In a thought-provoking article, Alec Stone Sweet put forward a problem he called the juridical Coup d'État. His work was the opening of a debate to which Neil Walker, Wojciech Sadurski and Gianluigi Palombella contributed. In a subsequent essay, Stone Sweet responded to their comments. In this article, I would like to sketch this debate and explore its significance for legal theory. It is my hypothesis that the problem of the juridical coup is closely connected with the relationship between constituent (constituting) and constituted (constitutional) power. Moreover, the juridical coup shows in an exemplary way how this relationship should be understood. Before addressing the problem in these terms (Section C), analyzing an additional example of a juridical coup in EU law (Section D) and developing my own position vis-à-vis the different contributors (Section E), in the following section, I will give an overview of the argument of Stone Sweet. Taking into account the wealth of issues raised by him, I will concentrate on those aspects of his essay that are of most interest from a legal-philosophical point of view. Thus, the first question to be answered is: What are we to understand under a Juridical Coup d'État and what is its theoretical importance?

I cannot avoid beginning on an embarrassing note –– speaking to you as possibly the next German Foreign Minister. That is a position I will have earned because it is a good old (bad) tradition in Germany that its Foreign Ministers speak English either not at all or so badly that it is better if they do not speak it. Some say that not being able to speak English is even a requirement for becoming Foreign Minister. Well, in that case my prospects are excellent. I hope you will forgive my poor English.

This article examines to what extent and how German administrative law and organisation have been changed by globalization, as well as the increasing reach and depth of global governance. A first chapter analyzes the legal discourse in Germany and finds that international (more than global) administrative law has become a major topic. It points to three different strands in German scholarship and highlights especially the proposal to conceptualize global governance as an exercise of international public authority. In a second step, the article examines three specific fields of law (environment, health and financial services) and analyzes how national administrative and legal structures have been influenced by globalization. In particular, it inquires what instruments of standard setting and forms of implementation have been used. Finally, the article acknowledges that globalization has had a tremendous effect on German administrative law, and describes seven instrumental and substantive modes of the effect of international rules on the German legal order.

In April 2011, University College Dublin (UCD) School of Law research students held their Fifth Annual Postgraduate Conference, the theme of which was “The Legacy and Future of the European Court of Human Rights (ECtHR). Evaluating Sixty Years of the European Human Rights Project.” The articles contained in this special edition of the German Law Journal reflect the efforts made at this conference by its participants. While the papers presented vary quite widely in their substantive content, they are connected by a recurring theme— that the ECtHR faces a crisis of legitimacy. A judgment is legitimate if it is persuasive to the civic society constituted by the European Convention of Human Rights (ECHR), and perceived as authoritative by the subjects affected by the ECtHR's decision. The judgments of the ECtHR are fiercely criticized and their legitimacy is repeatedly questioned by the Contracting Parties and media in particular, and by civic society in general. As it stands, the ECtHR is suffocating from the overwhelming number of applications lodged, and even the tiny percentage of those applications that are decided by it face “a barrage of hostile criticism,” as Michael O'Boyle outlines in his article. The ECtHR's future, to a major extent, depends on how this crisis is tackled.

Ten years have elapsed since the first Tobacco Advertising judgment, in which the Court for the first time concluded that the EU legislature had stepped beyond the limits of its competence to harmonize national laws which is granted by the Treaty. However, those subsequently seeking annulment of measures of harmonization have almost all been disappointed. This paper surveys the accumulated case law and finds that the “limits” of EU legislative competence, though of the highest constitutional significance in principle, are in practice imprecisely defined by the Treaty itself with the consequence that the legislative institutions enjoy wide discretion. The pattern has become circular: the Court presents a formula which defines the proper scope of harmonization and which sets out the control exercised by the principles of proportionality and subsidiarity, the EU legislature duly adopts the approved but reliably vague vocabulary and, provided the drafting is well-chosen, the Court has no plausible basis on which to set aside the legislative act. Case law dealing with the limits of EU competence has been converted into no more than a “drafting guide.” The paper shows how many of these deficiencies have been maintained uncritically after the reforms made by the Lisbon Treaty, even though a major part of the reform agenda initiated by the Laeken Declaration was inspired by “competence sensitivity.” Lisbon has instead put most of its reforming faith in a new recruit to competence monitoring - the national parliaments of the Member States. These new arrangements are poorly shaped at the level of detail, but the paper concludes with a largely positive assessment of the intention behind them. In particular they reveal a proper insistence on the need to supplement judicial control, which has become largely ineffective, with fresher political sensitivity to the perils of over-hasty centralization.

The increasing number of international judicial institutions, producing an ever-growing stream of decisions, has been one of the dominant features of the international legal order of the past two decades. The shift in quantity has gone hand in hand with a transformation in quality. Today, it is no longer convincing to only think of international courts in their role of settling disputes. While this function is as relevant as ever, many international judicial institutions have developed a further role in what is often called global governance. Their decisions have effects beyond individual disputes. They exceed the confines of concrete cases and bear on the general legal structures. The practice of international adjudication creates and shifts actors' normative expectations and as such develops legal normativity. Many actors use international judicial decisions in similar ways as they do formal sources of international law. To us, this role of international adjudication beyond the individual dispute is beyond dispute.

