Books by Lando Kirchmair
Beiheft - Archiv für Rechts- und Sozialphilosophie, 2020
Der demokratische Rechtsstaat ist im 21. Jahrhundert ins Wanken geraten – keineswegs nur in Europ... more Der demokratische Rechtsstaat ist im 21. Jahrhundert ins Wanken geraten – keineswegs nur in Europa. Entwicklungen wie beispielsweise in den USA und in Brasilien zeugen von der globalen Tragweite dieses Phänomens. Auf Grund der Vielzahl besorgniserregender Ereignisse ist es von eminenter Bedeutung, diese Krise zu analysieren. Wie kann den Angriffen auf die Demokratie begegnet werden? Stehen uns internationale oder supranationale Mittel zur Bewältigung zur Verfügung? Wie können Antworten aussehen, wenn der freiheitliche Rechtsstaat von Voraussetzungen lebt, die er um seiner Freiheitlichkeit willen nicht (mehr) selbst garantieren kann? Die Autorinnen und Autoren setzen sich mit der historischen Dimension der Thematik auseinander und nehmen Gegenwartsanalysen vor, die auf konkrete Auswirkungen und zeitnah drohende Konsequenzen des Phänomens eingehen. Insbesondere wird die Verbindung von Rechtsstaat und Demokratie beleuchtet: Kann es eine Demokratie ohne Rechtsstaat oder den Rechtsstaat ohne Demokratie geben?
3. Tagung junger Europarechtler*innen – 3rd Young European Law Scholars Conference
Once again, Europe is at a crossroads: Although there is regular talk of crisis, trust in the Eur... more Once again, Europe is at a crossroads: Although there is regular talk of crisis, trust in the European Union remains stable and there is a strong upwards trend regarding its positive image (the latest Standard-Eurobarometer90 shows a record high).Nonetheless, Europe faces many internal and external challenges, such as Euroscepticism, the return of nationalism, societal and technological developments, climate change, terrorism, and an ever-changing global political, economic and societal landscape, and may be in need of structural modifications.It is precisely against this backdrop that we pose this question: What should these modifications look like, and, more generally, how should we shape the future of Europe?
We invite young scholars to propose ideas and to discuss their views on how to shape the future of Europe. This warrants a forward-looking conceptual analysis on how to properly address Europe’s internal and external challenges and a bold and visionary approach. Instead of proposals that focus on current shortcomings, we encourage submissions that propose new, hands-on approaches to tackling Europe’s challenges in an innovative and future-oriented way, or pieces that revisit existing but promising approaches that were never put into practice. Additionally, in asking ourselves how we ought to shape the future of Europe, we also need to inquire how we will be studying EU law in the future. We therefore also welcome contributions on how and in which direction legal scholarship itself should develop.
Der Autor würdigt in vorliegender Untersuchung etablierte Theorien zur Erklärung des Verhältnisse... more Der Autor würdigt in vorliegender Untersuchung etablierte Theorien zur Erklärung des Verhältnisses von Völkerrecht zu Staatsrecht (Monismus, Dualismus). Aufgrund ihrer undifferenzierten absoluten Rechtsfolgen sowie wesentlicher Veränderungen des Völker- und Staatsrechts werden ihnen aber Aktualität und damit eine zufriedenstellende Erklärung des Verhältnisses im 21. Jahrhundert abgesprochen. Lando Kirchmair skizziert eine Alternative und richtet den Fokus auf die Entwicklung neuer theoretischer Grundlagen zum Verhältnis von Völkerrecht zu Staatsrecht.
Teil A. begründet die Theorie des Rechtserzeugerkreises (TREK), welche als gemeinsamer Nenner von Völkerrecht und Staatsrecht identifiziert wird. Teil B. analysiert die Auswirkungen der TREK anhand des Beispiels der österreichischen Rechtsordnung. Während die herrschende Lehre die Rezeption von Völkerrecht in die österreichische Rechtsordnung vertritt, stellt die Arbeit die Integration des Völkerrechts in die nationale Stufenbauordnung in Frage. Entsprechend der TREK werden die einschlägigen Bestimmungen der österreichischen Rechtsordnung als Ermächtigungsnormen zum Abschluss völkerrechtlicher Bestimmungen verstanden.
Um grundlegende und nicht spezifische Fragen einzelner (Völker-)Rechtsquellen zu adressieren, werden die Rechtswirkung von Völkervertragsrecht, Völkergewohnheitsrecht, allgemeiner Rechtsgrundsätze, Rechtsakte internationaler Organisationen und erstmals auch zwingendem Völkerrecht und einseitiger Rechtsgeschäfte in der österreichischen Rechtsordnung untersucht.
