This special issue looks at how cognitive bias matters to international law. We wish to shed light on the legal frames, labels, and cognitive biases that shape our understanding of international rules, the application of these rules, and outcomes of international adjudicatory processes. Adopting the behavioral approach to international law, we focus on actual behavior rather than assumed behavior of actors taking part in the international legal process. The central idea of this approach is that human cognitive capacities are limited—or bounded—by a variety of cognitive, emotional and social, or group-based biases. Our aim is to explore how these biases operate on the individual, group, and state level in various spheres of international law. This Symposium therefore looks beyond the traditional understanding of international law as applying between states, and focuses on how individuals, as actors in the international sphere, use international law language to influence other people, to create communities, and to shape identities.

This Introduction first serves to explain the type of shortcuts we make in our decision-making. This description of biases is followed by an overview of behavioral literature in international law that has thus far examined how bias operates in different aspects of international law—in relation to sources, to compliance, and individuals taking part in the international legal process. We then turn to introduce the Symposium and explain its contribution to the existing literature.

Article 2 of the Treaty on European Union (TEU) solemnly proclaims that the EU is founded on the respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights. Yet, a growing body of case law concerning rule of law backsliding continuously reminds us of the lack of a dedicated functional mechanism to remedy this. We are left with a fragmented understanding of the founding values and a patchy framework for their enforcement: whilst there is increasing guidance on judicial independence and the rule of law, no founding value has been defined comprehensively. The legal classification of the founding values is equally unclear, as is their position in the EU’s constitutional framework. This paper makes do with what we have, to offer systematic, normative, and substantive clarifications on Article 2 TEU. Systematically, it places the founding values in the constitutional context of the EU’s and Member States’ legal orders and discusses their autonomy, interpretation, and function. Normatively, this paper objects to the direct enforcement of the founding values by reference to their constitutional significance and over-constitutionalization. Substantively, it favors the indirect enforcement of the founding values and explores the connections between Article 2 TEU and other Treaty provisions.

The Brexit referendum highlights the apparently anomalous role of the “people” in the constitutional order of the United Kingdom. Politically speaking, its verdict is acknowledged as unassailable and unaccountable, yet this “sovereign” status has no legal grounds. In turn, some commentators have argued that this discrepancy between “political” and “legal” understandings of popular sovereignty—or the failure to properly institutionalize popular sovereignty in a legal-constitutional form—represents a distinct site of constitutional crisis in its own right. However, I argue that such claims of constitutional anomaly, or of British exceptionalism in this regard, are misplaced. While the Brexit scenario seems to express the destabilizing and disruptive potential of a popular sovereign that exceeds or evades constitutional recognition, this is in no sense a peculiarity of the British constitutional order. By its nature, popular sovereignty is inexhaustible by constitutional recognition, and so it tends to retain such disruptive potential regardless of whatever constitutional form it is assigned. Thus, critics of the British constitutional status quo overestimate the capacity of constitutional law in general to regulate or domesticate the expression of popular sovereignty via referendums.

In December 2020, the EU institutions finally approved the new Rule of Law Conditionality Regulation after a controversial legislative process. The new Regulation allows the Commission and the Council to suspend EU funds in case of breaches to the rule of law that have negative effects on the EU budget and financial interests. This article analyses the new Regulation against the background of the rise of conditionality as a tool of EU governance. It argues, in contrast to some of the first analyses of the new Regulation, that the amendments adopted during the legislative process cannot simply be seen as a watered-down compromise, but were crucial to ensure the legality of the new instrument. At the same time, the EU’s growing reliance on conditionality continues to raise profound constitutional questions that still needs to be adequately addressed in the institutional and academic debate.

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.

This is an article about two things. First, the bifurcation of public international law (PIL) into two distinct forms: The material and the narrative. And second, the methodological fragmentation of international lawyers into discrete communities. After setting the substantive fragmentation of PIL as the context of analysis, I deploy Susan Marks’ concept of “false contingency” to distinguish material and narrative PIL. I briefly examine each, and their interactions, before turning to a specific manifestation of material PIL that I call the Global Legal Order (GLO).

I then sketch the radical indeterminacy of narrative PIL, its manifestations in the ontological indeterminacy of the commonly accepted sources of PIL, and its source in PIL’s lack of authority and institutionalization. This contrasts with the determinacy and authority of the GLO. Next, I turn to the “fragmentation” of international lawyers into distinct “communities of practice.” In fact, this process turns out to be one of agglomeration, international lawyers are constructed within communities of practice, which glom together to create the appearance of PIL.

Finally, I turn to how these communities function by pitting “performances of legality” in “vicarious litigation,” using the Chagos Islands case as an illustration. This is contrasted with the functioning of the operative legal system that is the GLO. I examine the constituent institutions of this system, and how they operate together to produce direct and indirect governance in under-developed states. In practice, this policy imposition immiserates states and antagonizes local populations. It necessitates oppressive governance which entails what narrative PIL determines to be “human rights abuses.”

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.

