The EU under Transnational Law – A Pluralist Appraisal

The past decade has been one of the most turbulent times in the process of European integration. In this period, the European Union has risen to the stars and fallen back from the heavens. The beginning of the new millennium was marked by enviable achievements. The EU carried out a successful enlargement to the East. It adopted a single currency and experienced a boom in economic growth. The objective, laid down in the Lisbon strategy, was to make the EU “the most competitive and dynamic knowledge-based economy in the world, capable of sustainable economic growth with more and better jobs and greater social cohesion.” This goal ought to have been met by 2020. However, the developments taking place since 2000 have made the attainment of this objective anything but possible. Rather than becoming the leading economy in the world, since 2009 the EU has been in permanent economic crisis. And, while the crisis has been tamed, it is far from resolved. Its consequences for the most affected member states in the South and in the East have been grave. They have shaken up the foundations of the well-ordered societies that these member states have at least tried or pretended to be. Continue reading

Can the European Union Save the Independent Judges?

By the time of the “big bang” accession in 2004, when ten new member states entered the European Union, it seemed that the fate of East-Central Europe was settled. From that time forward, these states were certified as democracies in good standing. But before the first decade was out on the accession, it became painfully clear that a consolidated democracy could come unraveled. Hungary’s constitutional system began imploding shortly after 2010 and in 2015 Poland began a short, sharp slide toward autocracy. In Hungary and Poland, parties with autocratically inclined leaders were voted into power. Both Viktor Orbán and Jarosław Kaczyński lied about their revolutionary ambitions before they were elected. Once in office, both began attacking judiciaries which were poised to hold them to account under the democratic constitutions they inherited. Continue reading

Donald Trump as Global Constitutional Breaching Experiment

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

Wie sich Autorität rechtfertigt: Expertise und demokratische Mehrheiten haben nur begrenzte normative Kraft

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

Reversing the Decline of Constitutional Democracy in Europe

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

Civil Liberty in Crisis? Evidence from a Comparative Empirical Study

Is there a fundamental trade-off between collective security and individual liberty? This question is by no means a new one for democratic societies. Long before the Islamist terror threat scenarios of the 2000s, Western democracies had been menaced by domestic terrorism, violent separatism, and organized crime and their reaction was always the same: security laws were tightened, new tools for keeping citizens under surveillance were created, the rights of suspects, accused persons, and convicts were restricted. Continue reading

World Peace through Law as the Grand Solution? On the History of Nineteenth Century Interstate Arbitration

Immanuel Kant’s Perpetual Peace (1795) might still be the most renowned philosophical voice that outlines – with mild irony – the relevance of the law (of nations) for “World Peace”. Borrowing from Kant’s insight that “war … is only the sad recourse in the state of nature (where there is no tribunal which could judge with the force of law)” (Sixth Preliminary Article), the nineteenth century saw an increasing number of successful attempts by scholars, politicians, and peace activists to put into practice third-party tribunals which arbitrated disputes between states by drawing on international law. Continue reading