No Peace, no Quiet
Enough is enough! At some point, there has to be some peace and quiet, right? In a democratic state under the rule of law, there are, after all, legally regulated procedures in place that allow for collectively binding decisions. And if these procedures have been gone through properly, then their results must be accepted by all. Those who do not do so are not only putting themselves in the wrong. No, worse: they are opposing democracy!
That is the view that many people are taking these days when it comes to the battle for Lützerath, the abandoned village on the edge of the Garzweiler II open-cast mine, which the energy company RWE wants to excavate so that the lignite underneath, along with the CO2 bound in it, can be run through the chimney for the sake of all our energy security. „In a democracy,“ says the Social Democratic Federal Minister of the Interior Nancy Faeser, „parliaments and democratically elected governments decide. Those who want to enforce their concerns with violence are leaving this consensus.“ The climate activists who occupied Lützerath, according to an editorialist in the FAZ, are, just like the motorway and crossroads blockers of the Last Generation, engaged in the „continuous disavowal of democratically legitimised decisions“, as they have „taken to violence in the supposed fight against climate change“ and „taken the law into their own hands“.
If that is the case, that’s bad indeed. In that case, the climate activists are, so to speak, on the left what Trump, Bolsonaro, the theocrats and authoritarian populists are on the right: people who do not accept democratic and legal procedures only inasmuch as they profit from it. A parallel that frightens the FAZ editor so much that he swiftly accuses the climate activists of their „dream of another Reich„, as if he were haunted by the vision of a hoodie-clad Prinz Heinrich the Thirteenth.
If that is the case. But is it?
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Whether all the legal issues surrounding Garzweiler II have been proceeded and adjudicated and all disputes put to an authoritative end, I cannot judge. (Only this much: Georg Hermes and Thomas Schomerus, with noteworthy arguments, consider the determination of an energy-policy demand for Garzweiler II in the Coal Exit Act to be unconstitutional). But let’s assume that it is: The decision that Lützerath may be obliterated and the coal underneath it may be excavated is final, legally correct and democratically legitimised. What obligation does that impose on those who oppose it? Do they owe it to democracy and the rule of law to stop their resistance?
What certainly cannot be demanded is consensus. The point of democracy is to keep open the debate about what is politically desirable among different people, not to close it. The outvoted do not have to consent. They can and may continue to think that what has been decided is wrong. They do not have to join the general will of the people. They may remain in opposition.
They may protest. Of course, one is allowed to protest against democratically legitimised decisions. Freedom of assembly is not least a minority right, a right for and of the outvoted. They have a right to put their bodies on display and put them into the public space, to make their opposition physically present, to be in the way, to be a nuisance. They may publicly and visibly and disruptively embody the fact that even after the democratically legitimised decision, people can continue to disagree about what has been decided. This is not an attack on democracy, but a service to it.
They are allowed to use their bodies for this. They are allowed to use their heavy, living, resistant bodies to cause all kinds of bothersome and delicate issues of danger prevention. They are allowed to expect the authorities in charge of danger prevention to carry them off in order to clear the way for the democratically legitimised decision. They have a right to do all that. The fundamental right to freedom of assembly as a condition of being able to take the risk of being outvoted is what grants them this liberty. What they are not allowed to do, of course, is to endanger or injure other people, their bodies in particular, to throw Molotov cocktails or rocks and the like, but that actually goes without saying; why should anyone be allowed to do that.
They are entitled to do that in public space. Not in my living room. That is my private space, their protest has no place there. But where private space begins and public space ends, and vice versa, is itself a highly political question. Lützerath is indeed private land owned by RWE. But according to the recent case law of the Federal Constitutional Court, this is thankfully no longer a categorical exclusion criterion for the protection of freedom of assembly in the Federal Republic (see the very much worthwhile article by JAKOB HOHNERLEIN). The fact that Lützerath was turned into a piece of private property of an energy company against the will of many of the people living there based on a court-controlled decision of the democratically legitimised legislator for the purpose of the public interest in energy security is ultimately a very central part of what the protesters are protesting against.
