The exploration of international legal patterns is an increasingly multifaceted enterprise. As such, it inevitably entails recourse to a progressively broader array of analytical instruments designed to place the process on a firmer scientific, or quasi-scientific, foundation. This expanding set consists predominantly, albeit not exclusively, of qualitative techniques relied upon in seeking generalizations about complex realities that are shrouded in uncertainty. The cluster of tools employed or deemed potentially usable includes, although tentatively, counterfactual thinking. The latter may be regarded as a research vehicle of “last resort,” underpinned by a soft substructure, but it may facilitate the quest for better grasp of phenomena observed in the international law domain and more effective action in that realm.

It is a long-established commonplace in any debate on immigration that immigrants should integrate into their receiving society. But integrate into what precisely? Into the labor market, into the legal order, into the political system, into a national culture whatever this might comprise? The Article tries to approach the question from the legal point of view and looks for hints or clues in the constitution which might help us with the answer. For this purpose, it explores the general theory of the constitution as it has been shaped by its professional interpreters as well as by political actors, the media and the public. The main intuition is that “constitution” is not only a written document, a text with a predefined, though maybe hidden meaning; instead, it is a social practice evolving over time and thereby reflecting the shared convictions of a political community of what is just and right. Talking about constitutional expectations toward immigrants then also tells us something about ourselves: about who we are and what kind of community we want to live in. As it turns out, we may not have a very clear idea of that.

The theory of constitutional pluralism as advanced by MacCormick and Walker witnessed immense success in its attempt to explain the relationship between courts of Member States performing constitutional review and the Court of Justice. Despite its success, the theory has often been criticized for its lack of normative prescriptions and legal certainty in resolving the question of the final arbiter in the EU. It is the aim of this Article to address and move beyond these criticisms by introducing and exploring the auto-correct function necessary for the proper and balanced functioning of the pluralist system.

The auto-correct has the function of preventing an outbreak of conflict between the constitutional jurisdictions involved—in the EU judicial architecture, an awareness on the part of all the actors involved of the benefits of a pluralist setting results in conflict management and control. The auto-correct function operates as follows: in the EU as we know it, issues prone to constitutional conflict arise regularly, and both the Court of Justice and national constitutional jurisdictions are able, through their respective procedural avenues, to control the extent of the conflict. There are also two legal imperatives driving this dynamic in two opposite directions—the principle of primacy of Union law on the one hand, and the obligation to respect the national identity of Member States on the other.

As analyzing judicial behaviour shows, the application of self-restraint and mutual accommodation avoids a clash between parallel sovereignty claims on EU and national levels. In particular, national and EU law interaction demonstrates the existence of in-built conditions for the auto-correct function's application, such as the principle of EU-friendly interpretation in national constitutional law, or the national identity clause in primary EU law. The auto-correct function manifests itself and brings about a balance between the different constitutional orders only through the interaction of parallel claims to sovereignty.

This article discusses the legal concept of the person against the background of technological developments. Emerging technologies are offering radical ways to transform the biological and physical aspects of life. Several legal scholars claim that the technological artificialization of human life also calls for a more artificial, disembodied account of the natural person in law. According to them, the legal distinction between natural persons (human legal subjects) and artificial persons (non-human legal subjects, such as corporations) is becoming diluted and increasingly redundant. This article argues that, in an era of growing technological and postmodern disembodiment, the traditional legal distinction between natural and artificial persons remains important, albeit in a different form. An examination of the legal concept of the person in biomedical law suggests that law's category of the natural person still has its merits, not just despite these technological developments, but, remarkably enough, also because of them.

This Article assesses the extent to which Article 13(2) TEU supports a republican reading of the EU's institutional structure. This question has arisen in light of the move towards more intergovernmental forms of economic governance following the Eurozone Crisis. Dawson and de Witte and Bellamy have critiqued this mutation through theory-driven readings the institutional balance clause of Article 13(2) TEU, arguing that it establishes a norm of non-domination between EU institutions that has been undermined by increased intergovernmentalism. This Article considers whether the institutional balance case law supports their reading. It finds that institutional balance's dominant role is not normative: It protects pre-existing institutional competences. It does carry a normative side when used as a general principle of EU law to support arguments about increasing the European Parliament's legislative contributions, but this is not an independent head of claim. A better legal support for the presence of a non-domination in Article 13(2) lies within its second clause, the principle of sincere cooperation. Ultimately, the case law around both clauses of Article 13(2) TEU means that the provision is best understood as having a tripartite structure providing a constitutional basis for non-domination during lawmaking.

