Niels Petersen

Rational Choice or Deliberation? Customary International Law between Coordination and Constitutionalization

Rational choice approaches to customary international law have gained in prominence in recent years. Although becoming increasingly sophisticated, they are not able to explain all phenomena of customary international law. This contribution claims that there are two different types of unwritten law in the international order. On the one hand, we have the traditional customary norms, which are identified by observing patterns of state conduct and a related opinio iuris. These norms may very well be described by rational choice approaches, which primarily observe under which conditions we may find stable patterns of behavior. However, there is, on the other hand, a different category of norms that functions in a different manner. These norms concern either human rights or public goods and can be considered as the principles of the international legal order. Their function is not to stabilize already existing behavioral equilibria, but to shape international relations in a positive way. They are not past-oriented, but future-directed. Therefore, it is the thesis of this contribution that a deliberative approach is more suitable to explain the role of these principles in the international community.

The Principle of Democratic Teleology in International Law

In the early 1990s, after the fall of the Berlin wall, legal scholars initiated a debate on the existence of a right to democratic governance in international law. Many of the adherents to the democratic entitlement school seem to assume that democratization is a simple shift in the political status, a change from one form of government to another. This contribution seeks to analyze this underlying assumption by taking a look at the current discussion on democratization theory in the political sciences. Through this lens, it will reconsider the international practice and the corresponding legal documents related to the existence of a possible democracy principle. In this respect, a special emphasis will be put on three areas of potential precedents – resolutions of the UN General Assembly, the practice of regional organizations such as the Organization of American States or the African Union, and military interventions in the name of democracy. The analysis will show that the legitimacy principle of international law is, at the same time, more modest and more demanding than the claim of the democratic entitlement school. It will be argued that democracy is no strict obligation, but rather a teleological principle. States are obliged to develop towards democracy and to consolidate and to optimize democracy, once electoral institutions have been established.

Lawmaking by the International Court of Justice – Factors of Success

The process of norm evolution and development in international law has been highly debated in recent international law and international relations scholarship. However, the debate focuses primarily on states or non-state actors as the agents responsible for shaping international law. In contrast, the role of the judiciary is often neglected in the debate.1 It is an open secret, though, that courts are not merely Montesquieu’s bouche de la loi, impartial arbiters, who apply and interpret exogenous norms. Armin von Bogdandy and Ingo Venzke have already pointed out that decisions for concrete cases can hardly be derived from abstract legal concepts by the mere exercise of logical deduction.2 Instead, the application of legal provisions often involves the development of the applied norm itself. This not only applies in the domestic setting, but is also valid in the international arena.

International Law, Cultural Diversity, and Democratic Rule: Beyond the Divide Between Universalism and Relativism

The conflict between ethical universalism and cultural diversity remains a pre-eminent problem of the present international legal system. International law is in a dilemma. It cannot abstain from adopting some material values as the international community cannot be indifferent to the suppressions of citizens or certain minorities by totalitarian regimes. Yet the international legal system must not become an instrument of Western cultural imperialism by negating any cultural differences. This contribution argues that international law is a framework concept prescribing certain basic values. However, these values are not absolute and must be balanced against competing interests. In this balancing process, states have considerable political discretion. This concept will be exemplified by an analysis of the debate on the existence of a right to democratic governance in international law. It will be shown that even though international law does not require states to be democratic, it nevertheless imposes certain standards of legitimacy.

Balancing and Judicial Self-Empowerment: A case study on the rise of balancing in the jurisprudence of the German Federal Constitutional Court

Many critics of the proportionality principle argue that balancing is an instrument of judicial self-empowerment. This contribution argues that the relationship between balancing and judicial power is more complex. Balancing does not necessarily create judicial power, but it presupposes it. This argument is confirmed through a case study of the German Federal Constitutional Court. The analysis shows that the German Constitutional Court was very reluctant to base decisions, in which it overturned legislation, on balancing in the first two and a half decades of its jurisprudence. However, in the late 1970s, once the Court had strengthened its own institutional position, it increasingly relied on balancing when declaring laws as incompatible with the constitution. Then, balancing developed into the predominant argumentation framework of constitutional review that it is today in the Court’s jurisprudence.

Economic Methods for Lawyers

Responding to the growing importance of economic reasoning in legal scholarship, this innovative work provides an essential introduction to the economic tools, which can usefully be employed in legal reasoning. It is geared specifically towards those without a great deal of exposure to economic thinking and provides law students, legal scholars and practitioners with a practical toolbox to shape their writing, understanding and case preparation.

