A prevalent assumption in German Constitutional Law and Community Law reads as follows: »If Europe wants to have a future it needs to become a community of history«. But there is a snag in it: Just as it is difficult, if not impossible, to identify national communities of history, it is unlikely that one European community of history will emerge.

After the EU Enlargement of 2004, the law courts of the new Member States now fulfill a twofold role of applying both national and European law. The application of European law also entails the duty of judges to construe their own domestic law as close as possible with EU law, and, if that is not possible, the duty arises to set aside the domestic law found to be incompatible with European law. In consequence, developments in the next decade will test judges’ capacity for properly applying European law and this process will inevitably present a serious challenge to the Central European judicial systems. While evaluations can first be made no sooner than a few years after the EU Enlargement, there are important indications that can suggest the probable outcome of that challenge. This article briefly outlines the application of European law in those countries prior to EU Enlargement and then deals with the important factors which are likely to influence its future application in the new Member States.

The “Treaty establishing a Constitution for Europe” elicits divergent scholarly responses. An apologetic view holds that it is the best of all possible constitutions, given the current constellations of political forces. Such a viewpoint is countered by a mixed choir of critics for whom the document is simply another treaty, a “nostalgic project,” or a merely “semantic constitution.” Some even believe that the recourse to constitutional rhetoric endangers the rational substance of the European status quo; others fear that this very conceptuality could be damaged. The present chapter endeavors to find a third approach. It offers a critical stance as regards the unfortunate, phraseological, sometimes even ideological language of the Constitutional Treaty. Simultaneously, the constitutional text is taken seriously in its normative statements. This approach aims to reconstruct the document from a point of view which depicts it, despite its contradictions, as a project with a rightful place in the tradition of Western constitutionalism.

The system of German criminal law is the product of a centuries-long project of scientific discovery undertaken by scholars who traditionally have defined the science of criminal law (Strafrechtswissenschaft) in contradistinction to the markedly unscientific business of criminal justice policy (Kriminalpolitik). Insular and formalistic by design, the resulting highly differentiated taxonomy of doctrinal categories can claim only a loose connection to rules of positive law as codified in the general part of the German Criminal Code and instead derives more directly from scientific inquiries into the ontology of crime dating back to the early decades of the twentieth century.

Germany is currently in a deep structural crises which has been furthered by the combination of ongoing economic stagnation and a desolate situation of state finances. That these circumstances are due to—according to a widespread opinion—not just the failure of political leadership in the Federation and Länder during the last decades, but also, and especially, the German system of federalism in its current form, is anything but evident. It has become commonplace to hear that the German federal state is in the throes of a serious legitimacy crises and is in need of fundamental structural reform, if the current federation is to have any future. Advocates of reform claim the process needs to result in a widespread disentanglement of powers, so that responsibility can once again be clearly attributed to its proper bearers. Meanwhile, criticism continuously takes on an ever stronger tone: Germany is supposedly to have fallen into the “trap of federalism”. As Klaus von Dohnanyi stated: “If, as in our German Bund-Länder-consensus-system of the so-called ‘cooperative federalism', one level can always interfere with the other level even into details—and that is now the case in almost every aspect— immobility and stagnation, irresponsibility and chaos appear. It would have been better, if we had chosen a centralistic organization. Centralism is better than halfhearted decentralism. A well-lead central state is better than an undecided federalism.”

A number of recent voices in contemporary political and legal philosophy have suggested that something is wrong with international humanitarian relief and human rights advocacy. Such a critique no longer seems to be motivated by ideologies of Social Darwinism or by beliefs in the unconditional primacy of a raison d'État over the needs and rights of individuals. Rather, it derives from a perspective that sees humanitarian activism as an ill-conceived, often merely compensatory gesture.

What is the impact of copyright (and neighbouring rights) on art — on the conditions for artistic production as well as on other art-related practices in modern societies like trading, conserving, exhibiting, performing, reproducing and distributing works of art or reproductions thereof in various media? And what is the particular relevance of art (and of aesthetic concepts, or theories of art) for copyright? Why should the dogmatics of copyright be concerned with aesthetics at all, and what function do aesthetic concepts fulfil in the conceptual structure of copyright and in the context of its legitimization?

