This Article argues that the classic “what is law” question deserves more attention in EU legal studies. First, it shows that questions about the nature and concept of law are of great practical relevance for EU law. Second, the Article endorses a distinctively realist outlook on EU law. This analysis concludes that a realist(ic) concept of EU law cannot be distilled from legal realism as a theory of adjudication. What is needed instead is a theory of law that can account for the social reality of EU law by weaving together law’s ideational and material dimensions. From the realist perspective, EU law is neither autonomous nor singular. This inquiry into the nature of EU law illustrates why different variants of legal and constitutional pluralism and inter-legality provide insufficient tools for theorizing EU law. Moreover, it challenges the EU’s current “politics of legality” and problematizes the law-power relationship in EU law, depicting the concept of law as key to the EU’s prolonged authority crisis.

In the face of an escalating climate crisis, climate litigation is increasingly being utilized as a means to set boundaries to States’ lack of climate action. In what stands as one of the most consequential climate cases to date, the European Court of Human Rights (ECtHR) determined in Verein KlimaSeniorinnen Schweiz and Others v. Switzerland that individuals have a human right to protection against the adverse effects of climate change. Through an in-depth analysis of the judgment, this Article explains the Court’s ruling that effective protection of human rights requires States to base their emissions reduction targets on a quantification of their fair share national carbon budgets in relation to the remaining global carbon budget for 1.5oC. This has far-reaching implications for the scrutiny of States’ emissions reduction targets. The Article shows that, as a consequence of the rapidly depleting remaining carbon budget for 1.5oC, States may no longer be able to remain within their fair share through domestic reductions alone. In such circumstances, States need to contribute to emissions reductions outside of their territory and reduce their domestic emissions at their highest level of ambition.

The Article revisits the public/private distinction to discuss, in this framing, the dispute over the classified documents and the immunity ruling of the U.S. Supreme Court, both concerning the President of the United States. After introducing the relevant provisions of the Presidential Records Act and the Espionage Act, the conflict is analyzed by means of a matrix distin, as well as public or private property and the public or private nature of the location where the presidential papers were stored. Guided by arguments taken from the theoretical discourse, the property-related public/private distinction is submitted to a review of its critical situations. The Article closes with four different readings of the public/private distinction—liberal, authoritarian, perspectival, and symbolic—that are applied to the conflict concerning the classified documents and the immunity ruling.

The Drittwirkung determined the discussion on the impact of fundamental rights on private relations, significantly influencing the dogmatics of fundamental rights and the paradigm of their application in Germany. The current state of development of the Drittwirkung is a result of a dialogue over the course of several decades in German academia between the Federal Constitutional Court and legal scholars, who point out the dogmatic deficiencies of this concept. The development of the problem of the phenomenon in question in the jurisprudence of the FCC progressed along two lines. Firstly, it consisted of the dogmatization of the Drittwirkung, as this is how the process of the clarification of the conditions for the radiating impact of fundamental rights can be described in its subsequent rulings. Secondly, the efforts of the FCC were aimed at searching for solutions alternative to Drittwirkung, which could justify the horizontal application of fundamental rights norms. The article reconstructs the dogmatization process of Drittwirkung with reference to the key rulings in the development of this concept. It presents a possible account of the relationship between Drittwirkung and Schutzpflichten. Finally, it argues in favour of a reorientation of the doctrine of the Drittwirkung, framing the horizontal application of fundamental rights as an interpretation in accordance with the constitution.

While the judgement of the European Court of Human Rights (ECtHR) in KlimaSeniorinnen v. Switzerland has been hailed by many as a landmark in climate change and human rights litigation, the response by Switzerland and many intervening parties has been less favorable. For instance, the Swiss legislative has been very critical in its review of the judgement, claiming it to be “judicial activism.” By dissecting the criticism voiced in the aftermath of the KlimaSeniorinnen judgement and by comparing this case to similar cases by national and international courts in regard to climate change this paper asks whether this is a unique and swiss-specific criticism or if there is an inherent problem when it comes to climate change litigation and the separation of powers. While acknowledging persistent general criticism of the ECtHR, this article concludes that it is likely that the connection to human rights drives such criticism more than the connection to climate change. This might be because human rights, especially in the international context, leave ample room for interpretation and the margin of appreciation doctrine leaves room for disagreement. Additionally, this paper finds that situations of vertical separation of powers are more prone to criticism than horizontal ones.