It has been forty years since the Chinese Communist Party (CCP) initiated the modernization project of Post-Mao China. As with other sectors, learning from the West was one of the basic strategies taken by the CCP to achieve the modernization of Chinese socialist legality, even as Chinese law is meant to be grounded in the orthodoxies of Marxism-Leninism. In order to learn from the West, the CCP generally adopted an elastic and dualistic approach to reform that is based on the utilitarian incentives of Deng Xiaoping. In the political sector, for example, the CCP looked back into the past and the CCP’s successful experiences under Marxist-Leninist doctrine. The aim was to immunize politics from the influence of western liberal-democratic ideology. But in the economic area, the CCP moved toward the West by vigorously adopting advanced western rules and institutions for managing the economy. This article examines how this strategy formed the basic contours of Chinese socialist legality in the past forty years. The article identifies the resulting internal lacuna, especially with respect to the realization of the “rule of law.” This article also analyses the possible future of a Chinese-socialist rule of law. That possibility will be affected by changing external circumstances, particularly the deterioration of China-US relations.

Perpetuating Britain’s controversial administration of the Chagos Archipelago (BIOT – British Indian Ocean Territory) raises questions about the UK’s commitment to the rules-based order and international law. This interdisciplinary article examines British administration of the Chagos Archipelago by taking a legal-international relations perspective. It provides an overview to the rules-based order concept and its relation with international law, briefly examines the Territory’s history, and outlines how BIOT violates the principles enshrined in the rules-based order concept, specifically promotion of self-determination, prohibition of forced displacement and respect for international institutions. This study is significant due to its timing – set in a period of increased international pressure on the United Kingdom to cede sovereignty of the Chagos Archipelago to Mauritius – and also significant in a period of increased rules-based order strain throughout the Indo-Pacific. This article argues that, despite Britain’s assertion that it is a champion of the rules-based order, of which international law is a component, continued British administration of the Chagos Archipelago is in contravention of both. In an era of rules-based order strain, British BIOT policy provides fertile ground to criticisms of its foreign policy and international law selectivity and double standards.

The “hungry judge” effect, as presented by a famous study, is a common point of reference to underline human bias in judicial decision-making. This is particularly pronounced in the literature on “artificial intelligence” (AI) in law. Here, the effect is invoked to counter concerns about bias in automated decision-aids and to motivate their use. However, the validity of the “hungry judge” effect is doubtful. In our context, this is problematic for, at least, two reasons. First, shaky evidence leads to a misconstruction of the problem that may warrant an AI intervention. Second, painting the justice system worse than it actually is becomes a dangerous argumentative strategy, as it undermines institutional trust. Against this background, this article revisits the original “hungry judge” study and argues that it cannot be relied on as an argument in the AI discourse or beyond. The case of “hungry judges” demonstrates the lure of narratives, the dangers of “problem gerrymandering,” and, ultimately, the need for a careful reception of social science.

Stefan Grundmann, Hans Micklitz, and Moritz Renner’s New Private Law Theory: A Pluralist Approach is a wide-ranging, ambitious, and fascinating project. In this article I offer one way to read the NPLT as a mosaic, rather than a patchwork, by first taking seriously the idea of legal theory as the core of NPLT’s methodological commitments, and second taking seriously its subject matter of private law as the source of its substantive underpinnings.

Legal theory, I argue (much in line with GMR’s rich text), is distinctive from other discourses about law given its acute awareness to law’s normative filter, which furthermore implies a synthetic commitment that these other discourses do not share. But legal theory should also, I claim, be attentive to the constitutive role law plays in constructing the building-blocks of many of our interpersonal interactions, and it should thus be particularly cautious from relying on philosophical or social scientific inquiries that take contingent configurations of property or of contract as a given. This lesson, in turn, is crucial for contemporary discussions of private law obligations that go beyond the libertarian duty of non-interference. Rather than reifying the libertarian conceptions of property and contract and resorting to exogenous justifications for our interpersonal obligations of non-discrimination and accommodation, private law theory can—and indeed should—rely on happier conceptions of these core legal institutions, which vindicate the freestanding significance of these obligations and thus also validate their transnational applicability.

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.

This article argues that the ECtHR uses two conflicting tests to assess the same types of hate speech. This results in legal uncertainty at best, and arbitrariness and double standards at worst. To remedy the present situation, I propose a two-track strategy. To begin with, the Court should abandon its “bad tendency” approach, a test prone to abuse by governments to silence political dissent under the guise of fighting hate speech, for a set of uniform criteria to assess hate speech-restrictions, in line with its current incitement approach. In addition, however, to compensate for the loss of protection against severe forms of vilification which do not meet the incitement-criteria, the Court should formulate a new category of unprotected speech, to be defined as intentional intimidation or harassment.