Papers by Lando Kirchmair
EJIL:Talk!, 2022
For too long, a great deal of energy has been invested in trying to decipher obscure statements m... more For too long, a great deal of energy has been invested in trying to decipher obscure statements made by Vladimir Putin (a true “masterclass of disinformation”: Åslund 2021; cf. Kappeler 2021). Now that Putin has started a war of aggression against Ukraine, it is high time that we take his denials of Ukrainian statehood and the appropriation of Ukrainian history seriously. His words have gained a whole different meaning against the backdrop of an armed aggression, in the course of which one of the first missiles hit a television tower in Kyiv just located next to the site of the Holocaust memorial Babyn Yar. The Ukrainian president Volodymyr Zelenskyy underscored the highly symbolic impact of this attack on the site of one of the largest WW2 mass graves in Europe: “Such a missile strike shows that for many people in Russia, our Kyiv is completely foreign. They know nothing about our capital. About our history […] But they have an order to erase our history. Erase our country. Erase us all.” In this post, we argue that it is imperative to take a close look at the (mis-)treatment of cultural property in this war of aggression: the deliberate destruction of cultural objects, an essential, indeed indispensable element of the collective memory of a people, is nothing less than an assault on the (cultural) identity of this very people. This is what we are witnessing right now in Ukraine.
Verfassungsblog, 2022
The first casualty of war is the truth. An outrageous example is Hitler’s speech on 22 August 193... more The first casualty of war is the truth. An outrageous example is Hitler’s speech on 22 August 1939, before the Blitzkrieg against Poland:
“I shall give a propagandist reason for starting the war, no matter whether it bemplausible or not. The victor shall not be asked whether he told the truth. When starting and waging a war, it is not right that matters but victory. […] The strongest man is right!”
We were reminded of this saying when Putin put forward “sham arguments” intended to justify waging his illegal war on Ukraine. Putin’s reasons for the invasion, like his claims of genocide in Donbas, are abstruse and lack any basis in reality. Rather than addressing the West, this national propaganda is meant to convince the Russian people of the
necessity of war. Is there a possibility to correct misinformation by communicating directly to the Russian people in Russian?
Verfassungsblog, 2020
After long years of debates and various (better and worse) drafts and recommendations, on 16 Dece... more After long years of debates and various (better and worse) drafts and recommendations, on 16 December 2020, the "Regulation on a general regime of conditionality for the protection of the Union budget" has finally been adopted by the European Parliament (EP). In the present blog post we are not going to deal with the question of which of the former drafts was the best or whether the Conclusions of the European Council are illegal and/or ineffective (see e.g. here, here and here; as well as for a "response" of the EP here). We share many of the concerns but wish to make the most of what we are left with under the new legal framework. The text of the Regulation itself allows for two directions: either it can become a purely anti-corruption measure (authoritarian Member States of the EU would prefer this reading) or it can develop into a real rule of law mechanism (for which just an explicit and generic motivation was the fight against corruption). The latter reading is supported by the fact that such anti-corruption measures already exist (and they are rather ineffective). We would like to support the second (extensive) reading of the Regulation as we are convinced that the breach of the principles of the rule of law "affect or seriously risk" the Union budget in manifold ways. Therefore, the understanding of "a sufficiently direct way" linking the breach with the Union budget will have to be necessarily broad. Following this understanding we show how the exact amount of the proportionate financial punishment (in the terminology of the Regulation "measure") can be established. To be more precise, we suggest that the principle of a proportionate financial measure enshrined in the new EU rule of law mechanism should be informed by an improved EU Justice Scoreboard (EUJS) drawing on rule of law indices. Thereby, the sensitive matter of determining the amount could be supported also by quantitative data. This is important, because the Commission will face high political pressure when acting under the new rule of law mechanism. Having the possibility to rely on an improved EUJS which presents clear data on rule of law breaches in EU Member States based on independent expert opinions, would significantly strengthen the position of the Commission against charges of politically motivated action.
