Outside the Walls

On Verfassungsblog, scholars publish statements on public controversies based on their academic expertise. That is what we do here. We provide legal scholars with access to the political public, and vice versa. This is how we have understood and described our role since we began developing Verfassungsblog as an scholarly discourse platform in 2011.

Based on this understanding of our role, we have launched a blog symposium this week: If the united opposition wins the election in Hungary in April 2022, it will have to deal with Viktor Orbán’s constitution, which Orbán has planfully designed to effectively thwart a democratic transition of power at his expense. How to deal with this without falling prey to the verdict of unconstitutionality and having the whole new European rule-of-law arsenal suddenly turned against you? (More on this below).

It happens from time to time that we cause offense in this said role, not least in legal academia itself. Is this even scholarship? And if not, what is it? And should a self-respecting scholar take part in this at all?

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The most recent such critique comes from Jan Komárek, EU law professor at the University of Copenhagen (and, by the way, himself a recurring contributor to Verfassungsblog since 2012). In a thought-provoking article in the European Constitutional Law Review, Komárek attempts to distinguish what EU law scholars should from what they shouldn’t do, as scholars. Legal expertise, he argues, confers power, and those who use this power economically and/or politically leave the realm of academic freedom and transgress the limits set by that freedom’s flipside which is academic responsibility.

Komárek sees this boundary also crossed by Verfassungsblog. He highlights two articles as examples of academic abuse of power: the post by Kelemen, Eeckhout, Fabbrini, Pech, and Uitz on the PSPP ruling of the Bundesverfassungsgericht, and the call for solidarity by Gráinne de Búrca und John Morijn on the occasion of the SLAPP proceedings with which the Polish ruling party and its henchmen are trying to silence constitutional law professor Wojciech Sadurski. Komárek particularly disapproves of the bundling of expert authority in the form of collected signatures of support: “Campaigns like this may in fact do more harm than good to academic freedom.”

Scholarship, Komárek is absolutely correct in saying, does not strive for power and not for money, but for knowledge. His own article is a scholarly text insofar as it puts forward certain theses about the world, the consistency of which must withstand criticism. It thus contributes, along with its criticism, to the expansion of the stock of knowledge about the world, and that’s what makes it scholarship. It may achieve other things as well, make its author more powerful or richer or whatever, but that does not matter here: it is meant to make him and his readers/critics wiser in the common effort to gain a consistent description of the world. That’s how it earns its place in an scientific journal and the engagement of the academic community, who can now go on and dispute or confirm its consistency if they find it interesting enough to do so.

This, I suppose, he will also concede to the two articles he criticizes: that they put forward theses about the world and put them up for discussion. In the case of the post on the SLAPP cases against Sadurski, he even cites one thesis, namely that “it is clear to any observer with the most elementary knowledge of EU law and the law of the European Convention on Human Rights that the three cases against Professor Sadurski will not survive the scrutiny of the Strasbourg (ECHR) or Luxembourg (EU) courts”. A thesis he, as befits a scholar, disagrees with and criticizes – in the case of the ECJ with reference to its questionable competence in terms of academic freedom, in the case of the ECtHR with reference to the fact that the latter has recognized the protection of one’s own reputation as a legitimate aim within the framework of Art. 10 II ECHR.

What he does not pay much attention to, however, are the cases themselves, the proceedings against Sadurski, which are at issue in the appeal by de Búrca and Morijn: that it is the governing party and the government-controlled state broadcaster that are seeking to defend their reputation against Sadurski’s undoubtedly harsh and pointed criticism. A criticism, mind you, that Sadurski arrived at not primarily as a political opponent, not as an outraged citizen, certainly not as a profit-minded player in the media attention economy, but as a legal scholar who has from the outset helped expand knowledge about the Polish ruling party’s doings and their legality. Is this a use of academic freedom that Komárek finds irresponsible? And if not, why should de Búrca’s and Morijn’s support post be? Or the signatures of hundreds of other scientists who have lent their names and reputation as legal experts to support him and his academic freedom? What is irresponsible about that? That there are so many?

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Scholarship. It is a strangely reclusive, puny concept of scholarship that Komárek makes the premise of his conclusions. For him, scholarship seems to be less an activity than a certain place, distinct and delimited from other places: the university. What is researched, taught, spoken and written within its walls needs to be safe from state control – in contrast to what scientists say extra muros, in social media and other “non-academic” formats (“blogging professors seem to be a matter of the past”, oh well…) or even in political discourse. In general, for Komárek, the actual bearers of academic freedom seem to be institutions rather than individuals. For him, academic freedom seems to be a privilege: a kind of elevated status which entitles those who enjoy it to do and say things that the ordinary rabble outside the academic walls aren’t allowed to do and say.

