The Turning Radius of an Era

Books with years as a title have been much in vogue for some time now in Germany. A specific year is punched out of the fibre strand of time, microtomised into thin cross-section slices and put under the microscope: Wow, all these things happened at the same time in different places, who would have thought! This book-market fashion started about ten years ago, when the feverish years in the wake of World War 1 entered its centennial phase. Now it’s the early 1920s that are turning 100, which also seem to lend themselves to this kind of cross-sectionalization quite well: What a lot of things started at that time simultaneously! How brand new and revolutionary and unheard-of it all was, and yet how interwoven with the same tough fibres that run through the years before and after, all ropy continuity, all those people and things and thoughts and events with their time behind or ahead of them that enrich the presence of their present with fragrant past and searing future, for better or worse. That’s a good story, no doubt. No wonder these books sell so well.

I wonder if a book like this will ever be written about the year that is now coming to an end. We are living through a Zeitenwende, a turning of an era, as our Chancellor put it in his incomparably bland way. A Zeitenwende it is, who would deny it! I suppose that’s how it is for the contemporaries of turnings of eras, though: The present remains very much determined by the toughness of the fibres that run through it and the desperately large turning radius that they allow, and only in the cross-sectional slice under the microscope of a book writer in some future time will it be possible to recognise all those things. What the regimes in Moscow, Tehran, Riyadh and Beijing and all the other fibre-tough suppliers of raw materials and wealth for us fibre-tough export world champions will already have become in 2022. Whether or not our possibilities to make collectively binding decisions in large, diverse societies will have developed and differentiated beyond the primitive majoritisation of minorities within territorial borders. Quite a story it will be, I assume. Unbelievable! Who would have thought that all that has started in this year 2022, brand new and revolutionary! (Provided that someone will still be alive to tell and hear it).

In the meantime, all I can offer you a feeble substitute. So much has happened during this year 2022 at the same time in so many different places, interrelated in so many tangled and confusing ways. We’ve published nearly 1000 blogposts in 2022. Our timeline feels like a fibre strand of its own, thick as an arm. To slice it into neat monthly cross-sections, I have unraveled it a bit and picked out those fibres that have been met with particular interest. Enjoy!

January

CLEMENS ARZT reminds us that Covid sceptics also enjoy the fundamental right to freedom of assembly (4766 hits). UTE SACKSOFSKY’s sceptic view of the proportionality of compulsory vaccination finds 12,317 readers; KLAUS FERDINAND GÄRDITZ’s opposing view 6227. Compulsory vaccination is in general a topic that interests an enormous number of people at the beginning of the year. STEPHAN RIXEN and ADAM SAGAN’s record-breaking post on it, which was viewed more than 70,000 times in December 21 already, generates another 12,220 clicks in 2022. Also from December 21 is the post on the same topic by MICHAELA HAILBRONNER, LISA-MARIE LÜHRS and LEON ZÜLLIG, which is read 5724 times.

Another post from December 21 that continues to attract interest in 2022 is DANIEL THYM’s analysis of the traffic-light coalition’s migration policy plans (12,222).

In Saxony, the far-right ex-AfD MP and former judge Jens Maier is threatening to return to the bench after missing re-election. ANDREAS FISCHER-LESCANO disentangles why this mustn’t happen and what the Saxon Minister of Justice can and should do about it, to 12,174 readers. KLAUS FERDINAND GÄRDITZ’s examination of the right of extremist MPs to return to public service is viewed 3675 times.

February

THORSTEN KINGREEN’s analysis of the draft law on compulsory vaccination from the age of 18 is read 14,660 times. ANNA-LENA HOLLO’s investigation into what unemployment benefit receivers could face if they refuse to vaccinate is viewed 7041 times. Also in the Covid context: JOHANNES GALLON scrutinizes the regulation of the convalescent status and thus awakens the curiosity of 5079 readers.

Then Russia invades Ukraine. On the day of the invasion, ANNE PETERS, on behalf of the German Society for International Law, declares that the invasion is a breach of the prohibition of the use of force as a fundamental principle of international law (3739). Shortly before, VIKTORIIA LAPA and JUSTIN FROSINI write on the Ukrainian government’s constitutional obligation to seek NATO accession and are read 5666 times. The outbreak of war makes ISABELLE LEY’s article on the contradictions of values in German arms export policy, which has appeared in January, extremely topical; it is read 5251 times in the days immediately after 24 February…

March

… and in March another 3680 times.

The war in Ukraine is the all-overwhelming topic. Readers are attracted to texts on the countless pressing legal questions it raises, for example by KAI AMBOS on the impact of arms deliveries on Germany’s status as a non-party to the war (4269), by BJÖRNSTJERN BAADE on the EU ban on Russian propaganda channels (4048), by DANIEL THYM on protection for Ukrainian refugees (3479), by CHRISTIAN JOHANN on the International Court of Justice’s interim measures against Russia (3219), by MATTHIAS VALTA on the legal limits for economic sanctions against Russia (7123), by ALEXANDER THIELE on the question of whether and how conscription could return in Germany (3529), as well as my editorial on President Zelenskij (2615).

