Despite recent criminal law reforms to define rape through the lack of consent, practical questions remain about how to regulate different kinds of violations of sexual autonomy. Many common law scholars have found it eye-opening how much more extensive and easily accepted the protection of property rights is compared to the protection of sexual autonomy. But when the rationale of criminalization resides in human rights, such a comparison is alien; protecting human dignity appears separate from protecting instrumental property rights. Considering rape a subversion of our ownership rights to our bodies (the property model of rape) is rightly regarded as problematic. This article argues that comparing sexual crimes and property crimes is not predicated on the property model but rather on autonomy itself. Comparisons based on autonomy could help resolve practical dilemmas of consent-based rape laws while respecting human dignity and thus be fruitful research pursuits within a human rights tradition.

When we think about constitutions, we tend to see them predominantly through the normative lens of legality, forgetting about the social implications of constitutions and the lives thereof. And even when we do study them from a more socio–legal perspective, we usually associate them solely with the state. This understanding of constitutions is the legacy of not only a state–centric approach in legal science but also of an institutional approach, particularly in political science. It shapes our understanding of constitutions as legal regulations of an institutional framework of the state and the conduct of politics. Moreover, the liberal tradition compels us to see constitutions as tools to restrain the power of the state and ensure the rights and liberties of individuals; that is, as tools of the liberal rule of law.

However, as I argue in this Article, constitutions are a very powerful, and potentially effective, way of shaping the collective identities of not only the state but also of the political people. Therefore, they should be understood not so much as factors of restriction but as mediums for the articulation of collective experiences, self–understanding, goals, dreams, and fears—in other words, articulations of collective imaginaries.

For this purpose, I shall discuss in the first part of this Article the importance of conceptualizing the state and the political people as autopoietic organizational systems and the consequences of such conceptualization. That is, both the state and the political people are, in fact, operationally closed organizations defined solely by the articulation of their collective imaginaries—by the decisions. In this way, constitutions are only one of the possible decisions and nevertheless one of the most influential.

In the second part, I shall discuss the nature of constitutions as law decisions of the organizational system of the state with the example of the Czech Republic and its 1992 Constitution. The Czech example will demonstrate how the constitution articulates the constitutional imaginary of the membership of the state, how it articulates the understanding of the state’s constitutional identity, and, at the same time, shapes it. Moreover, the Czech example will show us the clear division between the constitution and “its” people; in other words, that it is not the people who makes or adopts constitutions, nor is the constitution an articulation of the political people’s collective identity or its nature. This distinction between the state and the political people is, in fact, one of the crucial arguments for the social systems theory approach to both the state and the political people as it enables us to not only distinguish between those two phenomena but also, and perhaps more importantly, to conceptualize their interrelationship—structural coupling—as I shall explain shortly.

The third part of this Article focuses on how the constitution can shape the popular identity of the political people by being appropriated as a cultural product by the popular imaginary. I shall discuss how the political people can appropriate the constitution as a cultural product and, through such appropriation, express its self–understanding—that is, how the constitution can be translated into the operation of the organizational system of the political people and become its communication, that is, its decision. However, whereas every modern state expresses its constitutional identity also through its constitution, not every political people appropriates the constitution of the state with which it is coupled. There are political peoples, such as the Czech one, which do not appropriate the constitutions to express their popular identities. Thus, the cultural appropriation of the constitution will be demonstrated through the example of the Italian political people, which has a strong connection with the Italian Constitution of 1948.

The state and the political people are locked in a state of structural coupling, they irritate—influence—each other constantly. I argue that structural coupling between the state and the political people is the primary reason why we should be interested in the combined social systems theory–social imaginary approach as it provides us with the theoretical framework necessary to explore, and hopefully understand, how the state and the political people influence and shape each other, and, consequently, enables us to build the legitimacy of our modern democratic system of governance not on the illusion of unity of the state and the people but, quite the opposite, on their acknowledged division and interrelationship.

However, it is vital to add that the main purpose of this Article is not to analyze one state and political people, and their constitutional and popular identities in their complexity as this would be beyond the possibility of one article, but to lay down the theoretical framework for such analysis using examples of various states and peoples. Therefore, the two cases used in this Article have been chosen for their capacity to demonstrate the various ways in which the constitution shape either constitutional or popular identity in the most simple and succinct way possible.

