11 November 2022

Not All Right

Today begins what is called Karneval in the Rhineland: The so-called fifth season of nonsense, masquerade and doing what you usually don’t starts today, on the 11th of November at 11:11 a.m. The Dionysian principle dances across Cologne’s Heu- and Alter Markt to celebrate the unity of the different, lie in each other’s arms with strangers, sing along with more strangers, and getting blissfully wasted with the thin sweet beer they are brewing in that holiest of German metropoles. This is how the good Catholic order throughout the year can be endured, the exception confirming the rule, and the order, being what it is by contradicting contradiction, is quite alright with all that in the end, and on Ash Wednesday, as they say, ist alles vorbei in any case.

In protestant/heathen Berlin there is no such thing as carnival at all, everyone has to see for themselves how they can cope with their isolation, and I stand gloomy and unmasqueraded in front of my bookshelf and flip though a book the existence of which I had almost forgotten: “Protest!” it says on the cover in bold white letters. The English original title is: “Blueprint for Revolution. How to Use Rice Pudding, Lego Men, and Other Non-Violent Techniques to Galvanise Communities, Overthrow Dictators, or Simply Change the World.” Its author is Srdja Popovic, the Serbian activist and co-founder of OTPOR, the non-violent resistance group that used humorous and playful methods to topple the dictator and war criminal Slobodan Milosevic, thus becoming a model for democracy movements from Cairo to Kiev. Provoke the rulers to make fools of themselves, to expose themselves as the few, the stupid, the brutal, that’s the recipe, in contrast to the many, the cool, the fun ones, in other words: you! No dictator will last for long if you follow that script. “With laughter to victory”, one chapter is titled. The book is from 2015, a document of a lost era. Today, in Belgrade as in Cairo, things are back to a perennial leaden authoritarian Ash Wednesday, Aleppo is in rubbles, Hong Kong is dead silent, Tehran prepares for mass executions at this very moment, and Kiev is at war.

The current actions of the “Last Generation” and other eco-activists in European cities do not seem to have much use for humour and carnival either. This is not funny at all anymore, as the protesters and Markus Söder, for once, completely agree. Grim-faced individuals are glueing themselves to motorways and throwing soup at paintings, while the many, the cool, the fun ones are stuck in traffic jams and ask themselves what in God’s name is going on. The glued ones’ contradiction refuses to be dissolved in inebriation and laughter. It sits there, in the middle of our cities, deadly serious and unforgiving. It is in contradiction to the legal order, that is the whole point, that is where their protest draws its power from. They make themselves punishable, consciously and deliberately, they let themselves be arrested, taken into custody, indicted and sentenced. The protesters know this, they don’t deny it, they expect it. This is what the legal order fundamentally cannot cope with.

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Referent für Recht und Politik (m/w/d) gesucht

Die Konrad-Adenauer-Stiftung e.V. sucht zum 01.03.2023 für den Standort Berlin einen Referent für Recht und Politik (m/w/d). Voraussetzung ist ein abgeschlossenes wissenschaftliches Hochschulstudium im Bereich der Rechts- oder Politikwissenschaft (Volljuristinnen und -juristen bevorzugt).

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The temptation is great to resolve the contradiction in one direction or, depending on political preference, in the other. Can’t it be somehow justified after all, some ask, can’t it be still lawful? Civil disobedience? Freedom of assembly? Necessity under sec. 34 of the Penal Code? It doesn’t seem easy to do that without doing violence to criminal law and ultimately to the facts of the case – breaking the law as a form of protest. Others are trying to break the spell by contradicting contradiction even more severely, calling for harsher sanctions, “punishments that are effective” (Söder), i.e. in making the contradiction go away. Whether such an escalation can be successful, and at what price, is another matter.

