„Trump ist nicht das Problem, sondern nur ein Symptom“

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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 →

African International Legal Histories – A Topic Where, For Whom, and Why Not? A Retrospective

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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 →

One Size Fits Nobody – Questioning Concepts of ‘The State’

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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

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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

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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

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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.

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A Transnational Human Rights Approach to Human Trafficking: Empowering the Powerless

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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 →