The purpose of the Article is to analyze and compare certain aspects which define the limits of permissible interference with a person's private life in the legislation of Ukraine and other countries of the world in terms of ensuring the balance of interests of participants in criminal proceedings during covert measures to obtain information related to interference with a person’s private life. The Article uses general scientific and special research methods, in particular comparative legal, scientific categories, definitions and approaches, formal dogmatic (legal), dialectical. On the basis of the conducted research, generalized conclusions were made regarding general trends in the field of reforming the legal regulation of special measures for covertly obtaining information, and ways of their improvement. The forms and methods of departmental, judicial, and public control over the covert activities of law enforcement agencies have been determined separately, and the influence of terrorist threats and military actions on ensuring the balance of interests of participants in criminal proceedings has been investigated. According to the results of the research, ways of solving problematic issues of the regulation of criminal procedural legislation have been determined in order to ensure the balance of the interests of the participants in criminal proceedings during the organization, conduct, recording, storage, and use of the results of covert information-gathering activities. A comparative analysis of the ways of solving a number of legal regulation issues in the field of the use of informal forms of obtaining information, the determination of different approaches to the separation of departmental, judicial, and public control is being carried out for the first time and will provide a comprehensive and systematic approach to the improvement of legislation in the specified field in the conditions of martial law or during anti-terrorist activities.

The application of the EU Charter of Fundamental Rights to the Member States has given rise both to a controversial phraseology and a controversial case-law. This paper offers a reconstruction of the constitutional intent and proposes a conceptualization in conformity with the structural function and the constitutional contemplation of the pouvoir constituent. As to the phraseological debate, it demonstrates that the Charter’s application to the Member States may occur by reason of either “implementation” or “interpretation” of EU law and the two strands are embraced but not synthetized by “scope” as a collective term. As to the substantive debate, it demonstrates that the CJEU’s case-law on “implementation” is not only amorphous but also inconsistent with the Charter’s constitutional mandate. The paper proposes a novel approach based on the notion that the application to the Member States is accessory to the supremacy of EU law. The paper’s argument is presented in the following steps. First, the paper presents the pristine rationale and constitutional function of the application to the Member State through its emergence and historical context. Second, it provides a taxonomy and critical overview of the CJEU’s amorphous case-law and presents the Court’s futile attempt to create a coherent doctrine that faithfully reproduces the constitutional contemplation behind the diagonal application and that reflects the division of competences between the EU and its Member States. Third, it sets out the proposed doctrine of “displacement.”

This article explores how the political ideal of data interacts with the legal entitlement of autonomy in the care of pregnant people guided by feminist theory and critical approaches to data. Using Scandinavian legislation and administrative practice, it analyses how the presence or absence of data, namely scientific evidence, interacts with pregnant people’s legal autonomy in healthcare. Data –particularly scientific evidence - is shown as something that is not neutral but open to interpretation and misappropriation. First, administrative complaints illustrate that not only a lack of scientific studies on pregnant people but also patriarchal attitudes have implications for care. Second, Scandinavian legislation authorizes the involuntary detention of pregnant drug users despite an absence of evidence supporting such drastic actions. Third, complaints bodies are found to frame injury to pregnant bodies as a natural consequence of birth, despite clear evidence as to the duties of healthcare professionals in preventing harm. A relational approach that sees the pregnant body and fetus as integrated though quintessentially unequal is needed. Evidence is not the only answer; an approach that recognizes the dignity of pregnant people must be central. This requires eliminating coercion, recognizing the pregnant patient as the decision maker in healthcare choices and prizing the birthing patient’s voice as a valuable data source.

Targeted sanctions, namely asset freezes and travel bans, are no longer the province of foreign policy alone. They are increasingly often used by governments in response to crime, such as corruption, human rights abuse, cybercrime, drug trafficking, and transnational organized crime writ large. Such sanctions are imposed based on permissive evidential standards, such as that of “credible evidence” or “reasonable grounds to suspect.” Their advent has added a new layer to a multi-tier system of state responses to crime. First, there is the traditional approach of criminal prosecution and conviction based on the criminal standard of proof. Second, one rung below is non-conviction based asset forfeiture, a notionally civil confiscation of supposed proceeds of crime that eschews the need for compliance with a suite of criminal trial safeguards. At the third level of this hierarchy are crime-based targeted sanctions, which vest the state with the greatest latitude in dealing with suspected criminals. Based on a wide-ranging analysis of international practice, this article contends that not only are crime-based sanctions de facto a criminal justice tool, but also that a coherent set of principles is required to determine their relationship with other responses to criminal behavior.

