The contribution examines four common misconceptions about the (infamous) German Network Enforcement law and its potential to produce a chilling effect on freedom of expression online.
DOI: 10.5771/9783845289519-257-
S Theil, 'The German NetzDG: A Risk Worth Taking?' (2018) Verfassungsblog
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S Theil, 'The open society of constitutional interpreters - A contribution to a pluralistic and "procedural" constiutional interpretation' in Markus Kotzur (ed), Peter Häberle on Constitutional Theory - Constitution as Culture and the Open Society of Constitutional Interpreters (Hart Publishing / Nomos 2018)
Translation from German, originally published in 1979 as 'Präambeln im Text und Kontext von Verfassungen'
This contribution gives a succinct overview of the NetzDG and explain how some of the criticisms are overstated and partially misguided. While the NetzDG is unlikely to resolve all challenges surrounding social media and freedom of expression, and undoubtedly presents a certain risk of stifling expression online, I believe it is nonetheless a significant step in the right direction. Rather than undermine freedom of expression, it promises to contribute to more inclusive debates by giving the loud and radical voices less prominence.
DOI: 10.5771/9783845289519-129
Translation from German, originally published in 1975 as 'Die offene Gesellschaft der Verfassungsinterpreten.'-
S Theil, 'The rationale of constitutions from a cultural science viewpoint' in Markus Kotzur (ed), Peter Häberle on Constitutional Theory - Constitution as Culture and the Open Society of Constitutional Interpreters (Hart Publishing / Nomos 2018)
ISBN: 9781509926299
DOI: 10.5771/9783845289519-229
Translation from German, originally published in 2006 as 'Der Sinn von Verfassungen in kulturwissenschaftlicher Sicht'-
S Theil, 'A vote of confidence for the German democratic order: the German Federal Constitutional Court ruling on the application to ban the National Democratic Party' (2017) U.K. Constitutional Law Blog
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S Theil, 'An Aversion to Weimar: German Constitutional Hesitance on Dissolving the Bundestag' (2017) UK Constitutional Law Blog
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S Theil, 'Is the ‘living instrument’ approach of the European Court of Human Rights compatible with the ECHR and International Law?' (2017) 23 European Public Law 587
ISBN: 9781509926299
On 17 January 2017, the German Federal Constitutional Court (FCC) ruled on the application of the German Federal Council to find that the far right National Democratic Party of Germany (NPD) unconstitutional pursuant to Article 21 para. 2 of the German Basic Law. This constituted the second such party ban application against the NPD after the initial attempt in 2001 had failed on procedural grounds, chiefly due to the involvement of domestic intelligence agency informants in the higher echelons of the party. Having been assured that these informants were no longer operating, the most recent application passed the admissibility hurdle, but was ultimately not successful on the substance: the FCC found that while the NPD was clearly determined to undermine and abolish key features of the free democratic basic order of Germany, its actions had such little prospect of success that it could not be deemed unconstitutional.
Now that the next German government is unlikely to be formed, Germany is left with two equally unattractive options: a minority government under CDU/CSU leadership or fresh elections following dissolution of the Bundestag. The procedure for both is complicated under the German constitution, and this post will seek to shed some light on the constitutional hurdles. There are broadly speaking two scenarios in which the Bundestag may be dissolved and fresh elections sought, as well as a minority government formed.
The article offers a rebuttal of prominent criticisms directed against the ‘living instrument’ interpretative approach of the European Court of Human Rights. The article initially introduces the basic application of the interpretative approach as adopted by the Court and then considers whether it is compatible with the Convention and broader International Law. The article argues that the Preamble, subsequent State practice and preparatory work offer inconclusive evidence to both critics and supporters of the ‘living instrument’. However, the interpretative approach can claim democratic endorsement through States, while arguments based on the necessity to consider domestic interpretations of the European Convention on Human Rights (ECHR) cannot support a restrictive interpretation as a matter of International Law. The ‘living instrument’ further appears compatible in the context of state sovereignty in International Law, and broader institutional concerns with the role of judges in the adjudication of rights. Ultimately, the ‘living instrument’ interpretative approach therefore appears legal under the Convention and relevant International Law.-
S Theil, 'Neither full independence, nor perfect union: Constitutionalism as a Third Way for the future of Scotland' (2017) LSE British Politics and Policy Blog
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S Theil, 'A union of states, constitutions, administrations and judiciaries: some initial thoughts on the OMT ruling of the German Constitutional Court' (2016) U.K. Constitutional Law Blog
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S Theil, 'Introducing the Environmental Minimum' (2016) University of Cambridge Faculty of Law Research Paper
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S Theil, 'Constitutions as culture: Two insights from Peter Häberle’s “The rationale of constitutions from a cultural science viewpoint"' (2015) U.K. Constitutional Law Blog
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S Theil, 'Polycentricity – A fatal objection to the adjudication of environmental rights?' (2015) U.K. Constitutional Law Blog
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S Theil, 'Three insights from Peter Häberle’s “Preambles in the text and context of constitutions"' (2015) U.K. Constitutional Law Blog
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S Theil, 'Der Umfang des Umweltschutzes in der Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte' (2014) 36 Natur und Recht 330
ISBN: 1354-3725
With Scotland now to seek a second independence referendum, the debate is framed around two extreme options: independence or union. Stefan Theil writes that a third option is available if both sides are prepared to make concessions. He explains how constitutionalism, paired with a federal settlement, could come to offer a viable long-term solution for Scotland.
