Editorial | Volume 25 No. 3
It is our particular pleasure to present the latest issue of the German Law Journal, which not only contains five outstanding articles but also showcases the academic research of our student editors from Washington and Lee University Faculty of Law. The W&LU student editors make an extraordinary contribution to the German Law Journal, and it is our privilege to share their own scholarly work with you in a dedicated Student Notes section of this issue.
Issue 3 however starts with the articles, all five of which are united by a constitutional focus. In his paper, Lukáš Lev Červinka leads the positive argument for understanding constitutions as ‘mediums for the articulation of collective experiences, self- understanding, goals, dreams, and fears’, which is to say, ‘articulations of collective imaginaries’. Relying on the insights of social systems theory to conceptualise the interrelationship of the state and ‘the political people’ as a structural coupling, Červinka articulates ‘dual democratic legitimacy’ in terms of two imaginaries, one constitutional, one popular.
Sticking with the systems-theoretical approach, George Duke draws attention to the ‘function of the modern constitution as a structural coupling between the political and legal subsystems’ and, as articulated by Niklas Luhmann, the role symbolic constitutionalism plays in concealing this. Engaging also with Martin Loughlin’s analysis of the symbolic constitution ‘within an ideology critique of neo-liberal constitutionalism’, Duke aims to characterise the concept and function of the symbolic constitution.
The authors of the next article – Ladislav Vyhnánek, Anna Blechová, Michael Bátrla, Jakub Míšek, Tereza Novotná, Amnon Reichman and Jakub Harašta– take constitutional courts as their focus. They present and then explore the judicial conundrum of whether and how constitutional courts could ‘respond to legal challenges of rights-infringing state measures enacted in the context of empirically dynamic and complex situations (often emergencies) while still fulfilling their judicial duty as guardians of rights’. Presenting a third way approach, the authors argue that Courts should undertake to review the “procedural rationality” of these ‘emergency’ measures.
Jonas Bornemann’s article concerns the reintroduction of internal border controls and functionally equivalent measures within Schengen, and the increasingly pressing need for reform of the Schengen acquis. Bornemann considers the constitutional limitations of Schengen reform in light of these challenges, articulating this in terms of countervailing potential developments: as a pan-European security project and/or an identity-creating one.
In their article, Edoardo Celeste and Giulia Formici engage with – what they argue is – a gradual multilevel constitutionalisation of the practices of mass surveillance within the European Union. Noting that mass surveillance comprises general and indiscriminate monitoring of every person ‘with no need for a specific or reasonable suspicion and without an objective link connecting those subjected to control or a particular risk or crime’, they map this ongoing process through a focus of three key actors: civil society, the CJEU, and national legislators.
Opening the Student Notes section of this issue, Eun Sol Sara Lee’s note explores forum shopping in the context of adversarial litigation, specifically the pitfalls of the common law doctrines lis pendens and forum non conveniens. Comparing the application of these doctrines in the US and EU respectively, she explores whether forum non conveniens, as a doctrine which determines which forum is more appropriate to hear a case, is a viable solution to the problems of lis pendens.
Kaitlyn Hyun considers US criminal law defence of provocation, specifically the reasonable person standard, in circumstances of prevalent multiculturalism. Focusing on Asian defendants, she interrogates this ‘objective standard of general application’ in light of its failure to take into account ethnic or cultural factors, and raises the question of whether a homogenous standard is suitable for a heterogenous society.
In her note, Elizabeth LoPreiato raises the pressing issue of international climate inaction, and explores the potential and viability of the public trust doctrine as a mechanism for mitigating and/or combatting this. Drawing connections with the initial concerns that public trusts were intended to address, that is, ‘reasonable access to elements necessary for survival’, and the ‘American model of public trust’, LoPreiato discusses how a global public trust might possibly be implemented as a tool to combat climate change.
Connor Donaldson discusses Germany’s ‘Facebook Act’, the Netzwerkdurchsetzungsgesetz (NetzDG), which ‘expanded the scope of mandatory content moderation take-downs and reporting while significantly increasing penalties for non-compliance’, and makes the argument that this legislation is indicative of Germany’s self-ideation. Presenting NetzDG as a case study of what he refers to as ‘militant moralism’, that is, a framework of law and values comprising Germany’s affirmative moral obligation, Donaldson considers the supranational consequences of this specific self-ideation.
In her note, Jenna Mueller draws upon the insights of Husserlian phenomenology to elucidate and analyse the comparative differences in public opinion in the USA and Italy respectively concerning the Amanda Knox case. Using the widely publicized trial and ultimate acquittal of Knox as a case study, Mueller explains inter alia Husserlian intentionality, Husserlian empathy, the phenomenological reduction, his understanding of time and temporality, and the various senses of “I” in relation to the differing positions of the phenomenological observer, all with a view to shedding light on the American and Italian public reactions to Amanda Knox case proceedings.
Finally, for both this section and this issue, Christian Addams Kelling’s note takes us to ‘the land of smiles’, and Thailand’s lèse–majesté law, which prohibits defamation or even truthful degradation of the Thai King and Royal Family. Comparing this provision under Section 112 of the Thai Criminal Code with the United States’ free speech regime, Kelling argues that both regimes in fact represent free speech law’s accommodation of competing, unequal, and changing interests, and gives a detailed account of the political, religious, and historical forces impacting upon how each regime came to its particular accommodation of interests.
Our congratulations to the Student Editors on what, for many, is their first periodical publication. We are delighted to bring these notes and articles to you, and hope that you enjoy this composite issue.
As always, happy reading.
Jen Hendry, on behalf of the GLJ Editors in Chief