This paper aims to clarify the concept of the symbolic constitution and to explain one of its most significant functions: the representation of political unity in complex societies. Section B briefly outlines the concept of the symbolic constitution which informs the arguments of the paper. The next two sections proceed “hermeneutically” through critical engagements with (i) Martin Loughlin’s recent analysis of the symbolic constitution within an ideology-critique of neo-liberal constitutionalism (ii) Niklas Luhmann’s account of the role of symbolic constitutionalism in concealing the function of the modern constitution as a structural coupling between the political and legal sub-systems. Section E then considers the relationship between the symbolic constitution and an alternative “traditional” concept for the representation of political unity: the common good. I argue that the symbolic constitution is both (i) a placeholder which speaks to the abiding relevance of the common good (ii) a symptom of the decline of its preconditions.

The story of national judges’ participation in the process of dialogue with the Court of Justice of the European Union (ECJ) pursuant to Article 267 TFEU is a well-known one. There have been many scholarly efforts to explain and theorize the—lack of—participation of national courts in the mechanism. Indeed, various constitutional, institutional, procedural, cultural, political, and individual factors are pointed out to explain this engagement. Yet, it may come as a surprise that still much remains unknown. The available empirical data concerning the potential causes of the national judges’—non—participation is limited to a number of EU member states and is mostly confined to lower courts judges. It is the aim of this Article to partly fill the void in the literature and to provide novel empirical data gained in the course of semi-structured interviews among judges and court référendaires of three Belgian highest courts. The interviews provide insight into the possible factors driving concerned national judges when deciding (not) to refer preliminary questions, including the role and significance of the obligation to refer which is to be found in Article 267 TFEU and the Cilfit-criteria.

Until recently, the recognition to the European Union of the capacity to borrow from capital markets for spending purposes was considered almost inconceivable without a treaty amendment. When borrowing for spending was authorized under the Next Generation EU program to support the recovery of member states from the unprecedented consequences of the coronavirus, it was immediately faced with the suspicion that the pandemic was being used as a pretext to promote the creation of a fiscal and transfer union by the back door in violation of the principle of conferral. In its NGEU judgment, the German Federal Constitutional Court concluded that the authorization to borrow under the program could not be considered ultra vires. However, the ambiguous and controversial reasoning of the Constitutional Court gives rise to uncertainty as to whether the funding and financing model introduced by the recovery program could be used again in the future, beyond the exceptional circumstances of the pandemic. At the same time, it appears that, in this case, the Constitutional Court applied a considerably more restrained version of its ultra vires review compared to its recent case law on the asset purchase programs of the European Central Bank.

Fundamental rights to positive state action are costly. An allocation in favor of one individual rightsholder always results in lower allocations in favor of others. The dominant approach in fundamental rights doctrine assumes these conflicts can be resolved judicially by balancing competing rights and other public needs. In practice, carrying out an in-depth balancing in resource allocation cases proves challenging but constitutional courts developed different strategies and concepts to deal with costly rights. The European Court of Human Rights applies a “wide” margin of appreciation and requires that positive state obligations do “not impose an impossible or disproportionate burden on the authorities.” Following the German Federal Constitutional Court, several constitutional courts have applied a concept known as the “proviso of the possible.” The proviso of the possible constrains positive rights and results in a wide margin of discretion granted to political authorities. This article attempts to investigate the specific meaning of the “proviso of the possible” in the context of European fundamental rights law by comparing it against alternative doctrinal concepts. The investigation aims to identify common legal principles and methods to deal with fundamental rights conflicts over scarce public resources.

This Article examines scenario analysis, a disruptive argumentation technique used by the German Federal Constitutional Court (GFCC) in recent high-profile cases, such as the so-called climate protection case (Klimaschutz) and other decisions on the fundamental right to intergenerational justice (Grundrecht auf Generationengerechitgkeit). After explaining the basic argumentative steps involved in scenario analysis, for example designing scenarios, identifying stakeholders, relating scenarios to strategies, determining the main driving forces, estimating scenario probabilities, the Article sketches a normative model for rational scenario design. The normative model is used as a lens for evaluating the arguments developed by the GFCC in the climate protection case. Such evaluation also builds on game-theoretic insights and points out some weaknesses in the Court’s argument. Finally, the Article observes that, as scenario analysis is used to assess the future impact of legislative decisions, it has the effect of imposing greater constraints on legislatures.