Völkerrechtsblog, 2020
The announcement by Recep Tayyip Erdoğan to change the status of Hagia Sophia and to turn it into... more The announcement by Recep Tayyip Erdoğan to change the status of Hagia Sophia and to turn it into a Mosque last Friday, 10 July 2020, has provoked a worldwide outcry. With a ruling of 2 July 2020, published also on Friday, 10 July 2020 (No 2020/2595), the Council of State, Turkey’s highest administrative court, invalidated the 1934 transformation of Hagia Sophia from a Mosque into a museum. On the day the court ruling was released, the Turkish President signed decree no 2729 opening the UNESCO world heritage site – once again – to Muslim worshipers. Consequently, Hagia Sophia ceases to be a public museum, becomes a Mosque again, and the inaugurating Friday prayers will take place on 24 July 2020, coinciding with the 97th anniversary of the conclusion of the Treaty of Lausanne in 1923.
praefaktisch.de. Ein Philosophieblog, 2020
Das Coronavirus SARS-CoV-2, und die dadurch ausgelöste Lungenkrankheit covid-19, kurz c, halten u... more Das Coronavirus SARS-CoV-2, und die dadurch ausgelöste Lungenkrankheit covid-19, kurz c, halten uns in Atem. Die Lage ist ernst, sehr ernst. Es gilt allerdings trotz des Ernsts der Lage den Optimismus nicht zu verlieren. Dieser Post will die Aufmerksamkeit genau darauf lenken.
European Law Blog, 2020
We live in uncertain times, in times when the rule of law cannot be taken for granted anymore. Ra... more We live in uncertain times, in times when the rule of law cannot be taken for granted anymore. Rather, to the contrary, numerous events in Europe and beyond challenge a fundamental principle of our legal culture, a milestone of the civilized world. It is therefore of the utmost importance to look after one of the most successful achievements of our modern society: the rule of law.
Criminal Justice Ethics, 2019
“Committing a crime might render one morally liable to certain forms of medical intervention”, cl... more “Committing a crime might render one morally liable to certain forms of medical intervention”, claims Thomas Douglas, who stated in this context that “compulsory uses of medical correctives could in principle be justified.” This article engages critically with his and other arguments on the use of coercive neurocorrectives for criminal offenders. First, the rehabilitation assumption that includes—for coercive neurocorrectives to work as an alternative to incarceration—that rehabilitation is the “only goal” of criminal punishment is criticized. Additionally this article engages with the theoretical difficulty of solely rehabilitative approaches, and discusses why it is unfortunate to design neurocorrectives so as to be particularly harmful in order to imagine administering them as being a punishment. Second, until we know more about specific neurocorrectives, we are well advised not to undermine the most important objection against coercive neurocorrectives, namely offenders’ human rights. This article argues that the use of coercive neurocorrectives would particularly violate Article 3 of the European Convention on Human Rights which guarantees as an absolute right that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment”, and finally holds that a still weak human right to mental integrity and self-determination should fundamentally come first.
Verfassungsblog.de, 2019
“Be great in act, as you have been in thought! […]
Be stirring as the time, be fire with fire,
Th... more “Be great in act, as you have been in thought! […]
Be stirring as the time, be fire with fire,
Threaten the threatener, and outface the brow.”
William Shakespeare, King John
Even though this advice to King John comes from the Bastard, I propose that this play of Shakespeare’s bears some wisdom for the rule of law and current crisis of democracy in the EU. While proposals to address this crisis made by lawyers often rely on the judiciary,1) I find that in order to protect future majorities2) we should also take into account to address the people today. We have witnessed various (electoral) campaigns directly discrediting individuals or groups in Hungary. The latest campaign has led to a serious dispute between the Hungarian FIDESZ party and the European People’s Party (EPP). According to recent news reports, the EPP has established three conditions to be fulfilled so that FIDESZ can stay a member of the EPP. This post suggests that we should not put too much pressure on the judiciary to fix the rule of law and democracy. Neither should we put too much hope for positive developments on (European) party politics. Rather I suggest that the EU should start speaking directly to the electorate via EU information campaigns in Hungarian (and Polish). The 2019 European Parliament elections might provide an adequate framework for such campaigns.
The Journal of Legal Pluralism and Unofficial Law, 2019
In [almost all of the analyses of global legal pluralism], which I have hitherto met with, I have... more In [almost all of the analyses of global legal pluralism], which I have hitherto met with, I have always remark’d, that the author proceeds for some time in the ordinary ways of reasoning, and establishes [the existence of “global legal pluralism”], or makes observations concerning [the “global Bukowina” regarding international] human affairs; when of a sudden I am surpriz’d to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not. This change is imperceptible; but is however, of the last consequence. (Hume 1738, book III, part I, ch. I)
Pointing at David Hume’s powerful insight, this article aims to remind
us of the necessity of sharply distinguishing between global legal pluralism as the description of recent factual developments, drawing attention for example, towards the massive increase in international actors, norms and tribunals as well as adjudicators on the one hand. And, on the other hand, as a different issue, the question of how we ought to deal with or even solve those legal conflicts (based on a (common) framework) resulting from these plural, overlapping legal claims. The “normative move” in the global legal pluralism debate asks for sufficient justification for its normative claims. This article concludes
that the is – ought divide is respected at best if prescriptive proposals to solve legal conflicts are not termed “pluralistic.” Instead, I shall suggest, it is more precise to refer to a necessarily common framework which addresses the question as to how those conflicts should be resolved together or at least in a way acceptable to all parties. Finally, this article holds that this common framework depends hugely on the context. Thus, solutions are more likely to be found if we focus on specific contexts instead of drawing on universal solutions for different situations.
