This chapter provides a critical analysis of the material scope of NIAC and is divided into seven sections. The first explores the material concepts of NIAC pursuant to both CA3 and APII,  and explores how the drafters understood these  concept and how it has been interpreted in practice. Second, it examines the concept of NIAC contained in Additional Protocol II of 1977, looking at how its distinct identity emerged, as well as its specific material elements. The second section explores some of the legal and operational challenges that arise from the existence of two categories of NIAC, and in particular how the activation of APII can fragment the applicable legal regime, resulting in fluctuating levels of protection during NIAC. The fourth section undertakes a comparative analysis of the material scope and associated threshold of NIAC pursuant to the Tadić definition of NIAC (CA3) and that contained in APII, in order to identify areas of convergence and divergence. The fifth section explores how developments in both customary and conventional IHL applicable during NIAC have influenced its material scope and, in particular, the level of organization armed groups require in order to qualify as a Party to a NIAC. Following from the conclusions of sections four and five, the sixth section assesses the continued relevance of the distinction between CA3 and APII NIACs in practice.

Throughout history, reference to the historical constitution of Hungary was used to achieve different and sometimes conflicting goals. Since 2012, it has become a constitutional concept after decades of abandonment. It appears in the Fundamental Law of Hungary (2012) and the jurisprudence of the Hungarian Constitutional Court (HCC) – linking it to the concept of constitutional identity. This chapter claims that the narrative of the Hungarian historical constitution as a constitutional concept is conducive to illiberalism. This is because political and constitutional actors have used it to oppose liberal values. Two arguments justify this claim. First, the contemporary claims on continuity and rights expansion cannot be verified when we contrast the contemporary narratives on the two most important constitutive components of the historical constitution, that is, continuity and rights expansion with legal measures introduced in the second part of the nineteenth and the first half of the twentieth centuries. Second, the relevant jurisprudence of the HCC suggests that the finality of introducing the historical constitution into the constitutional text and their subsequent linking to the concept of constitutional identity was to secure the traditional Westphalian understanding of ethnic-national sovereignty, mainly against the rule of law, that is, EU obligations and globalization.

This chapter explores why, despite being central players in transnational drug markets, Mexico and Peru’s post-authoritarian trajectories of peace and violence differ. It first examines how the Mexican military developed a powerful counterinsurgent state to fight leftist insurgents and dissidents under one-party rule. Once it succeeded in suppressing rebels through a Dirty War, authoritarian specialists in violence helped transform local traffickers into transnational drug cartels. After democratization, the first administration failed to adopt a transitional justice (TJ) process and subsequent governments deployed the surviving counterinsurgent state to fight a War on Drugs, leading to the proliferation of conflicts that turned Mexico into one of the world’s most violent democracies. Focusing then on Peru, the chapter traces the rise of the counterinsurgent state under military dictatorship, its expansion during the civil war, and its transformation under Alberto Fujimori’s dictatorship. After defeating the rebels, the head of Fujimori’s secret service seized control of transnational drug-trafficking. Following the collapse of dictatorship, the adoption of a robust truth commission and the prosecution of Fujimori’s security apparatus led to the dismantling of the counterinsurgent state, prevented the outbreak of large-scale drug wars, and set Peru on a twenty-year path of relative peace. However, failure to adopt TJ “boosters” opened a new era of violence.

Chapter 4 explains the key parameters of the Court’s adjudication and the role ‘democratic society’ plays in the Court’s reasoning. I explain the rise of ‘procedural review’ as a facet of subsidiarity and highlight implications for the proportionality analysis of the Court and their relevance in the populist context. It also explains how ‘democratic society’ can be used heuristic device to explore the Court’s interpretive equipment and identify the principled link between proportionality and democracy.

The chapter examines the concept of acting in concert in the EU Takeover Directive and the way in which it has been implemented in the Member States, highlighting the diversity and uncertainty that result from the low level of harmonisation. Acting in concert basically performs an anti-elusive function. But some Member States have expanded the role of acting in concert beyond the Takeover Directive requirement, by imposing the mandatory bid even when no acquisition of shares takes place, but only an agreement or understanding among shareholders for the common exercise of their voting rights. The main practical function of this extension of the mandatory bid system is to avoid the difficulties of proving a concert in relation to the acquisition of shares. But it also creates legal uncertainty for investors who engage in ordinary forms of cooperation on corporate governance matters. The chapter concludes that the concept of acting in concert, which originated as an anti-circumvention rule, has been subject to a process of expansion that may jeopardise situations of shareholder collaboration that do not affect the control and management of the company.

You will have seen that a significant part of legal reasoning is linked to interpretation, and that the law plays an important part in shaping the rules of interpretation. This is especially true in the interpretation of legislation, which forms most of the conceptual terrain in which contemporary criminal law is located. This chapter introduces some of the core concepts linked to statutory interpretation principles applicable to the criminal law. Please note that this is by no means a comprehensive review but serves as an introductory overview.

The traditional narratives of Austrian constitutional law are evolving. Long decried by scholars and practitioners to be ‘in ruins’, the Austrian Constitution has recently been lauded as ‘elegant and beautiful’ by Austria’s President, thus attempting a paradigm shift in the Austrian public’s perception of its constitution. While some textbooks claim it (still) is a merely formal, ‘value neutral constitution of game rules’ much in the spirit of Hans Kelsen, the Austrian Constitution and its interpretation show more and more signs of converging into a principled, value-oriented and purposive approach common in many other countries. The multinational legal legacy of the Habsburg Empire and its potential for understanding the European integration have been recognized as an asset, just as the ensuing creation of the world’s first constitutional court is of pride and the Austrian Constitution’s leading export.

Law is an applied and theoretical discipline. To that end, the law must be applied to the facts available when assessing the alignment of the facts with the law. In this respect law is an empirical discipline, one that requires objective fact and law in association with one another in its application. Evidence must exist to establish fact, while law must exist to establish the rule structure. The relationship between law and evidence is unique, for it is not simply the existence of objectively present objects that will establish the fact – the fact in law is subject to further legal construction through the laws of evidence. One aspect of that process is an object or event that has actual existence may not, as a matter of law, be available to the decision maker because of legal invalidity. Hence the empirical foundations of law are based on admissible evidence rather than mere evidence. This will be considered in more detail in Chapter 3.