This Article addresses the pressing issues surrounding the use of automated systems in public decision-making, specifically focusing on migration, asylum, and mobility. Drawing on empirical data, this Article examines the potential and limitations of the General Data Protection Regulation and the Artificial Intelligence Act in effectively addressing the challenges posed by automated decision-making (ADM). The Article argues that the current legal definitions and categorizations of ADM fail to capture the complexity and diversity of real-life applications where automated systems assist human decision-makers rather than replace them entirely. To bridge the gap between ADM in law and practice, this Article proposes to move beyond the concept of “automated decisions” and complement the legal protection in the GDPR and AI Act with a taxonomy that can inform a fundamental rights analysis. This taxonomy enhances our understanding of ADM and allows to identify the fundamental rights at stake and the sector-specific legislation applicable to ADM. The Article calls for empirical observations and input from experts in other areas of public law to enrich and refine the proposed taxonomy, thus ensuring clearer conceptual frameworks to safeguard individuals in our increasingly algorithmic society.

The COVID-19 pandemic has made it clear that even when using trusted legal tools, courts may run into challenging problems. Governments reacted to an unprecedented (at least in the context of post-WW2 era of fundamental rights) global crisis by adopting measures that drastically limited fundamental rights in order to protect the lives and health of many. Courts, of course, were entrusted with protecting fundamental rights against governmental overreach. The question was, how strict should the courts be when reviewing governmental acts. On the one hand, they could have relied on substantive proportionality assessment. This option, however was virtually ignored and most courts have opted for a deferential approach. This article analyzes both of these approaches, their strengths and weaknesses, but ultimately it argues that a third option - semiprocedural review - is the best way out of this judicial conundrum. Relying on comparative as well as theoretical arguments, it argues that semiprocedural review is the best way to deal with challenging empirical question - even under conditions of epistemological uncertainty.

Should theoretical discourse supporting state crimes be protected as free speech or prosecuted as atrocity speech? The relationship between Neo-Hobbesian Nazi collaborator Carl Schmitt and progressive Futurology founder Ossip Flechtheim provides a fascinating framework for exploring that question. In 1933, Schmitt rejected Flechtheim as a PhD student, on antisemitic grounds. Meanwhile, becoming Nazism’s “Crown Jurist,” he helped force Jewish lawyers, including Flechtheim, into exile. Post-war, Flechtheim, now on the US Nuremberg prosecution staff, arrested Schmitt. Through Flechtheim’s experience, this article explores how Schmitt’s prosecution, within a contemplated “Propaganda and Education Case” (PEC), might have determined how to treat atrocity-complicit academic propagandists. It chronicles how the PEC/Schmitt case collapsed when Flechtheim’s investigation was curtailed due to resource constraints, equivocal precedent, and prosecutor Robert Kempner’s botched interrogations. Nonetheless, Flechtheim contributed to the Ministries Trial conviction of propagandist Otto Dietrich. The article concludes by juxtaposing that case with Schmitt’s near-prosecution to contemplate norms for charging theorists laying needed groundwork for atrocity, via sufficiently proximate speech, even absent direct incitement. Such an international justice future would mirror immediate post-Cold War intellectual developments, which vindicated Flechtheim’s vision, not Schmitt’s. Exploring this topic is timely, as Russian academic discourse has enabled/fueled Ukraine’s invasion and related atrocities.

Legal rules aimed at compensation for the harm caused by a particular state, individual, or legal entity (for example, oil pollution of the sea due to a tanker accident) are well studied and constantly used in scientific literature and international law practice. Meanwhile, every year, the number of cases of harm when the particular guilty party cannot be established grows; this is why it is almost impossible to compensate for the harm caused. Such cases include collisions of satellites causing space debris; the consequences of climate change for agriculture, forestry, and the health of citizens; and the pollution of the World Ocean with plastic debris, ballast water, and abandoned nets.

