Militant democracy is the prevailing model for defending democracies against anti-democratic political parties. This article evaluates the militant democracy model, classifying the prohibition of political parties as its “hard” version, and the regulation of political parties and their members as its “soft” version. It then compares this with an alternative model, termed strategic democracy. Unlike militant democracy, which controls the supply side by abolishing anti-democratic parties, strategic democracy focuses on the demand side.

From a rule of law perspective, it will be argued that strategic democracy does not infringe on political rights, provides greater legal certainty, and aligns with the concept of tolerant democracy. Practically speaking, the strategic democracy model is considered more efficient as it leverages electoral systems where political parties, such as the parties against democracy, which in principle have more enemies than supporters, are effectively ostracized.

Virtually all private international law systems now accept the principle of party autonomy, namely the notion that parties to a multistate contract may agree in advance, and within certain parameters and limitations, on which state’s law will govern the contract. The first part of this Article, corresponding to the word “then” in the title, traces the slow evolution of this principle through the centuries: From an isolated example in antiquity, to the academic literature of the Early Modern Era, to its accelerated acceptance and subsequent triumph in the second half of the twentieth century. The second part, corresponding to the word “now” in the title, discusses two important variations among contemporary legal systems regarding the permissible scope and appropriate public policy limitations of this principle. Finally, because this Article was written for a conference held in Bremen, Germany, the third part concludes with a brief discussion of the connection between a ship bearing the city’s name and a landmark decision of the United States Supreme Court that extended this principle to exclusive choice-of-court agreements.

This Article offers a first comparative analysis of the evolution of U.S. corporate personhood doctrine and the “freedom to conduct a business” under Article 16 of the EU Charter of Fundamental Rights. It argues that, over the past fifty years, the Supreme Court of the United States (SCOTUS) and the Court of Justice of the European Union (CJEU) have both contributed to the rise of neoliberalism by using these legal doctrines to shield market mechanisms from democratic intervention. While SCOTUS has expanded and deepened corporate personhood, granting new and more powerful protections under free speech and religious freedom to corporations, the CJEU has similarly interpreted the “freedom to conduct a business” to weaken labor protections and different market regulations. This unexpected convergence contrasts with the CJEU’s ostensibly social mission and underscores the dangers of an uncritical expansion of Article 16. But despite this shared goal, this Article highlights the divergence in the approaches of SCOTUS and the CJEU through insights from comparative political economy. Differences in legal mobilization, the role of courts in political disputes, and the political economy of industrial relations have shaped each doctrine’s development. These findings are useful for legal reformers developing different strategies to curb corporate power in both jurisdictions.

Introducing the Special Issue on “Judging under Pressure,” this Article sets out three interlinked challenges facing constitutional courts, broadly understood: persisting inequalities, the climate crisis, and rising autocratization. The Articles in this Special Issue identify, analyze, and prescribe a set of judicial responses and strategies when judging under pressure. Some reimagine and recalibrate the role of judges, while others respond with doctrinal and theoretical innovation; yet, throughout, there is a recognition of judicial constraints and institutional fragility.

The twenty-first century has witnessed the global resurgence of constituent power—the power to make a constitution—in both academic debate and the practice of constitutional adjudication and design. Comparative constitutional law scholarship on this power has largely focused on democratic settings. Little academic attention has been paid to the constiuent power in socialist regimes. To fill in this gap, this Article explores the design and practice of the constituent power in both former and current socialist regimes. It identifies three paradigms of the socialist constituent power. In the revolutionary paradigm, the power is used at the founding moment after a communist revolution to establish the legal foundation for a socialist state. In the Soviet, post-revolutionary paradigm, constitutent power is a power of the ordinary legislature used for the replacement of an existing by another socialist constitution. In the contemporary reformist paradigm, the socialist constituent power is still vested in an ordinary legislature but its design and practice integrate ideals and practices of democratic constituent power, including public engagement in constitutional reforms, as the consequence of the people’s struggle for their constituent power and the global diffusion of the idea of the popular constituent power. The reformist paradigm is illustrated by a case-study of Vietnam, using original resources. This study has implications for understanding the Soviet legacies and contemporary dynamics of constituent power in the socialist regimes, and for the comparative study of constituent power.

