This Academic Publication Comes to You Free of Charge

Indexing, cataloguing, archiving … if those words make you feel drowsy and your head is starting to sink towards your chest, you may be underestimating the importance of the work carried out by libraries. The US government is currently showcasing, dramatically, how knowledge that was freely available just moments ago might be erased from the internet before you can say ‘academic freedom’. Especially in times of growing authoritarianism, which seeks to rewrite not only laws of parliament but also laws of nature, we depend on guardians of knowledge. They ensure that in our search for truth we do not have to start from scratch, again and again, and that we do not endlessly repeat our past mistakes.

Admittedly, the fact that more knowledge is now more accessible to more people than ever before does not seem to be stopping us from marching right back towards fascism. The democratisation of knowledge, it seems, does not inherently strengthen our knowledge of democracy or democracy itself. Many scholars are therefore committed to sharing their research and findings with the public in an effort to realise the democratising potential of knowledge. It comes as no surprise that some disciplines are better positioned than others to inform public debate. That legal scholarship is particularly well suited for this task is obvious.

What do you mean, “science”?

Germany’s Federal Constitutional Court defines science as “any activity which, in its content and form, can be regarded as a serious and systematic attempt to ascertain the truth” (para. 128, translation my own; see also here para. 3). In legal scholarship, the approximation of truth is largely measured by what the highest courts or the majority of law professors consider acceptable. The road to a prevailing opinion is necessarily paved with minority opinions, and every general view must be countered by other views. It is this exchange of opinions, unfolding along agreed and established methods, that characterises legal scholarship and frequently forms the basis of political and public discourse. Verfassungsblog offers scholars a platform to initiate and engage in this discourse – available to their peers and civil society – faster than any journal and with review more rigorous than most.

The fact that we do not publish 30-page articles, that we support claims and quotations with hyperlinks rather than footnotes, that we avoid obstructing access for non-experts with “legalese,” and that we do not deny readers or authors access through fees — all of this leads some to question our scholarly credibility. Most recently, this was the case with the Directory of Open Access Journals (DOAJ), which lists open-access publications that meet the technical and substantive requirements of scholarly publications. After being admitted to the DOAJ in 2022, we were delisted earlier this year, largely on the grounds that our format was not scholarly (you can read more on the background and the entire process here, here, and here). The fact that our articles are cited not only in traditional scholarly publications but also by the highest courts in Germany and Europe was not able to sway DOAJ’s assessment. I doubt that the recent mention of a Verfassungsblog publication explicitly as “scholarly commentary” by a judge of the International Court of Justice would have impressed the DOAJ editors (Equatorial Guinea v. France, separate opinion by Judge Tladi, fn. 2). For us, being removed from the directory came as a shock, since DOAJ listing is in some cases a precondition for academic libraries to finance scholarly publications. If and how this removal will affect our library funding will only become clear by the end of the year.

Who may pay when no one pays?

In the past four years, we have – frequently with the help of our authors – managed to persuade 60 academic libraries and institutions that Verfassungsblog is in fact an academic publication platform whose financing is necessary and part of their mandate. In doing so, we have repeatedly encountered what appears to be another stumbling block: the principle of efficiency in public budget law. Time and again, we encounter the concern that public institutions are prevented from funding Verfassungsblog for reasons of cost-efficiency. This is because neither our readers nor our authors are required to pay us. Some are then unsure what exactly they would be buying with public money, whether they are buying anything at all, and whether they even need to buy anything in the first place. This is not only a problem for Verfassungsblog. Rather, the efficiency requirement is a recurring objection raised against virtually all Diamond Open Access publications, i.e., scholarly publications that charge no fees whatsoever. Within the project “Acquisition Logic as an Obstacle to Diamond Open Access: Detours, Workarounds, and Alternatives” (ELADOAH), funded by the Federal Ministry for Research, Technology and Space, we were able to investigate this issue, and at last week’s Open Access Days in Konstanz, I had the opportunity to present our preliminary findings.

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To cut a long story short: It is a bogus problem. Public universities and academic libraries are in principle permitted to finance Diamond Open Access publications. Their primary mandate is to promote free access to knowledge and to ensure the provision of literature for academic work –both within and outside the university. Financing Diamond OA serves precisely this mandate. The counterargument, namely that financing Diamond OA publications is not cost-efficient because editorial work and publications are already freely available, does not stand up to scrutiny.

