German Law Journal最新文献_第9页

“Good” Court-Packing? The Paradoxes of Constitutional Repair in Contexts of Democratic Decay “好”的法庭包装？民主衰退背景下的宪法修复悖论

IF 1.3

German Law Journal Pub Date : 2022-10-01 DOI: 10.1017/glj.2022.75

T. Daly

{"title":"“Good” Court-Packing? The Paradoxes of Constitutional Repair in Contexts of Democratic Decay","authors":"T. Daly","doi":"10.1017/glj.2022.75","DOIUrl":"https://doi.org/10.1017/glj.2022.75","url":null,"abstract":"Abstract U.S. debates on reforming the Supreme Court, including controversial arguments to break the norm against court-packing to repair the democratic system, have generally focused on historical precedents and the domestic system, with scant comparative analysis. However, the U.S. debate raises fundamental questions for comparative constitutional lawyers regarding the paradoxes of constitutional repair in contexts of democratic decay, framed here as a distinct category of constitutional transition. This study argues that sharpening our analytical tools for understanding such reforms requires a novel comparative and theoretical approach valorizing the experiences of Global South states and drawing on, and connecting, insights across four overlapping research fields: Democratic decay, democratization, constitution-building, and transitional justice. The article accordingly pursues comparative analysis of the legitimacy of court-packing through case-studies of Turkey and Argentina to offer a five-dimensional analytical framework: (i) democratic context; (ii) articulated reform purpose; (iii) reform options; (iv) reform process; and (v) repetition risk. In doing so, this article seeks not to present a rigid check-list for evaluating the legitimacy of contested reforms, but rather, to foreground important dimensions of reforms aimed at reversing democratic decay as an emergent global challenge for public law meriting closer attention.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":"23 1","pages":"1071 - 1103"},"PeriodicalIF":1.3,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47985400","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 2

The Emergence of the Established “By Law” Criterion for Reviewing European Judicial Appointments 确立的欧洲司法任命审查“章程”标准的出现

IF 1.3

German Law Journal Pub Date : 2022-10-01 DOI: 10.1017/glj.2022.71

H. Karlsson

{"title":"The Emergence of the Established “By Law” Criterion for Reviewing European Judicial Appointments","authors":"H. Karlsson","doi":"10.1017/glj.2022.71","DOIUrl":"https://doi.org/10.1017/glj.2022.71","url":null,"abstract":"The “established by law” criterion recently emerged as an independent element of Article 6 of the European Convention on Human Rights (ECHR), through the European Court of Human Rights’ (ECtHR’s) judgment in Ástráðsson v. Iceland. The criterion imposes the obligation on states to appoint judges in accordance with the respective legal framework. Its emergence occurred at a precarious moment in European intergovernmental politics, with illiberal governments in several European states exhibiting tactics aimed at softening obstacles to their governing powers, upheld by their respective judiciaries. Through a dialog between the European Free Trade Association (EFTA) Court, the Court of Justice of the European Union (CJEU), and the ECtHR, the “established by law” criterion has now emerged in the European constitutional repository for thwarting such tactics. In this article, the story of this development is told through highlights from the case law of the European supranational courts and through the Icelandic backstory of the Ástráðsson case. This story reveals important nuances in how the case law needs to be understood with regards to the constitutional forces at stake. The conceptual approach of the ECtHR in Ástráðsson is also analyzed in context with Lon Fuller’s rule of law principle of congruence, which provides a framework for evaluating the merits of the Court’s tactic.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":"23 1","pages":"1051 - 1070"},"PeriodicalIF":1.3,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46317792","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 1

The Enemy Within? Article 259 TFEU and the EU’s Rule of Law Crisis 内部的敌人？第259条TFEU与欧盟的法治危机

IF 1.3

German Law Journal Pub Date : 2022-10-01 DOI: 10.1017/glj.2022.72

G. Íñiguez

{"title":"The Enemy Within? Article 259 TFEU and the EU’s Rule of Law Crisis","authors":"G. Íñiguez","doi":"10.1017/glj.2022.72","DOIUrl":"https://doi.org/10.1017/glj.2022.72","url":null,"abstract":"Abstract This article explores the role which Member State-led infringement proceedings can play in overcoming the EU’s rule of law crisis, and hypothesizes that it can prove helpful in breaking the current impasse. It begins by understanding why the EU’s “traditional” rule of law enforcement mechanisms—such as Article 7 of the Treaty on European Union (TEU) and the recent rule of law conditionality regulation—have failed (Section 2), before exploring how infringement proceedings operate, what their shortcomings are, and why Scheppele’s proposed “systemic infringement proceedings” are important (Section 3). It then seeks to apply said findings to the rule of law crisis, using two recent developments as an example: The oral proceedings of Commission v. Poland (Régime disciplinaire des juges) and a recent vote by the Dutch Parliament compelling its government to take Poland before the Court of Justice of the European Union (CJEU) (Section 4). Finally, it explores the broader constitutional implications of relying on Article 259 Treaty on the Functioning of the European Union (TFEU) to overcome the rule of law crisis: It discusses Kochenov’s notion of “biting intergovernmentalism”, what Article 259 illustrates about the European Union’s (EU) hybrid constitution, and how intergovernmental legal instruments can facilitate further European integration (Section 5). It concludes by restating and summing up article’s hypothesis.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":"23 1","pages":"1104 - 1120"},"PeriodicalIF":1.3,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46530108","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

