Legal personhood continues to serve an important role in the legal system. The millennial distinction of persons and things, while often unarticulated, is an essential building block of all legal relations. This introduction to persons and things outlines the past tradition, draws on present myths, and construes a utopia of which the articles in this special issue will comment, clarify, and criticize.

In 2016, the German parliament changed the law on sexual assault and rape (Sect. 177 StGB). The new law assumes a “no-means-no”-model, while the old law required coercion as a necessary feature of rape and other forms of sexual assaults. In addition, two new offense descriptions were introduced: sexual harassment (Sect. 184i StGB) and offenses out of groups (Sect. 184j StGB). In this Article, I describe the deficiencies of the old law, the process of law reform, and the newly enacted prohibitions.

This introduction explains the title of this special issue as a call for transdisciplinary and culturally-oriented research on law in Germany. In an initial overview of pluralism, the text asserts that a German discussion of the pluralistic nature of legal authority predates the twentieth-century one within legal anthropology, legal theory, and political philosophy. The first part of the text reviews the early discussion of legal pluralism in the context of debates about state formation and an appropriate balance of forms of normative authority. This discussion points to the inherent plurality and affectivity of law. The second part of the introduction, in turn, is devoted to an argument in favor of the culturally-embedded and - mediated nature of legal phenomena made through an analysis of images relating to the so-called refugee crisis. On the basis of this analysis, it is posited that critical cultural methods and concepts are needed to comprehend current processes such as the so-called Europeanization of law, the increasing heterogeneity of legal systems and cultures, and to critically bracket the idea of “legal culture” in and of itself. The last part of the introduction offers an overview of the essays in this special issue. On the one hand, each essay contributes to the thesis that law is pluralistic and has to be investigated interdisciplinarily, using a plurality of methods. On the other hand, all of the contributions make a different kind of claim for how law transpires and is transported through theatrical, visual means, narratives, and affects.

Trust is an essential element for the functioning not only of ancient societies but also of modern societies. This article explores the different dimensions of trust in general and the different dimensions of the relationship between trust and the law, in particular. More specifically, we distinguish three different levels of interaction between trust and the law: (1) trust in the law; (2) trust through the operation of law, and (3) trust as defined by the law. Building on these categories, we finally turn to the “tsunami of regulation” (“Regulierungstsunami”) in the area of EU financial market law that has occurred in the wake of the financial crisis of 2008. As will be shown, trust can serve as a legal concept for making sense of this flood of legislative acts and of shaping these into a coherent framework. A different question yet to be answered is whether the flood of legislation already resulted in providing for an excess level of trust.

Global migration yields political shifts of historical significance, profoundly shaking up world politics as manifested by the European refugee crisis, the Brexit referendum, and throughout the US election. The refugee crisis—which, from a human rights perspective, is first and foremost a crisis of protection—has enhanced the already-existing discussion on justifiable and unjustifiable attempts by nation-states to safeguard their constitutional “essentials” by reinforcing border controls and using selective immigration and citizenship policies. How can liberal states, or a supranational Union formed by such states, welcome immigrants and treat refugees as future denizens without fundamentally changing their constitutional identity, forsaking their liberal tradition, or slipping into populist nationalism? This question is one of the greatest contemporary challenges in constitutional law and theory nowadays.

Article 6 of the TEU states that the EU Charter of Fundamental Rights “shall have the same legal value as the Treaties.” This Article investigates the Charter's real status in the EU legal order. To this end, the Charter's force will be analyzed relative to EU institutions, the Member States, and individuals. The resulting picture will enable consideration of the Charter's place in the EU hierarchy of norms, as well as the question of its primacy and direct effect.

This Article reads the work of Martti Koskenniemi—arguably the most significant international legal thinker of the post-Cold War era—as an exercise in (Lacanian) psychoanalysis. Excavating the links between Koskenniemi and French psychoanalyst Jacques Lacan, and analyzing the origins of those links in Koskenniemi's debt to the Harvard branch of the American Critical Legal Studies (CLS) movement, it argues that over almost thirty years Koskenniemi has employed psychoanalytic techniques to rebuild the self-confidence of international law(yers). The success of this confidence-building project explains the acclaim Koskenniemi's work enjoys. As international law's psychoanalyst he has defined the identity of the international lawyer and mapped the structure of international legal argument, stabilizing international law's present reality by synchronizing it with narratives of its past. Any attempt to destabilize that reality or depart from present structures into an alternative future must start from an analysis of Koskenniemi's methods and it is in this sense, and not out of a more pure interest in Koskenniemi's work, that this Article deconstructs Koskenniemi's oeuvre. It situates his method, reveals his choices, and explores their limits in an effort to develop (tentative) proposals for a “new” international law(yer) and an international legal future outside the structure that Koskenniemi has mapped so effectively and affectively.

