Alexander Somek

• Juris Doctor
• Professor (Full) at University of Vienna

emergence of post-Brexit normalcy, the symposium at that moment provided a fitting opportunity to reflect upon and analyze the events leading up to and following Brexit, along with the legal framework that emerged as a consequence. Perhaps even more importantly, the symposium sought to explore the future of EU-UK cooperation, both in legal and poli...

The cultures of legal scholarship and legal education are decidedly different in the US and in countries belonging to the civil law tradition, such as Germany and Austria. While North American legal academia has proudly transcended the horizon of mere doctrine and embraced a variety of interdisciplinary approaches, the civil law tradition appears t...

Popular sovereignty was presented in modern constitutional discourse as a mode of collective action. It was supposedly manifest in the power to constitute, control and dismantle governments. Important strands of contemporary constitutional theory, notably legal constitutionalism and deliberative democracy, have taken leave of this tradition. They h...

Owing to the vagaries of the ‘constitutionalization’ of the European Union, legal scholarship has disregarded the momentous constitutional transformation brought about by the European Convention System. This is regrettable, not least because the Convention has reconfigured national constitutional authority in a cosmopolitan context. The emerging co...

Popular sovereignty was presented in modern constitutional discourse as a mode of collective action. It was supposedly manifest in the power to constitute, control and dismantle governments. Important strands of contemporary constitutional theory, notably legal constitutionalism and deliberative democracy, have taken leave of this tradition. They h...

The legal relation is the mode in which we allow action to go forward, that is based on reasons that do not appeal to us or may even strike as wrong. The reasons remain foreign to us. We treat, therefore, the having of reasons as a social fact. Someone wants something. At the same time, the law also reconciles ourselves with the traces of foreign r...

My book claims that constitutionalism is about constraining the exercise of public power in a legal manner. What it studies are different renderings of this idea and how one can arrive move from one to the next. What is essential to the success of the enterprise is, first, elaborating the relevant ideal types; second, analyzing how the transitions...

Ernst-Wolfgang Böckenförde is one of the most eminent German constitutional theorists of the twentieth century. The following article connects with two themes that reappear in Böckenförde's writings. The first theme, which Böckenförde actually borrowed from Hermann Heller, is that democracy presupposes “relative homogeneity.” The second theme is th...

Joseph Weiler's The Transformation of Europe is one of the most influential works in the history of European studies. Twenty-five years after its original publication, this new collection of essays pays tribute to Weiler's legacy by discussing some of the most pressing issues in contemporary European Union law, policy and constitutionalism. The boo...

Thank You, Massimo! It must have been shortly before Austria's accession to the European Union in 1995 that I had taken it upon myself to study its legal system. I began reading a book that offered a short introduction. Its author was a former fellow student of mine who had made a remarkable career in the foreign office. His work offered a quite se...

The Brexit referendum confronted us with a “return of the repressed.” It represents a momentous eruption of popular sovereignty. The people have spoken. Liberals cringe: “Ugh, this is the voice of unreason.”

Aus Film und Fernsehen sind wir mit den Erscheinungsformen des amerikanischen Rechts gut vertraut, sogar mit der Anwendung von so technischen Regeln wie jenen des Beweisrechts (,,Einspruch!” ,,Abgelehnt!”). Doch diese oberflächliche Vertrautheit ist trügerisch. Die Rechtskultur und die Lehre des Rechts sind auffällig anders. Das liegt nicht bloß an...

Modern legal positivism tries to preserve the normativity of law while abstaining from generally viewing positive laws as reasons for action. This effort is epitomised, in particular, in Raz' idea that the substance of positive law can be imparted from the detached perspective of the ‘legal man’. From that perspective, it is not stated what one oug...

In light of the reforms undertaken for the sake of the Euro, the article revisits the concept authoritarian liberalism that was introduced in 1933 by the German public law scholar Hermann Heller. This notion seeks to capture the liaison between the ‘strong state’ and economic liberalism. The article suggests that this notion can be fruitfully used...

Introduction: Legal positivism and the loathed question: If one were to ask scholars of public international law whether they can think of the one question that is the most uninspiring to ask about their discipline, their primary candidate might be the foundational question of whether public international law really is law. Well-versed experts in,...

This review article examines critically the belief that national democracies are inherently deficient on democratic grounds since they affect people across their own borders without offering them a voice in the domestic political process. Supranational institutions are supposed to address this problem. The article explains, first, that this belief...

