The motivation and agenda of the German contributors to the “German-American Debate on Critical Legal Thought”, were not, and certainly could not, be uniform, neither within the American nor the German group of participants, let alone between Americans and Germans. It seemed nevertheless obvious at the time that we shared a number of concerns. Four seemed obvious and particularly important: Uneasiness, albeit for different reasons, with our respective mainstream traditions; a concern for social justice, albeit in different societies and with different priorities; the critique of our educational systems though they differed so markedly; an awareness of the discrepancies between the law on the books and the law in action which generated contextual studies and all sorts of “law and…” endeavors. Neither during the laborious preparations of the 1986 conference nor during the equally demanding publication process and not even with hindsight is it conceivable to identify comprehensively and exactly our communalities and differences. This is why we have decided to write separate introductions. Mine will proceed in three steps. The first is a reconstruction of German, more precisely: my own, motivation and agenda (A). The second step reproduces in the form of an essay the proposal submitted to the Volkswagen Foundation in 1985, the funding organization for the conference (B). The third summarizes much more briefly what I see as accomplishments and failures - and ensuing challenges (C).

The European Convention of Human Rights (ECHR) should be an instrument of development and improvement rather than an “end game” treaty which froze the state of affairs that existed 60 years ago. At the same time, evolutive interpretation should not be tantamount to arbitrary interpretation. This paper seeks to explain how the European Court of Human Rights (“ECtHR”) strikes a balance between development and stability.

International courts and tribunals are firstly and particularly conceived to settle legal disputes between States and/or other organs or individuals admitted as parties according to the statute of the respective court by means of a binding decision. An advisory function is not inherent in the function of a judicial body, but has to be transferred expressly upon a court or tribunal in the constituent instrument. For non-standing judicial bodies, i.e., arbitral tribunals, an advisory function is rather unusual, but not altogether ruled out: The parties to a compromis may empower the tribunal to give an advisory opinion.

In recent years, German nationality law was subject to changes. Several legal issues that had previously not been decided by the Bundesverwaltungsgericht (Federal Administrative Court—FAC) and the Bundesverfassungsgericht (Federal Constitutional Court—FCC) were clarified by these courts. Still, some questions had been left unanswered; the courts explicitly demanded that parliament become active. Issues were namely the time limit for revocation of naturalization, the effect of revocations on third parties (like children) that had been naturalized at the same time and the effects of the discontinuance of certain premises that had been the condition for the obtainment of citizenship by children ex lege on their naturalization. Parliament complied with this call to action; in February of 2009, the changes came into force.

It is not easy to remember the thoughts and feelings that accompanied the American contingent's participation in the 1986 Bremen conference and which led to this volume. Time has eroded memories. But more than that, there is no single “American” set of thoughts and feelings to recall. Although we shared a desire to explore critical legal thought with colleagues from Germany, we were, in fact, a very heterogeneous group. We came together — momentarily — for the Bremen conference but we approached it from different perspectives, participated from different motives, and went different ways in the years after the publication of the book.

The article critically assesses the role of the Directorate General of the European Commission in executing enforcement of the European Communities Competition Law. The Commission is granted equally unprecedented legal powers to carry out the functions of policy maker, investigator, “judge”, “jury”, and “executioner”. For some, it is accordingly difficult to resist the suggestion that the focus of so many regulatory roles and so much power in the hands of one organization represents a legitimate source of concern. By comparing the European system of antitrust enforcement with that of the United States and examining the historical evolvement of the Commission's role, the article determines whether focus of so much power in the hands of the European Commission forms a legitimate source of concern. It determines whether so much power given to the Commission may interfere with the basic rights of corporate undertakings to carry out their business operations, and how the powers granted to the Commission lead to legally based reasons for anxiety.

“Human dignity shall be inviolable. To respect and protect shall be the duty of all state authority.” It is with this proclamation in Article 1(1) Basic Law (“Grundgesetz” or “GG”) that the German Constitution starts its section on fundamental rights. When the Parliamentary Council formulated this basic right, they had in mind the denial of fundamental rights during the period of National Socialism and the atrocities of the Holocaust. The framers, however, did not envisage a constitutional right to state benefits despite Article 151(1) of the Weimar Imperial Constitution of 1919 linking the ordering of economic life with the purpose of ensuring a dignified existence for all. Utilizing a constitutional originalism approach the German Federal Constitutional Court (“FCC”) never could have arrived at what is referred to as the Hartz IV decision. This decision creates a constitutional right to guarantee by law a subsistence minimum based on Article 1(1) GG in conjunction with the social state principle in Article 20(1) GG. The decision can be read as—possibly the first—conceptualisation of a constitutional socio-economic right to statutory state benefits by a Constitutional Court.