Along with numerous ethical and legal questions prompted by advancements in technology, there is a strong call for protection of “persons” in a broad sense. This Article discusses how such developments emerge in China. Chinese courts are often confronted with disputes concerning prenatal injuries, the disposition of frozen embryos, and infringements on the reputation of the deceased. After examining these cases, their underlying tensions, and the upcoming Chinese Civil Code, this Article reflects on the evolving concept of a natural person within the Chinese civil law context. The Article further asks how law deals with new problems while at the same time maintaining stability and coherence when viewed against a rapidly evolving biotechnological background.

The judgment of the Court of Justice of the European Union in Schrems v. Data Protection Commissioner, in which the Court invalidated the EU-US Safe Harbour arrangement, is a landmark in EU data protection law. The judgment affirms the fundamental right to data protection in the context of international data transfers, defines an adequate level of data protection, and illustrates how data protection rights under EU law can apply to data processing in third countries. It also raises questions about the status of other legal bases for international data transfers under EU law, and shows that many legal disputes concerning data transfers are essentially political arguments in disguise. The Schrems judgment illustrates the tendency of EU data protection law to focus on legalistic mechanisms to protect data transfers rather than on protection in practice. The EU and the US have since agreed on a replacement for the Safe Harbour (the EU-US Privacy Shield), the validity of which will likely be tested in the Court of Justice. Regulation of data transfers needs to go beyond formalistic measures and legal fictions, in order to move from illusion to reality.

This Article evaluates the merits and problems of comparative constitutional law as an interpretive means by the courts. It pleas for a nuanced perspective towards both agents and methods of comparative constitutional law. The Article is in favor of the use of comparative constitutional law by the courts. However, challenges as to the legitimation of comparison in court, functional limits of comparative constitutional law in the judiciary, and methodological questions remain to be solved. As far as constitutional and supreme courts are concerned, this Article argues that arguments derived from comparison should be regarded as a means of persuasive reasoning.

Throughout its history, the United Nations has resorted to large-scale ad hoc Commissions of Inquiry (UN COIs) to investigate serious international incidents. These UN COIs have often been highly political affairs, though their tasks and goals—including most recently investigating reports of war crimes or crimes against humanity the world over—are distinctly legal in nature. The result has been a focus on both the politics of such UN COIs—including most prominently whether their mandates or their Commissioners are biased—and on the merit of their legal-criminal findings. Yet it is the processes and procedures of UN COIs, and particularly their commitment to transparent due process, that are best able to form a bulwark against both political and legal attacks. Thus, it is their processes and procedures that should be the focus of much legal-academic work; unfortunately, to date this has not tended to be the case. By analyzing perhaps the most well-known and controversial recent UN COI, the 2009 United Nations Fact Finding Mission on the Gaza Conflict, and focusing on its due process and procedures rather than its politics or its correct application of international criminal or human rights law, this paper seeks to remedy this oversight. It seeks to identify the legal and procedural shortcomings—the failures of due process—of a well-resourced, well-staffed political inquiry to offer a representative example of how UN COIs tend to fall short, why they must be considered legal undertakings, and how future UN COIs might remedy these common shortcomings by focusing on the legality of their procedures.

As a normative social practice, law mediates between the “is” and the “ought,” between prescription and description. Obviously, narratives and narration play a role in law when it comes to describing facts and events: The testimony of a witness in court, the presentation of the case in a judgment, or (semi-)fictional cases used for legal education spring to mind. In this Article, however, the focus is on the prescriptive side of law. If, in line with the definition given by Matías Martínez and Michael Scheffel, a narrative is to be understood as a “sequence of events and actions producing at the level of [literary] action an autonomous structure of meaning,” it becomes possible to identify narratives and narrative elements within legal norms and provisions. The first part of this paper will deal with grand historical —or historicizing—narratives and cast some light on how they are used to give sense and direction to the interpretation and application of, especially, constitutional principles. The second part will suggest a narratological perspective on statutory law and attempt to reconstruct the process of norm application. This Article argues that this process relies mainly on comparative methods, and that narratives mediate between the seemingly opposed spheres of law and fact. Both kinds of narratives, the grands récits of constitutional law and the petits récits of statutory law, though quite different at first sight, possess common traits. They both fit the definition of narrative just cited; they both result from a process of selection and are thus prone to exclusionary effects. Moreover, the grand narratives of constitutional law also affect statutory law, its interpretation, and its application.

