Immigration, more than anything else, has revived the question of collective identity. Immigrants encourage nation-states to define themselves, as George Orwell noted: “It is only when you meet someone of a different culture from yourself that you begin to realize what your own beliefs really are.” Immigration policy echoes constitutional identity by mirroring not only the qualities that “we” value in others, but also by reflecting the essentials that define “us” as a nation. In a sense, drafting immigration requirements is a form of nation-building. Immigration and citizenship requirements—the requirements that “they” must fulfill in order to join “us”—define “our” way of living, form of thinking, and mode of good behavior. By investigating the requirements for becoming a citizen, we can learn a great deal about who “we” are as a nation.
At a time when we can no longer take the transatlantic relationship for granted, the international law firm Jones Day and the German Law Journal are pleased to announce the 6th annual Transatlantic Seminar, which will take place March 5-12, 2017. This successful program brings German and American law students together for a week-long, intensive block-seminar focusing on comparative constitutional law and visits to the German Federal Constitutional Court (Karlsruhe) and European Court of Human Rights (Strasbourg). The 2017 seminar will take place in Frankfurt am Main.
On 17 January 2017 the German Federal Constitutional Court issued its long-awaited judgment on the federal states’ application to ban the National Democratic Party of Germany. The Second Senate rejected the application, finding that the party lacked the capacity to implement its grotesque ideology in a manner that might pose a tangible threat to Germany’s “free, democratic basic order.” This seems likely to be the last stop in the scrutiny of the NPD that has spanned decades. The German Law Journal has covered many of those clashes, dating back to its first volumes:
At least for today, Americans have made their choice. America will not be a society of inclusion, tolerance, and dynamism. It will be a society of exclusion, resentment, and retreat. But Trump’s victory in the presidential election is surely not the end of the story. As The Economist put it recently, the new political paradigm can be summarized as a struggle over the question: drawbridges down or drawbridges up? The Central European states in the Visegrád Group are closing them. The British have been counted, too, leaving a “hard” or “soft” Brexit the only matter left to debate. The French will weigh-in on the matter soon enough. With its federal election looming, Germany with a surging AfD, won’t be far behind. The new spirit of parochialism has a decidedly cosmopolitan character. We are all in this nationalist moment together.
The GLiC program, which was recently discussed in the Frankfurter Allgemeine Zeitung, advances the claim that law, especially when studied from a comparative perspective, must be situated in its context and understood as the expression of historical, political, social, cultural and economic “traces,” which inform the positive norms that are lawyers’ typical preoccupation. This is a commitment to the practice of thick and critical comparison.
The German Law Journal has a proud and successful tradition of publishing timely and innovative special issues. Some of these have become standard works in their respective areas of research. The Journal’s board often develops these. But each year the Journal also publishes one or two special issues that have been curated by external, guest editors. Many of these are publications following a conference and are much more widely read than edited collections by publishers. We particularly encourage the submission of special issue proposals that engage with cutting edge research within the ambit of German, European, Comparative, and International law and advance the dynamic, and increasingly meaningful, fields of transnational legal scholarship.
Is it happening again? News in the last weeks of Deutsche Bank’s “troubles” are an unsettling reminder of the trauma of the recent Great Recession and the financial mismanagement and hubris that set it in motion. Should states intercede on behalf of financial heavy-weights if the market fails miserably, putting the public and the broader economy at risk? How would that go down with those affected by austerity in the wake of the Great Recession? This is not just academic speculation. Considering that austerity is probably one of the factors preparing the ground for the surge in right-wing populism or the Brexit vote, this raises the question how democracy can be reconciled with a market-oriented financial order that tends towards crises like the current one. To make matters worse, German and American politicians face the shock-waves of the Deutsche Bank disruption just weeks before the U.S. presidential election will be decided and at the start of the country’s quadrennial parliamentary election campaign.
The program advances the claim that law, especially when studied from a comparative perspective, must be situated in its context and understood as the expression of historical, political, social, cultural and economic “traces,” which inform the positive norms that are lawyers’ typical preoccupation. This is a commitment to the practice of thick and critical comparison.
German Law Journal Editor Plays Prominent Role at the Annual Meeting of the Association of German Public Law Professors (Linz – 7 October 2016)
Prof. Jürgen Bast (University of Giessen), a member of the German Law Journal ‘s Editorial Board, will deliver a lecture on the subject “Völker- und unionsrechtliche Anstöße zur Entterritorialisierung des Rechts” (“International and Union Law Impetuses for the De-territorialization of the Law”) at the Annual Meeting of the Association of German Public Law Professors (Linz).