A Kantian Moral Cosmopolitan Approach to Teaching Professional Legal Ethics 职业法律伦理教学的康德道德世界主义方法

IF 1.3

German Law Journal Pub Date : 2022-10-01 DOI: 10.1017/glj.2022.74

Omar Madhloom

引用次数: 0

Promoting Constitutional Literacy: What Role for Courts? 促进宪法素养：法院的作用是什么？

IF 1.3

German Law Journal Pub Date : 2022-10-01 DOI: 10.1017/glj.2022.73

Maartje De Visser

{"title":"Promoting Constitutional Literacy: What Role for Courts?","authors":"Maartje De Visser","doi":"10.1017/glj.2022.73","DOIUrl":"https://doi.org/10.1017/glj.2022.73","url":null,"abstract":"Abstract This article explores the role of constitutional judges in advancing constitutional literacy, understood as knowledge relating to the functioning of the constitutional order. Part of the inquiry is descriptive and geared towards identifying the modalities that courts today use to cultivate such literacy among the public, or segments thereof. The article also poses normative questions about literacy-boosting efforts. How do these relate to “typical” judicial functions? Are courts well-placed and equipped to disseminate constitutional knowledge? Based on an analysis of judicial practices, it is suggested that lay individuals are increasingly treated as a key constituency by courts, warranting the development of specially curated initiatives crafted with the values of inclusion, accessibility, and transparency in mind. This manifests notably in a turn to social media use and an incipient embrace of legal design thinking. The available literacy-boosting modalities are not without flaws, however, and we should be cognizant of limits regarding what can realistically be expected of courts in furthering popular constitutional knowledge. Notwithstanding room for improvement in the design and delivery of constitutional literacy, the existing judicial efforts when viewed in their entirety should be evaluated positively as making a meaningful contribution in meeting people’s interests in greater constitutional knowledge.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":"23 1","pages":"1121 - 1138"},"PeriodicalIF":1.3,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43363190","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 1

GLJ volume 23 issue 8 Cover and Front matter GLJ第23卷第8期封面和封面问题

IF 1.3

German Law Journal Pub Date : 2022-10-01 DOI: 10.1017/glj.2022.76

引用次数: 0

Lost in Translation? The Promises and Challenges of Integrating Empirical Knowledge on Migrants’ Vulnerabilities into Legal Reasoning 迷失在翻译中？将移民脆弱性的经验知识融入法律推理的前景和挑战

IF 1.3

German Law Journal Pub Date : 2022-09-01 DOI: 10.1017/glj.2022.62

Luc Leboeuf

{"title":"Lost in Translation? The Promises and Challenges of Integrating Empirical Knowledge on Migrants’ Vulnerabilities into Legal Reasoning","authors":"Luc Leboeuf","doi":"10.1017/glj.2022.62","DOIUrl":"https://doi.org/10.1017/glj.2022.62","url":null,"abstract":"Abstract The concept of “vulnerability” has become all-pervasive in EU asylum law and the ECtHR case law on asylum seekers and migrants, where it has acquired various legal meanings and functions. But many controversies remain on the legal nature, definition, and consequences of “vulnerability.” Based on lessons learned in the process of establishing the overall research design of the Horizon 2020 VULNER project and coordinating its implementation, this article identifies the contribution that anthropological knowledge can bring to ongoing legal debates and reflects on the conceptual and practical challenges that emerge when engaging in such an endeavor. First, the article shows the potential of anthropological research methods and concepts to shed light on the experiences of vulnerability as they are lived by migrants, and to reveal and question the underlying social and political dynamics behind the increased success of vulnerability in legal reasoning. Second, it argues that anthropology can only bring a useful contribution to legal debates on “vulnerability” if the knowledge it produces is adequately translated into legal reasoning—which requires acknowledging the differences between the goals of anthropological analyses, which are all-encompassing and seek to depict human experiences in all their complexities, and legal conceptualizations, which require establishing clearly defined notions that can be operationalized in—relatively—certain ways by decision-makers on the ground and that allow them to strike a balance between competing interests.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":"23 1","pages":"976 - 991"},"PeriodicalIF":1.3,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46422073","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