Call for Papers: Money as a Democratic Medium 2.0.
June 15-17, Harvard Law School, Cambridge, MA and Hamburg Institute for Social Research and The New Institute, Hamburg, Germany. Open to all students of money, credit, and finance, the monetary system, and the modern economy, including members of the public. The conference will be offered in person and online and we encourage distance participants to join us virtually. Find more information here.
They filed a lawsuit against the ban on entering the Lützerath premises and lost, in interim legal protection proceedings. Thus, the police are allowed to clear the protest camp. And the protesters have to tolerate that their heavy, living, resistant bodies are carried off and, if they are sitting in tree houses at a height of ten metres, brought down to the ground.
What about this even remotely justifies a parallel with any Reichsbürger or other authoritarian attempts at overthrowing the government and the rule of law? The people who stormed the judiciary and government buildings in the Square of the Three Powers in Brasília did so with the intent to provoke a military coup. Not unlike Trump’s Republicans, they are convinced that their candidate must inherently be the winner of the election, facts, truth and democracy be damned, and if the democratic procedure results otherwise, all the worse for the democratic procedure. They don’t want to openness for opposition. They want closure.
Recognising this difference is not so hard, after all, it seems to me. You should be able to figure it out if you’re the Federal Minister of the Interior or an editorialist for the FAZ. Of course, avoiding this becomes all the easier the bigger the brush with which you paint your concept of violence. As if having the police carry your body away somehow amounted to the same thing as throwing rocks at theirs‘. It’s not hard to guess the motive behind this twisted thinking: this is how you put the world back in order in these dark times. Extremists baddies on the left, extremists baddies on the right, and in the middle the frightened ordinary people, protected in the safest possible way by state executive power. All peace and quiet.
Anyway. I will be in Lützerath tomorrow. It’s going to be huge. Maybe I’ll see you there? The demonstration starts at 12 o’clock. It would be my pleasure!
This week on Verfassungsblog
… summarized by PAULINE SPATZ:
CENGIZ BARSKANMAZ brings order to the debate on the Berlin New Year’s Eve violence and contextualises both the CDU demand for the (read: likely Muslim) first names of the perpetrators and the demand to apply accelerated criminal proceedings against juvenile perpetrators.
Two courts have rejected urgent applications against the ban on entering and staying in the contested climate protest camp of Lützerath – and justify this solely on the grounds of property owner RWE’s opposing will. JAKOB HOHNERLEIN finds this justification problematic and believes that the peaceful protests are protected by the freedom of assembly under Article 8 of the German Basic Law.
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THOMAS BUSTAMANTE contextualizes the assault of Bolsonarist supporters on the Brazilian democracy on 8 January 2023. He reviews the events leading up to the attack and provides an outlook for what is to follow.
The comparison between the storming of Brasília with the storming of the Capitol in the USA in January 2021 is obvious – or is it? CHARLOTTE KLONK shows the similarities and differences between the two attacks, looking at the architecture of the buildings attacked and the (written) messages of the demonstrators.
In view of Qatargate, calls for tougher EU lobbying rules are getting louder. TILMAN HOPPE asks why foreign governments should be allowed to lobby other states‘ parliaments in the first place and asks about EU competence for sanctioning lobbyists and the weak disclosure system of MEP finances and interests. EMILIO DE CAPITANI considers the shortcomings of existing frameworks for transparency and good administration within the EU, and ultimately concludes that Qatargate is symptomatic for the more widespread disease of administrational level malpractice. ALINA MUNGIU-PIPPIDI, in the German version of her previous English article, looks at the post-truth about corruption in the EU and shows that the corruption issues in the European Parliament could best be fixed by the Parliament itself.