Bast is a widely-recognized expert in the areas of European Union law and refugee/asylum law. Professor Bast has featured prominently in the media as the European refugee crisis has dominated the public’s attention.
Conscious of Germany’s special ties to Turkey, we have been proud to publish commentary and scholarship across the years that have considered the nexus of German and Turkish interests (including the constitutionality of the deployment of German AWACs to Turkey during the 2003 invasion of Iraq). As a forum for European Union law, we have also hosted commentary that reflects on Turkey’s accession process, particularly the rights of Turkish citizens, under the Association Agreement, while they are in the Union. But, embracing our transnational mandate, we have also published articles that engage with “ordinary” Turkish law (including contributions on Turkish bankruptcy law and the Turkish legal regime for promoting renewable energy). The GLJ has also published research on Turkish law that is painfully relevant today, including Bülent Algan’s article on the freedom of speech in Turkey: “The Brand New Version of Article 301 of Turkish Penal Code and the Future of Freedom of Expression Cases in Turkey” (2008).
The German Law Journal is proud to publish in the August 2016 issue Barbara Havelková’s article “Resistance to Anti-Discrimination Law in Central and Eastern Europe–a Post-Communist Legacy?” It is a thoughtful engagement with the way society, history and culture interact with the law.
The German Law Journal has a long-running interest in the law’s historical position, not the least because our transnational understanding of the law requires us to be conscious of more than mere text and to go beyond traditional dogmatics. In this sense, the GLJ has made a modest contribution to legal history’s new moment. We are proud that two new contributions, in the August 2016 issue, continue this tradition. Haferkamp’s article survey’s the history of the German theory of legal method. And Jaggi’s article looks back to reunification to assess that historic moment as a matter of revolutionary constitutional law-making. We think these excellent contributions come close to Fisk’s and Gordon’s summons to “law as history,” as opposed to “law and history,” because of their “conscious and careful scrutiny of the past,” which makes history a central part of their sociolegal sensitivity.
With the world’s eyes turned toward Rio and the summer games, the German Law Journal is pleased to have published this month the smart contribution from Brazilian researcher Thiago Luis Sombra on the Brazilian Supreme Court’s public hearings.
In equal measure the editors of the German Law Journal express their outrage over the recent carnage at the Pulse Nightclub in Orlando as well as their sympathy and solidarity with the wounded and the grieving.
The law has a fundamental role here, too. It must take an unequivocal and unwavering stand for the dignity and equality of all, no matter their sexual-orientation or sexual-identity. Especially at this time the Journal is proud to be able to offer a set of five articles that engage in a comparative reflection on the law concerning same-sex marriage in a number of jurisdictions, including the European Union, the European Human Rights system, Italy, Germany and the United States. These articles, and the steady legal gains they document for the LGBTQ community, present a modest but hopeful light against the darkness of the Orlando murders.
The German Law Journal has a proud history of publishing in the fields of European, Transnational, and Comparative law. Much of this work engages, on the one hand, with the ways free movement rights and harmonization processes affect and possibly benefit European citizens and, on the other hand, how the different legal traditions of the Member States inform, develop, and enhance European law and its application. The editors of the German Law Journal consider the English common law tradition to be a cherished part of Europe’s socio-legal heritage. The European project and our life in the law will be poorer should this week’s referendum lead to a “Brexit”. We know first-hand how the encounters between English law and the different legal cultures found on the Continent enliven and exhilarate and exasperate comparative and transnational law projects. Some of our editors are living that comparative experience. And our content shows that our authors and readers appreciate this as well. For example, our recent special issue The Preliminary Reference to the Court of Justice of The European Union by Constitutional Courts explored multi-layered narratives regarding the dialogue between the national courts and the CJEU and provides useful insight into how and when national courts engage with the European dimension. One contribution focused on the U.K. Supreme Court in this context. But national influences—including Britain—on the European order and transnational legal discourse and imagination are not limited to the preliminary references procedure. We have published comparative studies on a wide range of subjects. In private law, for instance, Richard Best examined Asbestos liability regimes in England and Germany and defective products liability law in England and Germany. In criminal law, Susanne Beck considered the different concepts of corporate criminal liability in England and Germany while Michael Jasch wrote about the vanishing differences between English and German police and prosecution practices. For us, these comparative encounters within the context of the European Union, should not mean that the Member States must sacrifice their national legal identity, as was demonstrated by the reflections on English law in Justice Hoffmann-Riem’s essay on the 200th anniversary of the U.S. Supreme Court’s seminal Marbury v. Madison decision. Stay, Britain. You make us better.