Boosted by landmark decisions such as Crotty, Solange, or Maastricht-Urteil, academic literature on National Higher Courts in the context of European integration has undergone an exponential growth in the last decades. In this Article, I aim at mapping this emerging subfield in order to explore the three patterns that structure it. First, a trend towards the consolidation and expansion of literature on the higher courts of the Member States, which has gained relative autonomy from general studies on European law and politics. Second, a clear tendency towards the internationalization of this subfield, which has developed in parallel to the national scholarship on the topic. And third, the emergence of a pattern of transdisciplinary dialogue in a subfield featured by the diversity of approaches, methodologies, and epistemological backgrounds.

The meaning of idem in the ne bis in idem principle is controversial in the case law of the Court of Justice of the European Union. In interpreting the provision of Article 54 of the Convention Implementing the Schengen Agreement, the court has emphasized the necessary requirement in the identity of the material acts while in antitrust law three requirements have been deemed necessary: (1) Identity of the facts, (2) unity of offender, and (3) unity of the legal interest protected. Despite the opinions of some Advocates General, the court has confirmed different interpretations of the same principle, depending on differences of the legal scope in question. A few years ago, however, the European Court of Human Rights proclaimed the criterion based on the identity of the material acts as the most suitable. This might push the Court of Justice of the European Union to correct its position in the antitrust field. Should this happen, this adjustment might serve as grounds to recognize the existence of a regional custom concerning the ne bis in idem principle.

This Article develops a methodological basis for elaborating an idea of global constitutionalism. It applies this broader understanding of the idea of global constitutionalism to an examination of the specific role played by human rights within the evolving framework of global legal governance. The methodological basis from which the idea of global constitutionalism is developed derives from work in historical sociology that emphasizes the role played by underlying symbolic forms in the structure of social reality. The approach adopted here lays particular emphasis, following Claude Lefort and Marcel Gauchet, on the role of political theology as the principal mode in which symbolic form is constituted. From this perspective, the notion of the global human rights model is scrutinized as central to the symbolic form of global constitutionalism. Developed in critical engagement with the work of Samuel Moyn, human rights can be seen as central to global constitutionalism viewed as the latest political constellation of a distinctively secular understanding of the symbolic form and limits of political authority.

The Article analyzes the notion of legal “thinghood” in the context of the person–thing bifurcation. In legal scholarship, there are numerous assumptions pertaining to this definition that are often not spelled out. In addition, one's chosen definition of “thing” is often simply taken to be the correct one. The Article scrutinizes these assumptions and definitions. First, a brief history of the bifurcation is offered. Second, three possible definitions of “legal thing” are examined: Things as nonpersons, things as rights and duties, and things as property. The first two definitions are rejected as not being very interesting or serving any heuristic function. Conversely, understanding legal things as property is meaningful, useful, and helps to understand what it means to say that animals are legally things. Defining things as property has certain rather important implications, which are analyzed at the end of the Article. For instance, not everything needs to be either a person or a thing: The historical institution of outlawry involved treating individuals neither as legal persons nor as legal things. One must conclude that the person–thing bifurcation is less fundamental than is often assumed.

With increasing cultural and religious diversity in Germany, a debate has emerged over the extent and limits of religious freedom in day-to-day life. While much controversy arose over whether public school teachers have the right to wear Islamic head coverings, students as private individuals are free to wear a headscarf at school if they wish. Yet, recent school and administrative court decisions suggest that the situation is different for students who wear niqab and Islamic face veils rather than just head veils. This Article contemplates whether niqab-wearing students can be expelled from public school under current German law. In addition, this Article addresses the constitutionality of law reform in this area especially considering the European Court of Human Rights' jurisprudence in the French context. The Article subsequently contemplates the advisability of such law reform while also drawing on the experiences of countries which have already enacted so-called burqa bans. As many countries are currently in the process of considering face veil bans, this Article may have relevance beyond the German context.

The notion of constitutional identity is a recent and enigmatic notion in constitutional law and theory. This Article demonstrates that constitutional identity—understood as a certain constitution-related self-identity of a nation or people—can be constructed from the text of a constitution, its interpretation and its application. However, constitutional identity is nothing more and nothing less than a constructed reality that can be regarded as a constitutional state's restless soul. It exists only as a constructed, simplified, imagined reality that will most likely also be contested and subject to change. Constitutional identity and the reliance on it in particular by national courts should therefore not be regarded as something sacred and absolute that can be compared to an imagined stable heart. Instead, constitutional identity should be treated with caution.

This Article questions in what sense law in the German tradition has been—and can still be—considered a form of culture. The Article offers an overview of traditional approaches to law and culture in German Legal Theory and the Theory of Methods, and argues that the law has shifted from being perceived as culture during the nineteenth and early twentieth centuries to being in contrast with culture, which is considered the “other” of the law. Mediated by “legal culture,” the discourse pendulum has swung back to the notion of “Law as Culture” during the last three decades. Thomas Gutmann, the German lawyer, has fiercely challenged equating law with culture, describing it as “murky” and irrelevant. Similarly, the concept of “Law as Culture” is questioned by the provocations of “Law and Affect.” This Article claims that, irrespective of conceptual framework trends, applying the law remains a highly challenging cultural practice in terms of both fact-finding and interpreting legal norms.