The house where Hitler was born in the town of Braunau am Inn in Upper Austria has been the subje... more The house where Hitler was born in the town of Braunau am Inn in Upper Austria has been the subject of heated debate in Austria and beyond for some time now. This article sheds light on the issue from the perspective of Austrian constitutional law. On 13 January 2017 the Austrian parliament provided the basis for the expropriation by law, a decision which was upheld by the Austrian Constitutional Court (VfGH) on 30 July 2017 in judgement G 53/2017. In doing so the house was not only a political issue but also became the focus of debates on constitutional law.
This article holds that the most problematic legal issue is the definition of public interest in the object, which is more troublesome to establish than it might appear at first sight. The problem is that concrete public interest in the house actually focuses less on the object itself than on public perception of the object. This is important for reversing the negative symbolism and for preventing Hitler’s birthplace from being a place of pilgrimage, both of which are in the public interest. Only when public interest is concretised in this way can the difficulties with the proportionality analysis of the legal expropriation be addressed adequately. Besides analysing this issue, the article aims to highlight the uniqueness of expropriation based on symbolism and the difficulties relating thereto.
The article does not stop after recapitulating and evaluating the legal issues concerning Hitler’s birthplace. The purpose of the expropriation, which is hard to achieve, forces us to think about the future use of the house. The purpose – according to the expropriation law – is the “permanent prevention of the cultivation, promotion or dissemination of Nazi ideology or an affirmative commemoration to Nazism” in relation to the house where Adolf Hitler was born. First, the obligation of restitution could become a curse when the purpose of expropriation fails to be achieved. Second, achieving this purpose is anything but easy. Hence, the greatest task is yet to come: the sovereignty of interpretation about the house must be regained in order to prevent misuse and allow for critical reflection.
A key focus of much scholarly attention is on the (theoretical) relationship between legal orders... more A key focus of much scholarly attention is on the (theoretical) relationship between legal orders. The practical question I intend to answer in this article is the following: how can we know who has the final say – international, European Union (EU) or national law? I proceed in three steps. First, I critically sketch major current theories – monism and dualism, as well as global legal pluralism and global constitutionalism. However, because none of them offers a satisfactory answer to the question posed, I move to the reconceptualization stage of the theoretical relationship between legal orders. In the second step, I offer my account of how to think about the relationship between legal orders by introducing the theory of the law creators' circle (TLCC). The TLCC provides a theoretical foundation for deciding on the source of the decisive norm. It does not, however, provide a general solution which fits any norm conflict stemming from overlapping legal orders. Thus, the purpose of this article is to develop a legal theory which facilitates the understanding of the interaction between international law, EU and national law. Third, I use a doctrinal analysis to show the results of the TLCC application. For instance, in the famous Kadi saga, according to the TLCC, the EU should have either claimed that the UN Security Council was acting ultra vires or considered the UN Security Council Resolution faulty because UN human rights (instead of EU human rights) had been violated.
The thesis of an innate Universal Moral Grammar ('UMG') relies upon an analogy to the thesis of a... more The thesis of an innate Universal Moral Grammar ('UMG') relies upon an analogy to the thesis of a universal grammar of the human faculty of language in linguistics. Drawing upon this faculty, John Mikhail, among others, argues that we humans have an inborn moral grammar. In this article this fascinating thesis is juxtaposed with counter-perspectives from the various fields on which it is based, with substantial criticism from such fields as neurobiology, evolutionary and developmental psychology, and philosophy leaving ample space for doubting UMG and especially its claimed innateness. In methodological terms, Mikhail suggested using collective evidence from the various disciplines to prove the hypothesis of an innate UMG as there is not sufficient substantial support for UMG within each discipline alone. This multi-and interdisciplinary approach is also contested in this article. In lieu of UMG this article proposes thinking of intersubjectivity in order to deal with the origins and development of the biological setup of human morality. In so doing it refers to Colwyn Trevarthen's concept of primary, secondary, and tertiary intersubjectivity, which is gaining more and more in popularity. This enables us, so runs the argument, to align morality and its development with core concepts of (developmental) psychology. Such an understanding of morality furthermore lays bare the origins of moral normativity, which is essential in order to evaluate moral behavior.