Determining the Domestic Effect of International Law Through the Prism of Legitimacy

This contribution seeks to shed new light onto the classification of legal orders with respect to the domestic effect of international law. Traditional theory distinguishes between monist and dualist systems, those that accept the primacy of international law over domestic law, and those that do not attribute direct effect to international law in the domestic legal order. This contribution will second-guess this distinction by analyzing judgments on the effect of decisions of international authorities in the domestic order of three different jurisdictions – the United States, Germany and the European Union. It is maintained that all courts dealing with the domestic effect of international secondary law ultimately face questions of legitimacy of the external decisionmaking procedure. I will identify three strategies to cope with this challenge and argue that it is more appropriate to consider the relationship of a national legal order to international law through the prism of how its constitutional court approaches the governance issue than to refer to the traditional monism-dualism-dichotomy.This contribution seeks to shed new light onto the classification of legal orders with respect to the domestic effect of international law. Traditional theory distinguishes between monist and dualist systems, those that accept the primacy of international law over domestic law, and those that do not attribute direct effect to international law in the domestic legal order. We will examine three different lines of constitutional jurisprudence on the effect of decisions of international authorities in the domestic order. It is maintained that all courts dealing with the domestic effect of international secondary law ultimately face questions of legitimacy of the external decisionmaking procedure. We will identify three strategies to cope with this challenge and argue that it is more appropriate to consider the relationship of a national legal order to international law through the prism of how its constitutional court approaches the governance issue than to refer to the traditional monism-dualism-dichotomy.

Proportionality and Judicial Activism: Fundamental Rights Adjudication in Canada, Germany and South Africa

BOOKS § Proportionality and Judicial Activism: Fundamental Rights Adjudication in Canada, Germany and South Africa (Cambridge: Cambridge University Press, 2017) § Verhältnismäßigkeit als Rationalitätskontrolle: Eine rechtsempirische Studie verfassungsgerichtlicher Rechtsprechung zu den Freiheitsgrundrechten [Proportionality and the review of legislative rationality] (Tübingen: Mohr Siebeck, 2015) § Economic Methods for Lawyers (Cheltenham: Edward Elgar, 2015) (with Emanuel Towfigh; with contributions of Markus Englerth, Sebastian Goerg, Stefan Magen, Alexander Morell, Klaus Ulrich Schmolke) § Ökonomische Methoden im Recht [Economic methods in legal scholarship] (Tübingen: Mohr Siebeck 2010, 2nd ed. 2017) (with Emanuel Towfigh) § Demokratie als teleologisches Prinzip – Zur Legitimität von Staatsgewalt im Völkerrecht [Democracy as a teleological principle: On the legitimacy of governments under international law] (Berlin: Springer, 2009) § Recht und Markt – Wechselbeziehungen zweier Ordnungen [The law and the market – Interdependencies of two orders] (Baden-Baden: Nomos, 2009) (ed., with Emanuel Towfigh, Klaus Ulrich Schmolke, Sebastian Lutz-Bachmann, Anne-Kathrin Lange & Holger Grefrath)

Proportionality and the incommensurability challenge in the jurisprudence of the South African Constitutional Court

Abstract The proportionality test is a central doctrine of the individual rights jurisprudence of the South African Constitutional Court. However, one core part of the proportionality test, the balancing of competing interests, is often severely criticised because it is supposed to lack rational standards of comparison. Therefore, many critics of balancing claim that courts make policy decisions by second-guessing legislative value-decisions. This article analyses how the Constitutional Court deals with this critique. It makes a detailed analysis of the case law and finds that the court, in fact, rarely balances when it overturns a piece of legislation. When correcting the legislature, the court usually bases its judgment on other arguments, such as over-breadth, less-restrictive-means, or lack of consistency. However, the court balances when it confirms legislation, or when it corrects common law rules. In both cases, the court does not come into conflict with the political branch so that balancing does not pose any legitimacy issues. In sum, the court is rather concerned with holding the legislature accountable to take decisions that represent all groups of the society than with determining the resolution of deep value conflicts.

The Democracy Concept of the European Union: Coherent Constitutional Principle or Prosaic Declaration of Intent?

“Our Constitution ... is called democracy because power is in the hands not of a minority but of the greatest number.” This statement by Thukydides preceded the preamble of the draft constitutional treaty elaborated by the European Convention.1 Although not adopted by the intergovernmental conference, the proposed introduction illustrates that the Convention intended to attribute a central role to the concept of democracy — at least symbolically.