Editorial | Volume 23 No. 4
We are delighted to bring this issue 23.4 to you. It contains seven excellent articles alongside a special section of short-form papers dedicated to the analysis of recent developments in criminal law and procedure in Germany. These case commentaries have been written by students and graduates from Friedrich-Alexander Universität Erlangen-Nuremberg, and are collected here to provide timely insight into contemporary issues within German criminal law that may not be immediately familiar to scholars outwith Germany.
The articles in this issue provide inter alia different perspectives and methodological approaches to the analysis of judicial decision-making, insights from data-driven research, and historical perspectives on, respectively, German legal culture/s and technological policing. The theme of legal pluralism is especially prominent, with several articles engaging with ideas of different normative orderings within the same legal spaces, as is the theme of technology, whether in the form of AI, cybernetics, or algorithmic justice.
Tom Boekestein’s article draws our attention to the increased prominence of EU founding values in scholarly discussions and isolated cases, while also noting the lack of any systematic framework for the application and enforcement of these founding values. In light of various challenges discussed throughout the article, not least those from recalcitrant member states, he argues that there is a pressing need for the Court to respond with comprehensive guidance on this issue.
In his article Konstantin Chatziathanasiou invites us to reconsider the notion of the ‘hungry judge’, that is, the intuitive idea that a fatigued or hungry decision-maker will choose a harsher option. This legal realist narrative has been relied upon as demonstrative of human fallibility in decision-making, and commonly leveraged in debates concerning the fallibility of artificial intelligence (AI) decision-making. Chatziathanasiou challenges this intuition, outlining serious issues with the initial study, and advises caution regarding the uncritical acceptance of social scientific evidence that fits our preferred narratives.
Magnus Esmark , Henrik Palmer Olsen, Matthias Smed Larsen, and William Hamilton Byrne have undertaken a quantitative study of European human rights case law, and this article showcases their findings relative to the enquiry ‘[is] European law … in fact European?’. In posing this question they examine whether we should consider the practice of the European Court of Human Rights (ECtHR) to be a singular practice or plural practices. Distinguishing between different conceptions of legal pluralism, they investigate the extent to which ECtHR case law is ‘divided into sub-practices which do not easily generalize to a coherent, overarching, normative whole’ (467).
Continuing in a quantitative vein, in their article Luisa Wendel, Anna Shadrova, and Alexander Tischbirek employ ‘topic modeling’ within the case law of the Bundesverfassungsgericht (BVerfG) to identify the presence of words related to certain areas of law. They combine a preliminary ‘text-mining’ approach to analyzing a larger corpus of court decisions with the subsequent legal-expert evaluation of those results, providing a new and intriguing way of employing computer-assisted methods in legal analysis.
Hanne Petersen’s article, by contrast, provides thoughtful personal rumination on German legal cultures, past and present. Identifying a ‘heritage of normative and territorial pluralism and diversity’ (539) still evident in the contemporary German Federal Republic, Petersen discusses the contested federal and ideological pluralism of post-Wende unified Germany in terms of several interconnected issues and factors. The most prominent of these is arguably gender, historical changes in the treatment of which is charted across different law-related situations, both spatial and temporal. Her discussion of Germany’s legal culture/s draws widely on literature, theatre, film, and popular culture in general to provide a nuanced account of authoritarian German history.
At the outset of their article, Giovanni Comandè and Giulia Schneider pose a question: does European data protection law hamper or encourages data-driven research? In seeking to answer this question, they discuss the role data protection laws in general – and the General Data Protection Regulation (“GDPR”) in particular – can play in promoting ‘a reliable and balanced framework for data sharing and related research objectives’ (561). Through the identification within the GDPR of three “differential” data protection regimes for research –a data subject-centered regime; a public interest-oriented regime and a general research-based regime– the authors present the European data protection regulatory model as achieving a sophisticated and sensitive balance of research- and rights-privileges.
The final article comes from Amadou Korbinian Sow, whose contextualised analysis of the history of technological policing in Germany during the past fifty years. Sow introduces to a wider audience the figure of Horst Herold – President of the German Federal Criminal Police Agency from 1971-1981 – and documents how ‘Herold’s thought and practice coincided with a paradigm shift in German public law and policing’ (599). Charting the rise of prevention as a guiding principle, Sow shows how Herold harnessed cybernetic insights with lasting effect upon both policing and the modern security law in Germany.
As mentioned above, this issue concludes with a special section dedicated to discussing recent developments concerning criminal law and procedure in Germany.
In the first of our five papers, Luisa Hartmann and Johannes Munzert engage with the question of whether, and to what extent, corrections officers can be held criminally liable for offenses committed by a minimum-security institution prisoner to whom they had granted unaccompanied leave. Next, Sijad Allahverdiyev and Marvin Othman discuss the development of corporate criminal liability in Germany, first introducing us to the current legal situation under the German Act on Regulatory Offenses (OWiG) and then discussing the Government Draft of the Corporate Sanctions Act (VerSanG). Sebastian Glaser and Sarah Hartmann then scrutinise the controversial – from a German legal perspective – 2019 Court of Justice of the European Union (CJEU) judgment in the Conjoined Cases C-508/18 and C-82/19 PPU. This judgment concerned the procedure for issuing a European Arrest Warrant (EAW) and, on grounds of insufficient institutional independence, found a ‘lack of competence’ on the part of Germany’s prosecution service (Staatsanwaltschaft). Next, Hanna Göken and Franziska Zwießler draw our attention to recent developments in the law governing assisted suicide (Beihilfe zum Suizid) in Germany, notably the landmark 2020 Federal Constitutional Court (BVerfG) decision to declare Section 217 of the German Criminal Code (on aiding and abetting suicide) to be null and void. Finally, Wilhelm Bühner and Anni Rankcritically discuss the changes that the COVID-19 global pandemic has wrought on German criminal procedure.
We hope you enjoy this issue as much as we have enjoyed curating it.
Our warmest wishes, as always.
Jen Hendry, on behalf of the Editors-in-Chief