The desire to prevent prenatal and preconceptual harm has led to a call for more legal protection for unborn and future children. This Article analyzes the way in which the Dutch legal system has responded to this call by identifying and critically scrutinizing two strategies employed in this response. First, to protect the unborn child from maternal harm, the concept of legal personality has been expanded to include the unborn child, albeit only the viable fetus. This strategy is criticized because its measures are presented as if they follow directly from the existing legal framework, whereas these measures are in fact based on several obscured assumptions and, therefore, bring to bear a new perspective on the concept of legal personality. The second strategy is applied to the future child. Instead of expanding an existing category, a new category is created to offer the future child a place within the law. The future child is addressed as the subject of legal relevant interests instead of rights. Although this strategy seems promising, it still faces difficulties when applied to the future child, which presumably has an interest in non-existence.

“The headscarf case” is more than just a case. Talking law is often talking cases, but we need to understand law more specifically as a powerful practice of regulation. Law is also not only another discourse, or just text, or politics, with fundamental rights as “an issue,” or a promise, or just an idea. Instead, to protect fundamental rights, it is necessary to understand how in reacting to a conflict, we in fact speak rights today—Rechtsprechung—as a form of practice. The German Federal Constitutional Court's decision in the conflict about female teachers wearing headscarves in German public schools may be used to illustrate the pluralities of law—understood here as legal pluralism. This pluralism includes actors and legal arguments as frames to the speaking of law. In addition, it becomes clear that any analytical focus on gender, based on the current state of the art, further illuminates these issues. As such, interdisciplinary legal studies become inherently critical to the protection of fundamental rights.

The CJEU has no jurisdiction to rule in purely internal situations, save for three exceptions. As easy as this may sound, the CJEU's case law is not entirely consistent and created uncertainty for national courts. This article critically examines how the CJEU has dealt with purely internal situations. It shows that the CJEU should be stricter in defending its gates. Instead of turning the three exceptions into the rule, the CJEU should treat the three exceptions as they were originally envisaged: Exceptions. The recent Grand Chamber in Ullens de Schooten is a step in the right direction. A stricter approach makes it necessary that the CJEU looks a bit more over the national judge's shoulder, which changes the cooperative dynamic by putting the CJEU into a more vertical position vis-à-vis national courts. National courts can, however, escape this more conflictual setup by providing more detailed information as to the fulfillment of one of the three exceptions.

Parallel to exponential proliferation and ever-increasing allegations of human rights violations by transnational corporations, the sparks produced by the friction between the normatively distinct disciplines of business and human rights have invited scrutiny across the media, academia, and industries alike. Given the fact that regulatory capacities of home and host states have evidenced an inability to keep pace with the developments, concerted efforts at the international level are imperative. By constructing its own benchmark of adequacy with reference to regulatory instruments' underlying objectives, this Article explores whether the existing regulatory framework is adequate, with a particular focus on the UN Framework and UN Guiding Principles—currently the most robust regime yet. The Article's analysis centers on (1) the terminologies utilized, (2) the human rights due diligence mechanism, and (3) access to remedies requirements, to reveal their inherent inadequacy with the hope of warning against uncritical acceptance and to inform future developments.

This Article consists of five sections. In the first section, it describes why identity questions matter, particularly in Europe. In the second section, the Article tackles the issue of multiple structural ambiguities affecting the concept of constitutional identity in the European constitutional vocabulary. In the third section, the Article explores trends concerning the use of constitutional identity in the European legal discourse and practice, including the development of alternative interpretations and applications of the notion of constitutional identities in the Member States. The fourth section of the Article combines the analytical accounts outlined in the second section with the trends identified in the third section, contending that different conceptions and applications of constitutional identity have varying effects on the European composite constitutional adjudication system and that the institutional and procedural framework should be calibrated accordingly. The final section of this Article draws some conclusions.

Traditionally in the division of labor between the European level and the Member States it was, roughly, the European legislature that set the norms and the Member States that took care of enforcing these norms. In various policy areas, an implementation deficit has been observed, which is said to be partly due to the Member States facing difficulties with the choice of procedural options. For that reason, among others, the European legislature increasingly prescribes the enforcement approach to the Member States to back up national legislation that implements European law. This Article examines the incoherence of the EU's approach to law enforcement in the areas of consumer, competition, environmental, and insider trading laws. After setting out the EU's legal competences with a view to law enforcement, the rather diverse picture—mixes—of private, administrative, and criminal law enforcement in the four areas will be illustrated. The authors then ask the question of whether this divergence can be explained by an economic reasoning with respect to law enforcement. The analysis, however, identifies substantial differences between an ideal enforcement mix and the current enforcement approaches used in EU law. Moreover, it is suggested that the economic approach could be employed to provide more consistency to the use of enforcement tools in EU law.