Thema: Vergleichendes Verfassungsrecht

Rechtsvergleichende Verfassungsanalyse, Verfassungstransplantate und vergleichende Verfassungsrechtsprechung. Systematischer Vergleich von Verfassungssystemen, verfassungsrechtlichen Gestaltungsentscheidungen und Verfassungslösungen über verschiedene Rechtstraditionen und politische Systeme hinweg.

Jurisprudence of Convenience

Last month, in Nipun Malhotra v. Sony Pictures Film India Private Ltd, the Indian Supreme Court delivered an opinion on the limits of protected speech under Article 19(1) of the Indian Constitution. While the opinion touched upon several important aspects of the free speech right, it is replete with behavioral guidance, and its language makes it hard to discern the binding legal principles. I argue that courts should approach cases involving hard questions of constitutional law with extreme caution in terms of their potential implication on the growth (or absence) of a consistent doctrine.

29. August 2024

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Shades of Unconstitutionality

On July 12, the Grand National Assembly of Türkiye passed the 9th Package of Judicial Reforms. The package continues the tradition of amending various unrelated laws through a so-called omnibus law under the guise of reform. In addition, another feature has become remarkable: the alleged reforms deliberately overrule the decisions of the Turkish Constitutional Court (TCC), rendering its rulings null and void.

2. August 2024

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Online Speech at the US Supreme Court in Moody v. Netchoice

The First Amendment of the US Constitution raises some of the most difficult legal hurdles for regulating the global digital public sphere today. In Moody v. Netchoice, the US Supreme Court heard appeals from two judgments, an appeal from a decision of the Fifth Circuit declaring that Texas’ social media law H.B. 20 did not violate the First Amendment, and an appeal from a decision of the Eleventh Circuit finding Florida’s social media law S.B. 7072, instead, unconstitutional. These laws are similar in that they both attempt to impose must-carry and non-discrimination obligations on social media platforms, which in practice amounts to requiring them not to discriminate against conservative users’ posts. The compatibility of these two laws with the First Amendment cuts across a plethora of crucial issues on the future of social media regulation which the court could, but didn’t fully, address.

11. Juli 2024

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Locating Unwritten Constitutional Norms in Global Constitutionalism

If there is a global constitutional order, it is “unwritten”. We cannot point to a written constitution for global law. Rather, theories of global constitutionalism and processes of global constitutionalisation are derived from an amalgamation of sources across international law and domestic constitutional orders. This blog post reflects on these tensions within the debate on global constitutionalisation, and focuses specifically on democracy as an unwritten constitutional norm in global constitutionalism.

10. Juli 2024

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Unwritten Constitutional Law as a Brazilian Constitutional Category?

Brazilian constitutional law is profoundly marked by the ideal of codification. In this context, the ‘unwrittenness’ of certain constitutional problems is usually not treated as such. This is especially intensified through the size and textual openness of the Brazilian Constitution. Yet unwritten constitutional normativity plays (and can play) arguably a decisive role in Brazilian constitutionalism. Could one then articulate unwritten constitutional law as a Brazilian constitutional category?

9. Juli 2024

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What are Principles and How Do They Work?

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Unwritten constitutional principles pose a number of interesting puzzles, some of which are unique to their unwritten status, some of which are shared with all principles, unwritten and written, legal and non-legal. Using examples from the Canadian constitutional system, this blog post examines what principles are before going on to consider how they work. Its observations are intended to be of general, cross-jurisdictional relevance.

9. Juli 2024

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The Salience of “Writtenness” and “Unwrittenness” as Constitutional Categories in Canada

Canada's Constitution sits somewhere between the paradigms of a fully codified written and partially codified unwritten constitutional order. This blog post explains why the differentiation between the written and unwritten matters for our understanding of Canada's constitutional system with a view to terminological, institutional, proceduaral, and policial questions.

8. Juli 2024

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The Stakes of the Unwritten Constitutional Norms and Principles Debate in Germany

Focussing on “writtenness” can sharpen our sensibility of how liberally the German legal system allows the Federal Constitutional Court, as well as other courts, to acknowledge legal norms or principles whose textual basis in the Grundgesetz is far from obvious – which in other jurisdictions might be put into the area of norm-free, principle-oriented argumentation, i.e. whose constitutional quality is being problematized.

8. Juli 2024

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Should a Convicted Felon be the Next President of the US?

On Thursday, May 30th, 2024, former President Trump was convicted in New York City by a jury of thirty-four criminal charges consisting of falsifying business records with the intend to deceive. Regardless of his tirade against the American legal system, he stands as a convicted felon unless he could prove otherwise on appeal. This is an unprecedented conviction. Mr. Trump is the first American president who has been criminally convicted. Lamentably, the republican establishment continues to stand by the former president and to question the legality of this trial thereby challenging the integrity of the rule of law.

11. Juni 2024

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Protecting the Freedom to Express the „Thought that we Hate“

Das Schweizer Bundesverwaltungsgericht hat in einem Urteil vom 7. Mai 2024 die Schutzgewährung für das Zeichen „Bimbo QSR“ einer mexikanischen Lebensmittelfirma verneint. Das Gericht hielt auf Grundlage des Art. 2 lit. d des Schweizer Markenschutzgesetzes (MschG) fest, dass „das mehrdeutige Wort "Bimbo" auch als rassistisches Schimpfwort verstanden“ werde und es damit den absoluten Ausschlussgrund der Sittenwidrigkeit erfülle. US Bundesgerichte gehen diese Thematik interessanterweise genau umgekehrt an und setzten die Kompatibilität einer derartigen Schutzverweigerung mit der Meinungsfreiheit ins Zentrum ihrer Analyse.

11. Juni 2024