This article draws on the paradox of the two-element approach to the emergence of customary inter... more This article draws on the paradox of the two-element approach to the emergence of customary international law (CIL), as many have done so before. How can a State, acting in a certain way, be convinced of its legal obligation to behave in that manner, if this particular act has not yet been established as CIL, but is solely in the process of emerging? By stepping out of CIL theory and looking at similar conundrums, this article finds that consensus theory is the most prominent candidate for providing a solution. Against the common view, the argument offered here suggests that the most obvious flaws of this explanation are, actually, its greatest strengths. In brief, this understanding enables us to see Article 38 ICJ Statute as a means for identifying the final CIL norm, which is to be distinguished from its formal source. An unwritten meta-norm, as the argument goes, guides the process of CIL emergence. This meta-norm is the correct place to discuss what practice and opinio iuris must look like to count as making an offer and accepting that offer so as to finally give rise to a CIL norm. Consensus theory, thus, teaches us that we need to state more clearly how to evince State practice with its accompanying legal conviction, a task which could and should be addressed by the International Law Commission. Based on this understanding, this article aims to propose a formula grounded in theory to guide the genesis of CIL. Clearly, asking for more specific rules guiding the emergence and succinct identification of State practice and opinio iuris undermines the fluidity and dynamics of CIL. However, it is consensus theory that teaches us that legal certainty has its price.
The aim of this Article is to re-conceptualize the debate about the (theoretical) relationship be... more The aim of this Article is to re-conceptualize the debate about the (theoretical) relationship between international and national law, which has been debated for centuries. Generally, the floor is divided between dualism as developed by Heinrich Triepel and monism developed mainly by Hans Kelsen. In the light of new developments since their inception, I argue that these theories can no longer comprehensively explain the relationship between international or European Union (EU) and national law. Yet, the Article is based on the conviction that a common denominator of international and national law is elementary (i.e. here " the law creators' circle, " in German, " Die Theorie des Rechtserzeugerkreises, " in short " TREK ") in order to solve possible norm conflicts between different but overlapping legal orders. Therefore, pluralism is also limited in my eyes because it does not offer a satisfying prescriptive account. This common legal framework, however, must not be understood as the “constitutionalization” of international (or EU law) either, as this easily implies too many substantial values, which are not (yet) a common reality.
This year, in October 2015, the European Charter of Local Self-Government celebrates its 30th bir... more This year, in October 2015, the European Charter of Local Self-Government celebrates its 30th birthday. This paper outlines the Congress of the Local and Regional Authorities of the Council of Europe and its historical institutional evolution. The focus is directed at its most important instrument to safeguard local and regional democracy in Europe: The European Charter of Local Self-Government. The paper illustrates core provisions of the Charter, questions of its implementation as well as the monitoring activities of the Congress, which aim at supporting the effectiveness and implementation of the Charter. This is exemplarily shown by drawing on the most recent report on local and regional democracy in Hungary since 2013. The paper concludes with an outlook on current needs and future challenges of local and regional democracy in Europe and especially envisions the ‘individualization’ of local democracy.
For many years, the ECJ has postulated the autonomy of the EU legal order. At the same time, it h... more For many years, the ECJ has postulated the autonomy of the EU legal order. At the same time, it has also stressed the importance of noting that the UN and the EU are distinct legal orders. In light of this situation, we have one and the same international organization applying two diametrically opposed theoretical doctrines. Regarding the inner relationship with its
Member States, the ECJ proclaims a unified legal order based on the monistic doctrine. Dualistic arguments, in contrast, serve to separate the EU legal order from international law. This paper intends to clarify whether this obvious contradiction is due to a simple misinterpretation by the ECJ or is grounded in flaws within the almost 100 year old theories of monism and dualism which can no longer serve to explain the relationship between legal orders satisfactorily. The paper concludes that the situation cannot be characterized as black and white. However, in order to establish fundamental foundations, a clear theoretical line is essential.
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Books by Lando Kirchmair
We invite young scholars to propose ideas and to discuss their views on how to shape the future of Europe. This warrants a forward-looking conceptual analysis on how to properly address Europe’s internal and external challenges and a bold and visionary approach. Instead of proposals that focus on current shortcomings, we encourage submissions that propose new, hands-on approaches to tackling Europe’s challenges in an innovative and future-oriented way, or pieces that revisit existing but promising approaches that were never put into practice. Additionally, in asking ourselves how we ought to shape the future of Europe, we also need to inquire how we will be studying EU law in the future. We therefore also welcome contributions on how and in which direction legal scholarship itself should develop.