In this era of globalisation, different legal systems and structures no longer operate within their own jurisdictions. The effects of decisions, policies and political developments are having an increasingly wide-reaching impact. Nowhere is this more keenly felt than in the sphere of European Union law. This collection of essays contributes to the...

The history of the rise of markets is also the history of individual and collective attempts to rise above them. First, it is possible to amass so much wealth on markets that one has the wherewithal to retreat from the competitive world and lead the life of a gentleman. Second, independence from markets can be created entirely from within them and...

What makes political self-determination distinctive? The answer given in this article is that it ultimately rests on seeing complete human lives as having their place, at least potentially, within a particular form of life. This focus represents the defensible core of nationality. It is argued that at its current stage the European Union has alread...

Recent proposals to fix Europe's ailing monetary union have led some to endorse a stronger fiscal union. Such a fiscal union, which would supposedly comprise stronger budgetary supervision as well as a modicum of revenue collection by the Union itself, is taken to mark the step towards “political” union. The article explores the question of what, i...

Marx is dead. But so is Hayek. With neoliberalism crumbling, Europeans are beginning to wonder what it is that is really wrong with the current European Union. The paper proposes the following answer: To this day, European integration has not been a process of emancipation. This shortcoming, however, is not written on the face on the Union. It requ...

Current European scholarship does not yet appear to be quite ripe to address the question of justice. Scholars focus on the protection of individual rights and remain largely oblivious of distributions. The question of how the burdens and benefits of social co-operation ought to be allocated does not enter the picture. This prevalent perspective is...

The paper explores a claim made by Hermann Ulrich Kantorowicz in a historically signification pamphlet, which may in some respect well have prepared the intellectual ground for the American legal realist movement. The claim is that the legal science is a source of law. It is startling, to say the least, to find this claim articulated in the context...

In order to arrive at an adequate understanding of the changing Westphalian world, it is necessary to distinguish political self-determination from its cosmopolitan counterpart. While political self-determination has its place in a familiar and common space, cosmopolitan self-determination stands for unbounded collective self-determination among st...

This paper attempts to make sense of Abbé Sieyès’ classical conception of the nation as the constituent power underlying a constitutional system. It then goes on to explore whether it is possible to conceive of such a power under trans- or post-national conditions. What, if anything, might be the power constituting transnational sites of authority,...

There is little awareness that from the perspective of distributive justice, a transnational market society exercises a justice‐disabling effect. No longer is society perceived to be a system of co‐operation, the net product of which is to be distributed among all participants fairly, but rather viewed as a composite of uncoordinated templates for...

What becomes of us once the focus of our life shifts entirely to the private sphere? Arguably, we are then utterly dependent on the guidance and protection offered by administrative bodies and reviewing courts. But how can such dependence ever be consistent with human autonomy? It will be argued that it is possible to see even administered lives an...

Die Verständigung darüber, was Recht und was rechtens ist, ist an das Medium der Sprache gebunden. Rechtslinguistisch ist insofern von Interesse, welche typischen Eigenheiten die rechtliche Kommunikation unter ihren spezifischen institutionellen Bedingungen hat, welche kommunikativen Rollen die Institution den verschiedenen Akteuren aufprägt und wi...

The article discusses the question whether Waldron's new analogy shifts the paradigm of international governance from a relationship that is based on law to a relationship that views participating actors as involved in some kind of common creative problem-solving effort. The implied change from ‘law’ to ‘process’ would raise serious concerns about...

The social question has come down upon us in two different understandings. Modestly understood, it is about helping the needy and creating opportunities for disadvantaged members of society. More ambitiously conceived, by contrast, it is about extricating human life generally from the false necessities of market dealings. The article argues that th...

The concept of law presupposes the concept of the legal relationship. Law authorizes, potentially or actually, the use of coercion in order to guarantee freedom from interference by others. But coercive norms also constitute internal negative liberty for their addressees. A legal obligation cannot require adopting, let alone endorsing, the internal...

Anti-discrimination law increasingly appears to occupy the centre of a renewed understanding of solidarity in the European Union. Not only is it, owing to its focus on equal treatment as regards positions and opportunities, compatible with the task of providing market access, it also seems to complement usefully the social legislation of the Member...

Legal Positivism is dead, isn't it? We are all legal realists now. We believe, by default, that what really matters in law emerges from some judicial process. We sense that the point of norm-production by adjudication is to accomplish something useful or good for either individuals or society at large. Practice trumps theory and policy implementati...