But academic freedom is not a privilege, it is a right. Where academic freedom exists, the state has subjected itself to the legal obligation to allow the pursuit of knowledge to be free. Whether within or outside academic walls is not a criterion. In authoritarian states, it is the universities themselves that put their members under pressure if their pursuit of knowledge leads them to conclusions that are inconvenient for the government. And such states, as is well known, exist within the EU as well. You can recognize them by the fact that law and scholarship have degenerated into mere instruments of the political and economic purposes of the parties and persons in power.

I am not a professor, not even a doctor. In many respects, what I do is not scholarship. But I strive for knowledge, and so does Verfassungsblog. And should I one day come to the well-founded conclusion that a criminal organisation is ruling my or any other country, then I will write just that and put it up for discussion and thus, in a joint effort with my readers to gain a consistent description of the world, try to expand the stock of knowledge of the same, here on the Verfassungsblog or elsewhere, intra or extra muros, freely and without constraint. Because that is my right. And if I am wrong, then I will have to face criticism, and possibly even a lawsuit. But if not, and if the criminal organisation still drags me to court for saying so – then hopefully there will be people who will stand by me with the authority of their expertise as legal scholars and testify to this publicly with their signature.

The week on Verfassungsblog

As mentioned before: In Hungary, the united opposition may win the parliamentary elections in spring, only to find out that they still cannot govern because Viktor Orbán’s constitution prevents just that. In such a situation, can mere legality be enough? And if not, what then? How to get rid of that constitution without tainting one’s own constitutional legitimacy – or even incurring the rule-of-law wrath of the European Union? A few weeks ago, ANDREW ARATO and ANDRÁS SAJÓ asked global constitutional law scholars for input on how to get out of this dilemma. We publish the answers in collaboration with THE NEW INSTITUTE in a blog symposium launched this week.  ANDRÁS SAJÓ first clarifies his own position and calls for freeing the constitutional imagination from the shackles of legal formalism. ARMIN VON BOGDANDY and LUKE DIMITRIOS SPIEKER suggest applying the “scalpel” of criminal law instead of the “sledgehammer” of a constitutional reset. Regardless of the Hungarian case, ROSALIND DIXON and MARTIN LANDAU argue, the way to repair a democratic constitution is often the same way it was broken before. More positions to follow in the coming week.

Another episode in our podcast mini-series on the Poland v. EU conflict is out: episode 2 is about the reaction of the European judiciary to the Polish challenge, the ECJ’s bold move into constitutional territory, and the so far unsuccessful attempt to bring Poland’s erosion of the rule of law before the courts as a legal offense, to sanction and remedy it. How the PiS government has reacted to this in turn, and the appalling situation into which the rule of law has fallen as a result, not only in Poland but in the EU as a whole, will be the subject of episode 3, which is about to be ready for publication. Part 4 (The Struggle for Precedence) has already been recorded, and we will do our best to complete the fifth and final part before Christmas.

⇒ Speaking of Christmas: The boxes have been arriving at our office for the last few days. Next week, the Christmas surprise for our new Steady supporters will be packed and shipped so that everything arrives in time for the holidays. So if you haven’t already done so, now would be a good time! This way, please.

On December 2, 2021, the EU Commission closed the infringement proceedings against Germany because of the Bundesverfassungsgericht’s controversial Weiss ruling of May 5, 2020. MATTHIAS RUFFERT is relieved.

CSONGOR ISTVÁN NAGY looks at the EU Commission’s failures regarding discrimination against national minorities in Hungary. The protection of and respect for minorities is a fundamental value of the European Union, just like democracy, the rule of law and human dignity.

In Turkey, thousands of judges and prosecutors are in prison or pre-trial detention as alleged members of the alleged Gülenist terrorist organization. Their complaints end up en masse before the European Court of Human Rights – but to BAŞAK ÇALI’s utter despair, a chamber of the Court has now simply ruled that too many violations of Article 5 of the ECHR would overburden it and it will therefore not examine them individually. “For the first time in its history, the Court uses the excuse for delays that may be caused in handling applications as a reason not to examine the very same applications.”