Constitutionally, the principle of efficiency derives from Article 114(2) of the Basic Law, and in statutory law, concretised by mention of frugality, especially in § 7(1)1 of the Budgetary Principles Act (Haushaltsgrundsätzegesetz) and § 7(1)1 of the Federal and State Budget Codes (Bundeshaushaltsordnung und Landeshaushaltsordnungen). It binds all public authorities and shall ensure the best possible use of public resources (see only here, p. 45). In essence, the principle requires that measures impacting public finances pursue goals necessary for fulfilling the institution’s mandated tasks, while using as few resources as possible, or else achieving the best possible result with the means available. The state is not a private enterprise whose actions are geared solely toward maximising profit. Rather, state action pursues goals oriented toward the common good (cf. Barfeld 2024, p. 85 ff.), and in certain cases these objectives can be better achieved if the option chosen is not the one that appears cheapest – or is cheapest in the short term. There is thus broad consensus in science policy that supporting and promoting Diamond Open Access is indeed the mandate of academic libraries and institutions (Joint Guideline of the Federal government and the States, no. 1; the German Science and Humanities Council’s Recommendations on the Transformation of Academic Publishing, p. 67 f.; Alliance of the Science Organisations’ Strategy for the Further Development of Academic Publishing, p. 8). The Diamond model not only ensures, unconditionally, that what is publicly funded is publicly available; in the medium to long term, it may also help counter the profit-driven scientific publishing system – whose prices and profit margins have spun entirely out of control – with alternatives that could reduce overall costs. Financing Diamond Open Access also enables scholars to exercise their academic freedom (cf. BVerfGE, 43, 242, para. 73), especially by safeguarding individual researchers’ freedom to publish. None of these goals can be achieved unless academic libraries provide long-term financing for Diamond OA publications.

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We are often told that no exchange of benefits takes place because neither authors nor readers have to pay for publications. But that does not reflect the reality. It is true that unlike traditional acquisitions, there is no purchase contract of a product, no ongoing contractual obligation of purchasing a product, no licence agreement. This is mainly because the licences are open in order to enable the widest possible reuse, and because the production of scholarly works has taken on the character of a service in the digital age. With a little time and skill – and nothing more than a word processing programme – virtually anyone today can create journals or books in PDF format and even distribute physical copies as print on demand. Consequently, the product itself plays a secondary role to the work involved in producing it. And unlike large – or even some not-so-large – commercial publishers, scholar-led publications include review and editorial work in their production process. In exchange for payment, therefore, publication services are directly available to publishing scholars and academic libraries, which means the payment is neither a donation nor a grant, subsidy, or sponsorship.

Old is new is unlawful?

It is almost comical that after more than four years of working on Open Access I still have to present scholarly blogging as “innovative” while it has in fact existed for over 20 years and is now well established in academic publishing. But it appears that some only acknowledge academic blogs such as Verfassungsblog as scholarly if they understand it as something unprecedented, exciting, and new. Wherever one looks, old certainties and conventions are collapsing, yet the journal remains monolithic, stable, and exclusive as a form of serial scientific publishing. The fact that society is increasingly unable to agree on what is true and what is false, on how the world is constituted and what follows from it, does not, it seems, provide sufficient reason to reconsider what science can or should be.

Equally unthinkable, for some, is that literature provision could possibly be anything but journal subscriptions, book purchases, or database licences. Meanwhile, the administrations of public universities and academic libraries have long had to deal with the fundamental changes in publishing affecting how they acquire literature. In the world of law, however, grappling with the old in new guises rarely happens without uncovering problems that can be solved in only one way, in countless ways, or not at all. But alas, where would we end up if, all of a sudden, we found ourselves in agreement?

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Editor’s Pick

by JANA TRAPP

When the first leaves begin to fall and the air carries a hint of retreat, I almost instinctively turn to familiar music. Fleetwood Mac’s Greatest Hits from 1988 accompanies such moments, even though the album is older than I am. It threads itself gently into a mood that hovers between lightness and melancholy. “Everywhere” carries a soft warmth through golden autumn days, “Dreams” brings a quiet introspection that pairs well with the red and yellow landscapes outside, and “Little Lies” reminds me how closely joy and vulnerability live side by side. Within these songs unfolds something simple and beautiful: a collection that speaks not only of love, but of the comfort we find in transience, ushering in the quieter seasons. With the rhythm of the year, the album sounds a little different each autumn – yet always remains the same home.

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This Week on Verfassungsblog

summarised by EVA MARIA BREDLER

In the world of law, grappling with the old in new guises challenges, above all, its knowledge institutions: universities. By 2030 at the latest, artificial intelligence will be capable of solving and articulating standard legal problems with ease. Students will be rubbing their (idle) hands if faculties continue to assign written papers. What then? MARTIN FRIES, SUSANNE LILIAN GÖSSL, SUSANNE HÄHNCHEN, MARTIN HEIDEBACH, CHRISTOPH KRÖNKE, MICHAEL BENJAMIN STRECKER, THOMAS WISCHMEYER and MARTIN ZWICKEL (GER) set out three theses on how legal exams in 2030 might look like.

“The growing lack of societal agreement on what is true or false, on how the world is constituted and what follows from it,” as Evin Dalkilic notes in the editorial above, puts not only academic freedom but, above all, freedom of speech to the test. In the United States, this now seems to be approaching a critical breaking point: ROBERT POST (ENG) – one of the country’s leading free speech experts – has been teaching First Amendment law for more than forty years. For the first time, he fears that freedom of speech in America is genuinely under threat.

In Germany, too, freedom of expression is under attack – cloaked in the fashionable rhetoric of neutrality. Lately, neutrality has even come to be seen as a prerequisite for NGOs to function democratically and receive state support. PAULA DIEHL (GER) is worried: these confusions and misconceptions surrounding neutrality could put freedom of expression at risk.