Since December 18, 2014, when the Court of Justice of the European Union (CJEU) issued its notorious Opinion 2/13, the conclusions of the Court have been a subject of numerous analyzes and debates—often sharp in their criticism. Now that the content of the Opinion seems fairly elucidated, the scholarly attention should turn towards searching for practical solutions to the CJEU's demands. This Article aims to provide a list of possible solutions to each requirement of the Opinion and assessing their pros and cons. Instead of concentrating on the obstacles posed by the Court, it is incumbent to address the problems with innovative legal thinking and save the project of the EU acceding to the European Convention on Human Rights (ECHR).

The general assumption in the West is that there still is an inherent difference between persons and things. This divide informs how “the human” and human subjectivity are constructed as distinct from all others. Recently, the distinction has been challenged in posthumanist theory, where it has been argued that the divide between human and nonhuman agents—or rather, bodies—is always an effect of a differential set of powers. For this reason, the boundaries between human and nonhuman are always in flux. As posthumanist theorists have argued, this change in boundaries may be specifically visualized in relation to digital technology. Today, such technologies obfuscate the boundaries between persons and things, and the extensive utilization of smartphones, social media, and online search engines are just three common examples.

The relationship between immigration and constitutional identity is simultaneously obvious and evasive. This Article explores that relationship through a comparative case study of Italy and Canada. It begins with a conceptual analysis of the role of immigration against the backdrop of collective identity, constitutional identity, and constitutional subjectivity. The metaphor of immigration as a mirror of constitutional identity orients this analysis. Then, an empirical comparison of the role of immigration in Italy and Canada demonstrates the very different place of immigration in national and constitutional narratives of “self” and “other.” Yet, when the lens is widened to include their recent startup visa programs, their narratives start to converge as the new metonymy of innovation makes an appearance. This convergence marks a conceptual shift in constitutional identity: From immigration as mirror to immigration as display. As a tool of attraction for innovators, immigration law has both internal and external dimensions, which reverberate with implications for constitutional identity. Ultimately, the startup visa programs enlarge the constitutional “us” and make constitutional subjectivity more fluid.

EU Member States have in recent years designed national schemes to support the development of renewable energy. For example, in systems of feed-in-tariffs the states guarantee for a given period of time plants generating electricity from renewable resources the market price plus a premium. These feed-in-tariffs have normally only been awarded to electricity generated in-state. The preference given to in-state industry has been challenged in court as contradicting the principle non-discrimination on the European internal market. The decision by national legislatures to limit the availability of feed-in-tariffs to electricity generated in-state, however, has—to the surprise of many—been found justifiable by the European Court of Justice. This Article illustrates how the objective to ensure system stability has emerged as the strongest ground of justification in the context of cross-border electricity trade and how similar arguments have actually been used previously in the context of the health care service sector. While the reasoning of the court is defendable, the court could have developed an even more nuanced and informative position if it had taken notice of additional aspects that have popped up in the U.S. debate on similar questions.

This Article examines the desirability of the universal recognition of the right of public access to legal information as a human right and therefore as part of a legal framework for improving national and global access to legal information. It discusses the right of public access to legal information as a legal right and the importance of its international human rights framework. The Article argues that every person has the right of public access to legal information, which casts a legal and moral duty on every government and every intergovernmental organization (IGO) with judicial and legislative functions to provide adequate and free access to its laws and law-related publications. It argues further that every government can afford the provision of adequate public access to its legal information and that the lack of political will to do so is the preeminent factor responsible for inadequate—and in some cases extremely poor—public access. Additionally, this Article advocates the universal recognition of the right of public access to legal information as a human right and makes a proposal for a UN Convention on the Right of Public Access to Legal Information. It provides the essential contents of the proposed UN Convention which incorporate The Hague Conference Guiding Principles to be Considered in Developing a Future Instrument. These contents provide valuable input for urgent interim national and regional laws and policies on public access to legal information, pending the Convention's entry into force. The proposed UN Convention will significantly enhance global access to official legal information that will promote widespread knowledge of the law. It will also facilitate national and transnational legal research and remedy the chronic injustice from liability under inaccessible laws under the doctrine of “ignorance of the law is no excuse”—which is similar to liability under ex post facto and nonexistent laws—and promote the proposed doctrine of “ignorance of inaccessible law is an excuse.”