Teil A. begründet die Theorie des Rechtserzeugerkreises (TREK), welche als gemeinsamer Nenner von Völkerrecht und Staatsrecht identifiziert wird. Teil B. analysiert die Auswirkungen der TREK anhand des Beispiels der österreichischen Rechtsordnung. Während die herrschende Lehre die Rezeption von Völkerrecht in die österreichische Rechtsordnung vertritt, stellt die Arbeit die Integration des Völkerrechts in die nationale Stufenbauordnung in Frage. Entsprechend der TREK werden die einschlägigen Bestimmungen der österreichischen Rechtsordnung als Ermächtigungsnormen zum Abschluss völkerrechtlicher Bestimmungen verstanden.
Um grundlegende und nicht spezifische Fragen einzelner (Völker-)Rechtsquellen zu adressieren, werden die Rechtswirkung von Völkervertragsrecht, Völkergewohnheitsrecht, allgemeiner Rechtsgrundsätze, Rechtsakte internationaler Organisationen und erstmals auch zwingendem Völkerrecht und einseitiger Rechtsgeschäfte in der österreichischen Rechtsordnung untersucht.
Papers by Lando Kirchmair
“I shall give a propagandist reason for starting the war, no matter whether it bemplausible or not. The victor shall not be asked whether he told the truth. When starting and waging a war, it is not right that matters but victory. […] The strongest man is right!”
We were reminded of this saying when Putin put forward “sham arguments” intended to justify waging his illegal war on Ukraine. Putin’s reasons for the invasion, like his claims of genocide in Donbas, are abstruse and lack any basis in reality. Rather than addressing the West, this national propaganda is meant to convince the Russian people of the
necessity of war. Is there a possibility to correct misinformation by communicating directly to the Russian people in Russian?
Be stirring as the time, be fire with fire,
Threaten the threatener, and outface the brow.”
William Shakespeare, King John
Even though this advice to King John comes from the Bastard, I propose that this play of Shakespeare’s bears some wisdom for the rule of law and current crisis of democracy in the EU. While proposals to address this crisis made by lawyers often rely on the judiciary,1) I find that in order to protect future majorities2) we should also take into account to address the people today. We have witnessed various (electoral) campaigns directly discrediting individuals or groups in Hungary. The latest campaign has led to a serious dispute between the Hungarian FIDESZ party and the European People’s Party (EPP). According to recent news reports, the EPP has established three conditions to be fulfilled so that FIDESZ can stay a member of the EPP. This post suggests that we should not put too much pressure on the judiciary to fix the rule of law and democracy. Neither should we put too much hope for positive developments on (European) party politics. Rather I suggest that the EU should start speaking directly to the electorate via EU information campaigns in Hungarian (and Polish). The 2019 European Parliament elections might provide an adequate framework for such campaigns.
Pointing at David Hume’s powerful insight, this article aims to remind
us of the necessity of sharply distinguishing between global legal pluralism as the description of recent factual developments, drawing attention for example, towards the massive increase in international actors, norms and tribunals as well as adjudicators on the one hand. And, on the other hand, as a different issue, the question of how we ought to deal with or even solve those legal conflicts (based on a (common) framework) resulting from these plural, overlapping legal claims. The “normative move” in the global legal pluralism debate asks for sufficient justification for its normative claims. This article concludes
that the is – ought divide is respected at best if prescriptive proposals to solve legal conflicts are not termed “pluralistic.” Instead, I shall suggest, it is more precise to refer to a necessarily common framework which addresses the question as to how those conflicts should be resolved together or at least in a way acceptable to all parties. Finally, this article holds that this common framework depends hugely on the context. Thus, solutions are more likely to be found if we focus on specific contexts instead of drawing on universal solutions for different situations.
This article holds that the most problematic legal issue is the definition of public interest in the object, which is more troublesome to establish than it might appear at first sight. The problem is that concrete public interest in the house actually focuses less on the object itself than on public perception of the object. This is important for reversing the negative symbolism and for preventing Hitler’s birthplace from being a place of pilgrimage, both of which are in the public interest. Only when public interest is concretised in this way can the difficulties with the proportionality analysis of the legal expropriation be addressed adequately. Besides analysing this issue, the article aims to highlight the uniqueness of expropriation based on symbolism and the difficulties relating thereto.