The ICON.S meeting in Berlin from 17-19 June 2016 gave us the unique chance to reflect on the role of transnational legal publishing for the spread of public law scholarship beyond borders. This is because German legal scholarship is the site of a distinct—but representative—struggle between legal scholarship’s parochialism and cosmopolitanism. ICON.S convened at the moment’s epicentre. The German Law Journal’s associate editor Matthias Goldmann hosted a panel discussion on Sunday, 19 June 2016 that surveyed the state of affairs in legal scholarship beyond borders. The panel brought together Joseph H.H. Weiler from ICON, Mattias Kumm from Global Constitutionalism, Russell Miller from German Law Journal, Max Steinbeis from Verfassungsblog, Judge Marta Cartabia from the Italian Journal of Public Law, and Fernando Muñoz the Revista derecho y crítica social. The panelists reflected on questions that have featured in the German Law Journal in the past, such as those addressed by a special celebrating our 10th anniversary in 2009, with contributions by Brun-Otto Bryde, Armin von Bogdandy, Susanne Baer, Karlheinz Ladeur, and many others. We were also honoured to host a programmatic essay by Giacinto della Cannanea introducing the Italian Journal of Public Law in 2010.
On 20 June 2016, the Bundesverfassungsgericht (German Federal Constitutional Court) will rule on the compatibility of the ECB’s programme of Outright Monetary Transactions (OMT) with the German Constitution. OMT allows the ECB to purchase bonds from the Eurozone member states on the secondary market. Earlier in 2014 the BverfG held, in a preliminary reference to the European Court of Justice, that OMT was incompatible with both EU law and the German Constitution. The ECJ, in 2015, rejected the former conclusion, holding instead that nothing in EU law prevented the potential operation of the OMT programme on the terms set by the ECB. The BVerfG now has had the chance to review – for a second time – the compatibility of OMT with the German constitution. More specifically, the Constitutional Court has had to grapple with the notion of “constitutional identity,” which it had first elaborated in the ruling on the legality of the Lisbon Treaty.
The German Law Journal has been at the forefront of the academic debate surrounding the OMT Case. After the original decision by the BVerfG, we published a comprehensive special issue that assessed the “bite” by the BVerfG from many different perspectives – including the view from German constitutional law, the implications for monetary policy, the effect on European constitutional and institutional law, and the question whether courts are the appropriate institution to adjudicate in matters of economic policy. After the reaction of the European Court of Justice in 2015, we published a special section that analysed the judgment on its merits, as well as on the implications for the role of national identity in EU law, the principle of equality of states, and the tension between democracy and capitalism that underlies the whole OMT saga. Of course, the German Law Journal will continue this coverage of the OMT Case in the coming months, including a special issue that addresses the tension that underlies the Euro-crisis and its management as such: that between capitalism and democracy.
The German Law Journal has a proud and successful tradition of publishing timely and innovative special issues. Some of these have become standard works in their respective areas of research. The Journal’s board often develops these. But each year the Journal also publishes one or two special issues that have been curated by external, guest editors. Many of these are publications following a conference and are much more widely read than edited collections by publishers. We particularly encourage the submission of special issue proposals which engage with cutting edge research within the ambit of German, European, Comparative, and International law and advance the dynamic, and increasingly meaningful, fields of transnational legal scholarship.
While we have always found the collaboration with guest editors to be invigorating and mutually beneficial, we now we receive many more special issue proposals than we are able to publish. So that our selection and development of the special issues we publish has the greatest possible integrity—ensuring both the highest quality for our readers and the best possible experience for our guest editors—we have coordinated our review of proposals into a single process to be completed well ahead of the year in which the selected projects will publish. This gives us the time we need to carefully consider the proposals. It also allows us to work closely with the guest editors to ensure that the content of these special issues meets the Journal’s high standard for quality.
The next deadline for submission of special issue proposals is:
Jan Böhmermann’s satiric poem speculating on Turkish President Recep Tayyip Erdogan’s fondness for animals has again uncovered Germany’s complicated relationship with free speech. In this month’s issue, the German Law Journal publishes Christian Hillgruber’s essay on the “Legal Limits of a Permissible Criticism of Religion.” It is a timely contribution. Paragraph 166 of the German Criminal Code criminalizes defamation of religions, religious and ideological associations: “Whosoever publicly or through dissemination of written materials (section 11(3)) defames the religion or ideology of others in a manner that is capable of disturbing the public peace, shall be liable to imprisonment not exceeding three years or a fine.” This provision is similar – in content and values – to Paragraph 103, which is the provision under which Böhmermann can now be criminally charged – after Chancellor Merkel cleared the way for a criminal investigation. The German Basic Law anticipates limits on the freedom of speech – providing that the right to free expression opinions, to inform oneself, and to a free-press “shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honor.” The search for a balance between honor and liberty has led to some of the Federal Constitutional Court’s most prominent decisions.