In this Article I argue that the European Court of Human Rights (ECtHR) exercises an under-acknowledged power to shape the constitutional norms of the EU’s legal order—a power that extends beyond that court’s role in influencing the interpretation of fundamental rights. In establishing this claim, I focus, in particular, on the ECtHR’s jurisprudence concerning Article 267 of the Treaty on the Functioning of the European Union (TFEU), which evidences a pattern of increasingly direct dialogue between the Court of Justice of the European Union (CJEU) and ECtHR on issues of EU constitutional law. I argue that this shift has positioned the ECtHR as a shadow constitutional court of the Union’s legal order—a development which now obliges the Union to confront the practical reality that, with or without formal accession by the EU to the European Convention on Human Rights (ECHR), the Union’s constitutional order is fundamentally integrated with the Convention and its court.

Scholars have increasingly discussed the concept of European Militant Democracy, that is, the EU’s defense of Article 2 TEU values against defiant Member States. But does EU law have anything to say about national militant democracy, specifically on measures such as bans of political parties? The possible role that EU law has to play in this area has so far been overlooked. Using the proposed ban of the AfD as an example, this Article discusses whether and under what circumstances EU law is applicable to national party bans. Arguing that national political parties fulfill an essential function for representative democracy in the EU, the Article finds that EU law is applicable to national party bans both within the context of elections to the European Parliament as well as in purely internal situations. Arguing that the concept of democracy in Article 2 TEU nevertheless allows for militant democratic measures such as party bans, this Article then carves out specific standards that national party bans must comply with as a matter of EU Law.

The concept of heteronomy, as developed by Kant, has long remained underutilized in constitutional theory. The present article takes as its point of departure Kant’s transcendental formulation of the balance between autonomy and heteronomy as a crucial element in the safeguarding of individual freedom and the integrity of the constitutional order. Kant developed his argument in two stages. In the transcendental, ahistorical stage, he constructs autonomy as a form of self-binding to certain universal maxims, which renders his constitutional theory a duty-based one, in which moral autonomy amounts to self-heteronomy. At this juncture, Kant maintains his principled objection to constitutional heteronomy as reflected in his argument about majority-decision, his rationale for a system of separation of powers that ensures legislative supremacy, and his anti-paternalistic account of law. In the pragmatic, historical stage, Kant’s arguments appear to have been shaped by his engagement with the political developments of the late 18th century. The adoption of an anthropological mode of thought led his constitutional theory to evolve towards a form of coercive heteronomy. A number of paternalistic attitudes can then be identified, including Kant’s endorsement of monarchy as a superior route to republicanism, his argument for constrained republican representation without universal right to vote, and his opposition to the right to resist oppression. While this article aims to provide an internal critique of Kant’s theory of constitutional heteronomy, it also underscores the timeliness of his contribution to the field, as it sheds early light on one of the formative dilemmas that continues to plague liberal constitutionalism today.

No one disputes the fact that the current environmental crisis requires a response. The subject of this paper is a relatively novel response that is gaining increasing traction: the rights of nature (RoN) approach. Proponents of RoN claim that if we recognize that natural objects and ecosystems are not things with which we may do as we like, but in fact are subjects of rights that place limits on the scope of permissible actions, then we might have a shot at addressing the environmental crisis in a satisfactory manner. This paper sets out to assess this claim, concluding that RoN is (1) morally problematic (it either leads to endless rights conflicts (biocentrism), or it problematically subordinates individual organisms to the biological whole (ecocentrism), (2) conceptually flawed (because rivers, mountains, and ecosystems are not the sorts of things that can bear rights), and (3) inefficacious in practice (appeals to RoN have typically failed in court and the instilment of environmental virtue in us will require more than just good laws). Two alternative approaches are discussed that combined could secure fundamental rights for humans regarding the environment, cultivate the appropriate character traits in them, and protect nature in the process.

A year defined by the judicial reform-overhaul in Israel reached its legal climax when the Government amended a constitutional law to abolish the courts’ ability to make use of the reasonableness doctrine, a common-law doctrine which allows courts to review administrative actions based on their “reasonableness”. Petitions to the Israeli Supreme Court were immediately filed, leading to a revolutionary ruling. For the first time in its history, all fifteen justices of the Supreme Court convened and struck down a constitutional amendment in an eight to seven decision.

While a majority was reached, a deeper inspection of the different opinions uncovers substantial differences in the justices’ theoretical approaches. This Article provides an analysis of the five major theoretical approaches utilized in the reasonableness ruling to justify or reject the existence of a limitation on constituent power in Israel: constitutional data, constitutional self-entrenchment, declarations of independence, natural law, and limitless constituent power.

The Article presents the unique insight that despite the unprecedented outcome of the ruling, none of the justices relied on the ubiquitous distinction between the primary and secondary constituent powers. As such, contradictory to common perception, the Supreme Court of Israel didn’t adopt the unconstitutional constitutional amendment doctrine in the reasonableness ruling. Instead, it adopted a much more radical doctrine according to which the Court may strike down any constitutional law–whether the product of the primary or secondary constituent power–so long as it is convinced that the constituent power’s authority was exceeded.

