On 23 March 1933, an act was adopted in Nazi Germany in response to the “crisis” of the Reichstag fire to enable Hitler to issue decrees independently of the Reichstag and the presidency. Article 48 of the constitution of the Weimar Republic made this act possible. Eighty-seven years later, on 23 March 2020, the so-called ‘Enabling Act’ was put before the Hungarian Parliament. This was drafted under emergency constitutional provisions in Articles 48-54.
The widespread contemporary understanding of the New Haven School runs as follows. In the 1940s American power rises. Shrugging the formalism of international law, Hans Morgenthau, George F. Kennan and great power politics announce a new paradigm. Myres McDougal senses the zeitgeist the realists have captured and leads a ‘legal’ response. Positivist social science is instrumentally refashioned as ‘policy-science’, the lawyer policy-scientist pitched as the anti-communist power behind the throne. The story tends to be completed by one of two alternative conclusions. For some critics this ends as a story of Cold Warrior lawyers hawking a method skewed to imperial American policy. A cautionary tale of lawyers losing sight of legality in a clash between ‘realism’ and ‘legalism’. A moral of this critical story tends to be that policy-oriented lawyers were bought out of their vocation by hegemony and neoliberalism. Continue reading
Maximilian Steinbeis/Verfassungsblog: Das Impeachment-Verfahren gegen Donald Trump ist gescheitert. Welchen Schaden hat die US-Verfassung darüber genommen?
Mattias Kumm: Der Schaden ist erst einmal ein politischer. Die Entscheidung ist strikt nach Parteilinie gefallen, fast kein Republikaner hat für die Amtsenthebung gestimmt. Ein solches Verfahren wie das Impeachment kann, wenn es gut läuft, an einem konkreten Fall allgemein verbindliche Mindeststandards als Exempel statuieren. Diese Funktion hat das Verfahren jedenfalls nicht erfüllt, sondern nur die tiefe Zerrissenheit des Landes sichtbar gemacht. Continue reading
What is a topic in international law scholarship? Any answer will most probably include the term “relevance”, perhaps also a reference to some “general interest”. Such a (rather quantitative) answer will evaluate what international law scholars actually write about at a given time. It will conclude from a list of publications that some topics have been considered more relevant than others by international law scholars, as they wrote more about the former topics and less (or nothing) about the others which subsequently may be considered less relevant – even “irrelevant”.
Another way of responding to the question may include a geographical aspect – the question then changes into “what topic is relevant where?” This question occurred to me when I wrote my article “African International Legal Histories” (2018) in response to a call for papers which asked “why it is that we write the [international legal] histories we write” and “what questions we fail to explore”. Continue reading
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
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
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