The Nazi regime had loyal judges who willingly transformed the liberal German law into an instrument of oppression, discrimination and genocide. This was achieved without substantially interfering with the operation of the courts and without applying disciplinary measures on the judges. But, not all judges were congenial servants of the regime—some resisted in their capacity as judges. Based on case-studies and existing literature, this Article distinguishes between two different lines of judicial opposition to those in power: Between opposition taking place in the open and opposition in secret, and between opposition within what is accepted by those in power as being within the law and opposition that is in breach of the law. The Article then seeks to explain the deference the regime gave to judicial by employing institutional theory and the concept of path dependence. Germany was deeply embedded in the Western legal tradition of emphasis on law as an autonomous institution with an independent judiciary.

This Article argues that distributional concerns constitute the heart of environmental regulation; they are not restricted to pre-policy values or post-policy effects that need to dealt with. On the contrary, they characterize the selection of environmental policies, and their properties. Different interests, preferences, and values with respect to a policy instrument can be made commensurable using the language of distribution. The centrality of distribution as an organizing principle may be elusive on account of it being too vaguely construed or too narrowly defined. This necessitates the articulation of a typology of distributional concerns. To this end, it is suggested that the distribution of benefits and burdens, distribution of responsibility, distribution of membership and distribution of capabilities could be useful categories to develop and assess environmental regulation. This framework is then applied to an unsuspecting candidate, the European Union Emissions Trading Scheme (EU ETS).

This Article uses a combination of doctrinal and comparative analyses to elucidate the most widely-used criteria according to which courts characterize an act as having a private-law nature. Further, this Article identifies the extent to which the Turkish State practice has embraced those criteria. To that end, this Article extracts two such widely-used criteria from patterns in customary State practice. In the end, the Article points out the extent to which those criteria are prevalent throughout the Turkish court rulings and concludes that Turkish caselaw is generally in alignment with the customary State practice in terms of the criteria used to determine a State act's private-law nature.

The General Council of the Judiciary is the main institution of judicial self-government in Spain. It was established to ensure the external independence of the judiciary, and in particular the independence of the judiciary vis-à-vis the executive branch of government. To what extent does the Judicial Council manage to fulfill its goal? First, the evolution of the Judicial Council will be presented in order to understand the principal reforms and reasons behind its creation. Next, the impact of the Judicial Council upon judicial independence, as well as accountability, transparency, and public confidence will be critically examined in order to assess its contribution to judicial legitimacy. In the end, it will be argued that the politicization of the Judicial Council has hindered it from protecting judicial independence from partisan interests, and has contributed to undermining public confidence in the judiciary.

Criminal offenses with the most different modi operandi and levels of complexity can generate digital evidence, whether or not the actual crime is committed by using information and communication technology (ICT). The digital data that could be used as evidence in a later criminal prosecution is mostly in the hands of private companies who provide services on the Internet. These companies often store their customers’ data on cloud servers that are not necessarily located in the same jurisdiction as the company. Law enforcement and prosecution authorities then need to take two steps that are not exclusive for evidence of a digital nature. First, they need to discover where the data is located—with which company and in which jurisdiction. Second, they need to obtain the data. In considering digital evidence, the last step, however, is complicated by new issues that form the focus of this paper. The first concern is the practice by companies to dynamically distribute data over globally spread data centers in the blink of an eye. This is a practical concern as well as a legal concern. The second issue is the slowness of the currently applicable international legal framework that has not yet been updated to a fast-paced society where increasingly more evidence is of a digital nature. The slowness of traditional mutual legal assistance may be no news. The lack of a suitable legal framework for competent authorities that need to obtain digital evidence in a cross-border manner, nonetheless, creates a landscape of diverse initiatives by individual states that try to remedy this situation. A third issue is the position that companies are put in by the new EU proposal to build a legal framework governing production orders for digital evidence. With companies in the driver's seat of a cross-border evidence gathering operation, guarantees of the traditional mutual legal assistance framework seem to be dropped. A fourth issue is the position of data protection safeguards. US based companies make for significant data suppliers for criminal investigations conducted by EU based authorities. Conflicting legal regimes affect the efficiency of data transfers as well as the protection of personal data to citizens.