Current scholarship often views international environmental law (IEL) through a crisis or ambition lens. The “crisis lens” apologizes for the limitations of doctrinal methods in resolving disputes. The “ambition lens” seeks to align IEL with a planetary perspective but is criticized for utopianism. We offer a social-systems-theoretical alternative. IEL’s ability to learn and adapt to social change also depends on sustaining law’s function of stabilizing expectations. This constitutes the core of Luhmann’s theory of operative closure. We devise three hypotheses to reconstruct IEL’s operative closure and apply them to the South China Sea. Hypothesis 1: Environmental impact assessment norms address the problem of contingency management. Hypothesis 2: Due diligence norms address the problem of confidence maintenance. Hypothesis 3: Cooperation norms address the problem of trust retention. Our analysis shows that reconstructing IEL’s operative closure reveals its societal responsiveness. This presents a new critical lens for observing IEL’s social phenomena.

This Article contributes toward the growing body of literature addressing the burgeoning gap between normative and empirical accounts of constitutional change in the constitutional order of the European Union. It does so by shining a light on how the European Parliament, acting through its unilateral procedural rule making powers, has managed to wield its limited formal constitutional clout to alter the balance of powers between the core Union institutions, and to define its own role in the development of the political component to the EU’s constitutional culture. Given the European Parliament cannot be dissolved, and given there is at least the potential for such rule making power to be put to unconstitutional ends, the Article also considers the extent to which judicial oversight of this particular form of informal constitutional change is possible, and the form it may take should the validity of a particular procedural rule be challenged.

The goal of this Article is to contribute to the broader discussion on strengthening the resilience of the rule of law in Germany by focusing on how to protect trust in the judiciary and judicial independence against (possibly) radicalized judges. The Article provides an introduction to the current legal situation in Germany regarding judges’ active involvement in politics, as well as an overview of the historical background. It addresses the regulation governing the right to return to a post as a judge after having been a member of parliament, and disciplinary rules regarding appropriate behavior of judges. It illustrates the current legal status quo and considers possible consequences for judicial independence and public trust in the judiciary. The Article concludes with proposals to improve the resilience of the judiciary.

This Article explores how rape is criminalized through the design of criminal provisions, with particular attention to offense-construction principles. While criminalization theory typically asks whether conduct should be criminalized, this study examines the equally important question of how a criminal provision should be structured. Using a comparative legal and empirical analysis of legislative materials from Belgium, Germany, the Netherlands, and Sweden, the article identifies the principles that guide legislators in shaping the prohibition, legal classification, and sanction of rape. The analysis shows that legality, coherence, internal subsidiarity, effectiveness, guilt, retrospective proportionality, and legitimating principles such as harm, wrong, and legal interest play central roles, though their relative importance differs across jurisdictions. The actus reus receives the most detailed legislative attention, especially where consent-based models replace coercive ones. The study also finds that explanatory memoranda are most effective when principles are used in combination rather than in isolation. Overall, the article argues that offense-construction principles can improve the clarity, accessibility, and internal consistency of rape legislation, while also ensuring that legal labels and penalties better reflect the seriousness of the offense.

This Article brings together two important concepts in international law scholarship that have thus far been studied in isolation from each other: reputation and interpretation. Interesting insights lie hidden in their overlap. While interpretation is still commonly perceived as a sterile exercise in “legal logic,” the Article suggests that it is often better studied as a social practice, within which the relationships between the interpreters that are arguing with each other frequently matter as much as the arguments themselves. The Article therefore suggests a new way of looking at interpretation in international law: Interpretation as a practice of reputation management, where collective actors like states present themselves to others in the interpretations they adopt, and are evaluated by various audiences on the basis of these interpretations. The main argument can be summarized like this: If international law is relatively indeterminate, interpretation is a situated choice. By making that choice, an interpreter reveals something fundamental about itself to its audiences. Interpreters therefore carefully manage their interpretive expressions out of a desire to be well-regarded by these audiences. This phenomenon of reputation management has important implications for the practice of interpretation in international law.

The Indian Telecommunications Act 2023 has sparked significant discourse on whether the law perpetuates a colonial legacy, as its critics claim, or represents a decolonial turn, as asserted by the government. This Article argues that the Act does not constitute a genuine rupture but instead perpetuates existing power structures. Using a post-colonial lens, I trace the historical development of the telegraph network and its regulation during the colonial period, examining how the legal framework evolved post-independence, leading to the Telecommunications Act.