The phenomenon of regulatory competition, if it exists at all, has at least two prerequisites: On the “supply-side” there must be incentives for corporate law-makers to tailor their products according to the needs of those who decide about the place of incorporation (or re-incorporation). On the “demand-side”, there must be a real and not only a theoretical possibility to choose the applicable corporate law by choosing the place of (re-)incorporation. Whether such a possibility is a real or theoretical one primarily depends on the costs of such a move compared to its benefits. For the decision about the place of the real seat of a company, “good” or “bad” corporate law is only one factor, very often a minor one among other legal and factual determinants such as corporate and other taxes, labor and environmental law, the accessibility of raw material and product markets or the existence of qualified work force. As long as the choice of a certain corporate law is linked to the choice of the real seat of the corporation, freedom to choose the applicable corporate law only exists on a theoretical level. Corporate law can only be chosen as part of a much larger bundle. If, however, companies are able to opt for a corporate seat that is independent from its real seat (and hence at relatively low costs), the freedom to choose the applicable corporate law becomes a real one and that way the second prerequisite for regulatory competition mentioned above will be fulfilled.

One of the most important dates in German legal history is 1 October 1879. On this day the four Imperial Judiciary Laws (Reichsjustizgesetze) became effective: the Code of Civil Procedure (Zivilprozessordnung), the Code of Criminal Procedure (Strafprozessordnung), the Law on the Organization of Courts (Gerichtsverfassungsgesetz) and the Bankruptcy Code (Konkursordnung). They replaced a large number of different organizational and procedural provisions in the existing German states and effectively established legal uniformity in civil and criminal procedure in the German Empire. More specifically, the Court Organization Law created a national system of courts for civil and criminal matters consisting of Local Courts (Amtsgericht), District Courts (Landgericht), Appeals Courts (Oberlandesgericht) and the Imperial Court of Justice (Reichsgericht). The Code of Civil Procedure, the Code of Criminal Procedure and the Bankruptcy Code provided the procedural framework for all these courts thereby bringing procedural unity to the German Empire for the first time.

On 17 March 2005, the President of the International Committee of the Red Cross (ICRC), Jakob Kellenberger, presented a study (hereinafter “the Study”) of customary international humanitarian law (IHL). A decade earlier, the International Conference of the Red Cross and Red Crescent had mandated the ICRC to “prepare […] a report on customary rules of IHL applicable in international [IAC] and non-international armed conflicts [NIAC], and to circulate the report to States and competent international bodies.” The Study's objective was to capture a “photograph” of the existing, hitherto unwritten rules that make up customary IHL. Comprehensive, high-level research into customary IHL followed; the end result of which is undeniably a remarkable feat and a significant contribution to scholarship and debate in this area of international law.

The contributions to this Special Issue of the German Law Journal originate from a meeting in July 2004 at the European University Institute, which was convened following a disappointing experience. The participants – lawyers, historians, political scientists – had co-operated intensively in the preparation of a project on “The Shadows of the Past(s) over the Construction of Europe” which they had submitted to the Volkswagen Stiftung. Although the foundation acknowledged the core aspirations and importance of its individual components, our application was, however, criticized for its overly broad scope and alleged lack of coherence. Should we, however, retain our loose multi-disciplinary, multi-issue and multi-national exploratory approach? Or, should we instead seek to tighten up the whole enterprise and explain what form of common result we would like to deliver? What was planned as a debate on these alternatives developed into enormously interesting, sometimes breath-taking discussions. At the end, we felt that we were able to articulate what we had more intuitively sought for, namely, a formula that would link our concern about European past(s) with our concern for Europe's present and future.

Over the last decades, a shift has occurred in the methodology of academic historiography, from an earlier focus on the quality of the sources towards the narrative framework of the history. The point in the new approach is that the sources are interpreted and put together into a narration. In the earlier approach, there was a kind of myopic source criticism, which stopped at the sources and never really questioned the way in which they were put together into a narration. The way in which this composition is made is as biased as the sources on which the narration is based. For this reason, critical scrutiny must move one step forward, instead of halting at the sources. The path-breaking Metahistory by Hayden White in 1973 demonstrated, in a provocative way, the bias in narrative structures. He moved the focus from the sources as such, towards the manner in which they were employed. When the book was published, it was generally rejected and marginalized by the historians’ craft. Today, it is no exaggeration to say that, even if it is not generally recognized, at least it is widely accepted. Metahistory alluded, of course, to metaphysics. White's conclusion was that history is basically ideology. History is not the past per se, nor, as Ranke argued, is it wie es eigentlich gewesen, but a reflection on the past from the present. This methodological shift does not deny the continued importance of a critical approach to the sources and does not reject the existence of events and facts. Methodological rules of how to evaluate sources critically are still valid. The events and the facts based on the events can be documented. No serious historian founding his or her work on sources would deny the fact that, for instance, the Holocaust really did occur.