The European Court of Human Rights (ECtHR) has been considering whether same-sex couples should have the rights to marry and to be recognized as a family under the European Convention of Human Rights (ECHR) for over thirty years. In the 1980s the European Commission of Human Rights (the Commission) and the ECtHR respectively rejected the notion that same-sex relationships constituted a “family life” under Article 8 of the ECHR, and that post-operative transgendered persons had the right to marry under Article 12. However, throughout the 1990s and the first decade of the new millennium, the ECtHR handed down a body of judgments that incrementally liberalized these rights (albeit not always smoothly) in favor of LGBT persons. This evolution culminated in part on 24 June 2010, when the ECtHR passed judgment in Schalk and Kopf v. Austria. In that case the First Section of the ECtHR made a number of major, but seemingly contradictory rulings. For the first time in its history, the ECtHR ruled that same-sex relationships expressly constitute a “family life” under Article 8, and that the right to marry under Article 12 was not confined to opposite-sex couples in “all circumstances.” However, the ECtHR simultaneously ruled that Member States are under no obligation to protect that “family life,” by providing same-sex couples with access to marriage under Article 12, or an alternative registration system under Articles 8 and 14. The Grand Chamber denied the applicants' subsequent request for a referral.

In some of his last published works, Neil MacCormick began to refer to his theoretical position as “post-positivist.” In light of the widely perceived limitations of the “positivist” label, this self-identification might seem prudent. Was it anything more? Was MacCormick's position really post-positivist? In this paper, I argue that it was not, but that this need not be viewed as a failing of MacCormick's work, since there is a sense in which modern jurisprudence cannot and need not hope to become generally post-positivist. More specifically, given the institutional context in which legal scholarship is produced, positivism is likely to be an inevitable (if not necessarily dominant) mode of theorizing about law. Yet much informative work remains to be done under the positivist rubric—not just along the lines suggested by MacCormick, but along others as well.

There appears to be a widespread perception, particularly among developing states, that international institutions continue to be disproportionately influenced by a small group of powerful states that played a dominant role in their creation and design. In recent years this has led to a growing acceptance among international legal scholars that the future legitimacy and credibility of international tribunals will be critically tied to the extent to which they are viewed as independent.

Since May 2004 Polish administrative courts have passed a great deal of judgments in which the law of the European Union (formerly European Community law) has played either the main role or a subsidiary role in the proceedings. This article seeks to examine how the above-mentioned courts comply with the expectations which are put on them by EU law and how they participate in the process of legal integration within the EU. In this context, the author scrutinizes how the national judiciary adjudicating in the administrative law area understands, interprets, employs and applies the systemic principles of EU law such as: supremacy, and (in) direct effect and effectiveness. In addition, the participation of national courts in the process of a dialogue with the Court of Justice of the European Union through the preliminary ruling procedure is captured. The analysis is not aimed at being exhaustive and focuses solely on the total impact of EU law on the national judiciary and the general trends in the judicial application of EU law, that is to say the overall reception of EU law and the dimension of the EU-friendliness displayed by Polish administrative courts.

Historical evaluations are expected to mark a starting point and, at the end, produce a result, which then shows a “development” from the starting point. This development need not be in a straight line. It may have made detours and suffered set-backs. Altogether, however, it connects beginning and end like a red thread; it is possible to see from this the task of the historian, picking up this thread like a careful housewife, undoing knots and loops, winding up assiduously and finally presenting a tidy ball of work.

Since the late 1990s investment treaty arbitration has developed into one of the most vibrant fields of international dispute settlement with now almost 400 known cases. It involves claims by foreign investors against host States for breach of obligations assumed under one of the more than 2700 bilateral investment treaties (BITs), under the numerous investment chapters in bilateral or regional free trade agreements, including the North American Free Trade Agreement, or under sectoral treaties such as the Energy Charter Treaty. All of these instruments offer comprehensive protection to foreign investors by setting down principles of substantive investment protection, including national and most-favored-nation treatment, fair and equitable treatment, full protection and security, protection against expropriation without compensation, and free capital transfer. They also allow investors to enforce these standards in arbitral proceedings directly against the host State, most commonly under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention). Investment treaty arbitration thereby not only empowers foreign investors under international law, but also introduces investment treaty tribunals as novel actors into the arena of international investment law. Although arbitration has been a classic form of dispute settlement on the State-to-State level, including for the settlement of investment-related disputes, modern investment treaty tribunals have wider jurisdiction and are more removed from State control than any of their predecessors.