In Spain, the government wanted to strengthen the rights of LGTBI individuals, but political infighting within the government has watered down the ambitious plans, according to LAURA ESTEVE ALGUACIL and ARNAU NONELL I RODRÍGUEZ.

In India, plaintiffs demand the recognition of same-sex marriages. VARUN KASTHURI explores the role the concept of “constitutional morality” plays in this.

In South Africa, after four years of debate, Parliament has voted against allowing expropriation without compensation by constitutional amendment. ELMIEN DU PLESSIS sees the state under more pressure than ever to enable successful land reform.

In Ecuador, the Constitutional Court has ruled that mining concessions in the Los Cedros jungle violate the rights of “Mother Nature.” GUSTAVO PRIETO examines the consequences of this decision.

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Meanwhile, in Germany, the COVID pandemic continues to dominate the debate, more specifically the planned mandatory vaccination. MARTIN NETTESHEIM thinks that this debate is too moralistic. The decisive question is whether a cultural taboo – the state’s access to the body – should be broken. For HINNERK WISSMANN, compulsory vaccination brings about a positive balance of freedom, both individually and for society as a whole. The constitutional state could thus find its way back to itself by relying on the willingness to follow the law instead of morality. MICHAELA HAILBRONNER, LISA-MARIE LÜHRS, and LEON ZÜLLIG argue for proceduralizing the constitutional test. As a classic question of proportionality, they argue, the conflict over mandatory vaccination is almost impossible to resolve. In Bavaria and Berlin, meanwhile, it turns out that the constraints on the unvaccinated are controlled by police officers who may themselves be unvaccinated – for JAN FÄHRMANN an untenable state of affairs that should be regulated by law.

Can it be an argument to defer unvaccinated patients in COVID triage because they would otherwise be “preferred” over other patients due to their long need of intensive care? WEYMA LÜBBE explores this question in Part II of her ethical analysis.

We bundled the debate on the Bundesverfassungsgericht’s federal emergency brake decisions into a blog symposium that continued this week: MICHAEL WRASE discusses the dogmatic and practical consequences of the new right to education, which puts the previously objective-law-based approach on a new footing. WINFRIED KLUTH reads the decisions as signposts to a “Pandemic Law 4.0” that transfers disease control from the hands of elected politicians to those of administrators. ANNA LEISNER-EGENSPERGER sees the decisions as strengthening the protection of life and health, which could have significant implications for the constitutional assessment of future climate policy.

Administrative courts are correcting asylum decisions by the Federal Office for Migration and Refugees in large numbers, especially since the outbreak of the COVID pandemic in 2020 and, more recently, since the Taliban took power in Afghanistan. VALENTIN FENEBERG and PAUL PETTERSSON argue for more systematic publication practices, more transparent adjudication rationales, and stronger scientific monitoring.

Autonomous cars are often seen as a key technology in the “transport revolution.” However, whether technological progress actually contributes to climate protection depends to a large extent on appropriate legal control. LANDO KIRCHMAIR and SEBASTIAN KREMPELMEIER criticize the recently passed law on autonomous driving and the plans of the new “traffic light” coalition.

In mid-September 2021, a new higher education law came into force in Berlin, which, among other things, includes a regulation on making postdoc employment permanent. The president of Humboldt University, Sabine Kunst, has announced her resignation at the end of the year. Constitutionally, the regulation encounters significant substantive and formal concerns, according to CHRISTIAN VON COELLN.

Our online symposium on corruption and democracy, co-hosted with the journal World Comparative Law, enters its second week, with contributions from ANNE VAN AAKEN, STEVEN PIERCE, SU BIAN, MICHAEL KUBICIEL, and MARIA PAULA BERTRAN and MARIA VIRGÍNIA NABUCO DO AMARAL MESQUITA NASSER.

Alright then. Quite some output, isn’t it? And that’s not counting the submissions which we have rejected but have nevertheless been quite labour-intensive. With this number of post in one week, I think, we are again approaching the level of the spring of 2020. And once again, we are finding ourselves desperately understaffed. We can’t manage this level of workload in a sustainable manner. We need more hands. As you see in the ad above, we are looking for another editor. And in order for us to be able to pay this person, I’m afraid I’m going to have to ask you for payment as well. We don’t do paywalls, as you know, as a matter of principle. It is all the more important that our readers honor our work voluntarily, which many of you do anyway and for which I thank you very much. But if you don’t yet, if you are not yet a Steady supporter, please become one now, will you? It’s not that expensive, and it’s only fair, isn’t it?

All best,

Max Steinbeis