The dictatorship of justice

Project management: Prof. Dr. Rainer Maria Kiesow

The project focused its central research interest on the ambivalence and paradoxical nature of the concept of justice in modernity, critically opposing the supposed infallibility of justice as a supernormative order – away from the scientific and political mainstream on the subject – and instead explicitly focusing on its “dark side”, its “abysses” and the precariousness of the development process. Guided by the fundamental scepticism that a global “super-programmatic” discourse on justice, an all-salvific construct of normative hyper-order, could develop dictatorial traits, the normative substance, actual motives and practical consequences of justice as a justifying factor were mistrustfully explored.

The reservation against justice as a universal justification was essentially borne by two strikingly contradictory simultaneities and incompatibilities: (I) On the one hand, justice is experiencing a renaissance in the course of current developments surrounding ultimate justifications and dispositions; there is hardly an area – especially not a political one – that does not make some form of claim to just conditions. At the same time, however, justice has lost its original significance in modernity: it has been deconstructed, destroyed and demystified, so that there is a consensus in modern sociology, political science and legal theory that positive law, i.e. the formal possibility of changing the law of a society at any time, no longer assigns a place to justice, but at best cites the formula “justice” as a symbol or regulative idea. Consequently, the political discourse refers to a substance whose “non-substance” is a scientific commonplace.

In addition, (II) a juxtaposition of the claim to universalism and the fragmentation of justice is revealed: on the one hand, it is regarded as a goal that is to be realized worldwide, so that the old question of Roman law about what is just and equitable, equality and allocation – the “suum cuique!”, to each his own! – is once again breaking into our bureaucratic discussions and, with the claim to correctness, appropriateness and proportionality of the social order, is setting a general standard for the core question of normativity – what can and should be done. On the other hand, parallel to the claim of a monopolized universal answer, there are individual ideas of justice, according to which each individual decides what is considered (un)just, and which inevitably make the discourse on justice fragmentary, local and fragmented. Justice thus becomes a particular narrative of justification that makes a claim to universalism for all approaches simultaneously and to the same extent. It is obvious that this claim cannot be fulfilled in view of the multitude and diversity of concepts of justice. Accordingly, justice presents itself as a “normative black box” into which everything and nothing can be placed and read without a common basis.

Against this backdrop, it was necessary to question the extent to which politics makes use of the indeterminacy of justice and instrumentalizes it to justify particular political goals – justice itself has become a rhetorical weapon. The postulate that justice functions as a main goal in the development of normative orders was also reassessed and discussed, as were possible explanations for the current boom in justice.
Based on the basic methodological decision to determine justice not in the abstract, but through its manifestations, justice narratives were analyzed with regard to the question of when, where and, above all, how and with what implications they are placed by whom. Both sub-projects, “The Image of Justice in Literature and Law” (Rainer Maria Kiesow) and “The Normative Balance of the Rule of Law Principle” (Ulrike Meyer), aimed to address these questions on a broad basis and, by combining elements of legal history, legal theory, legal philosophy and state theory, to provide as differentiated a view as possible of the formation of normative orders.

The first of the two sub-projects led to publications by Rainer Maria Kiesow on “The other side of justice”. Black images of justice by the jurists Balzac, Melville, Kafka, Georg Heym and others were reflected upon. The analysis of literary testimonies on the dark side of justice, such as Honoré de Balzac, “L’Auberge rouge” (“The Red Inn”), Louis Aragon, “Le droit romain n’est plus” (“Roman law is no more”), Heinrich von Kleist, “Der Zweikampf”, Franz Kafka and Jean Genet, has been included in a monograph: Rainer Maria Kiesow, L’unité du droit, Paris, Cas de figure, Editions de l’Ecole des hautes études en sciences sociales, 2014 and Rainer Maria Kiesow, La Justicia y otros cuentos, Granada, Editorial Comares (i.E.).
He also published a major work on the 150-year history of the German Jurists’ Day (Rainer Maria Kiesow “Die Tage der Juristen. A character portrait 1860-2010.” Munich: Beck 2010), which focused on the question of justice, the legal establishment of a just society.

The second sub-project on justice in the rule of law was carried out by research assistant Ulrike Meyer as part of her dissertation “The normative balance of the rule of law. Aktualität und Aktualisierung eines politischen Ordnungsideals”.
Based on the empirical finding that the efforts to establish the rule of law globally, which have been driven forward at great political and financial expense since the fall of the Iron Curtain, have not been very successful, Meyer provides an explanation for this failure on the one hand and proposes a theoretical reorientation in the definition of the rule of law on the other. According to the central thesis of the work, the fact that the path of exporting norms and institutions taken so far has not triggered a global unification of normative standards and that instead dysfunctional developments or roll-back effects can be observed in the vast majority of transformation states under the rule of law results from the inadequacy of the established theoretical categorization of the rule of law into formal and substantive requirements. Instead of the abstract jurisprudential categories of “formal” and “substantive”, the project proposes a re-politicization of rule of law criteria and is based on the German rule of law as one of the two original political models alongside the English rule of law.
Her publications in the research project include: Meyer, Ulrike (2012): Ideality, interests, ignorance. Zur schwierigen Gemengelage der internationalen Rechtsstaatförderung, in: Der Staat, 51 (2012), 1, 35-55 and Draganova, Viktoria/ Kroll, Stefan/ Landerer, Helmut/ Meyer, Ulrike (eds.) (2011): Inszenierung des Rechts – Law on Stage, Jahrbuch Junge Rechtsgeschichte; vol. 6, Munich: Meidenbauer.

The most important events in the research project were the workshop series “Rechtsnorm und Rechtskritik”, “Die Inszenierung des Rechts – Law on Stage”; 16th European Forum of Young Legal Historians, Max Planck Institute for European Legal History, Frankfurt am Main 25-27.03.2010 and chairing the panel “Die Reichweite von Gerechtigkeitsprinzipien/ The Scope of Principles of Justice”, 1st Junior Researchers’ Conference of the Cluster of Excellence “Formation of Normative Orders” of the Goethe University Frankfurt am Main on the topic “Normative Ordnungen: Justification and Sanction“; Frankfurt am Main, October 23-25, 2009.