German Law Journal
Cambridge University Press
About: German Law Journal is an academic journal published by Cambridge University Press. The journal publishes majorly in the area(s): European union & Constitutional court. It has an ISSN identifier of 2071-8322. It is also open access. Over the lifetime, 1762 publications have been published receiving 10604 citations. The journal is also known as: GLJ.
Papers published on a yearly basis
TL;DR: In this article, Crenshaw analyzes the continuing role of racism in the subordination of Black Americans and argues that the neoconservative emphasis on formal colorblindness fails to recognize the indeterminacy of civil rights laws and the force of lingering racial disparities.
Abstract: Recent works by neoconservatives and by Critical legal scholars have suggested that civil rights reforms have been an unsuccessful means of achieving racial equality in America. In this Article, Professor Crenshaw considers these critiques and analyzes the continuing role of racism in the subordination of Black Americans. The neoconservative emphasis on formal colorblindness, she argues, fails to recognize the indeterminacy of civil rights laws and the force of lingering racial disparities. The Critical scholars, who emphasise the legitimating role of legal ideology and legal rights rhetoric, are substantially correct, according to Professor Crenshaw, but they fail to appreciate the choices and possibilities available to an oppressed group such as Blacks. The Critics, she suggests, ignore the singular power of racism as a hegemonic force in American society. Blacks have been created as a subordinated "other," and formal reform has merely repackaged racism. Antidiscrimination law, she argues, has largely succeeded in eliminating the symbolic manifestations of racial oppression, but has allowed the perpetuation of material subordination of Blacks. Professor Crenshaw concludes by demonstrating the importance of exposing the racist nature of ostensibly neutral norms, and of devising strategies for change that include the pragmatic use of legal rights.
TL;DR: In this article, the authors put forward four theses and one coda, which can be summarized as follows: the European Union is not undergoing one crisis, but is instead suffering several simultaneous, interrelated, and intertwined crises, which are global, not exclusively European.
Abstract: In this paper, I put forward four theses and one coda. The theses can be summarized as follows: Thesis one (section B): Five crises, not one. The European Union is not undergoing one crisis, but is instead suffering several simultaneous, interrelated, and intertwined crises—crises, which are global, not exclusively European. Put differently, the subprime crisis turned the economic, financial, fiscal, macroeconomic, and political structure weaknesses of the Western socio-economic order into at least five major crises.
TL;DR: In this article, the authors survey the accumulated case law and find that the limits of EU legislative competence, though of the highest constitutional significance in principle, are in practice imprecisely defined by the Treaty itself with the consequence that the legislative institutions enjoy wide discretion.
Abstract: Ten years have elapsed since the first Tobacco Advertising judgment, in which the Court for the first time concluded that the EU legislature had stepped beyond the limits of its competence to harmonize national laws which is granted by the Treaty. However, those subsequently seeking annulment of measures of harmonization have almost all been disappointed. This paper surveys the accumulated case law and finds that the “limits” of EU legislative competence, though of the highest constitutional significance in principle, are in practice imprecisely defined by the Treaty itself with the consequence that the legislative institutions enjoy wide discretion. The pattern has become circular: the Court presents a formula which defines the proper scope of harmonization and which sets out the control exercised by the principles of proportionality and subsidiarity, the EU legislature duly adopts the approved but reliably vague vocabulary and, provided the drafting is well-chosen, the Court has no plausible basis on which to set aside the legislative act. Case law dealing with the limits of EU competence has been converted into no more than a “drafting guide.” The paper shows how many of these deficiencies have been maintained uncritically after the reforms made by the Lisbon Treaty, even though a major part of the reform agenda initiated by the Laeken Declaration was inspired by “competence sensitivity.” Lisbon has instead put most of its reforming faith in a new recruit to competence monitoring - the national parliaments of the Member States. These new arrangements are poorly shaped at the level of detail, but the paper concludes with a largely positive assessment of the intention behind them. In particular they reveal a proper insistence on the need to supplement judicial control, which has become largely ineffective, with fresher political sensitivity to the perils of over-hasty centralization.
TL;DR: The work in this article proposes a distinctly public law approach to the deep transformation in the conduct of public affairs epitomized by the term global governance, and proposes a set of legal standards for ensuring that they satisfy contemporary expectations for legitimacy.
Abstract: The research project which this article introduces, proposes a distinctly public law approach to the deep transformation in the conduct of public affairs epitomized by the term global governance. We were intrigued to find in many policy fields an increasing number of international institutions playing an active and often crucial role in decision-making and policy implementation, sometimes even affecting individuals. Thus, a private real estate sale in Berlin is blocked by a decision of the UN SecurityCouncil Al-Qaida and Taliban Sanctions Committee; the construction of a bridge in Dresden is legally challenged because the affected part of the Elbe river valley had been included on UNESCO’s list of World Heritage; or educational policies most relevant to our children are profoundly reformed due to the OECD Pisa rankings. These examples illustrate that governance activities of international institutions may have a strong legal or factual impact on domestic issues. This calls upon scholars of public law to lay open the legal setting of such governance activities, to find out how, and by whom, they are controlled, and to develop legal standards for ensuring that they satisfy contemporary expectations for legitimacy. This article sketches out the objective, argument and approach of our project and proceeds in three steps: a first step specifies the object of analysis (B.); a second step discusses how the phenomena thus identified should be approached in a legal perspective (C.); in a third and final step, we explain the concrete methodology of our project (D.).
TL;DR: The turn to the total state as mentioned in this paper describes a state in which the traditional lines between the sphere in which private law society governs itself and the sphere of state intervention, or the public domain, have been undermined.
Abstract: In 1931 Carl Schmitt published an article titled “the turn to the total state.” The total state that Schmitt describes is not yet a totalitarian state. Germany is still a liberal democracy and the Weimar Constitution is still the supreme law of the land. But the total state Schmitt describes is a state in which the traditional lines between the sphere in which the private law society governs itself and the sphere of state intervention, or the public domain, have been undermined. According to Schmitt, the pluralistic forces of civil society have captured the state and made it an instrument to serve their purposes. Everything is up for grabs politically. It is a state of political mobilization and deep ideological conflict, reflected in the plurality of deeply divided political parties in parliament. It is possible to distinguish between three features, which together illustrate the total prevalence of politics over law underlying “the turn to the total state.”