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 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.

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.

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.

In criticizing the World Bank’s recommendations for China’s private law reform, Gunther Teubner suggested “polycontextural law” as the best direction for developing the Chinese legal system. This model, according to Teubner, can reconnect sources of law to multiple autonomous social fields and reflect historical–cultural diversity. However, this Article argues that by proposing polycontextural law, Teubner implicitly privileges private law as the “linkage institutions” that can be used to deconstruct the traditional political–legal paradigm of the “[k]ing’s two bodies,” and he undermines the role of public law in redressing the unequal “irritation capacity” of different social subsystems and in founding the framework for greater responsiveness to social needs. In this respect, the polycontextural law model has not sufficiently comprehended the risks of “social exclusion” and “dejuridification” in a transitional society such as China, where the legal system, instead of evolving through recursive operations, is prone to being co-opted by power and money through their dominant media of influence.