The article does not stop after recapitulating and evaluating the legal issues concerning Hitler’s birthplace. The purpose of the expropriation, which is hard to achieve, forces us to think about the future use of the house. The purpose – according to the expropriation law – is the “permanent prevention of the cultivation, promotion or dissemination of Nazi ideology or an affirmative commemoration to Nazism” in relation to the house where Adolf Hitler was born. First, the obligation of restitution could become a curse when the purpose of expropriation fails to be achieved. Second, achieving this purpose is anything but easy. Hence, the greatest task is yet to come: the sovereignty of interpretation about the house must be regained in order to prevent misuse and allow for critical reflection.
Member States, the ECJ proclaims a unified legal order based on the monistic doctrine. Dualistic arguments, in contrast, serve to separate the EU legal order from international law. This paper intends to clarify whether this obvious contradiction is due to a simple misinterpretation by the ECJ or is grounded in flaws within the almost 100 year old theories of monism and dualism which can no longer serve to explain the relationship between legal orders satisfactorily. The paper concludes that the situation cannot be characterized as black and white. However, in order to establish fundamental foundations, a clear theoretical line is essential.
We invite young scholars to propose ideas and to discuss their views on how to shape the future of Europe. This warrants a forward-looking conceptual analysis on how to properly address Europe’s internal and external challenges and a bold and visionary approach. Instead of proposals that focus on current shortcomings, we encourage submissions that propose new, hands-on approaches to tackling Europe’s challenges in an innovative and future-oriented way, or pieces that revisit existing but promising approaches that were never put into practice. Additionally, in asking ourselves how we ought to shape the future of Europe, we also need to inquire how we will be studying EU law in the future. We therefore also welcome contributions on how and in which direction legal scholarship itself should develop.
Teil A. begründet die Theorie des Rechtserzeugerkreises (TREK), welche als gemeinsamer Nenner von Völkerrecht und Staatsrecht identifiziert wird. Teil B. analysiert die Auswirkungen der TREK anhand des Beispiels der österreichischen Rechtsordnung. Während die herrschende Lehre die Rezeption von Völkerrecht in die österreichische Rechtsordnung vertritt, stellt die Arbeit die Integration des Völkerrechts in die nationale Stufenbauordnung in Frage. Entsprechend der TREK werden die einschlägigen Bestimmungen der österreichischen Rechtsordnung als Ermächtigungsnormen zum Abschluss völkerrechtlicher Bestimmungen verstanden.
Um grundlegende und nicht spezifische Fragen einzelner (Völker-)Rechtsquellen zu adressieren, werden die Rechtswirkung von Völkervertragsrecht, Völkergewohnheitsrecht, allgemeiner Rechtsgrundsätze, Rechtsakte internationaler Organisationen und erstmals auch zwingendem Völkerrecht und einseitiger Rechtsgeschäfte in der österreichischen Rechtsordnung untersucht.
“I shall give a propagandist reason for starting the war, no matter whether it bemplausible or not. The victor shall not be asked whether he told the truth. When starting and waging a war, it is not right that matters but victory. […] The strongest man is right!”
We were reminded of this saying when Putin put forward “sham arguments” intended to justify waging his illegal war on Ukraine. Putin’s reasons for the invasion, like his claims of genocide in Donbas, are abstruse and lack any basis in reality. Rather than addressing the West, this national propaganda is meant to convince the Russian people of the
necessity of war. Is there a possibility to correct misinformation by communicating directly to the Russian people in Russian?
Be stirring as the time, be fire with fire,
Threaten the threatener, and outface the brow.”
William Shakespeare, King John
Even though this advice to King John comes from the Bastard, I propose that this play of Shakespeare’s bears some wisdom for the rule of law and current crisis of democracy in the EU. While proposals to address this crisis made by lawyers often rely on the judiciary,1) I find that in order to protect future majorities2) we should also take into account to address the people today. We have witnessed various (electoral) campaigns directly discrediting individuals or groups in Hungary. The latest campaign has led to a serious dispute between the Hungarian FIDESZ party and the European People’s Party (EPP). According to recent news reports, the EPP has established three conditions to be fulfilled so that FIDESZ can stay a member of the EPP. This post suggests that we should not put too much pressure on the judiciary to fix the rule of law and democracy. Neither should we put too much hope for positive developments on (European) party politics. Rather I suggest that the EU should start speaking directly to the electorate via EU information campaigns in Hungarian (and Polish). The 2019 European Parliament elections might provide an adequate framework for such campaigns.