Thanks to Chancellor Gerhard Schröder's decision to ask the German Bundestag (Federal Parliament) for a vote of confidence on 1 July 2005, and following on the Federal President's dissolution of the Parliament on 21 July 2005 in response thereto, the Bundesverfassungsgericht (BVerfG – Federal Constitutional Court) was pressed into service to finally decide whether federal elections should go forward nearly a year ahead of schedule. With the Court's affirmative decision of 25 August 2005, Germany now finds itself in a turbulent national election campaign.

As a result of a series of high-profile corporate collapses worldwide, along with regular reporting of shareholder money being spent on corporate jets, executive golf days and increasingly excessive executive compensation arrangements, the common perception is that the executives of our largest corporations are driven by self-interest with little regard for what is best for the corporation. Due to this negative perception, there has been an exponential increase in the amount of laws, rules and guidelines setting in place a heightened standard of corporate governance best practice. Without such regulation, it is believed, another collapse or scandal is inevitable. In this article, I dispute this reasoning. In my view if we embrace “positive corporate governance”, in which the positive strengths and virtues of company executives are emphasised, we can move towards an environment in which heavy regulation is replaced by positive corporate norms inside the corporation. I then apply my approach of positive corporate governance to address one of the most significant issues confronting corporate regulation at present- how to deal with the rapid increase in executive compensation in our largest corporations. I suggest that the dominant methodology of pay for performance is ultimately flawed.

Socrates, Oscar Wilde, Klaus Mann and many other men in history had one thing in common: they loved men. Some of them were lucky and could live a peaceful life regardless, since they either had the respective social standing or lived in societies where homosexuality was at least tolerated. Most others in history, however, were in a rather unfortunate position. To be gay was to be criminal. A conviction for homosexual conduct resulted in years in prison or worse: even today the death penalty can be imposed upon homosexuals in countries where the Shari'a, the Islamic Criminal Code, is interpreted and applied in a strict and conservative way.

How to reform the American health care system, now dominated by a decreasing number of multi-billion dollar managed care corporations, has occupied the public debate for many years. Recent news reports hefty increases in managed care premiums, benefit reductions, and an ever-growing number of managed care organizations refusing to treat Medicare patients. Numerous “patients’ bills” have been submitted in Congress, attempting to rein in some of the managed care cost containment practices. None have been adopted so far. At best, such bills would superficially treat some of the symptoms of an ill-functioning health care delivery system, poorly serving the population, insured and uninsured, and creating a plethora of ethical conflicts for providers battling to preserve an acceptable standard of care. Since the Clinton health care reform efforts failed in 1994, no one has proposed a fundamental revision of the system, and the United States remains the only industrialized nation without a universal health care system. The literature mainly reports on those – English-language – countries whose cost containment measures have resulted in overburdening the public health care system. There are, however, numerous European governments which succeed in stabilizing health care expenditures by mandating some sacrifices by all participants in the health care system while preserving universal access, comprehensive coverage, and the standard of care.

In Germany, the management report that comments on the company's business and financial position as well as its future prospects has long ago been introduced to the Handelsgesetzbuch (HGB – German Commercial Law). Ever since the European Court of Justice [ECJ] has clarified that GmbH & Co. KGs are classified as companies with limited liabilities under the 4th and 7th Directive, annual reports have to be published by an even wider range of companies.

Nations compete for investment capital, and the assurances investors seek as they decide to provide that capital are universal. Motivated by the growing appetite for a global benchmark of corporate behaviour, this paper examines the relationship between the measured quality of corporate governance at the firm level and national competitiveness. It begins by analyzing the perceived quality of institutions in the 23 largest capital markets. Hypothesizing that good corporate governance at the company level may compensate for perceived weaknesses in the institutional framework, the paper then focuses on the pilot governance index developed by the Financial Times and ISS and compares it with new survey evidence from the World Economic Forum's Global Competitiveness Report. Finally, the paper discusses corporate governance in the EU accession countries and the extent to which the quality of governance has affected the mode of entry for foreign investment.