This Article presents the Decameron, by Giovanni Boccaccio, as a classic writing of universal literature that contains anticipations and fundamental innovations of the political categories of modernity: Contractualism, constituent power, constitutional deliberation, rhetoric, and the relation with Fortuna. The argument is developed in three parts: Initially, the legal and European dimension of the Decameron are summarized; then the discussion focuses on legal issues and institutional characters narrated in the novels; finally, the introduction of the work is analyzed, in which both the political-constitutional theme of the new beginning of the community and the collective archetype of the plague are interpreted as metaphors for the state of exception.

In Europe, issues concerning religious freedom are hotly debated. Many courts had to consider cases concerning infringement of religious freedom. This Article will focus on three examples: Headscarves, burqas, and crucifixes. Often, the interests of members of minority religions have lost in European courts and European constitutional courts. This is particularly true considering the decisions of the European Court of Human Rights. The European Court of Human Rights upheld bans on headscarves for students in universities and public secondary schools, as well as for teachers in public schools. The Court also accepted bans on full-body veils worn in public areas. Finally, mandatory crucifixes in public schools have been deemed to conform to the standards set by the European Convention on Human Rights. In all of these cases, the European Court of Human Rights has not adequately construed religious freedom as a strong right.

This is where the work of Ernst-Wolfgang Böckenförde comes in. Böckenförde has thoroughly discussed the proper role of religion in a democratic society. Coming from a theoretical starting point, he developed an understanding of religious freedom as a strong right. He also explained why State neutrality should be understood in terms of open neutrality. Both perspectives help to more fully explain the scope of religious freedom.

Article 50 of the Treaty on European Union was originally viewed by national constitutional courts as an important provision for upholding state sovereignty. The German Constitutional Court emphasized the provision in its reconciliation of the Lisbon Treaty with state sovereignty. The Czech and Latvian Constitutional Courts saw Article 50 as creating a balanced process for the exercise of the sovereign right to withdraw from the European Union. Prior to the Brexit referendum, there was little doubt in the literature that an Article 50 agreement could address the entirety of the future relationship between a withdrawing member state and the European Union. Since the Brexit referendum, the European Union has taken an increasingly narrow view of Article 50. This, combined with interpretations of other Treaty provisions, have both created significant disadvantages to the withdrawing member state. If—above and beyond natural imbalances in bargaining power—EU Law creates a position of inequality between the withdrawing member state and the EU in negotiations, then the pooled-sovereignty model of the European Union is called into doubt. Article 50 cannot simultaneously be viewed as upholding state sovereignty, whilst being exit-hostile to any state that uses the provision.

This Article compares the French and Italian experiences with gender quotas—understood as mechanisms intended to increase women's participation in public life, including but not limited to, the reservation of seats in certain positions and the modulation of electoral lists— in public entities such as legislative and executive bodies (including political parties), the judiciary, and public universities. The comparison between France and Italy demonstrates that even between two countries whose constitutional history and trajectory with regard to gender quotas has been portrayed as being essentially identical, a closer analysis of the recent developments in both countries’ constitutional and administrative case law shows a slightly more nuanced picture. Using Rodolfo Sacco's approach of legal formants, this Article argues that the difference stems mainly from the different attitude and interpretation of equality by the judicial formant.

As the use of the Internet and online platforms grows, the scale of collecting and processing personal data and turnovers have increased correspondingly.1 At the same time, public awareness about the Internet turning into a genuine profiling and advertisement machine, as well as a powerful surveillance instrument, grows. More people today are concerned about the ways in which public and private actors store and use private information. Many individuals note that they lose sight of the consequences once they give consent to the collection of their sometimes most intimate personal data. The Snowden revelations and the recent Facebook and Cambridge Analytica scandal have only reinforced this public awareness.