A Socio-legal Approach to Language Use in Administrative Settings in Belgium’s Dutch-Language Area 比利时荷兰语区行政环境中语言使用的社会法律方法

IF 1.3

German Law Journal Pub Date : 2022-09-01 DOI: 10.1017/glj.2022.63

Jonathan Bernaerts

{"title":"A Socio-legal Approach to Language Use in Administrative Settings in Belgium’s Dutch-Language Area","authors":"Jonathan Bernaerts","doi":"10.1017/glj.2022.63","DOIUrl":"https://doi.org/10.1017/glj.2022.63","url":null,"abstract":"Abstract This reflective article maps out the findings of a socio-legal study on language use in administrative settings in Belgium’s Dutch-language area. It explains how the author arrived at a socio-legal approach to this study object. Thereafter the article focuses on the methods used and the conceptual framework. It discusses the various methodological choices regarding data collection and the use of methods stemming from anthropology in this study. It also illustrates how anthropological literature on concepts such as discretion and multiple embeddedness provide conceptual tools for building a framework around which to structure and present the empirical data. The last part of the article sketches the findings of this socio-legal study. Drawing on the conceptual framework, it illustrates that even when practice deviates from statutory law, the relationship between the law and the practice cannot be easily captured in a dichotomic relationship. The author furthermore deduces some relevant findings in light of general human rights. The article concludes with some reflections on research that combines law and anthropology, both as separate disciplines and as a combined endeavor.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":"23 1","pages":"960 - 975"},"PeriodicalIF":1.3,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49483240","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Legal Scholars Engaging with Social Anthropology: Hardships and Gains 从事社会人类学的法律学者:艰辛与收获

IF 1.3

German Law Journal Pub Date : 2022-09-01 DOI: 10.1017/glj.2022.66

M. Foblets, Jean-François Gaudreault-Desbiens, Michele Graziadei

{"title":"Legal Scholars Engaging with Social Anthropology: Hardships and Gains","authors":"M. Foblets, Jean-François Gaudreault-Desbiens, Michele Graziadei","doi":"10.1017/glj.2022.66","DOIUrl":"https://doi.org/10.1017/glj.2022.66","url":null,"abstract":"Abstract This special issue of the German Law Journal showcases through concrete examples the conceptual and methodological toolbox that social anthropology has to offer and the added value of applying an anthropologically informed approach to legal thinking, argumentation, and practice. The contributions address a wide variety of highly topical, controversial social issues that are at the heart of the human condition, including gender recognition for non-binary people, family disputes brought before international courts, non-majoritarian language use in administrative settings, forced migration, and the impact of climate change and infrastructural development on local communities worldwide. This introduction outlines the research program into which the contributions gathered here fit; the choice of topics; and finally, the challenges the authors face in the process of integrating their intellectual encounter with anthropology into their reflections on law. The article concludes that taking recourse to anthropology can help jurists trained in state law to develop a more refined understanding of today’s societal complexity and challenges and, ultimately, to reach more nuanced, sensitive, and just decisions.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":"23 1","pages":"911 - 919"},"PeriodicalIF":1.3,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42305126","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 1

An Illustration of Anthropology’s Contribution to Refugee Law Research 人类学对难民法研究的贡献

IF 1.3

German Law Journal Pub Date : 2022-09-01 DOI: 10.1017/glj.2022.67

Katia Bianchini

{"title":"An Illustration of Anthropology’s Contribution to Refugee Law Research","authors":"Katia Bianchini","doi":"10.1017/glj.2022.67","DOIUrl":"https://doi.org/10.1017/glj.2022.67","url":null,"abstract":"Abstract This article contributes to the debates on the role of anthropology in refugee law research by showing the added value of an interdisciplinary approach to the understanding of complex asylum claims related to cultural and religious beliefs that are unfamiliar to the Western perspective. Based on the analysis of asylum claims in UK courts involving witchcraftbased persecution in the country of origin—both applicants who feared becoming victims of witchcraft practices and those who could be accused of having engaged in witchcraft practices—I demonstrate how anthropology can provide the tools for bridging the gaps between the law in the books and its implementation in practice and solving issues that are beyond the scope of the law. In particular, anthropology can feed into a broader legal conceptualization that accounts for the realities of our diverse societies and helps explain how fear of persecution due to witchcraft can indeed be real and connected with serious human rights violations. Moreover, cultural expertise can assist in assessing asylum claims in their cultural, historical, and political contexts, affording the claimant a fairer and better adjudicated outcome. Nevertheless, the use of anthropology inevitably comes with some challenges related to the different fields’ epistemologies, languages, and styles, as well as a lack of appreciation for interdisciplinarity in some areas of academia.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":"23 1","pages":"943 - 959"},"PeriodicalIF":1.3,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49123603","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0