The German Law Journal has often covered these fundamental questions. Winfried Brugger published a magesterial survey of “The Treatment of Hate Speech in German Constitutional Law” in 2003. Some years later, animated by Professor Weiler’s experience in the French courts, the Journal published a mini-symposium on “critical book reviews and academic freedom” featuring contributions from Ignacio de la Rasilla del Moral and Kate Sutherland.
The German Law Journal almost seems to have anticipated the Panama Papers Controversy. Our first issue of the year featured an impressive set of contributions on ethics and corruption (Volume 17, No. 1 – 2016). Our interest in reporting on these issues is not new. A decade ago we published Martin Keller’s commentary on Germany’s amnesty for tax-cheats. Keller provided a useful survey of the history and legal doctrine surrounding the issue of tax evasion, punishment, and redemption. These problems also featured prominently in contributions to our recent special issue Regeneration Europe (Volume 14, No. 5 – 2013). In his article in that collection, Augustín José Menéndez argued that tax havens contribute to the “Existential Crisis of the European Union” because they are evidence of “the decline in the cognitive basis of tax and regulation activities.” Menéndez noted the structural fiscal weakness plaguing the EU and its Member States as a result of the financial sector’s ability “to make use of transnational investment opportunities to avoid paying taxes…” Floris de Witte contributed to the Regeneration Europe special issue with an article entitled “EU law, Politics, and the Social Question.” He mentioned tax havens as evidence of policy-makers’ internalization of the implications of globalization. Some years earlier, Augustín José Menéndez published a review of Danny Nicols’ book The Constitutional Protection of Capitalism (Hart 2010) in which he examined Nicols’ treatment of London City’s neo-liberalism as a cause of the emergence of tax havens in the British West Indies. Menéndez approved of Nicols’ conclusion that deregulation of the financial sector in London had created the conditions that undermined effective capital controls in the European Union’s Member States.
Constitutional Court to Rule on Counter-Terror Law
GLJ Coverage of Germany's Counter-Terrorism Regime
The German Law Journal was established not long before the 11 September 2001 terror attacks in the U.S. Unavoidably, our interest in the law’s transnational frame has been particularly marked by the global struggle to combat terrorism. We have covered many dimensions of this complex constellation of issues, including – but by no means limited to – the implications for German law and policy. In that tradition we will publish a case-note in a forthcoming issue reporting on the German Federal Constitutional Court’s seminal decision that responds to challenges to amendments to the Federal Criminal Police Act (BKA Gesetz). The First Senate’s judgement will be announced on 20 April 2016.
The constitutional complaints, brought by a number of current and former Green Party Parliamentarians, challenged amendments to the BKA Gesetz that considerably expanded the authority of the Federal Criminal Police Office to gather intelligence on and conduct criminal investigations regarding terrorist threats in Germany.
The case raises some novel federalism issues because the amendments to the BKA Gesetz were enacted pursuant to the new legislative competences assigned to the Federation as part of the last decade’s comprehensive federalism reform in Germany. In particular, new Article 73(1)[9a] of the Basic Law is at issue. Paragraph 9a gives the Federation the exclusive competence to legislate regarding the Federal Criminal Police Office’s protection “against the dangers of international terrorism when a threat transcends the boundary of one Land, when the jurisdiction of a Land’s police authorities cannot be perceived, or when the highest authority of an individual Land requests the assumption of federal responsibility.”
But the heart of the case involves basic rights challenges to the BKA’s newly acquired authority to engage in human and signals intelligence-gathering in Germany. These include, among other powers, telecommunications surveillance, the use of informants, online searches, and data-mining. Of course, the Court considered these challenges in the long, dark and conflicting shadows cast over Germany by the NSA-Affair, on the one hand, and the recent terrors attacks in Paris and Brussels, on the other hand. It promises to be a profound test of the Constitutional Court’s ability to balance the constitutional commands of liberty and security.
The Court’s decision will join a number of others it has issued in the years since 2001, a period during which Federal Governments led by parties on both ends of the political spectrum (and coalitions of those parties as well) have sought to expand and refine counter-terrorism authority. The Court’s response, especially with respect to the interests in informational privacy that are implicated by the BKA Gesetz amendments, has been measured. In many cases the Court has allowed underlying legislation to stand while demanding that the Government be required to exercise its counter-terror powers more proportionally. The German Law Journal has provided coverage of many of these developments in German law. This includes the remarkable special issue Security, Democracy and the Future of Freedom. Five of the special issue’s twelve articles focus on developments in German law and policy, including Oliver Lepsius’ frequently-downloaded early survey of Germany’s post-9/11 counter-terrorism initiatives and Christoph Safferlilng’s essay examining whether the German criminal law was suited to make a contribution to the struggle against terrorism. Wilhelm Achelpöhler and Holger Niehaus, in their contribution to the special issue, anticipated the question of data-collection and data-mining, which has been a prominent concern for the Federal Constitutional Court. Verna Zöller passionately argued for the rule of law and the integrity of human rights in her contribution to the special issue.
