Co-edited by Mattias Kumm and Liav Orgad, in July/August 2024, the Verfassungsblog published the debate “Never Again: The Holocaust, Trauma and Its Effect on Constitutional and International Law”.

Constitutions are shaped by historical narratives and collective memories. Historical traumas affect national and international laws and policies. The fears, anxieties, and aspirations of subsequent generations of both perpetrator and victim groups play a role in forming social and political perceptions of what a just and fair order requires. The blog symposium focuses on the constitutional and legal commitments, orientations, and arguments that the trauma of WWII and the Holocaust have given rise to and how they have changed over time.

The authors of the symposium show the evasive nature of “never again.” According to Joseph Weiler, the very under-specificity of “never again” offers a canopy under which practically everyone can find cover and use and misuse for their noble or nefarious agenda. David Abraham claims that, for Jews, it’s “Never Again–to Us,” not “Never Again–to Anyone.” But, for him, the Jewish and Western versions are both Eurocentric.

The authors also demonstrate the impact of “never again” on constitutional and international agendas. Udo Knapp presents how the German Grundgesetz entrenches this narrative and also raises concerns about whether the government does too little to ensure that “never again” democracy is not put at risk. Uladzislau Belavusau shows how “never again” traumas affected migration and citizenship law in Israel, Portugal, and Germany. Kim Lane Scheppele reminds the reader of the impact of “never again” on international human rights law, from the 1948 Universal Declaration of Human Rights up to the law of genocide and war crimes. Barak Medina says that the trauma of Auschwitz in Israel creates “the grim memory of nations worldwide closing their doors to Jewish refugees.”

Last but not least, the symposium opens up new perspectives and raises further questions. For instance, Gilad Hirschberger argues that a historical trauma “is not merely a faint memory, but a living process that shapes current emotions, behaviors and policies … the past is never dead.” Olga Ametistova discusses the case of Russia and shifting interpretations of the meaning of the traumas of World War II. Pratap Mehta analyzes how reflections in India on fascism and the Holocaust, as a phenomenon connected to European Ethnonationalism and European Imperialism, influenced policies and debates, and confronted with the phenomenon of Hindu Nationalism in the present, raises the uncomfortable question of the link between any kind of Ethno-Nationalism and fascism. Hualing Fu discusses “never again” imperatives in China, connecting them to narratives of the “century of humiliation” and how they shaped modern constitutional law in China. Yaniv Roznai discusses Mexico, whose “never again” constitutionalism relates to the need to protect the liberty of the press as “a direct response to the Inquisition censorship established during the Ancien Régime.”

Which factors have made constitutionalism a global story of success? What are the best practices of constitutionalism, and which concepts, doctrines and institutional practices effectively fall short in light of the constitutional principles they claim to reflect?

These are the questions the new book project of Mattias Kumm, Sujit Choudhry and Michaela Hailbronner will answer.

The Oxford University Press book "Global Canons in an Age of Uncertainty: Debating Foundational Texts in Constitutional Democracy and Human Rights" seeks to de-provincialize the discipline of comparative constitutional law in terms of thematic and geographic focus as well as diversity of contributors. Contributors take a fresh look at a wide range of basic issues of constitutionalism, drawing on less traditional jurisdictions and thematically exploring new frontiers.

Our biweekly GlobCon Colloquium will start on January 22 at 11 am in Room 305 at the WZB. Join us in person!

Silviya Lechner, Professor at Anglo-American University in Prague, will present her paper "The Moral Authority of the State"

She will explore a triad of philosophical questions concerning the nature of state authority and its moral justification, drawing on arguments by Leslie Green, Joseph Raz, Harry Beran, and Michael Oakeshott. The first question concerns the nature of political authority,which needs to be distinguished from that of political power and social control. The second is the problem of obeying the law, or political obligation. The claim is that the authority of law is not conterminous with the authority of the state – the latter entails a more complex set of normative relations. As a third step, she will differentiate goal-based states(whose terms of association are instrumental) fromrule-of-law states(whose terms of association are non-instrumental). The claim of Lechner is that the moral authority of the state can be justified by adopting an internal account of authority where 'morality' refers to non-instrumentality. This means that the proposed argument can justify exclusively rule-of-law states.

The new book by Mattias Kumm et al "Perspektiven nach dem Ukrainekrieg - Europa auf dem Weg zu einer neuen Friedensordnung?" has been published. He wrote the chapter "Der Ukrainekrieg und die Zukunft der internationalen Rechtsordnung". Here he argues that supporting Ukraine is not enough. The international legal order needs fundamental reforms if it is to serve as a peace order.

Mattias Kumm is the author of the book, along with Julian Nida-Rümelin, Erich Vad, Albrecht von Müller, Werner Weidenfeld and Antje Vollmer. It is published by Herder Verlag.

Kriszta Kovács is the editor of the recently published book The Jurisprudence of Particularism. National Identity Claims in Central Europe (Oxford: Hart 2023). The open-access book asks whether there is space for particularism in a constitutional democracy which would limit the implementation of EU law. National identity claims are a key factor in shaping our times and the ongoing evolution of the European Union. To assess their impact, this collection focuses on the jurisprudence of Czechia, Hungary, Poland and Slovakia, as they play an essential role in giving life to particularism. By taking particularism as the prism through which they explore the question, the contributors, including Mattias Kumm and Kriszta Kovács, offer a new analytical scheme to evaluate the judicial invocation of identity. This requires an interdisciplinary approach: the study draws on comparative constitutional law, theory, comparative-empirical material and normative-philosophical perspectives.

Citizenship was the most important mark of political belonging in Europe in the twentieth century, while estate, religion, party, class, and nation lost political significance in the century of extremes. This is shown by examining the legal institution of citizenship, with its deciding influence on the limits of a political community, on inclusion and exclusion. Citizenship determined a person's protection, equality, and freedom and thus his or her chances in life and very survival. "Struggles for Belonging" recounts the history of citizenship in Europe as the history of European statehood in the twentieth and early twenty-first centuries. It does so from three vantage points: as the development of a legal institution crucial to European constitutionalism; as a measure of an individual's opportunities for self-fulfilment ranging from freedom to totalitarian subjugation; and as a succession of alternating, often sharply divergent political regimes, considered from the perspective of their inclusivity and exclusivity, and its justification.
 

Since October 2021, Kriszta Kovács has been participating in the Feminist Judgments Project focused on Central and Eastern Europe. The project, supported by University College London, aims at critiquing and eventually rewriting key judicial decisions from the region.