Objections against these data processing practices cannot be explained as breaches of data protection or privacy regulation alone. In this Article, it is argued that recently passed regulations fail to solve the unease of data subjects as other, more fundamental values are at stake here. A different or complementary ethical and legal framework is needed to interpret this generally felt unease vis-à-vis current data practices and secondly to confront future developments on the data market. The concept of human dignity may be a helpful perspective in this respect. In the context of data processing, human dignity is generally interpreted in a quite specific manner, such as contributing to the empowerment and self-determination of autonomous individuals. It can be argued, however, that human dignity—in the context of the commodification and commoditization of online personal data—should be seen in a different, quite opposite, light. In sum, future regulation of privacy and data protection attention should shift towards more constraining dimensions of human dignity.

When France and Belgium banned face veils in 2010 and 2011, they were the first European countries to do so in a comprehensive matter. Now Austria has its own ban, Denmark is on track to have one too, and several other countries are toying with the idea. Such bans are often considered incompatible with the rights of veil wearers (especially Muslim women). Less prominent is the question whether such bans are incompatible with the modern state.

Such a critique can be grounded on the work of the leading German constitutional law scholar Ernst-Wolfgang Böckenförde and his famous dictum, according to which “[t]he liberal, secularized state draws its life from preconditions it cannot itself guarantee.” For Böckenförde, this means that headscarves, a different type of veil, cannot be banned—not because this would violate a woman's rights, but because it would undermine the very character of the state itself.

The article transposes this argument from the German discourse over headscarves to the European discourse over face veils. It demonstrates the potential of Böckenförde's dictum for the face veil debate, but also its limitations.

Based on which values and to what extent does a specific legal system endorse a model of self-government of the judiciary? How is such self-government shaped? Which lessons can be drawn from practical experiences relating to major organizational reforms? This article addresses these questions with the aim of analyzing the influence of reforms of judicial self-government in the Netherlands on the realization of the core values of independence, accountability, legitimacy, transparency of, and public confidence in the judiciary. Furthermore, this article assesses the influence of reforms of judicial self-government on the separation of powers and democracy as organizing principles for the Dutch legal system. The main focus of the article is on the interaction between rule-of-law values and New Public Management (NPM) values for judicial organization, taking into account the meaning and weight of these values over time in the evolving Dutch legal system. Furthermore, the analysis addresses both the legal framework for judicial government and tensions that have occurred between key actors, in particular judges and the Council for the Judiciary, in their experiences with this legal framework in practice. A red thread which runs through this analysis concerns the demarcation of spheres of autonomy for the different actors in the judicial system. The analysis of organizational reforms clarifies that a dynamic interaction has developed between judges, the bodies for judicial self-government in the Dutch system and the Minister of Justice and Security, revolving around claims of autonomy. The evolved framework of rule-of-law and NPM values for the judicial organization provides a theoretical “lens” for understanding this interaction and its outcomes.

The Cosmopolitan Constitution is an intriguing and puzzling book. In particular, the book has the uncanny ability to render fresh what is for the constitutional theorist familiar territory such as the debate on judicial supremacy and the counter-majoritarian difficulty, the expansion of the proportionality principle, etc. In fact, one of the most interesting aspects of its overarching argument is that given our present conditions—such as those of the cosmopolitan constitution or constitutionalism 3.0—we should be increasingly plagued by self-doubt, at least to the extent that we are to remain committed to the tenets that once animated our constitutional traditions. This implies that the partial sense of disorientation with which one is left after reading the book is deliberately provoked precisely because of the main insights it has to offer.

