposition party, Fidesz, to a series of drastic constitutional revisions. In our presentations, we called the transformation a constitutional crisis and we argued that the constitutional revisions did not meet the democratic constitutional standards. Continue reading
Böckenförde on the Constituent Power of the People
The recent translation and edition of Ernst-Wolfgang Böckenförde’s work into English by Mirjam Künkler and Tine Stein represents an important impulse for the reception of a still marginal author in Anglo-Saxon constitutional theory. Böckenförde’s notable absence in the Anglo-Saxon debate so far has produced an artificial division between Anglo-Saxon and German constitutional theory. That division has weakened the understanding of important developments in Germany and obscured its connections with Anglo-American theory. The broad and competent translation of Böckenförde by Oxford University Press could now help to link German constitutional theory under the Grundgesetz to Anglo-Saxon constitutional theory, from which other legal traditions can draw important lessons. Continue reading
Why German Law Libraries Are Not Neutral and Why We Should Care
Imagine the following scenario: you are at a law library, searching for a German public law journal. You want to use it to marshal an effective argument about the German constitutional court. You start browsing bookshelves. After some minutes, a thought occurs to you that that this library is not located in Germany, but in Rome or Amsterdam. The journal you are looking for is, of course, published in German. Is it available at all? From the corner of your eye, you see German legal journals popping up. All is good.
A Transnational Human Rights Approach to Human Trafficking: Empowering the Powerless
Numerous legal texts and scholars use the term “transnational” to describe diverse legal concepts or phenomena the more traditional term “international” cannot fully or accurately capture. At least three different aspects are referred to or analyzed as transnational: the nature of the relevant cases, the operation of relevant legal systems, and the process of norm-making. First, many legal issues, including human rights cases, factually possess transnational features. Compare transborder human trafficking with a more traditional, textbook international human rights case such as discrimination against ethnic minorities in a certain state. The latter involves a state violating the human rights of its nationals within its territory, followed by an intervention of international law in a situation previously regarded as a “domestic matter.” In such cases, the main perpetrator is the state, the victims are the state’s own nationals, and human rights violations are committed within the state’s territory. A cross-border human trafficking case inverts this model: Continue reading
Mandatory Multilateralism – an Overview
With skepticism about international norms and institutions on the rise around the world, many commentators have argued that multilateralism faces an uncertain future. Major fractures have appeared in international legal order, including Britain’s messy divorce from the European Union and the United States’ controversial decisions to reject the Trans-Pacific Partnership, withdraw from the 2015 Paris Agreement and the U.N. Human Rights Council, and undermine the World Trade Organization (WTO) by sidestepping its dispute-resolution mechanism and blocking appointments to its Appellate Body. While the path forward remains unclear, for now many states are reassessing the strategic value of multilateral cooperation and are recalibrating their international commitments across a wide variety of contexts. Continue reading
Criminalizing Dissent in Post-Democratic Societies
Since his election in late 2018, commentators have expressed deep concern at the threat posed to democracy by Brazil’s far-right president, Jair Bolsonaro, including how his presidency will affect environmentalists, indigenous people and workers’ movements in Brazil and across Latin America. Among other things, Bolsonaro promised during his campaign for the presidency to banish political rivals from Brazil. Branding them ‘red outlaws’, he said that “Either they go overseas, or they go to jail”. The background to Bolsonaro’s election is now familiar. Promises to purge the state of a corrupt political class, to tackle violent crime, and fix a faltering economy are hallmarks of conservative-right rhetoric in the current conjuncture. Indeed, these issues featured in the Trump campaign in the United States, and to some degree in the run-up to Brexit in the United Kingdom. Both the Trump and Brexit campaigns also had antagonism to migrants as their centrepiece. Continue reading