This very concern is also gaining ground in the debate on “catcalling”, where critics caution that introducing such an offence would be overly vague and thus unconstitutional. ELISA HOVEN (GER) warns: the real interests in need of protection risk being overlooked. From a constitutional and criminal law perspective, there is little that speaks against a narrowly defined provision. Politically, the task is not to pit women’s rights against other equality concerns, but to recognise sexual autonomy as a legitimate legal interest worthy of criminal law protection.

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Unser neustes Verfassungsbook: „Die vorbereitete Demokratie: Resilienz durch Antizipation im Thüringen-Projekt“ (Friedrich Zillessen, Hrsg.)

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Die Beiträge sind in fünf Überkapitel strukturiert, Legislative, Exekutive und Judikative, sowie Öffentlichkeit & Zivilgesellschaft. Das fünfte Kapitel, „Wen es trifft“, widmet sich jenen Menschen, die im Falle einer autoritär-populistischen Machtverschiebung besonders vulnerabel und schutzwürdig sind.
Entdecken Sie unser neustes Verfassungsbook, mit einem Vorwort von Sabine Leutheusser Schnarrenberger und einem zurückblickenden, reflektierenden Kapitel des Thüringen-Teams.

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Meanwhile, the ECJ is dealing with the recognition of sexual identity. Earlier this month, Advocate General de la Tour delivered his Opinion in Shipov, a case concerning the gender recognition of a trans woman originally from Bulgaria – a country where legal gender recognition is virtually impossible. ALINA TRYFONIDOU (ENG) welcomes the Opinion and explores its potential implications.

Another hot-off-the-press Opinion comes from Advocate General Ćapeta in Aucrinde. In this first case under the Recast Evidence Regulation, she transposes a test familiar from criminal law into civil judicial cooperation – for EMILIA SANDRI (ENG), this is an initial indication that the two-step test is now also being applied in this context.

Also straddling the line between criminal and civil law is the decision of a Brazilian labour court ordering Volkswagen do Brasil to pay US$30 million for its involvement in slave labour. DANIELLE ANNE PAMPLONA and HARTMUT RANK hailed the decision as “historic, consistent and necessary”. DIMITRI DIMOULIS (ENG), however, points to inconsistencies: the Brazilian case concerned a civil damages action, and the labour court was not competent to rule on criminal offences related to forced labour. While an estimated one million Brazilians work under slave-like conditions, a symbolic judgment does little to help.

Elsewhere, too, justice frequently proves unable to set wrongs right. In Germany, wrongful convictions are difficult to address. The hurdles to reopening criminal cases are notoriously high, as the cases of Manfred G. and Josephine R. demonstrate. LAURA FARINA DIEDERICHS (GER) calls for reform – and, above all, for a new culture of dealing with mistakes, one that embraces openness and the courage for self-correction.

In Israel, meanwhile, miscarriages of justice are mounting for different reasons. The controversial judicial overhaul of 2023 triggered a constitutional crisis, while Hamas’s October 7th attack unleashed a national emergency. Yet, contrary to all expectations, the security crisis did not halt the judicial reform. On the contrary, argues YANIV ROZNAI (ENG): it became the perfect pretext for the government to press ahead with its populist constitutional agenda.

While the wars rage on, debates over how to finance Ukraine’s reconstruction are growing louder once again. On Saturday, Brussels debated a reparations loan funded from frozen Russian assets. MAXIMA HUBBES (GER) explains why this option looks especially promising for both the EU and Ukraine.

Amid the wars in Europe, the reintroduction of conscription is now only a regulatory step away in Germany: in late August, the German government approved a draft bill allowing conscription to be reinstated by decree, subject only to the approval of the Bundestag. WILHELM ACHELPÖHLER (GER) considers this to be unconstitutional. A decision so fundamental is for Parliament alone to make.

It was on these grounds that Germany’s Constitutional Court once struck down Berlin’s rent cap. But the idea of rent control is spreading across Europe. As the housing crisis deepens in major cities, governments are resorting to it. How far can they go before infringing on property rights? And what happens when courts weigh in? ALLEGRA GRILLO, ARNULFO DANIEL MATEOS DURÁN and ALESSIO SARDO (ENG) provide comparative insights on Europe’s housing crisis.

Beyond the housing crisis, another crisis is worsening: global debt. This is increasing the pressure for greater transparency in the handling of foreign debt, especially from the IMF and the World Bank. JOSÉ IGNACIO HERNANDEZ (ENG) argues that transparency need not merely be anchored as good practice but as a binding principle – and constitutional law provides the tools to do so.

And in international law, too, there are constant proclamations of crisis. BARDO FASSBENDER (ENG) nonetheless strikes a calmer note: contemporary international law is in crisis, yes – but not in a systemic one. The existing system will continue to exist, but without reform it will gradually weaken: norms and institutions of the past will lose their weight, become marginalised, and wither away. We should prepare for a long phase of “atrophy.”

The muscles of international law may atrophy, but hopefully yours and ours won’t. To be on the safe side, enjoy an autumn walk accompanied by Fleetwood Mac: Thunder only happens when it’s raining.

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That’s it for this week. Take care and all the best!

Yours,

the Verfassungsblog Team

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