The article challenges the established view according to which the authority of the European Union is inexplicable in terms of collective self-determination. Contrary to this widely held belief, it explains the condition under which it is plausible to impute the current shape of the Union to the collective self-determination of European citizens. T...

The article takes up the foundational challenge of public international law (“Is it really law?”) in a different key. It shifts the focus from exploring effectiveness or the rule of law to the question of what it takes for actors to participate in a legal relationship. A relationship of this type involves distance in compliance as well as distance...

It is often remarked that, with the rise of the judicial resolution of constitutional questions, European constitutional systems have come to resemble a variation on the common law, as cases decided by constitutional tribunals appear to be imbued with an oracular quality with regard to constitutional meaning. Notwithstanding this widespread assimil...

This article continues with a discussion of what the author calls the argument from transnational effects. It says that supranational or transnational forms of integration, in particular market integration, are desirable on account of democracy itself. National democracies find themselves thereby forced to confront and to internalise the externalit...

This article and its sequel examine an argument that has become a shibboleth for the European pro-attitude towards international and supranational legal arrangements. I call it the argument from transnational effects. The argument says that supranational or transnational forms of integration, in particular market integration, are desirable on accou...

Legal positivism is nowadays mostly associated with the work of H.L.A. Hart and those scholars who try to defend his theory against Ronald Dworkin’s critique. This is quite paradoxical given that the Hartian persuasion is not at all animated by legal positivism’s ambition to submit law and legal reasoning to demystification. The article attempts to...

Exploring the relationship between domestic law and international law had been a hobbyhorse of German and French public law scholarship well into the early twentieth century. The relevant debates revolved around two major positions: “dualism”, on the one hand, and “monism”, on the other.With international co-operation becoming at least moderately s...

The article analyses the meaning and the remarkable carrier of "constitutionalisatization" as a concept of public law. It argues that the concept, far from being ideologically neutral, fits an individualistic conception of public authority.

Nineteenth-Century IdealismFrom Idealism to Nineteenth-Century Constructivism: The Case of the Historical SchoolFrom the Turn of the Century to World War II: Disintegration and ReconstructionThe Period from 1933 to 1945: “Völkische” JurisprudenceThe Period from 1945 to the Present: From Natural Law to PostmodernismReferences

The article identifies major characteristics of how public international law has been endorsed by European legal scholars. Prominent among these is the repeated effort to pinpoint the deficiency of public international law as it stands and to suggest improvements. The article tries to identify a chain of substitutions with regard to what is taken t...

This short paper sketches a research project that is devoted to pinpointing the transformation of constitutional legality in a transnational context. It highlights the special role that needs to be accorded to the concept of superlegality.

The article offers both a sympathetic and a skeptical perspective on the global administrative law project. While the author agrees with the project's major premise that processes of global governance are to be described in administrative terms he also expresses doubts as to whether these processes are susceptible to the discipline of legality. The...

The article explains how an example drawn from the history music can help to illuminate the situation of legality in the European Union. The example refers to a decisive step that was taken by Arnold Schönberg in 1908. In the history of modern music, it came to be known as the “emancipation of dissonance”. It amounted to putting consonant and disso...

This new and innovative study explains that a transnational regime is based on a conception of citizenship that is different from the conception underlying a constitutional democracy. Citizens are deemed to be essentially separate from one another. They abandon larger society to itself and pursue their good in the private sphere. In lieu of trust a...

It is claimed that European supranationalism represents an unprecedented mode of political association whose point is to maintain what is good about nationality and the nation state by stripping the latter of its adverse effects. In this article, this claim is submitted to a test by examining how different ways of conceiving of anti-discrimination...

No abstract available.

Ich beginne mit zwei heuristischen Beobachtungen. Die erste Beobachtung formuliert einen Gemeinplatz. Deswegen fasse ich mich kurz. Die zweite Beobachtung bedürfte einer näheren Begründung. Ich muss sie hier schuldig bleiben.

As is well known, both the drafting and the anticipated ratification of the draft Constitutional Treaty were surrounded by a lively debate. The communicative spectacle created by the “Convention on the Future of Europe” and its ambitious plan to draw up a European constitution served as the major attractors. The debate was conducted, of course, in...

Does it make sense, any longer, to study international law as a system of law? In both theory and practice, the impression of fragmentation and feebleness seems to be currently eclipsing the traditional faith in the unity and efficacy of cosmopolitan benevolence. Repeatedly, state-interest has trumped the discipline of norms; international regimes...