It is my great pleasure to welcome you all back from your summer break and announce the publication of issue 6 of the German Law Journal.
We kick off autumn with a selection of exciting papers on EU law and a special section taking a comparative perspective on Courts, Human Rights and the Covid-19 Pandemic. The latter was curated by our very own editor Patrycja Dąbrowska-Kłosińska and – in her own words- ‘tells the story of Covid-19 as one of national-focused responses, unprecedented human rights limitations and infringements and the role of courts in pandemics. It assembles a comparative perspective from six countries focusing on the broad theme of the role of judicial review in protecting (or failing to protect) human rights during public health emergencies. It offers insights from states which were either badly affected by the spread of the coronavirus (or earlier epidemics) or attracted attention for not treating human rights as a priority during the Covid-19 time or earlier. Amidst the crisis of multilateralism and [World Health Organization] authority, the articles focus on the national-level analyses with the aim of drawing comparative findings and inspiring further research.’
The special section brings together perspectives from Brazil, Germany, Italy, Poland, Taiwan, and the U.S. Dąbrowska-Kłosińska provides us with an overview of public health measures in times of pandemics and especially highlights how the need for human rights informed responses has been obvious for a long time, but was mostly ignored. While some may suggest that the West failed in adopting lockdowns too late, the section tells a rather different story by questioning their effectiveness without also considering the protection of individual human rights within a diverse population with different financial, social and physical vulnerabilities. Mariner, then explores how U.S. courts have adopted shifting standards of judicial review within the context of the pandemic by focusing on the right to abortion and the freedom of worship. While access to abortions was seriously restricted in some states, the latter often meant that states had to ignore public health experts’ advice to allow larger religious gatherings. Corradetti and Pollicino then turn our gaze to Italy and discuss the measures to contain the virus in the light of Carl Schmitt’s understanding of a State of Exception. Krajewska then discusses the relationship of reproductive rights and the rule of law in Poland, which came to the forefront during the pandemic. Bottini Filho then draws our attention to Brazil and explores how vulnerability (as a theory, legal principle and fact) played a role within the litigation prompted by the pandemic. Within the context of Taiwan, Lee shows once again how difficult it is for courts to uphold human rights standards if they do not want to second guess public health policies within the context of technocratic model of governance. Finally, Schanze engages with a comparative law classic, the use of common law contractual terms within contracts governed by civil law, as he discusses the EU vaccine contract with AstraZeneca and the recent judgment on it.
In addition to that, the issue includes an exciting collection of papers on EU matters. Psychogiopoulou focuses on the judicial dialogue in the context of social media. Judicial dialogue within this context seems particularly useful, as social media technologies are quickly developing and posing new legal questions that courts in all legal systems will have to grapple with. Jakab and Kirchmair then dive into the fascinating world of rule-of-law indexing in order to improve the EU Justice Scoreboard. While the engagement with data analysis and statistical methods may for some lawyers feel like jumping into the rabbit hole, understanding their metrics and integrity becomes increasingly important within the current crises of democratic backsliding. Dyevre, Glavina and Ovádek then invite us to consider the various European voices to counteract the EU scholars’ tunnel vision on case law. Using computer aided text analysis, they show that there is significant discrepancy between academic engagement and the primary focus of the EU legislator and, to a lesser extent, the CJEU, with the latter primarily being concerned with agricultural policy and public procurement issues. While this does not necessarily reduce the importance of academic scholarship in other areas or is unique to the EU context, it can serve as a healthy antidote for those that overestimate their relevance for the day-to-day work of the EU. Polak then takes on a thrilling ride through the Brexit negotiations and the lessons that can be learned from it. The contribution can be read in different ways. It is a summary of the events that kept many of us breathless for a few years before Corona took over our collective consciousness. With the UK’s desire to renegotiate the Irish protocol being in full swing, it can also be read as a clear warning that the EU has an economic but also structural advantage within the negotiations and is not afraid to use it. Finally, it can be viewed as a dire judgement on those that have, and at times still suggest, that having your cake and eat it is easy because German car manufacturers are interested in exports to the UK. While there may not be a special place in hell reserved for them (as suggested by Donald Tusk, President of the European Council), history will not judge them mildly. Finally, we return to issues relating to the rule-of-law and democratic deficit, this time with a focus on central banks in general and the European Central Bank in particular. Tucker shows us how the ECB is different from other central banks as it lacks a similar economic and constitutional framework and thus should practice self-restraint, if it does not want to jeopardize the principles such as democratic legitimacy and the rule of law.
As always, happy reading!
On be behalf of the Editors,