April

ISABELLE LEY’s article on arms exports continues to soar, with a further 5244 hits, a sensational total of 21,691. STEFAN TALMON’s position, already published at the beginning of March, that arms deliveries to Ukraine are not a violation of the obligation of neutrality, but rather “the least Germany and other states can do in view of the inactivity of the Security Council to maintain and restore world peace and international security and to defend the international legal order”, finds 8878 readers. PAULA RHEIN-FISCHER’s analysis of what Z symbols, St. George ribbons and other signs of support for aggressor Russia may be shown and banned at German demonstrations is read 8202 times.

In the energy crisis, the Tankrabatt (petrol discount) is supposed to provide relief for suffering car drivers, which THOMAS GROSS considers a violation of the state goal of environmental protection in Article 20a of the Basic Law (3810).

May

STEFAN TALMON further deflates the alarm that Germany could become a party to the war in Ukraine by supplying weapons (4239 readers).

The Federal Constitutional Court rules on compulsory vaccination. STEFAN RIXEN’s dissatisfaction with the way the decision “with perfect dogmatic artistry, removes (almost) everything that could make life difficult for the legislator” is viewed by 15,822 readers.

The US Supreme Court overturns its jurisprudence on the right to abortion. SARAH KATHARINA STEIN analyses Justice Samuel Alito’s leaked draft ruling (7879).

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KAI AMBOS tries to dispel concerns that cannabis legalisation in Germany could be against international law (3729).

ERIK TUCHTFELD criticises the EU Commission’s intention to lift digital privacy of correspondence in the fight against sexual abuse of minors (3038).

In Berlin, protests on Naqba day after the killing of journalist Shirin Abu Akleh by the Israeli military are banned across the board. RALF MICHAELS reminds us that freedom of demonstration is a fundamental right, not a privilege that the state can distribute as it sees fit. The post is viewed 4187 times.

June

In June, the curve remains relatively flat and without major swings. The most-read post is by FRANZ C. MAYER who criticises under the title “The Capitulation” the EU Commission’s decision to recommend to the Council to release reconstruction funds for Poland despite unresolved rule of law problems (2940).

Transgender German army officer Anastasia Biefang is reprimanded for her Tinder profile and the Federal Administrative Court finds that legal. PATRICK HEINEMANN’s report is read 3012 times and RONJA HESS’s analysis 2523 times.

The war in Ukraine provides some industries with gigantic excess profits, and TILL VALENTIN MEICKMANN’s investigation into the extent to which the Basic Law permits their skimming is read 4134 times.

July and August

In the Frankfurter Allgemeine Zeitung, law professor Tiziana Chiusi calls the Bachelor’s degree for law students in Germany a “loser’s degree”. JANA SCHOLLMEIER, on the other hand, considers the status quo in legal education to be a danger to the democratic constitutional state against the backdrop of demographic developments and the discussion on reform to be all the more urgent (5604). JULIAN KRÜPER’s passionate objection to Ms Chiusi’s findings also met with a great response (4990).

Speaking of FAZ: My editorial on how the once conservative leading medium in Germany deals with its own journalistic standards in the context of the Documenta anti-Semitism scandal is clicked 3670 times.

Eastern and northern European EU member states are calling for an entry ban on Russian citizens, which SARAH GANTY considers illegal (9084).

September

A CSU member of the Bundestag commissions a paper from the Bundestag administration and distributes it as a legal expert opinion which proves the illegality of the legalisation of cannabis under international and European law. KAI AMBOS shows that the paper is far from being that, but rather consists of “nine pages of insubstantiality” (6778).

October

In Bremen, the venerable Staatsrechtslehrervereinigung (Association of Professors of Constitutional Law) celebrates its 100th anniversary and invites me as a panelist at the festive event. I take this and the commemorative publication published for the event as an opportunity to take a critical look at this strange and interesting institution in an editorial (6316).

Chancellor Olaf Scholz puts his foot down on the contested matter of the continued operation of three nuclear power plants in the energy crisis, which triggers a discussion on the chancellor’s competence to issue directives to his government. ALEXANDER THIELE’s explainer is read 6097 times.

KLAUS FERDINAND GÄRDITZ explains that and within what limits universities can defend themselves against the spreading of disinformation and conspiracy theories by their members (6833).