The Article analyzes how the telegraph, which was critical for British victory in the 1857 revolt, expanded significantly, fueled by colonial anxieties. It explains how the telegraph and its regulations became integral to the British emergency governance apparatus, essential for surveillance, control, and domination over the population. During this period, I identify three key aspects that constitute the colonial disposition underlying telegraph regulations: technology as control, state-subject dynamics, and relentless accumulation. I demonstrate how over a period of 150 years, despite changes in the legal framework and underlying technology, these key characteristics of colonial continuity have remained the same. The Article concludes that the Telecommunications Act fails to dismantle the colonial architecture, instead expanding its reach.

This Article examines the evolving stance of Russia and China on the use of sanctions, highlighting a notable shift from their traditional opposition to unilateral coercive measures toward increasingly employing such tools themselves. While both countries have consistently criticized sanctions not endorsed by the UN Security Council, recent practices reveal a growing reliance on national legal frameworks to impose retaliatory and strategic sanctions. China, for instance, has introduced targeted measures against foreign officials and companies, particularly in response to perceived threats to its sovereignty, such as arms sales to Taiwan. Russia, in turn, has enacted counter-sanctions against Western states through export bans and travel restrictions. The Article explores this duality and analyzes its implications for international law, contending that the gap between rhetoric and practice may signal a reconfiguration of the normative landscape surrounding unilateral sanctions.

Consent in data protection law is highly contentious. Critics argue that enabling people to make their own decisions is not feasible, as people are generally poor decision-makers. However, proponents insist on the value of consent as a tool of empowerment. This Article challenges the foundational assumptions of this debate: that consent is conducive to privacy; that the decision to share one’s data concerns mainly the person sharing them; and that if we were to bridge the gap between the layperson and the ideal decision-maker, we would achieve an optimal level of data privacy protection.

Setting aside these false assumptions, this Article aims to resituate the consent debate in a framework that rests on more solid theoretical ground. First, it connects the economic concept of data externalities with the philosophical idea of the harm principle. This highlights how unilaterally imposing burdens on others, without consideration of their interests, is morally unjustifiable, thereby depriving consent of its normative justification. Second, it examines privacy as a public good, demonstrating that even rational decision-makers are bound to freeride on each other’s data privacy and make everyone worse-off, thereby rendering consent undesirable. Therefore, this Article concludes that we should abolish consent, while retaining individual control over data through data privacy rights.

The Latin slogan iudex non calculat is on the rise. It appears in well over thirty English-language journals and a federal court decision in the United States; in Germany, more than sixty law journal articles mention the phrase in their titles alone, and German members of parliament have used it more frequently in the years 2020–2023 than in most previous decades combined. The phrase gets invoked as an “ancient”, “antique”, or “Roman” maxim of legal and political practice in Europe and the U.S. alike. Does this show how shared history unites even dissimilar legal systems? Hardly so. There is no general understanding of what the maxim is supposed to mean, or where it actually originated, or what rhetorical effect it serves. An exploration of these questions reveals a fascinating story of intellectual export across the Atlantic: The phrase is not, as commonly assumed, of Roman or antique origin, although it must be considerably older than 1850. It must have originated in Germany, where we find the oldest occurrences and whose authors, topics, and journals clearly drive its international propagation since 1947. There are at least four different interpretations of the maxim, each with opposing connotations, making it a versatile tool in lawyers’ rhetorical kit. While academics seem to use it mostly to produce an aura of erudition and epistemological authority, politicians employ it as an offensive or defensive quip mostly among male conservatives. Among German law students, it is by far the best-known principle, maxim or proverb related to law and numbers, although students, too, disagree about its exact meaning. While they acknowledge that the maxim has become part of German lawyers’ professional identity, many wish it were otherwise.

Informal international instruments increasingly influence domestic court rulings by serving as authoritative materials to interpret uncertain legal norms. This poses a significant democratic problem because the instruments originate from undemocratic international institutions and bypass parliamentary oversight. This Article challenges the established doctrinal description of the interpretative relevance of legally non-binding instruments by reimagining it through Niklas Luhmann’s systems theoretic description of law as communication. The approach reveals a decision-making mechanism that enables democratically suspect political influence to be exercised through the legal system. To address this systemic vulnerability, the Article argues that domestic courts can act as bulwarks of democracy when interpreting legal norms with applicable informal instruments. Drawing upon novel insights from Jürgen Habermas’s discursive theory of law and democracy and Martti Koskenniemi’s culture of formalism, the Article argues that a democratic legal culture—emerging from a democratic mindset held by judges who visualize themselves in the place of others—can help mitigate the democratic deficit of informal international instruments by bringing them into contact with discursive democratic requirements. Noting that courts are themselves capable of democratically questionable action, the Article finds that the democratic legal culture can also make legal systems more resilient to democratic backsliding.