The article discusses whether EU arrangements allow the opportunities offered by its multijuralism and multilingualism to be realized and the problems raised by them to be minimized. Those opportunities are defined, in the case of multijuralism, as the EU having at its disposal a toolbox of many legal solutions for many situations. In the case of multilingualism, one has to distinguish between a strong variety (all language versions are equally authentic) and a weak variety (one authentic language and so many official translations). One opportunity offered by both varieties is that multilingual laws are linguistically superior to monolingual ones because of the clarifying effect of translations. An opportunity offered only by the strong variety is that the meaning of such a law can best be pinned down by linguistic triangulation, i.e. by approaching it from different linguistic angles. Problems caused only by strong multilingualism are the intractability of contradictory language versions of a law and the very indeterminacy of all laws, which is the necessary counterpart of the possibility of linguistic triangulation. Concerning multijuralism, the article finds ample possibilities for EU lawmakers and adjudicators alike to make use of the toolbox. Concerning multilingualism, while the clarifying effect of translation is real enough, current arrangements allow the EU to profit from it only at some legislative stages. Further, linguistic triangulation is found not to be a workable concept in the EU, which has 23 authentic official language versions. Strong multilingualism therefore, cannot offset the problems it causes.

Globalization has led to the emergence of broadcasting services and books aimed at a global audience. Authors of books, journals, and articles have gained readers worldwide. Due to the Internet, the spreading of ideas on a global level has never been easier. The other side of the coin is that authors run a risk of being exposed to civil proceedings in many jurisdictions. What is considered to be proactive journalism, or a provocative academic comment in some jurisdictions is considered to be libel or defamation in others. We speak of “libel tourism” when defamation proceedings are brought in a forum that has only vague connections to the case, but happens to be very plaintiff-friendly.

The European Convention of Human Rights (ECHR) is as much a political as it is a legal document. The European Court of Human Rights (ECtHR) constantly walks the delicate tight rope between vindicating human rights and respecting the sovereignty of contracting states. This balancing act is particularly sensitive when a situation of “exceptional and imminent danger” exists. In such instances of national security the state may need to act in a manner beyond the parameters of normalcy in order to neutralize the threat and protect both itself and its citizens. Article 15 of the ECHR therefore allows states to derogate from its obligations under the convention when a state of emergency is declared. On foot of a notice of derogation, a state has more discretion and flexibility to act accordingly to respond to a threat without being constrained by its obligations under the treaty. However, it is also in these conditions that human rights are at their most vulnerable as the state's response may encroach severely on individuals' rights and the liberal-democratic order of the state.

Social media is a dominating force in modern social life as internet technology has taken hold of our cyber-driven society. Many scholars, as will be explored below, have articulated fears and enthusiasm about what can be interpreted as a reconfiguration of privacy in a culture mediated by technology. Scholarship ranges from those opposing new conception of privacy in favour of protecting rights in traditional private/public distinctions with privacy as a privilege worthy of proprietary protection to those reveling in opening floodgates for information to re-invent or even destroy any semblance of traditional distinctions of privacy. These poles become even more accentuated in light of fast-proliferating technology illustrated by popular social networking websites such as Facebook, Twitter, Foursquare etc. In the North-American debate, the privacy concerns connected with these developments are compounded further by the U. S. Supreme Court's recent decision, Nelson v. NASA, which involves the constitutional right of government to ask for employee's personal information in the context of national security and surveillance.

In February 2010, the German Federal Constitutional Court (Bundesverfassungsgericht) issued a ruling on the so-called “Hartz IV legislation.” The ruling dealt with the law on social benefits according to the Second Book of the German Code of Social Law and was based on the “fundamental right to the guarantee of a subsistence minimum” derived from the declaration of human dignity in Article 1(1) of the German Basic Law in conjunction with Article 20(1), the principle of the social welfare state.