Opening the Discourse
At the end of last week, we published a text that triggered very strong reactions – not only because of its content, but also because it was published under a pseudonym. The article by “Clara Neumann” assesses the situation as a “narrowing of discourse” caused by the adoption of the International Holocaust Remembrance Association’s (IHRA) working definition of antisemitism in the debate on the German raison d’état, and invokes this very narrowing of discourse as a reason for not wanting to go public with this argument under the author’s clear name.
We have received messages stating that the phrase “narrowing of discourse” in the context of criticism of Israel and antisemitism is partly understood as an allusion to antisemitic conspiracy myths in itself. Of course, this was not the intention, but we can understand that the wording can give this impression. We are very sorry about that. We have made a corresponding clarification in an editorial note under the article.
The discussion on Twitter, however, mainly centred on another point: publishing under a pseudonym is “unscientific“. This, on closer inspection, is very interesting.
The “open visor” as a hallmark of true science – that sounds plausible at first. But why actually? In any case, the guidelines of the Deutsche Forschungsgemeinschaft (DFG) provide no support for the thesis that publications under pseudonyms violate scientific standards. Neither do the guidelines of the German Association of Constitutional Law Professors. What is not allowed is to publish someone else’s thoughts under one’s own name. The reverse case is not mentioned.
Criticising “Clara Neumann’s” position on the IHRA definition, as LOUISE MAJETSCHAK and LIZA CEMEL do so forcefully this week, is also possible without knowing the identity of “Clara Neumann”. To insist on this knowledge as a prerequisite for dealing with the persuasiveness of their argument at all seems to us to be a simple fallacy ad personam.
This fallacy gains some appearance of plausibility through the idea that a scientific controversy is a kind of a duel between combatants capable of giving satisfaction, who have to vouch for their honourability with their names. In fact, to quote Patrick Bahners, the normalisation of author bylines was a phenomenon of the last third of the 19th century and “a triumph of the Victorian ideal of masculinity”. This is not an ideal to which we are committed.
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We are there to open the discourse. If there is a dispute as to whether and to what extent a “narrowing of discourse” exists with regard to antisemitism in Germany, then this dispute must be able to take place here, and anyone who can credibly demonstrate to us that they cannot participate in this dispute under their real name without taking risks ad personam may do so under a pseudonym, provided that the text otherwise meets our quality criteria (more on this in a moment). It is in our own interest to ensure that no-one exploits the cover of anonymity to hit below the belt.
The situation is different when it’s not about arguments, but facts. You have to be able to trust that the facts are correct. As an author, you vouch for this with your name. In the absence of an author byline, as used to be the case with SPIEGEL and is still the case with the Economist, then the name of the publication vouches all the more for the accuracy of the facts, which is why media houses of distinction invest (or at least should invest) in capacities for comprehensive fact-checking to safeguard their reputation. We can’t do that. We put a lot of effort into quality control, and that does include fact-checking, but not comprehensively. In general, it is unusual for scientific publications to check the accuracy of all factual claims in every article in detail. Even in peer review, a plausibility check is carried out at best, but no one can expect everything to be recalculated and every source to be checked, all the less so in the case of “collegial editorial decisions”, which the Association of Constitutional Law Scholars regards as an equally good standard in the field of public law. If we do not have the capacity for comprehensive fact-checking, then this means that we cannot vouch for the factual correctness in lieu of the anonymous author. That is the mistake we have made. The article by “Clara Neumann” contained several factual inaccuracies in need of correction – none of them egregious, but not merely trivia either. This is on us. It won’t happen again.
The week on Verfassungsblog
… summarised by MAXIMILIAN STEINBEIS:
Hungary’s Prime Minister Viktor Orbán, with his veto on Ukraine aid, has successfully blackmailed the EU into releasing a significant portion of the billions in funds blocked due to the lack of judicial independence. What makes the courts in Hungary suddenly independent enough for the EU Commission? RENÁTA UITZ analyses the legislative package that Orbán had passed for this purpose and leaves little doubt that it should have given the EU Commission more cause for concern than satisfaction. ERIKA FARKAS and ANDRÁS KÁDÁR list the tricks that Orbán used to fool the Commission. AGNES KOVACS scrutinises the Hungarian Supreme Court in particular, whose independence Orbán has supposedly also strengthened – in practice, the opposite is the case. LAURENT PECH sums up the collossal failure of the EU Commission and predicts a future of rule-of-law control that essentially consists of nothing more than toothless reporting, along the lines of the Council’s annual rule-of-law dialogue, the absolute uselessness of which BENEDETTA LOBINA emphasises. God help us!
