A visible sign of changing relations between the Global South and Global North are reparation claims for colonial injustice. An interesting case is the 1904–1907 Namibian Genocide. Germany has recently concluded a draft agreement with Namibia on reconciliation and compensation. Nevertheless, Germany maintains that it is not under any legal obligation to pay reparations. This article challenges that position, arguing that colonial international law was far too ambiguous to support this conclusion. For this purpose, the article contrasts this ‘conventional view’ of colonial international law with post-colonial and pluralistic approaches. Post-colonial approaches reveal colonial-era law as a deeply ambiguous, contradictory practice that mirrors the identity crisis of the colonizers. Pluralistic approaches juxtapose colonial international law with autochtonous views of inter-polity law, i.e., the normative framework governing colonial encounters. To reconstruct autochtonous views, the article draws on letters by Hendrik Witbooi and Maharero, traditional leaders from Namibia, and examines the contours of their inter-polity law relating to territorial sovereignty and warfare. These contending perspectives undermine the cogency with which the conventional view rejects reparation claims. While ambiguity as such does not give rise to compensation claims, other options come to mind, such as a duty to negotiate, shifts in the burden of proof – or a profound recalibration of international law towards greater solidarity.

This article argues that the PSPP judgment effectively buries the era of financial liberalism, which has dominated the European economic constitution for decades. It raises the curtain on a new political paradigm, which I call “integrative liberalism”. Whereas the financial crisis put financial liberalism under strain, the development since then has been contradictory, torn between state intervention and market liberalism, focused above all on buying time rather than finding a new constitutional equilibrium. Now, together with the measures adopted in response to COVID-19, the PSPP judgment paves the way for profound change. Integrative liberalism is characterized by an overall shift from the market to the state, mitigating the post-crisis insistence on austerity and conditionality. Contrary to the embedded liberalism of the post-war era, integrative liberalism operates in a corrective and reactive mode with a focus on goals and principles, lacking the emphasis on long-term planning. Like every political paradigm, integrative liberalism ushers in a new understanding of the law. It puts the emphasis on context instead of discipline, and it elevates the proportionality principle. If integrative liberalism is to succeed, however, the democratic legitimacy of the Eurosystem and its independence require serious reconsideration.

There is no point in denying the significance of the Right to be forgotten for the state of judicial dialogue in Europe. It vindicates the position of the BVerfG as a court deserving international recognition for advancing the law in the crucial field of data protection. Nevertheless, restricting the scope of analysis to the narrow context of judicial dialogue misses the wider context of the rise of authoritarian constitutionalism in certain EU Member States. In this respect, it is of the highest significance that the decisions on the Right to be forgotten effectively eliminate the imagined normative hierarchy between domestic and EU law that provided the basis for the BVerfG’s jurisprudence ever since Solange I and Maastricht. Moreover, by reasserting the primacy of EU law, the BVerfG strengthens the position of embattled judges in Poland facing disciplinary action for implementing the primacy of EU law. The concern shown by some members of the First Senate for the situation in Poland corroborates this reading.

“For, he reasons pointedly, that which must not cannot be:” the last two lines of a famous poem by Christian Morgenstern bring the crux of normativity to the point: what is the relationship between facts and norms? The research of the past decades has increased rather than reduced the complexity of this fundamental question for legal theory. First of all, the relationship between facts and norms is still less than clear. Hans Kelsen had argued that facts and norms were to be clearly separated, but once the Grundnorm (basic norm) had turned out to be fictitious, the search for an appropriate description of the relationship between facts and norms began anew. Positivists after Kelsen based normativity on different facts, such as social acceptance or social discourse. Secondly, research on new modes of governance, in particular in the fields of European and international law, has revealed that behaviour can be influenced by “soft” norms and non-normative forms of governance just as much as by “hard” law. These results prompted some to consider legal normativity a matter of degree instead of an on-off issue.

400 years after Shakespeare's death, a tragedy of Shakespearian dimensions has unfolded in the United Kingdom: Brexit. One Friday morning in June 2016, staring in disbelief at the incoming news, we were asking ourselves: “Are you sure/That we are awake? It seems to me/That yet we sleep, we dream.” A look at Shakespeare's work in the context of Brexit is no lofty, purpose-free exercise. For one, Shakespeare's work is instructive for explaining British national pride, its indulgence in splendid isolation that obviously provided one of the intellectual undercurrents of the Leave campaign (though the causes for voting Leave are, of course, a lot more multifaceted). The English nation formed itself in the Elizabethan age against the background of a century of quarrels with France in what was then the recent past. The pride that the British took from their victories is nowhere better reflected than in Henry V's Crispin's day speech. A small number of English soldiers heroically resisted the French forces. “We few, we happy few, we band of brothers.” Shakespeare infused the play with a feeling of togetherness based on England's victorious fight against continental powers. It was this idea of nationhood that carried England and the whole of the United Kingdom successfully through the turmoil of the 20th century. Small wonder that some demanded compelling (economic) reasons to continue bonding with the continent.

During the process of the establishment of the International Criminal Court (ICC), a voluminous set of rules was elaborated to ensure that the Court will become an effective instrument for the enforcement of international law. These rules and provisions were drafted and approved in the abstract, but how would they actually work in practice? – We hear that the USA has undertaken an enormous diplomatic effort to limit the jurisdiction of the ICC. To what extend would the outcome of these efforts create an obstacle for the Court to exercise its jurisdiction? – The new ICC Prosecutor has just been sworn in, and several hundred incidents have been reported to the Court where crimes falling under the Rome Statute of the International Criminal Court might have been committed. Still, it might take some months, if not years until the Court sees its first indictment or trial and until the statute and rules of the Court are applied for the first time.