Much has been written on the constitutional overhaul in Israel, and the attendant constitutional crisis in the first nine months of 2023. Since October 7, however, with the breakout of the Israel-Gaza war, the overhaul was seemingly shelved. This Article seeks to connect both events, by comparing the legal-political response to the overhaul with the legal-political response to the war. It asks why, given the intensity of the protest movement generated by the overhaul, there was a dearth of protest activity after the war, even though both events implicated similar values, namely the rule of law and individual rights, championed by the protest movement. I argue that a central reason for the disparity cannot only be explained by the dynamics of war but also due to the tensions and complexities inherent in Israel’s self-professed constitutional identity as a Jewish and democratic state. In particular, I argue that anti-overhaul protests appealed to liberal universalist values to garner bipartisan support, with the effect of bypassing substantive issues such as the occupation of the Palestinian Territories and discrimination faced by Israeli Palestinians. This explains the lack of Arab participation in the protests, as many perceived them to be an internal Jewish Affair. Thus, when post-war repressive measures mostly affected Israeli Palestinians, the protest movement failed to rally in their support. Although anti-overhaul protests could have brought about greater liberal consolidation in Israel, the relative lack of post-war mobilization casts lingering doubts on the possibility of long-term consolidation of liberal values in Israel. Attempts to depoliticize the protests, while perhaps successful in warding off the overhaul, and though impressive on their own, have likely failed in instilling deeper, more resilient, liberal values in Israel.

This Article advocates for conceptualizing law as a design science, with a comprehensive approach that integrates formal, explanatory, and design dimensions of legal knowledge. By embracing the empirical aspects of legal scholarship, this perspective challenges the traditional image of lawyers as solely reliant on linguistic constructs. Instead, it positions them as social engineers capable of shaping legal norms and interpretations in alignment with societal needs. Through analysis and illustration of its application in diverse factual contexts, the Article underscores the necessity for this evolution in contemporary legal scholarship, particularly as teleological interpretation gains prominence in legal practice.

We stand at a curious moment in the history of law and technology. Nations around the world are scrambling to regulate or deregulate artificial intelligence, each convinced they are in a “race”—for dominance, for values, for the future itself. Brussels votes on comprehensive AI Acts. Beijing issues the world’s first copyright ruling on AI-generated content. Washington debates whether chatbots should have First Amendment rights. The underlying premise of this volume is that this framing as a zero-sum competition fundamentally misunderstands both the nature of AI and the task before us. The truth is more sobering and more hopeful: We are not racing against each other but experimenting together, trying to govern technologies that respect neither borders nor traditional legal categories. The real question is not who will “win” the AI race, but how we can learn from each other’s experiments fast enough to keep pace with systems that evolve by the microsecond. This Special Issue of the German Law Journal brings together fifteen contributions that demonstrate why comparative law has never been more essential—or more challenging. The authors span continents and legal traditions, from Beijing to Brussels, from Silicon Valley to Sydney.

Equality law has developed into a mature and sophisticated field of law across jurisdictions. At the same time, inequality too has bourgeoned. This Article explores this paradox. It argues that the widening gulf between equality law and persisting inequalities can be addressed through a ‘structural turn’ in equality law. The structural turn is imagined in contrast with the liberal view which sees the harm of inequality/discrimination as something inflicted by and against individuals or collectivities through specific acts or omissions. The structural view places individual victims and perpetrators within the broader dimensions of the social, economic, legal, political, psychic and cultural contexts in which they exist and the power relations within them. The way these dimensions interact with each other and against the relationships of power within them, reveals how structural harm is occasioned. This Article argues that structural harm need not only be treated as a product of structures, including a structure such as equality law, but as the target of equality law which is open to not only enacting structural harm but also structural change.

Dispute resolution provisions are routinely found in the boilerplate section of all types of contracts, ranging from negotiated paper agreements to website Terms of Service. The law permits the parties to a contract to change the default rules that would otherwise govern their transaction, including how any disputes will be resolved. The ability of the parties to change default rules demonstrates the deference of contract law to individual autonomy and private ordering. Consent is central and essential to both. Despite the legal significance of consent, its meaning is elusive. In one sense, the “meaning of consent” refers to its implications and the legal and moral consequences that derive from consent. In the other, and more complex sense, the “meaning of consent” refers to its very nature. Drawing upon my previous work on consent and contracts, this Article discusses these two meanings of consent and how they are interdependent. It will also examine consent specifically in the context of dispute resolution clauses.