Gender recognition is a crucial achievement for non-binary people. To better understand this right, this article combines comparative law with theoretical insights from anthropology to offer a discussion of non-binary recognition in European fundamental rights law. It identifies three approaches to such a right and critically assesses each of them. The first approach is denial, with the non-binary option being explicitly or implicitly rejected, as has occurred in French and Italian courts. The next approach is limited recognition, whereby a non-binary option is granted under specific limitations, such as when certain physical characteristics are present or when a claimant permanently identifies with the non-binary gender. This is the course of action that has been taken in German law. The third approach is gender self-determination, whereby individuals can obtain recognition on the basis of their declaration alone. This solution has been offered by the Belgian Constitutional Court. On the strength of findings from anthropology, the article argues that the first two models are incapable of genuinely engaging with gender diversity, while the third one offers more robust legal protection. The analysis presented here serves as an example of how anthropological insights can be effectively used to advance comparative law research.

The rise of referendums has led to the concern that they could lead to liberticide and discriminatory results. This article intends to determine whether the concept of popular sovereignty would immunize constitutional provisions that are passed through a constitutional referendum from any human rights limitation. In answering the question, I formulate a theoretical framework called “constituent-constituted duality,” while also distinguishing “the constituent people,” which is mythical, and “the constituted people,” which is empiric. In the end, this article argues that the only possible form of limitation from the perspective of popular sovereignty is an ex ante limitation. Meanwhile, an ex post facto limitation remains unacceptable from the angle of popular sovereignty, which implies that a judicial review of popularly-enacted constitutional amendments is conceptually illegitimate.

Decision-making processes leading to governmental measures affecting international trade involve socio-cognitive processes, biases, and sociocultural factors. The legal prohibition of discrimination against imported products constitutes a fundamental principle of World Trade Organization (WTO) law, but discrimination against foreign products is widespread. This study explores the contribution of social cognitive and sociological literatures to international trade scholarship concerning the “national treatment” obligation. Ingroup favoritism bias, related cognitive biases, such as confirmation bias, and sociocultural processes, such as “loyalty norms”, facilitate and support discrimination against foreign products.

One of the most contested issues regarding the interpretation of GATT Article III concerns the role of regulators’ intention in establishing a violation of this provision. The approach undertaken by the WTO Appellate Body is characterized by a preference for the “objective” test of regulators’ intention (focusing on intention revealed in the regulatory measure itself), and a reluctance to take into account regulators’ “subjective” intentions, discerned from regulators’ statements and a variety of other sources. In contrast to the WTO Appellate Body’s approach, this contribution suggests that once presented with credible evidence regarding key-role regulators’ intentions, manifested in both the regulatory measure itself and in a variety of other items of evidence, it is desirable that WTO tribunals assign adequate probative weight to such intentions. In addition, where it is credibly proven that ingroup favoritism norms prevail in the key role regulator’s social environment, it is advisable to grant some probative weight to such social norms. Assigning a probative weight to regulators’ subjective intentions and relevant norms is justified by the significant influence of intentions and norms on the prospects of discriminatory behavior.

The article highlights three principal types of regulators’ mindsets: mindful, mindless, and bias-resisting. Mindful regulators deliberately intend to restrict internal sale of foreign goods through discriminatory measures. Mindless regulators do not aim to discriminate against imported goods, and the disparate impact influences of their regulations are relegated to the background. Bias-resisting regulators intend to grant equal treatment to domestic and imported products and resist ingroup biases.

Amidst the first wave of the coronavirus pandemic, the German Federal Constitutional Court rendered a little-noticed, but potentially far-reaching decision regarding European integration. When it declared the law ratifying the Unitary Patent Court Agreement unconstitutional, it did so because it is a treaty “supplementing or being otherwise closely tied to the EU”, in other words, a satellite treaty, inter-se agreement, or more generally: an international law agreement furthering European integration outside the EU law framework. This commonly used integration technique is therefore going to be a lot more difficult in future whenever Germany is involved. At the same time, the court order gives all German citizens a far-reaching right to have laws ratifying such treaties checked before the Constitutional Court, which is a significant extension compared to its earlier case-law. In future cases of disagreement, EU Member States may have to find different ways to proceed than resorting to international law, such as using the enhanced cooperation mechanism.

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.

Corporations are notoriously powerful actors in the current configuration of our globalized economy. Their activities play a key role in shaping a new age of ecological precarity—the Anthropocene. Much of this environmental damage occurs in cross-border settings, hampering victims’ access to legal remedies due to widespread corporate impunity and institutional hurdles in host states. Several transnational lawsuits have recently tested the willingness of European home state judiciaries to adjudicate the extraterritorial conduct of domestic corporations. To contribute to a more nuanced understanding of this novel phenomenon, this article analyzes three legal sagas from a comparative perspective: Vedanta v. Lungowe (England & Wales), Dooh v. Shell (The Netherlands) and Lliuya v. RWE (Germany). It argues that transnational tort suits remain a problematic vehicle for the attainment of procedural and substantial environmental justice. The inherent limitations of tort law, extra-legal hurdles to transnational litigation, and the socio-cultural contingency of legal institutions severely circumscribe the space for legal contestations of the corporate Anthropocene.