The German Law Journal’s coverage continued, and was brought up-to-date, by a symposium collection published in 2012 under the direction of Christoph Safferling and Arndt Sinn.
The Journal has also published case-notes or commentary on most of the Constitutional Court’s counter-terrorism jurisprudence, including the 2006 Air-Traffic Security Act Case, 2006 decision in the Data-Mining Case, the 2008 Data-Retention Case, and the 2010 Online Search Case.
The German Law Journal has been a pioneer in developing free on-line publishing of legal research. It has proudly and decisively been an open access forum since its launch in 2000. Moreover, the GLJ is an example of the fact that an open access journal can maintain the highest standards of scholarly quality. Our commitment to open access has given our authors a remarkable readership that is impressive both numbers and geographic scope. It has also facilitated a scholarly discourse among our authors and readers that helps to realize the very best vision of academic research. From the beginning, the Journal understood these advantages – and the ways that open access fulfills the scholarly mandate for transparency and collaboration.
The world is catching up with the German Law Journal. Now, research across the disciplines and around the world is following our lead. The paramount examples include, among others, the visionary initiative of the Germany’s Max Planck Society and its 2003 “Berlin Declaration on Open Access to Knowledge in the Sciences and Humanities” ; an open-access manifesto by the provosts of a dozen of America’s leading research universities (2012) ; the policy adopted by the Faculty Senate of the University of California and the European University Association (nearly 1000 institutional members in 46 countries) in 2013; and last, but not least, the wide-ranging policy of the European Union endorsing open access objectives through its various research funding programs and the recent Open Science Initiative.
Germany - and Europe more broadly - are grappling with the refugee crisis, which poses political, social and legal challenges. The German Law Journal has published commentary and scholarship that helps illuminate the issues. In a contribution to the 2014 Special Section "Europe and the Lost Generation," Daniela Caruso wrote movingly about the role European Union law has played in producing a generation of refugees and immigrants who have been "Lost at Sea." Caruso examined the way the law has both tolerated - and facilitated - circumstances in which many "have literally drowned in the waters of southern Europe in their quest for a better future." Anticipating the present crisis, Caruso was concerned with "the relation between the increasing permeability of internal borders and the obstacles that third country nationals encounter at the EU's external frontiers." In 2010, GLJ editorial board member Jürgen Bast, published the article "Of General Principles and Trojan Horses--Procedural Due Process in Immigration Proceedings under EU Law." Bast, who has emerged as one of Germany's leading scholars on refugee and asylum law, used immigration procedures to consider the "broader question of the role of the general principles of EU law in respect of administrative decision-making." Bast was aware of the way European Unionadministrative law would come to significantly influence national law and policy. The current events vindicate his claims. In 2007 Hans-Christian Jasch (now the Director of the memorial installation at the Haus der Wansee-Konferenz), in an insightful article, examined "State-Dialogue with Muslim Communities" in Italy and Germany. The article usefully documents the demographics of Islam in Europe. Jasch also paints a less-than-optimistic picture of the social forces and legal regimes that hinder integration in Italy and Germany. Today's refugee crisis makes Jasch's commentary and concerns more relevant than ever.
Ethical Challenges of Corrupt Practices
Formal and Informal Conflicts of Norms and Their Moral Ramifications
The first issue of the German Law Journal’s 17th Volume presents special coverage on the “Ethical Challenges of Corrupt Practices.” It was edited by Sebastian Wolff of the University of Konstanz and Peter Graeff of the University of Kiel. Sadly, as the recent developments at FIFA suggest, there is still quite a lot to be done in the effort to understand and combat corruption and bribery around the world. Germany is no exception, despite Transparency International’s conclusion that the country has a “good to very good” level of integrity. For example, Germany is bracing for the results of an investigation into the circumstances by which it won the right to host the 2006 “Sommermärchen” World Cup Tournament. Despite the persistence of the problem, it remains an underdeveloped area for scholarly inquiry. The German Law Journal is pleased that this special issue – which surveys and assesses reforms and new legislation at the national, regional, and international levels – will make an interdisciplinary contribution to much needed research on the issue.