The welfare state aspect is among the central characteristics of German statehood as established by the constitution. For the Basic Law's drafters, it was so indispensable that they included the mandate of a welfare state in the catalogue of constitutional principles which are to have eternal validity within the constitution and which could only be dispensed with at the cost of breaching the constitution, the cost of revolution (Article 79(3) of the Basic Law (Grundgesetz in German; hereinafter “GG”)). Article 79(3) GG codifies the distinction between constitution and constitutional provision made prominent by Carl Schmitt, whose constitutional doctrine of 1928 asserted that, while the constitutional legislature can amend an individual provision in the constitution, the constitution as a whole is not to be changed short of political action transcending the law, that is, a revolution. Article 79(3) GG takes up this idea, insulating certain features of the constitution from amendment. These features—outside all democratic reach and thus quasi depoliticized—include the inviolability of human dignity (Article 1(1) GG) and the nature of the state as a democracy, a republic, a federal state based on the rule of law, and a “social” state (Article 20(1) GG). On closer scrutiny, the principles underlying the state's structure reveal a significant difference between, on the one hand, the principles of democracy, federalism, the rule of law, and republicanism and, on the other, the principle of the welfare state. The four former features stem from long traditions in constitutional law; modern political philosophy has detailed them precisely and the Basic Law concretizes them in thorough regulations. In contrast, the political history of ideas has failed to produce a “flag-bearing” thinker for the welfare state. The establishment of the welfare state has played no significant role in constitutional history. And, on first glance, even the Basic Law seems to provide hardly any specifics as to what exactly makes up its “social” state or, in particular, what normative consequences follow from this constitutional principle. This raises the question: What actually justifies the principle of the welfare state's illustrious position among those constitutional entities endowed with highest relevance? The following discussion develops the answer: Regardless of its limited historical and theoretical traditions, the principle of the Sozialstaat finds its meaning beyond its doctrinal content in its own distinct, symbolic substance.

In socially responsible investment terms, Germany is a contradiction. The country is considered by many as one of the pioneers of post-war environmentalism and social reform. Yet, German financial institutions are amongst the European laggards in adopting environmentally and socially informed approaches to investment. This article identifies a variety of legal, institutional and attitudinal factors which hinder the growth of the German SRI market. Its paltry size does not reflect evidence of any specific disinterest among German investors in social and environmental issues. Rather, it arises from a combination of structural impediments, particularly the institutional arrangements for German pension schemes that hinder their participation in financial markets, regulations which encourage conservative investments, and investors' preference for low-risk assets and avoidance of shareholder activism. Legal and institutional reforms over the past decade have in theory created better opportunities for SRI in Germany, although they have yet to engender significant changes in the market.

One day before the historic trial against Radovan Karadžić was due to begin, Biljana Plavšić, a former Bosnian Serb leader, was released from prison after serving two-thirds of an 11-year sentence for war crimes. She flew in from Sweden to Belgrade, where she was welcomed by the Prime Minister of Republika Srpska. While Plavšić was on her way home, more than a hundred representatives of Bosnian nongovernmental organizations were heading from home to the Hague, to be present for the beginning of the Karadžić trial. Drawing on cases of returning war criminals, this article argues that similar to Bosnian citizens and war criminals who are commuting in different directions, cosmopolitan and local forms of justice in Bosnia and Herzegovina are also progressing in opposite destinations.

I would like to address the European Court of Human Rights (ECtHR) from the perspective of its past, its present and its future. Where did this institution come from and why? It was the first Court to provide the opportunity to an individual to sue his government before an international tribunal although the initial expectation was that it would be State parties that policed each other under the system established. Why such a radical innovation and to what purpose? Why should State parties create a stick with which they themselves might be beaten?

Whether or not we have ourselves studied the philosophy of law, most of us are familiar with the fact that philosophical debate concerning the nature of law has been around since Ancient Greece. In much the same way, there have been long-running philosophical debates concerning justice, truth, reason and a host of other issues. The debate concerning law is in some respects different, however. For it is not too difficult to see how the nature of justice or truth or reason could give rise to a specifically philosophical debate, while it is far from clear why the nature of law should generate any philosophical puzzlement at all.

The practice of law has been challenged by the promulgation of transnational norms associated with “corporate social responsibility” (“CSR”), arising beyond the State, with little or no connection to traditional sources of positive law. These phenomena, which we will refer to as “transnational CSR norms,” are increasingly important guides to behaviour for corporate actors, despite the fact that adherence to such norms is not “required” by positive legal systems. Perhaps for this reason, transnational CSR norms are typically poorly understood and possibly underutilized in the practice of law. The purpose of this paper will be to determine, by recourse to legal theory, whether, and if so how, transnational CSR norms may be related to positive legal systems, and therefore to the practice of law. In so doing, we will seek to develop a theoretical understanding of the role transnational CSR norms can, do, and ought to play within processes of legal reasoning, particularly from the theoretical starting points offered by analytical/ positivist, and discursive theories of law.