And so it keeps sitting there, the contradiction, driving the preservers of order mad with rage. Those people must be enemies of the constitution! Alexander Dobrindt, the leader of the Bavarian CSU parliamentary group in the Bundestag, is frothing about a nascent “climate RAF“, an allusion to the bloody left-wing terrorism of the 1970s and 80s. In Spain and the UK, reporting journalists are arrested at the scene of the protest, as if giving public visibility to the protest were already a hazardous thing to do. The suspicion that what the protesters are doing is not only legally but also democratically disreputable is echoed in the German conservative press. The law that you are taking the liberty of breaking, the “Last Generation” is lectured, consists of “democratically established rules in a free order in which everyone has every opportunity, especially today, to assert their demands both peacefully and intensively“. If climate protection is not arriving fast enough for you, why don’t you try to convince a majority to change the rules accordingly? Isn’t that what a democracy is for?

But what if it actually is a democracy problem that the contradiction points to? One person, one vote, that’s democracy. But climate change is not averted by and does not affect everyone equally. To avert it, action must be taken at a time when the majority is made up of different people than when it arrives. I am 52 years old and – not untypical of my generation, I suppose – have spent the longest part of my life trying to be part of the many, the cool, the fun ones. I regularly catch myself thinking: I will be 80 in 2050, so luckily none of this will be my problem because I’ll be dead soon anyway. Can I blame my children for being undemocratic if they are starting to resist being outvoted by the likes of me?

Majority voting is a procedure, not an argument. Majority justifies nothing. What the majority decides for the minority must be justifiable to the minority, or else it is violence. The hell that will descend upon the current young-persons minority in 2050 at the latest, according to reliable scientific estimates, as a result of the democratic decisions of the current old-persons majority is not justifiable. That is what the climate activists’ contradiction to the “democratically established rules in a free order” makes visible. They even let themselves be punished for that. The least I owe them for that is my respect.

The week on Verfassungsblog

… summarized by PAULINE SPATZ:

FYNN WENGLARCZYK  shows what the discussion about tougher punishments for climate activists reveals in terms of understanding of criminal law, and the dangers that come with it.

The so-called NSU files have been leaked. SOO MIN KIM looks at which constitutional protection tasks were violated in the affair.

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»Recht im Kontext« und das Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht laden ein zum Rechtsgespräch mit Armin von Bogdandy (Heidelberg) über „Entstehung und Demokratisierung der europäischen Gesellschaft“ (21. November, 19:00-21:00, Humboldt-Universität zu Berlin). Jetzt anmelden und dabei sein.

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The German government plans to task the Federal Administrative Court with issuing guidance decisions on the state of persecution in certain states in asylum proceedings. VALENTIN FENEBERG & PAUL PETTERSSON comment on the draft law.

The ‘situation reports’ of the Federal Foreign Office are an important means of knowledge in the asylum procedure, but are kept classified information. VIVIAN KUBE & HANNAH VOS demand that these reports be made publicly available.

KATHARINA LEUSCH explores whether the Austrian law regulating party-affiliated foundations could be a model for the German legislator

The FDP has suggested to include “reliable infrastructure” as a state objective in the Basic Law. PHILIPP SCHÖNBERGER & MARIE BOHLMANN explain what this would entail.

The Protestant Church in Germany plans to replace the chambers responsible for fundamental issues with a so-called “chamber network”. HINNERK WIßMANN is critical of the idea.

The Federal Constitutional Court considers the rules on intelligence data transfer to law enforcement agencies unconstitutional – and is getting tangled up in overly complex dogma, according to KAROLINE MARIA LINZBACH.

Following the recent ECJ ruling, the German government is once again debating the issue of data retention. Against this backdrop, SOFIANE BENAMOR examines the question of the constitutionalization of security policy debate spaces.

For a long time, being threatened with life in prison in the USA without the prospect of parole was considered an extradition obstacle in Europe. Now the ECtHR has changed its case law. MARTEN BREUER explains what’s behind it.

Julian Assange’s legal recourse in the UK will soon be exhausted. HENNING GOEKE looks at the consequences of an appeal to the ECHR in the Assange case, now available in English.