November and December

Climate activists glueing themselves to picture frames in museums and to the tarmac on urban crossroads are the dominant fundamental rights topic of the autumn. RALF POSCHER and MAJA WERNER demonstrate that the prolonged police custody in Bavaria, which is unconstitutional anyway, is not a legal instrument against this kind of lawbreaking, a post read by a whopping 22,597 people. JANA WOLF defends the acquittal of a tree squatter by a Flensburg judge on grounds of justifiable necessity (5751). TOBIAS GAFUS disagrees with the thesis that violence against climate activists to enforce one’s right to motorised freedom of movement is justified self-defence (5559). KATRIN HÖFFLER explains to 5663 readers what to make of the talk of an emergent “climate RAF” (an allusion to the German terrorist group, not the Royal Air Force). DARIA BAYER examines whether climate protection can be a justification for civil resistance (3389). And FYNN WENGLARCZYK calls for resisting the temptation to try to break civil disobedience through tougher criminal laws (3348).

Elon Musk is taking over and ruining Twitter, at least for many users stunned by the supposed superhero’s destructive energy. MATTHIAS KETTEMANN is one of them and explains to Musk how platform democracy actually works (8620).

In Berlin, the Judicial Service Court rules that ex-AfD MP Birgit Malsack-Winkemann may return to her judgeship. Shortly after that, she is arrested as an alleged participant in a Reichsbürger conspiracy. ANDREAS FISCHER-LESCANO has already written down why this judgement is an outrage (3763).

So much for 2022. What has happened during…

This week on Verfassungsblog

… is summarized as usual by PAULINE SPATZ:

The Flensburg District Court has assumed a “climate necessity” as a justification in the case of a tree occupation. ROUVEN DIEKJOBST sees this assumption as judicial activism that neglects constitutional concerns. JAN-LOUIS WIEDMANN also analyses the judgement and says that the accusation of judicial activism does not hold water.

LASSE RAMSON & FYNN WENGLARCZYK explore the relationship between freedom of assembly and criminal (procedural) law with regard to protest occupations, and as a result propose a procedural decriminalisation of climate protest actions.

Against the background of the very different judicial responses to climate protests, JOCHEN VON BERNSTORFF explores the question of when criminal law is an appropriate state response to the new climate civil rights movement.

Calls for a tightening of gun laws are getting louder, but the FDP objects to it. ANDREAS FISCHER-LESCANO shows why there is indeed an urgent need for action on the basis of a decision by the Administrative Court of Appeals of Baden-Württemberg.

DAVID SCHWARZ looks at the Federal Constitutional Court’s preliminary decision on the supplementary budget 2021 and explains how inducement context, budget law, emergency credit and cyclical component could be taken into account in a leading decision.

Last week, the ECtHR ruled for the first time that there was a ‘denial of justice‘ and thus a violation of the ECHR due to a manifest error of law by a national court regarding the interpretation and application of EU law. JASPER KROMMENDIJK & MIKHEL TIMMERMAN contextualize this judgment in the ECtHR case law.

Russia’s retreat from the ECtHR leaves several issues unresolved. KIRILL KOROTEEV offers proposals on how to deal with the situation from a practitioner’s view.

Protection against personality violations on the net through the NetzDG and Digital Service Act is primarily geared towards quick deletions by providers. KARL-HEINZ LADEUR criticises this approach and calls instead for a strategic-procedural regulation that guarantees a net-specific right of expression.

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Elon Musk (un)blocks Twitter accounts arbitrarily. TAHIREH AUDREY SETZ shows how the Digital Service Act puts a spanner in Musk’s works – at least in Europe.

Meta’s Oversight Board issued its policy advisory opinion on ‘cross-check‘, a content moderation system used by the company. This represents an important step in the process of constitutionalisation, says LUCAS H. M. CONCEICAO.

The Internet Archive is a digital library that became an emergency solution during the Covid pandemic. The project is now endangered by the lawsuit of four publishers. KATHARINA DE LA DURANTAYE  explains the case’s background.

Earlier this month, six political parties from the Turkish opposition have announced a constitutional reform proposal. CEM TECIMER shares what he finds appealing and what he finds criticizable about the proposal itself and the consensus-building mechanism that made it possible. ONUR CAN UÇARER reviews the key provisions of the proposal and explains its likely path towards adoption in the aftermath of the upcoming general elections.

The EU has framed the Qatar scandal as malign third country efforts to corrupt the EU. EMILIA KORKEA-AHO offers fours answers as to what this case tells us about third country lobbying in the EU and what to do now.

The protection gap that exists between the lex sportiva and human rights law in respect of freedom of expression has been recently highlighted by FIFA’s inconsistent practice in the matter during the world cup. DANIEL RIETIKER analyses how these differences might be reconciled.

Next week there will be a premiere: for the first time we will publish texts in Ukrainian on Verfassungsblog. We are launching a new blog symposium, organised together with Democracy Reporting International, in which we will bring together Ukrainian and international legal experts to discuss how the Russian war of aggression is affecting the rule of law in the EU and Ukraine. 

I will be off for a winter break now. I wish you all a great holiday season, don’t overdo it on the Glühwein, and see you all safe and sound in January!

Max Steinbeis