Das Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht lädt in Kooperation mit der Württembergischen Landesbibliothek Stuttgart zu der Vortragsreihe „Ukraine?!- Völkerrecht am Ende?“ ein. Am 19.01.2023, 18h, spricht Dr. Carolyn Moser über „Die europäische Sicherheitsarchitektur im Lichte neuer geopolitischer Realitäten: Böses Erwachen und notwendiger Wandel“
Informationen zum Programm und zur Teilnahme in der WLB gibt es hier.
Hier geht es zur Online-Teilnahme.
A few days before the upcoming Czech presidential elections, the candidate and former prime minister Andrej Babiš has been acquitted in a criminal case on charges of grant fraud and damaging the financial interests of the EU. JAN BURDA explains this complicated case and outlines ist political implications.
In December, the Dutch state secretary for immigration presented a new asylum policy for Russian draft evaders. MAARTEN DEN HEIJER comments on the proposal to potentially deny asylum based on the state secretary’s suggestion that the Russian mobilization has been completed.
The new Republican majority in the US House of Representatives goes through ballot after ballot without being able to agree on who should be Speaker of the House. KIM LANE SCHEPPELE explains why that is happening and ponders what it says about the ability of the Republican Party to govern.
Highlights of the last weeks on Verfassungsblog
… summarized by PAULA SCHMIETA:
ADEL-NAIM REYHANI contextualises the current review by the Austrian Constitutional Court of the legality of the exclusive provision of legal advice to refugees by a federal agency subordinate to the Ministry of the Interior.
KLAUS FERDINAND GÄRDITZ discusses the announced reform of the civil service disciplinary law, which aims above all at a faster removal of extremists from civil service, something he considers an important step.
On the occasion of the recent recognition of the Ukrainian experience of the Soviet Famine of 1930-33 as genocide by the German Parliament, AYTEKIN KANN KURTUL comments on the decision to reform Section 130 of the German Criminal Code and the criminalisation of denialism in face of the right of free speech.
KAI AMBOS scrutinises the proposal for a Ukraine Special Tribunal focussing on the legitimacy of a possible such tribunal. Overall, so he argues, amending the ICC’s jurisdictional regime might be a more favourable alternative.
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AGUSTÍN RUIZ ROBLEDO analyses the heated discussion around two proposed amendments to modify the appointment of justices to the Spanish Constitutional Court. He considers that the Constitutional Court’s decision to suspend these amendments is a step forward in the never-ending „struggle of the law“ to control the arbitrariness of political power.
TAMAR HOSTOVSKY BRANDES unveils that although outward-facing Israel maintains a formal commitment to the distinction between the laws applicable to Israel and the West Bank, there effectively is a „creeping annexation“ rendering settlements in the Westbank into Israeli enclaves.
RIVKA WEILL compares two constitutional law cases originating from the US and Israel with regard to her hypothesis that there is an inverse relationship between the strength of a separation of powers and the strength of the judiciary.
AZADEH DASTYARI critiques the anti-protest laws of the Australian state of New South Wales and points out that the hefty fines and jail terms laid down in recent legislation passed in response to environmental protests set a dangerous precedent for other jurisdictions and are a threat to democracy.
In our last two blog debates of 2022, Tanja Herklotz, Sidra Yousaf & Paul Dießelberg, Burhan Majid, Nikhil Mulani, Nusaybah & Asfur, Anam Sheikh, Aman and the India Justice Project cast Light on Kashmir, while Jakub Jaraczewski, Lyal S. Sunga, Bohdan Bernatskyi, Niall Moran, Yuliya Miadzvetskaya, Halyna Chyzhyk, Roman Petrov, Nicolai von Ondarza, Jan Nicola Beyer & Beatriz Almeida Saab, Jakub Jaraczewski and Anna Wójcik looked at Ukraine, the European Union and the Rule of Law – the latter debate is available in English and Ukrainian!
That’s all for now. All the best, and see you next week!
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