This Article examines the statutory and constitutional legal framework governing the bulk collection of communication data by the German Federal Intelligence Service (Bundesnachrichtendienst, BND). German intelligence law distinguishes between certain categories of communications depending on the nationality and location of the participants. The provisions on the surveillance of foreigners abroad are far more permissive than those applying to the monitoring of communications that involve German nationals or foreigners in Germany. This differentiation is the consequence of a narrow interpretation by the German legislator of the personal and territorial scope of the right to privacy enshrined in Article 10 of the Basic Law. While there is no doubt that German nationals enjoy protection under Article 10 wherever their privacy is affected by the actions of the German State, current intelligence legislation is based on the understanding that foreigners are entitled to such protection only while staying in Germany. It will be argued that such discrimination is difficult to reconcile with German constitutional law because Article 10 protects every natural person without regard to nationality and because the Article's applicability is not limited to the territory of the Federal Republic of Germany. This means that the BND is bound by Article 10 irrespective of whether its surveillance activities affect German nationals, foreigners in Germany, or foreigners abroad. Arguably, the level of protection in transnational constellations may be subject to certain modifications. But if basic rights protection is taken seriously, the existing fragmented legislation should be replaced by a uniform statutory regime for strategic surveillance of international communications that meets the minimum standards of Article 10 without bearing reference to a person's nationality or location.

This article argues that the establishment of the National Council of the Judiciary in 1989 and the empowerment of the general assemblies of court judges gave rise to the idea of judicial self-government in Poland. This very idea of self-government, implying that judges hold important decision-making or veto powers on matters concerning the judiciary, was regarded as a precondition of the separation of powers and judicial independence, neither of which existed under Communist rule. However, the package of laws introduced in 2017 marks the end of judicial self-government as we know it. Not only did it undermine the independence of the National Council of the Judiciary by altering the mode of electing its judicial members, but it also concentrated the power over the judiciary in the hands of the executive branch, allowing for, inter alia, the exchange of key positions in court administration and the reconfiguration of the Supreme Court. This article examines the impact of this “reform” on such values as independence, accountability, and transparency. Investigating the role of judicial self-government in ensuring the principle of separation of powers and democracy, the article concludes with an assessment of the early consequences of the introduced changes for the Polish judiciary.

Critics of the Turkish interpretation of secularism, laiklik, describe it as authoritarian and repressive. Indeed, rather than establish state neutrality toward religion, laiklik historically entailed state control of Islam, the religion of the vast majority of the Turkish population, and the exclusion of religion from the public sphere in an effort to control religious belief and identity. Many, including leaders in the ruling AKP, assert, though, that recent reforms herald a move away from this model of control toward a secularism defined by state neutrality toward religion. To determine whether this transformation is actually occurring, I evaluate, based on Turkish language sources, the recent reforms under the AKP using the framework of the secularized state described by the German legal scholar Ernst-Wolfgang Böckenförde. Because of its significant role in implementing Turkish policies toward religion, I evaluate these reforms by analyzing developments in the programming and messaging of the Directorate of Religious Affairs (Diyanet) under the AKP. I find little evidence that laiklik is transitioning to a state neutrality toward religion. Rather, the AKP has coupled a greater presence of religion in the public sphere with expanding state authority in religious programming and messaging. Although these reforms reflect a transformation in Turkish nation-building policies, they maintain the state control of religion that separates laiklik from neutral secularism.

A major contemporary shift in constitutionalism is manifest in that domestic constitutions, to an unprecedented degree, submit themselves to legal regimes and agencies beyond the state. This is epitomized in national courts taking into account foreign precedent within the system of the European Convention on Human Rights and the government of the Eurozone crisis by the executive apparatus of the European Union (EU). Alexander Somek's The Cosmopolitan Constitution is one of the most important monographs that endeavors to conceptualize this contemporary shift in constitutionalism. This response, however, highlights that the EU plays an uneasy role in the tale of The Cosmopolitan Constitution. The argument presented is that there are reasons to question the Eurocentrism that posits European post-WWII constitutional developments as the epitome of contemporary global constitutional developments. These reasons relate to the particularity of the European post-WWII political and constitutional experiences and developments. In contrast to what is maintained by Somek, this response argues that contemporary European trends in constitutionalism do not point in the direction of a universal cosmopolitanism but express a distinct European particularity.