Pointing at David Hume’s powerful insight, this article aims to remind
us of the necessity of sharply distinguishing between global legal pluralism as the description of recent factual developments, drawing attention for example, towards the massive increase in international actors, norms and tribunals as well as adjudicators on the one hand. And, on the other hand, as a different issue, the question of how we ought to deal with or even solve those legal conflicts (based on a (common) framework) resulting from these plural, overlapping legal claims. The “normative move” in the global legal pluralism debate asks for sufficient justification for its normative claims. This article concludes
that the is – ought divide is respected at best if prescriptive proposals to solve legal conflicts are not termed “pluralistic.” Instead, I shall suggest, it is more precise to refer to a necessarily common framework which addresses the question as to how those conflicts should be resolved together or at least in a way acceptable to all parties. Finally, this article holds that this common framework depends hugely on the context. Thus, solutions are more likely to be found if we focus on specific contexts instead of drawing on universal solutions for different situations.
This article holds that the most problematic legal issue is the definition of public interest in the object, which is more troublesome to establish than it might appear at first sight. The problem is that concrete public interest in the house actually focuses less on the object itself than on public perception of the object. This is important for reversing the negative symbolism and for preventing Hitler’s birthplace from being a place of pilgrimage, both of which are in the public interest. Only when public interest is concretised in this way can the difficulties with the proportionality analysis of the legal expropriation be addressed adequately. Besides analysing this issue, the article aims to highlight the uniqueness of expropriation based on symbolism and the difficulties relating thereto.
The article does not stop after recapitulating and evaluating the legal issues concerning Hitler’s birthplace. The purpose of the expropriation, which is hard to achieve, forces us to think about the future use of the house. The purpose – according to the expropriation law – is the “permanent prevention of the cultivation, promotion or dissemination of Nazi ideology or an affirmative commemoration to Nazism” in relation to the house where Adolf Hitler was born. First, the obligation of restitution could become a curse when the purpose of expropriation fails to be achieved. Second, achieving this purpose is anything but easy. Hence, the greatest task is yet to come: the sovereignty of interpretation about the house must be regained in order to prevent misuse and allow for critical reflection.
Member States, the ECJ proclaims a unified legal order based on the monistic doctrine. Dualistic arguments, in contrast, serve to separate the EU legal order from international law. This paper intends to clarify whether this obvious contradiction is due to a simple misinterpretation by the ECJ or is grounded in flaws within the almost 100 year old theories of monism and dualism which can no longer serve to explain the relationship between legal orders satisfactorily. The paper concludes that the situation cannot be characterized as black and white. However, in order to establish fundamental foundations, a clear theoretical line is essential.
Die Unterscheidung zwischen öffentlichem Recht und Privatrecht überzeugt je nach Unterscheidungstheorie aus unterschiedlichen Gründen weder deskriptiv noch normativ. Das hat praktische Konsequenzen für die rechtsdogmatische Anwendung der Unterscheidungstheorien. Da einerseits die klassischen Unterscheidungstheorien theoretisch scheitern und andererseits die Aufteilung doch in zahlreichen Rechtsordnungen positivrechtlich verankert ist, bleiben einzig die Tradition der Unterscheidung und für neue Fälle ein Analogieschluss in Anlehnung an die Tradition als rechtsdogmatisches Zuordnungskriterium übrig.
We invite young scholars to propose ideas and to discuss their views on how to shape the future of Europe. This warrants a forward-looking conceptual analysis on how to properly address Europe's internal and external challenges and a bold and visionary approach. Instead of proposals that focus on current shortcomings, we encourage submissions that propose new, hands-on approaches to tackling Europe's challenges in an innovative and future-oriented way, or pieces that revisit existing but promising approaches that were never put into practice. Additionally, in asking ourselves how we ought to shape the future of Europe, we also need to inquire how we will be studying EU law in the future. We therefore also welcome contributions on how and in which direction legal scholarship itself should develop. Topics of interest for submission include (but are not limited to):
The Future of Europe's Constitutional Framework
The Future of EU External Relations
The Future of EU Defence Policy
The Future of Methods of the European Legal Discipline
"Die Krise des demokratischen Rechtsstaats im 21. Jahrhundert. Oder wie sich die Geschichte gegen ihr Ende wehrt."
für die 27. Tagung des Jungen Forums Rechtsphilosophie vom 24. bis. 26. April 2019 an der Paris-Lodron Universität Salzburg, Österreich.
zum Thema
"DIE KRISE DES DEMOKRATISCHEN RECHTSSTAATS IM 21. JAHRHUNDERT. ODER: WIE SICH DIE GESCHICHTE GEGEN IHR ENDE WEHRT"