Orbán’s legislative package puts civil society on a leash when they receive funds from abroad (including from other EU member states). In Saxony, the Court of Audit examined the financing of civil society with state funds and found that it was too political and lacked the necessary neutrality. According to JONAS DEYDA, this is an attempt to impose the neutrality obligations of the state as the party bound to fulfil fundamental rights on civil society as the party entitled by them. “The AfD’s legal policy seeds are sprouting.”
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Federal Chancellor Olaf Scholz has announced a party ban procedure against the AfD – but not the real Scholz, just his deep-fake version. The Centre for Political Beauty, which is responsible for this campaign, invokes artistic freedom. But is this even art? BENJAMIN POLIAK is unconvinced.
A change of government has finally taken place in Poland. We congratulate our author and friend Adam Bodnar, the unflinching ombudsman in the darkest PiS times and now the new Minister of Justice! However, the judiciary and the public prosecutor’s office are full of PiS people who can still make the path back to the rule of law as rocky as possible. ANDRZEJ SCHULTZ and KINGA SCHULTZ shed light on what joining the European Public Prosecutor’s Office can achieve in this respect.
When Schufa calculates a credit score for debtors, this is a decision that falls under Section 22 GDPR. This has been decided by the European Court of Justice, and NATHAN GENICOT analyses the scope of this ruling.
How far does the jurisdiction of the European Court of Justice extend in EU foreign policy? And can the Court of Justice be satisfied with the fact that the treaties keep it out of the loop when it comes to protecting fundamental rights? Advocate General Ćapeta has issued an opinion on this, which ELEANOR SPAVENTA analyses.
The Bundestag wants to regulate party funding through sponsorship, make it more transparent and, above all, secure it by law because the parties urgently want the money. SIMON WANNAGAT doesn’t think everything about the draft law is bad.
Can a public prosecutor mingle with demonstrators to investigate criminal offences? That’s what happened recently in Wuppertal in the context of a large-scale Gaza demonstration. SIMON PSCHORR sees this as an encroachment on the freedom of assembly for which there is no legal basis.
The traffic light coalition believes it has found a way to achieve a constitutionally compliant 2024 budget and to resolve the debt brake by declaring a state of emergency due to the Ahr valley flood disaster. ROBERT PRACHT believes this is unconstitutional. ULRICH K. PREUSS accuses the Federal Constitutional Court of having triggered a veritable state crisis in four thoughtless lines of its judgement.
Meanwhile, climate change is progressing and makes adaptation measures necessary. The Bundestag has passed a Climate Adaptation Act, and PATRICK HILBERT explains what it says.
Are Rechtsreferendare allowed to go on strike? This is not a theoretical question given the precarious working conditions they have to endure on the way to the second state examination. According to TOBIAS VOGT and CARL CEVIN-KAY COSTE, the ban on strikes for civil servants does not apply to legal trainees.
MATTHIAS ROSSI is not at all satisfied with the Federal Constitutional Court’s judgement on the 2020 electoral reform.
On the topic of AI regulation, HANNAH RUSCHEMEIER and RAINER MÜHLHOFF disagree with Maximilian Wagner’s judgement from the previous week: BigTech’s strategy of using “ethical guidelines” to fend off tough regulation is indeed a problem. But the even bigger problem is the direct influence of BigTech on regulation itself. PHILIPP HACKER points out the regulatory gaps left open by the AI Act, which urgently need to be closed.
In Australia, the High Court has finally overruled its case law on the indefinite detention of migrants: This practice is incompatible with the constitution after all. JOE McINTYRE celebrates this dramatic shift in juricidal weather.
Chile is once again facing a constitutional referendum, this time on a draft drawn up by a clear right-wing majority, and it will probably fare no better than its left-wing predecessor. RODRIGO KAUFMANN believes this is very justified and praises the Chilean people for their common sense in not accepting a constitution until it is a constitution and not a constitutionalisation of certain political preferences.
21 blog posts in one week – we didn’t have that many since the days of the pandemic, unless I’m mistaken. Once again, we are at the absolute limit of our capacities, and beyond. Which is why I ask you to note our job advertisement above and forward it to anyone who you think might be interested.
And we will close the shop over the holidays entirely, shutters down and all, you’ll have to do without us, I’m afraid.
All the best to you!
Max Steinbeis