The widespread rise of renting unaffordability and gentrification across European cities has drawn attention to the social unsustainability of heavily financialized and privatized housing markets. Indeed, contemporary patterns of standardization and depoliticization of housing crises collide with the increasingly pronounced functional equivalence between tenancies and home-owning, as well as with future urbanization prospects. The Article departs from an understanding of housing crises as by-products of inter alia property relations to examine two distinct clusters of constitutional tension that define the European housing landscape. It then details the recalibration of renting profitability and the regulatory or “soft” asymmetrization of housing governance as defining features of a post- or counter-neoliberal movement within property’s constitutional politics. While profitability relativism readily aligns with the basic tenets of European social constitutionalism, the plural resistances of constitutional governance structures to the localist repoliticization of housing crises urges fresh thinking around the shifting geographies of urban homeownership politics.

In recent years, as the technological revolution has had an impact on all organizations and individuals across the world, the legal world has grappled with change and whether existing arrangements are appropriate where technological change raises challenges that require rapid attention. Courts, lawyers, law firms, experts, and others may have initially considered that the impacts would not be significant. That is, there was a hope that the impacts of newer technological solutions that are supported by artificial intelligence (AI) would make life easier, speed up justice and potentially reduce costs while streamlining existing processes. However, AI has prompted a rethink in relation to governance arrangements across the sector partly because there are significant risks as well as opportunities offered by the AI revolution. A dawning realisation that AI may require different working and supervisory arrangements as innovative options become available has led government and the private sector to produce AI guidelines, guardrails, legislation, codes, and mechanisms. However, existing governance approaches may no longer be fit for purpose in the legal realm partly because the issues that are linked to confidentiality and accuracy can be so significant. This Article considers the governance approaches adopted internationally with reference to selected comparative approaches as well as the pitfalls of adopting poor governance arrangements, concluding by proposing core components of good practice in organizational AI governance.

Borders are ubiquitous. As invisible lines, they contribute to a functioning world order and guarantee security for the people. In the form of walls and fences, they divide society and establish strongholds of prosperity that are not accessible to everyone. A similar effect can be observed in connection with the concept of citizenship, which binds people fatefully to a particular territory and thus significantly determines an individual’s life chances. This article shows how borders and their protection as well as the concept of citizenship challenge fundamental ideas of justice and traces discourses that seek to evolve the current border and citizenship regimes into a more universal and just form of human coexistence.

The indivisibility of all human rights is a fundamental principle of contemporary human rights interpretation and advocacy. It is asserted most commonly by theorists who assert that both socio-economic rights (ESR) and civil-political rights (CPR) are intrinsic to human dignity and must be treated on the same footing as any other right without a priori hierarchy. One dominant strand of this argument is the contention that ESR help deepen and sustain democratic rights like free speech, free media and the vote, while democratic rights in turn reciprocate by boosting the cause of social minima like education, health, housing and food. However, the empirical reality and contemporary relevance of the mutually-supporting relationship of ESR and democratic rights are called into question by two factors. The first is the fact of democratic recession in the Global South and its seeming erosion in the West. The second is the evident success of some autocratic regimes in building extensive social housing, eradicating hunger and improving access to healthcare. These trends partially undermine arguments premised on predictable causal relationships between democracy and ESR realisation. We need a more refined understanding of how non-democratic political regimes, institutions and ideology interact to produce different levels of commitment and capacity to realize ESR. There are at least three plausible responses this reality gives rise to, namely (i) to alter nothing about the way we think about indivisibility, (ii) to abandon the concept of indivisibility, or (iii) to revise the concept for a more multivalent world.

This Article analyzes the role played by international actors, indigenous peoples, and independent lawyers as guardians of democracy in a context where democratic backsliding, abusive judicial review, and institutional takeover has taken place. Using the Guatemalan 2023 electoral process as a case study, this Article sheds new light on authoritarian constitutional practices, evidenced through the judgments of the Guatemalan Constitutional Court and activities of its Criminal Prosecutor’s Office. This Article also considers how foreign governments, international organizations, indigenous peoples, and independent lawyers came to play a guardianship role in the face of the decline of core institutions of constitutional democracy. Techniques such as transnational sanctions, judicial challenges, diplomatic “shaming,” and protest movements were successful in upholding constitutional democracy by discouraging attempts by the courts and government officials to derail the transition of power and annul the electoral results. This Article analyzes how and why these techniques had an impact in the Guatemalan context and extracts lessons and insights, both positive and negative, for dealing with abusive constitutional practices in theory and in practice.