There are more such cases at the national level. After studying acts of international environmental law, national legislation, and several examples from judicial practice, we show that compensation for the harm caused to life, health, or property in the absence of a particular harm-doer is difficult or impossible to prove. This is why actions that can prevent subjectless environmental harm are taken at the national level in certain countries by developing measures to mitigate and adapt to climate change, licensing space activities, and taking preventive measures against the formation of plastic debris and its pollution of the seas, etc. This trend should be continued, and the experience gained by certain states should be used in developing new acts of international environmental law. This will ensure the next step towards preventing environmental harm where it is impossible to establish the doer’s name.

The gradual digitization of EU migration policies is turning external borders into AI-driven filters that limit access to fundamental rights for people from third countries according to risk indicators. An unshakeable confidence in the reliability of technological devices and their ability to predict the future behaviour of incoming foreigners is leading towards the datafication of EU external frontiers. What happens if the supposedly infallible algorithms are wrong? The article aims to understand the consequences of algorithmic errors on the lives of migrants, refugees and asylum seekers arriving in the European Union. This contribution investigates the socio-political implications of deploying data-driven solutions at the borders in an attempt to problematize the techno-solutionist approach of EU migratory policies and its fundamental rights impact on affected individuals.

Schengen integration has been home to different visions from the outset. In this vein, it owes much of its success to the fact that it has been both practical and symbolic in nature. However, this equilibrium of different visions has been upset following a series of crises. By prioritizing security considerations over alternative visions of Schengen, some Member States have reintroduced internal border controls on a quasi-permanent basis. Current reform proposals seek to address this situation but may be unable to revive the co-existence of the different visions underpinning the earlier phases of Schengen integration. Rather, as this investigation suggests, the reform that is currently being discussed would reaffirm the nature of Schengen integration as a pan-European security project. While this goes hand-in-hand with elements of supranational governance and coordination, it may impair the role of Schengen as an identity-creating project. This investigation analyzes the elements of the reforms discussed, presents them in the light of different visions of Schengen, and draws attention to possible constitutional limits of its reform.

As modern constitutions bind democratic legislation to entrenched norms, they are in tension with the democratic idea that laws should be open to revision by new majorities. Against a widespread view, constitutional norms cannot be considered to be “more democratic” than ordinary laws due to specific qualities of the constitution-making process. Rather, the higher-level law of constitutions can fulfil a specific function as it may provide standards that ensure that laws made by the majority can be justified to everyone. On that basis, I evaluate for different types of constitutional norms whether there are good reasons for constraining legislation. In particular, entrenching cultural traditions and economic policy is more problematic than guarantees of the democratic process and rights ensuring respect for individuals. In sum, a two-tiered law-making system has important values, but people engaging in constitution-making and constitutional interpretation should be wary that the constitutional form is not abused.

By addressing the question “Are the roles and values of stakeholder participation qualitatively different for non-governmental organizations (NGOs) and national human rights institutions (NHRIs), and if so, how?” this article dissects stakeholder participation in UN human rights treaty body activities. First, it normatively posits that stakeholder participation in treaty body activities carries three values, which weigh differently based on the actor and the treaty body activity concerned: facilitating “bounded” national deliberations, promoting international deliberations on human rights treaty standards, and supplementing the treaty bodies’ fact-finding capacity. It offers concrete normative guidance for treaty bodies on their engagement with NGO and NHRI participation to maximize the benefits of these values. It then empirically analyzes their current practice in light of the above-mentioned normative guidance. This article contributes, first, to the theorization of stakeholder participation in treaty body activities, which has been discussed but only in generalized or fragmented ways in previous studies. Second, it supports the effectiveness and legitimacy of treaty bodies by endorsing their practice that is consistent with the guidance and finding space for improvement. Finally, it provides a rationale for establishing and strengthening NHRIs by showing that NHRI participation has unique roles distinct from those of NGOs.

The absolute implementation of the originator control principle (‘absolute originator control’) allows the EU Member States’ national intelligence services to block the access of the European Parliament to confidential information necessary for the effective exercise of joint parliamentary scrutiny at Europol. This research paper will demonstrate that this is a flawed practice in need of urgent reform, since it violates some of the basic tenets of EU constitutional law enshrined in Article 13 TEU and Article 9 TEU. This legal problem is reframed with the help of trust theory, which reveals that absolute originator control causes the Union to be confronted with a constitutional dilemma that is irresolvable in the EU legal order: the Union is revealed to be a trustee to two trustors – the EU Member States and the EU citizens; to protect the interests of one trustor, the Union would necessarily have to betray the trust of the other trustor.