The invasive but highly profitable snow crab has made its way into the waters of the High Arctic, precipitating a direct confrontation between the EU and Norway over the interpretation of the 1920 Svalbard Treaty. Norway claims the Treaty does not apply due to its strict interpretation of the Treaty's terms, which pertain only to the archipelago's terra firm and territorial sea. The EU claims the Treaty's equal access and non-discrimination provisions follow the evolution of the international law of the sea, and make the living (and mineral) resources of Svalbard's surrounding continental shelf and waters open to all states parties to the Treaty. The dispute has gone on for decades, but this Article maintains, through a review of Norway's increasingly isolated legal and political stance that time is out of joint for Norway and its long-term appropriative design and strategy to territorialize this area of the High North.

The following Article deals with the issue of whether the Federal Republic of Germany is responsible for examining the applications for international protection of third-country nationals who, since the start of the European refugee crisis have arrived at the German land border or, alternatively, whether Germany is obligated to refuse entry to such persons and relegate them to an adjacent transit country. In most cases, this would require Austria, in particular, to examine these applications for protection. The position outlined in this inquiry may be applied to all internal borders between European Union Member States.

The debate on the exact meaning and content of their constitutional identity has a long history in many European countries, with national courts playing the leading role. Ten years ago, this debate was given a new boost by the Treaty on European Union (TEU), article 4 paragraph 2 of which urges the European Union to respect the constitutional identities of the Member States. The national courts in a number of Member States saw in this provision the recognition of their zealous efforts to control the ongoing expansion of EU competences and to overcome the absolute primacy of EU law over domestic constitutional law. In Greece, however, no debate on the possible use of constitutional identity as a limit to the European Union and its law had taken place—at least not until recently. Our main objective in this article is to try to explain why Greek courts, and especially the Symvoulion Epikrateias, the supreme administrative court, failed to develop and make recourse to a notion of constitutional identity, even in cases they had good reasons to do so, and to find out if—and, if yes, to what extent—the situation has changed after the outbreak of the financial and, soon after, the migration crises. The analysis of the relevant case-law will permit us to conclude that the Greek constitutional identity is currently still under construction and that it is constructed using elements from both the liberal and the exclusionist models.

This paper analyzes the possible impact of TTIP's so-called regulatory cooperation on the implementation of the precautionary principle in the EU. The European Commission argues that regulatory cooperation will not impinge on the application of the precautionary principle because, first, it does not change the legislative framework of precautionary legislation and, second, the right to regulate will be safeguarded by the TTIPs horizontal chapters. On the contrary, I argue in this paper, that these guarantees are insufficient. Given the methodological and institutional constraints presented by the TTIP's institutional design, in the long run, regulatory cooperation will undermine the precautionary approach to regulation in the EU.

Benjamin Cardozo, a great promoter of the concept of the unity of form and content in law and literature, once wrote that “[t]he perplexity of judges becomes the scholar's opportunity.” Cardozo's observation prompts my contribution on narratives in the law to this special issue on pluralities in the law because of the interrelation between law in academic theory and law in practice. My experience as a judge and an academic working in both the fields of law and literature, and law and humanities, allows me to provide a unique point of view. This Article argues the following: First, “to narrate is already to explain” as Paul Ricoeur wrote; the way in which the facts of a case are narrated largely determines the outcome of that case, therefore jurists need to develop and cherish narrative knowledge. Second, jurists should be imaginative about both the law and the people whose fates they determine when they use language to translate brute facts into the reality of the legal narrative. Third, this Article investigates and critically responds to literary theorists' various views on narrative and narratology, explaining which elements can be fruitfully incorporated into a legal narratology. I argue that jurists, while acting as authors and readers of legal narratives, all too often disregard what literary theory and the humanities more generally have to offer to legal practice, which is to highlight points of misunderstanding in our interdisciplinary literary-legal discussions. Here, too, scholarly opportunities remain to be seized for further clarification and theoretical elaboration of the bond of law and narrative.