This Article argues that to protect public debate, which is vital for democratic societies, it is crucial for courts in EU Member States to apply the freedom of expression standards established by the European Court of Human Rights (ECtHR) when adjudicating cases, particularly in the context of Strategic Lawsuits Against Public Participation (SLAPPs). The Article examines whether the obligation to protect the freedom of expression extends to the non-enforcement of judgments that could have a chilling effect on public debate, and explores the legal implications within the framework of the EU’s mutual recognition regime. By analyzing the Real Madrid v. Le Monde case, the Article highlights the importance of safeguarding free speech and public debate, praising the European Court of Justice (ECJ) for providing clear guidance on when non-enforcement is necessary to prevent the suppression of the public debate. The Article concludes by emphasizing the evolving role of the ECJ in balancing mutual trust among Member States with the protection of fundamental rights, especially in light of the EU’s ongoing integration and its potential accession to the ECtHR.

Given its role as a legal instrument not only to try superiors but also to prevent both them and their subordinates from committing grave international crimes, the correct understanding and proper application of the doctrine of superior responsibility is of paramount importance. This article aims to illuminate specific and some controversial aspects of the third element of the doctrine—the failure to adopt necessary and reasonable measures—and obtain a clearer and more comprehensive understanding on the superiors’ duties, its limits and main prerequisites under the doctrine. For this purpose, an interdisciplinary study was conducted to investigate whether basic principles and business aspects of corporate governance and compliance management may be applied for a better understanding and refinement of the doctrine. The underlying analysis in corporate governance and compliance covers American (U.S.), German, and international standards.

Millions worldwide face poverty daily. While its effects vary by society, poverty consistently marginalizes individuals, limiting their opportunities and access to societal benefits. Myths about poverty undergird and perpetuate socioeconomic exclusion, being the vehicles for cultural processes, such as stigmatization, racialization, and rationalization. These myths abound in law. They include the conception of poverty as solely concerned with the deprivation of basic material goods; equal opportunities and collective amnesia about the past; stigmatization of people in poverty as irresponsible and lazy; the categorization of aspects and elements of their poverty condition as criminal. This Article argues that judges, as (meta)narrators, have the power to challenge myths and develop new narratives about poverty, through the language of non-discrimination and equality. This could open the way to judicially redress certain troubling situations of misrecognition, social exclusion and inequality. Ultimately, as long as myths about poverty prevail in law any attempt to tackle the issue of socioeconomic exclusion is destined to fail. This article contributes to the law and sociology literature on poverty in judgecraft by addressing the research gap on narratives of poverty within judicial reasoning and practice.

Under the rule of law, everyone has a constitutional right to a remedy—that is, access to a court that decides a dispute over private rights and obligations according to the law of the land. Dispute resolution agreements are an instance of reflexive contracting, in other words, agreements on which substantive and procedural rules shall govern a contractual relationship. Where the choice for one or both parties is for a law or forum other than that applicable by default, dispute resolution agreements contain a waiver of the constitutional right to a remedy according to the law of the land. Party autonomy—that is, the freedom to contract on the rights and remedies applicable to the main contract—is conferred by reflexive contract law, that is, the law applicable to dispute resolution agreements. In this article I argue that reflexive contract law, in specifying the conditions under which reflexive contracts are enforced by the state, shall reflect the extent to which agreements to arbitrate, on forum selection, or on choice of law interfere with the constitutional right to a remedy. Coherent requirements as to the form and validity of consent, ex-ante information, or ex-post judicial control shall be proportional to the entailed dangers and the proficiency of the involved parties. However, as dispute resolution agreements are regulated by diverse instruments on the national, supranational, and international levels, consistency is very difficult to achieve. Moreover, the US and EU regulatory approaches regarding the protection of consumers and employees seem to be incommensurable.

Despite Germany’s progressive constitutional and statutory commitments to animal protection, the effective enforcement of animal welfare norms remains limited by persistent structural deficits. This Article examines the legal and institutional barriers impeding judicial enforcement, with particular attention to restrictive standing doctrines—most notably the protective norm theory—and systemic disincentives within administrative practice. Drawing on comparative insights from environmental law, including association standing and rights of nature frameworks, the Article explores procedural innovations and institutional reforms that may enhance access to justice in the field of animal protection. It further assesses the potential of strategic litigation to expose systemic failures. Strategic litigation may prompt legal and political change, particularly where normative commitments remain unmet. The Article concludes by outlining reform pathways and situating the German experience within broader debates on access to justice and the evolving role of courts in advancing the legal protection of nonhuman interests.