This paper deals with the role of judicial decisions in international adjudication. It is impossible to fail to notice the abundance of prior cases invoked in decisions of international tribunals and that, in order to find out what the law actually is, reference to previous cases is all but inevitable in practice. In some areas of international law, judicial or arbitral decisions have even been said to be the centre of progressive development. Nevertheless, there is an undeniable and deeply-rooted professional trepidation in many parts of the world regarding this enduring phenomenon. Even absent a fully articulated theory of adjudication or legal reasoning, the very idea of “judicial lawmaking” tends to arouse instinctive suspicion, especially when coupled with a denial of any restraining force of prior cases. Be that as it may, observations to the extent that judicial decisions are not veritable sources of international law or only binding between the parties in a particular dispute are only the beginning, and far from the end, of the present inquiry. Several interrelated and intricate questions need to be disentangled and dealt with in order to get a better grasp on what is commonly, and often rather unhelpfully, lumped together loosely under the vague label of “judicial precedent.” The paper is hence partly descriptive and partly revisionary. I do not however intend to rehash general criticisms or defences of precedent. Instead, I aim to present precedent as a general and omnipresent jurisprudential concept that enables and constrains judicial decision-making even in seemingly ordinary cases and to then showcase the specificities of one particular legal system in this respect, namely public international law. Hopefully this provides some of the methodological groundwork for other questions central to the present project, not least concerning the legitimacy of judicial lawmaking.

On the occasion of the republication of the “blue volume,” containing the proceedings of the 1986 “Critical Legal Thought: An American-German Debate” Conference at the University of Bremen Law School, much or little might be said as to the significance, promises or learned lessons of that event. The original conference conveners, like the editors of the ensuing volume, do much of that in the following pages. In fact, their recollection of the motivations and ideas driving the transatlantic event provides a marvelous view into the evolving mystery of legal thought, education and professionalism - on both sides of the Atlantic. The two accounts rightly embed the mid-1980s conference in a much larger historical context. Christian Joerges’ much-referenced account reaches back deep into the constituting phases of nineteenth-century German legal thought. David Trubek's essay is a thoughtful critical assessment of both the gaps and the overlaps between the German and the American legal cultures in the lead-up to and of the globalizing aftermath of the event.

According to liberal political theorists, such as John Locke and Adam Smith, liberty and equality are competing values. In Canadian constitutional law, the commitment to liberal individualism has pushed questions of socio-economic rights from the constitutional sphere into the political one.

Only a few European integration experts know that Jean Monnet, one of the masterminds of the European Coal and Steel Community, strongly preferred the European Atomic Energy Community to the European Economic Community in the 1950s and 1960s. From his point of view, sectoral and technical cooperation in the field of nuclear energy seemed to be much more promising in order to foster European integration than cross-sectoral economic integration. Monnet and others believed that nuclear energy could, inter alia, solve all energy supply problems, would revolutionize research and technical development, and could contribute to unifying the peoples of Europe in a few decades. However, nuclear energy in general and Euratom in particular have belied these expectations.

After the Sporting Exchange and Ernst Engelmann rulings of the European Court of Justice (ECJ) in 2010, it is now entirely clear that the process of granting exclusive rights to undertakings must be conducted in compliance with the Treaty rules on free movement, particularly in accordance with the consequent principles of non-discrimination, equal treatment and transparency, irrespective of whether the right is awarded by means of a public contract or by other legal means (public or private). Thus, even if public authorities wish to exclude competition in a given market due to justified reasons, and are authorized by EU law to do so, they must nonetheless ensure a sufficient degree of competition for that market so as to ensure an undistorted rivalry of the various market operators at the stage of application for that right. It is submitted that the public authorities granting exclusive rights should not complain about the requirements that are imposed upon them by the TFEU rules. After all, by granting exclusive rights within competitive and transparent procedures, the public authorities have an excellent chance to select, from among the many potentially interested operators— including those from other Member States— beneficiaries that will best serve the needs of the relevant community. In turn, if they want to depart from those requirements, they must substantiate the existence of a clearly defined public interest that is capable of outweighing the benefits resulting from a competitive and transparent procedure.

There is no uniform approach to assessing scholarly publications in legal research. Peer review is still the most accepted form, but the popularity of bibliometrics, such as the impact scores of journals and the citation scores of individual articles is increasing. However, there is no ranking of European law journals and none is likely to materialise any time soon. Comparing the UK, Belgium and the Netherlands, we will demonstrate why both peer review and the use of metrics have serious shortcomings. We believe it is necessary to think about such alternatives as more attention for methodological justification in legal research, more clarity from editorial boards about the quality criteria being used to approve or reject submissions, and more emphasis on standards for different forms of legal scholarship. Last but not least, we call for a Europe-wide debate on the pros and cons of different systems of research assessment, rather than let every country reinvent the wheel.