In Karlsruhe's recent request for a preliminary ruling, an unconventional monetary policy measure of the European Central Bank (ECB) finds an unconventional judicial response. Based on its mandate to enforce the fundamental right to vote, the Federal Constitutional Court (FCC) leaves no doubt about its view that the ECB's Outright Monetary Transactions Programme (OMT Programme) violates the law of the European Union and hence the German Basic Law, unless one reads them in a rather restrictive way. But as unconventional monetary policy steps up the need for the ECB to justify the legality of its measures, so does the FCC's unconventional expansion of the scope of judicial review raise questions which the recent decision in its—generally laudable—brevity leaves underexplored. In particular, the decision does not dwell much on the issue whether it is appropriate for a court to review issues of monetary policy, and which standard of review should apply. Only Judge Gerhardt calls the majority's standard of review into question when he doubts whether the requirement for transgressions of the European Union's competences to be “manifest” is a workable criterion for defining the scope of the FCC's ultra vires control.

This Article studies the role of law for aligning democracy with a market-based financial order. Jürgen Habermas's discourse theoretical understanding of the role of law in the welfare state establishes a structure for exploring this issue. According to this approach, law needs to be enforceable, law-making and law-application need to be institutionally separated, and public law needs to be distinguishable from private law. The contemporary practice of sovereign debt restructuring reveals some empirical and normative challenges to this understanding of the law. Based on these findings, this Article proposes several conceptual and institutional improvements that might lead to a more stable relationship between democracy and financial order. In particular, we argue that sovereign debt restructuring should tap the legitimating potential of existing transnational discourses that are characterized by cross-border cleavages in public discourse.

This article suggests a tentative model for the legal conceptualization of the great variety of instruments by which international institutions exercise public authority, brought to light by the thematic studies of this project. If one were to display this variety of instruments on a scale that ranges from binding international law to non-legal instruments, hardly any thinkable step on this scale would remain empty. Situated at the top end of the scale one would find binding instruments such as international treaties, periodic treaty amendments, decisions on individual cases with binding effect or decisions having the potential to become binding by way of domestic recognition. While these instruments clearly have external legal effects, other instruments seem to be purely internal rules of procedure, although they have in fact considerable repercussions for national administrations. Next come various types of soft, i.e. non-binding legal instruments. Some of these instruments operate in the shadow of binding instruments. Others are kept in purely soft form, like product standards or codes of conduct, but also decisions concerning individuals. In the lower part of the scale one would find instruments containing non-binding rules that are foremost aimed at facilitating consultation, or soft private law instruments. At the bottom end one would discover non-legal instruments that are devoid of any deontic elements, but nevertheless have a high legal or political impact on the affected policy area. Examples of this class of instruments include factual assessment reports, indicators, reports on implementation and compliance, and databases.

Banking Union – Single Supervisory Mechanism – Economic interplay between monetary policy and prudential supervision – Strict separation envisaged by the Single Supervisory Mechanism legal framework – Legal framework does not prevent a more holistic approach – Financial stability is a legitimate consideration for monetary policy-making – Price stability is a legitimate concern for prudential supervision – Challenge to European Central Bank legitimacy and independence – Democratising the European Central Bank

This article argues that a distinction between the public and the private is both desirable and feasible in times of global governance, at least as a regulative idea. The confusion surrounding this distinction originates in different understandings of the relationship between state and society in liberalism and republicanism. Discourse theory with its idea of the co-origin of democracy and human rights reconceptualises the relationship between state and society in a way that does justice to both liberal and republican approaches. Accordingly, the public/private distinction is crucial for the realisation of democracy and freedom. Classifying an act as public or private determines what kind of legitimacy it requires. The article then recalibrates discourse theory to face the challenges of global governance, shifting its focus from hard law to a broader notion of authority, and from the state to a pluralistic, cosmopolitan world order composed of multiple overlapping communities. A community is characterised by communicative action and a common identity. In such a setting, public authority is the authority exercised on behalf of a community in relation to its members. In relation to non-members, the same act may constitute an exercise of private authority. It is a different question whether such authority is legitimate. Some examples illustrate the approach.

This article surveys contemporary approaches to international soft law, such as various types of legal positivism, legal realism, critical legal studies, and global administrative law. It scrutinizes to what extent the concept of law endorsed by each of these approaches is able to tackle two challenges caused by the spread of soft law as a means of governance: (1) the fact that international soft law is today often the functional equivalent of international treaties and (2) the contestations of the legitimacy of soft law. It concludes that discursive approaches that stress the public character of international law appear very promising, because they link broad concepts of law with considerations of legitimacy. However, since international institutions today exercise public authority not only through soft law or hard law, but also through non-legal instruments like information, the article argues that one ultimately needs to conceptually dissociate the concept of international law from the concept of public authority.

When the editors of this journal asked me to write a comment on Jaye Ellis's paper, I was immediately fascinated by the prospect of engaging in a rigorous debate, perhaps one as controversial as that between Hans Kelsen and Eugen Ehrlich on legal scholarship and legal sociology about 100 years ago – although I am unable to reach the brilliance of those thinkers, and probably also their level of polemics.1 Now that I have read Jaye's paper, my expectations have somewhat changed. I realize that Jaye and I agree on many important points – points that would have brought large parts of the ‘invisible college’ up in arms a few decades ago. In particular, we agree that legal scholarship should find ways of dealing with the multiplicity of soft-law instruments that look like law because they consist of sometimes quite precise rules; that function like law because they effectively guide the behaviour of states, international organizations, and private entities; and that are therefore not adequately described as ethical, political, or moral rules. We also agree that the traditional concept of international law, which considers state consent as the one and only source of legitimacy, has come under stress since the advent of global governance, particularly because other actors like international bureaucracies or non-state entities play increasingly important, indispensable roles.