In the midst of the all-consuming Brexit Referendum Debate, and the unfortunate vote by the United Kingdom to Leave the EU, one might be forgiven for having overlooked this particular piece of European integration litigation. If nothing else, this recent decision by the German Federal Constitutional Court (FCC) demonstrates that even in a difficult constitutional relationship, the spirit of cooperation and pragmatism can triumph over ideological differences. In that sense, the FCC has long been a sturdy pillar in the European constitutional order, one that the remaining member states and the EU can rely on for stability in the uncertain months and years that are sure to follow the invocation of Article 50 TEU.
This paper will present the core argument in favour of establishing the environmental minimum as a framework for the relationship between the protection of the environment and human rights. In simplified terms, the environmental minimum seeks to protect those basic environmental conditions that are necessary for the meaningful enjoyment of human rights, chiefly by providing a framework that fosters an active engagement with environmental degradation, its regulation and enforcement.
Constitutions are the cultural achievement of centuries of historical legal development, an expression of the cultural self-presentation of a people. For all their variety, constitutions seek to set the rules for a fundamental order in an objective, rational and principled manner. The general structure of the state, the inclusion and contours given to basic legal principles (Rule of Law, Separation of Powers, Legality) and the human rights a society may wish to uphold receive varied and diverging replies in the Constitutions analysed by the Constitute Project. From the very beginning of the drafting process, those replies can scarcely be separated from the cultural background on which the views and perspectives on these matters of principle are based.
In an unprecedented ruling, the Hague District Court has recently compelled the Dutch State to reduce the greenhouse gas emissions of the Netherlands by 25% by 2020 based on the emissions levels of 1990. The Urgenda Foundation had successfully argued that the Dutch State was under an obligation to protect its citizens form climate change on the basis of domestic tort law. For many this development is symptomatic of a broader, more general concern: a court engaging with a highly complex policy question, which is better left to other modes of decision-making. Lon Fuller makes the strongest and most fully developed argument along this view in his article on polycentricity. Although Fuller does not reference environmental protection specifically, his concerns are readily transferable: if threshold values for dangerous air pollutants are exceeded, regulators may resolve the matter through a vast number measures ranging from limiting vehicular traffic to long term shifts towards cleaner energy production. In essence, Fuller argues that choosing between these options or indeed setting binding targets with any nuance is a task ill-suited to courts.
Preambles are a hallmark of constitutions, and questions regarding their inclusion and content are an important part of the drafting process: a clear majority of the 194 constitutions analysed by the Constitute Project opted in favour of more or less expansive preambles. In this country, an early draft of a Constitution for the UK by the Institute for Public Policy Research included a preamble, and a more recent effort of the Institute of Public Affairs at LSE at crowdsourcing a UK Constitution will likely address the question in due course. Certainly, we would not deem a preamble an absolute necessity. There is a sizeable minority of written Constitutions without preambles. Most recently in the UK, the draft Scottish Independence Bill (2014), whose Part 2 was intended to serve as an interim constitution in the event of independence, contained no preamble. In spite of the mixed evidence on the necessity preambles, we may well have good reasons to incorporate them into constitutions: preambles express aspirations, hopes and commitments to higher ideals in a particularly exalted language. As Peter Häberle surmised, they thus attempt to foster a link to the history and culture of a nation, provide a justification and rationalization for the birth of the constitution, and establish a connection with its citizens, while also influencing the interpretation and application of the law.
DOI: https://doi.org/10.1007/s10357-014-2640-5
Mit dem erneuten Scheitern der jüngsten Klimakonferenz in Warschau wurde abermals die mangelhafte Umsetzung verbindlicher Klimaschutzziele durch die Politik auf internationaler Bühne demonstriert. Doch nicht nur auf Klimakonferenzen obsiegen oft nationale Interessen an Wohlstand und Wirtschaftswachstum über die langfristigen Belange des Umweltschutzes. Einige Stimmen schlagen deshalb vor, umweltrechtliche Belange als ein Problem des Menschenrechtsschutzes zu begreifen, um so dem Umweltschutz mehr Durchsetzungskraft zu verleihen. Der Beitrag untersucht anhand der Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte, in wie fern der internationale Menschenrechtsschutz bereits heute Umweltbelange anerkennt und welche Grenzen diesem Bestreben gesetzt sind. -
S Theil, 'What red lines, if any, do the Lisbon Judgments of European Constitutional Courts draw for future EU integration?' (2014) 15 German Law Journal 599
ISBN: 1439-0515
The lingering European financial crisis continues to threaten the Eurozone and, in the opinion of German Chancellor Angela Merkel, the very survival of the European idea. With this apocalyptic rhetoric, it is easily forgotten that only nine years earlier Europe overcame a predicament that was, at the time, equally described as the most challenging in its history.
Centres
Research Interests
Human Rights; Constitutional Theory; Public Law; International Law; European Union Law; German Constitutional Law