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Das Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht lädt ein zum MPIL Momentum Buchgespräch „Eine unvollendete Transformation: Zum Verfahrens- und Organisationsrecht des EuGH“ am 21.11., 12:30-14:30 in der BBAW.

Christoph Krenn (MPIL) spricht mit Thomas Henze (EuGH), Ulrich Karpenstein (Redeker Sellner Dahs) und Christoph Möllers (HU Berlin) über sein Buch „The Procedural and Organisational Law of the European Court of Justice. An Incomplete Transformation“ (CUP, 2022).

Weitere Informationen finden Sie hier.

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If the CJEU follows Advocate General Sánchez-Bordona’s opinion on compensation resulting from data protection infringements, this will undermine the GDPR itself. ALEXIA PATO comments.

The EU Council is to vote on the Commission’s proposal to withdraw EU budgetary funds from Hungary. PHILIPP LEITNER & JULIA ZÖCHLING argue that Member States should be prevented from voting in the Council when their own alleged misconduct is at stake.

MICAELA MUSACCHIO STRIGONE reports on the new Italian government’s  illiberal ‘anti-rave law’ as a risk to the freedom of assembly in disguise.

BERNHARD WEGENER, on the occasion of the midterm elections, explains why an amendment of the U.S. Constitution is not to be expected despite the urgent need for reform and why this constitutional petrification should also be a warning to the EU.

When Elon Musk announced a “content moderation council” for Twitter, Meta‘s Oversight Board volunteered itself. LORENZO GRADONI analyses Musk’s options and the Board’s possible future as a global institution.

EMILIO PELUSO NEDER MEYER summarizes the situation in Brazil after the Presidential election, what to do and what to hope for now.

The Supreme Court of India has reiterated its ban on conducting the so called “two finger test” on survivors of sexual violence. JANNANI M discusses the impact of the judgment.

Our blog debate on Putting the DSA into Practice: Enforcement, Access to Justice, and Global Implications continues with texts by PIETRO ORTOLANI, DAPHNE KELLER, SEBASTIAN BECKER CASTELLARO & JAN PENFRAT, ALEXANDRA GEESE and MARTIN HUSOVEC.

Our RuleOfLaw podcast with Anwaltverein is back: We focus on attacks on attorneys and their work in contexts of democratic backsliding. In the first episode, LENNART KOKOTT talks to MIKOŁAJ PIETRZAK about the dire situation in Poland.

That’s all for now. All the best, and see you next week!

Max Steinbeis


SUGGESTED CITATION  Steinbeis, Maximilian: Not All Right, VerfBlog, 2022/11/11, https://verfassungsblog.de/not-all-right/, DOI: 10.17176/20221112-095600-0.

One Comment

  1. N.W. Wed 16 Nov 2022 at 16:45 - Reply

    ”Majority voting is a procedure, not an argument. Majority justifies nothing. What the majority decides for the minority must be justifiable to the minority, or else it is violence. (…)That is what the climate activists‘ contradiction to the „democratically established rules in a free order“ makes visible. They even let themselves be punished for that. The least I owe them for that is my respect.”

    This is a rather strange comment to read, especially when it comes from a lawyer. A great many legislative pieces are written not for the generation that elected the parliaments that voted those laws in but for posterity. E.g. some civil law codes have been applicable for hundreds of years, some Constitutions too. Even more strange is this part “What the majority decides for the minority must be justifiable to the minority, or else it is violence.” Violence? So, it follows that we should criminally prosecute majorities that decide sth if the result isn’t ”justifiable” to the minority? And here I am thinking that the terms ”majority” and ”minority” are there precisely to indicate the ideas that won and the ideas that lost and that we have this democratic system precisely to avoid actual violence that could follow when majority and minority clash without this being reigned in with democratic rules. Finally, they don’t deserve any modicum of respect for breaking the law, especially when their ideas of ”civil disobedience” result in a person actually dying in real time because an ambulance couldn’t get to her due to the road blocks organized by those who fear dying in 10 years.

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