The normativity of law in transition

Project management: Prof. Dr. Klaus Günther and Prof. Dr. Stefan Kadelbach

The project aimed to work out legal concepts of normativity (understood as the binding force of norms that gives them their intended content) and to examine their suitability with regard to the changing framework conditions of global governance, global justice and legitimacy.
The focus of the project was on international law. This – neutral – term is intended to encompass both international law and supranational or extra-state law-making by non-state actors. In international law, a structural change has taken place under the influence of globalization in particular, the shift of responsibilities to international organizations and increasing lawmaking by non-state actors, which is characterized by a denationalization of lawmaking and an overlaying of law by new layers of norms.

As part of the project, an understanding of the concept of legal normativity was first developed, which on the one hand is sufficiently defined for the characterization of a norm as a legal norm, but on the other hand remains sufficiently open for application to inter- or supranational situations. On the basis of this concept of normativity, an attempt was then made to develop criteria for the distinction between law and non-law (what distinguishes legal norms from other norms?). It was examined whether a uniform concept of law and thus also of normativity can be assumed at all. In addition, in the specific context of international law, the question arose as to the effects of a change in the understanding of normativity on the role of law in the supranational and intergovernmental sphere.

The aim of the project was to contribute to the question of why law is binding beyond state legal systems and the associated coercive apparatuses. Against this background, Klaus Günther and his colleague Ralf Seinecke examined and critically assessed the theories of legal pluralism, while Alain Germeaux and Stefan Kadelbach examined the theories of international law and normativity in international relations.

The international law sub-project examined various ways of explaining the binding force of norms between states. The various approaches of methodological realism, including rational choice approaches, proved to be unsatisfactory, ultimately because they rely one-sidedly on utilitarian calculations of compliance and do not sufficiently take into account the intrinsic force of normative commitment, the social recognition of norms and the legitimacy of claims to validity. For this reason, an approach was developed that places the validity and generation of norms above enforcement, but makes the prospect of enforcement a component of validity.

Accordingly, Alain Germeaux’s dissertation dealt with commitment and compliance theories from legal theory, international law and the theory of international relations. It reached back to the 1920s and went through theories since Kelsen and Morgenthau. After discussing various approaches, many of which have attempted to bring political and international law closer together in recent years after a long period of mutual ignorance, he finally opts for a communication theory approach adapted to the peculiarities of international law after incorporating elements of Hart and Franck’s teachings. Germeaux, Alain: Shaping Foreign Policy Through Law: Communicative Action and the International Legal Order, Basingstoke: Palgrave Macmillan (forthcoming).

The legal theory sub-project was dedicated to the current debate on global legal pluralism. The broad spectrum of theories developed in this context was examined historically, systematically and critically, especially in Ralf Seinecke’s dissertation (see below). In addition, it was also important to understand these theories not only as descriptions of a fact, but also as normative positions that favor global legal pluralism over a monistic or state-centered concept of law. However, a normative legal pluralism must then deal with the notorious problem of the collision of plural rights. A number of proposals have been made for a corresponding management of plurality or hybridity between different legal orders and non-legal orders (e.g. Schiff Berman; or Teubner, see project report FF4-2. Civil Constitutions in the World Society). A critical analysis of these proposals reveals that they cannot do without the counter-factual assumption of a common symbolic space and common rules of discourse as well as techniques of generalizing interests. Discourse-theoretical considerations should contribute to reconstructing and justifying such a position of a “third party” in a procedural rather than essentialist or etatist manner.

Ralf Seinecke’s dissertation analyzed various concepts of legal pluralism from legal anthropology, legal sociology, legal history, political science and (public and private) international law. These concepts were examined and systematically organized in terms of ‘work biographies’, i.e. with a view to the protagonists of the discussions and their biographical backgrounds. In addition, the work reconstructed the concept of legal pluralism itself as well as its epistemic dimensions, its conceptual history and its field of application in legal history, legal anthropology and international law. In deliberate contrast to the (more or less) ‘postmodern’ authors of legal pluralism, the work also examines the ‘classically modern’ counterparts of the legal pluralists in terms of the extent to which they are – as the legal pluralists of postmodernism like to claim – etatist or monist. A summarizing chapter on the phenomena, the concept of law and science as well as the legitimacy and dogmatics of legal pluralism concludes the work.

In the winter semester 2009/10, the project leaders also organized the lecture series “Law without a state?” with contributions by Gunther Teubner, Klaus Dieter Wolf, Rainer Hofmann, Thomas Duve, Franz von Benda-Beckmann and Susanne Schröter, which they published in book form with a 40-page introduction: Stefan Kadelbach/ Klaus Günther (eds.): Law without a state? On the normativity of non-state law-making . Frankfurt/New York: Campus, 2011. A critique of normative legal pluralism can be found in: Klaus Günther, Normativer Rechtspluralismus – eine Kritik, in: H. Diefenbacher/Th. Moos/M. Schlette (eds.), Das Recht im Blick der Anderen, Festschrift für Eberhard Schmidt-Aßmann, Tübingen (Mohr/Siebeck), 2014 (= Normative Orders Working Paper 03/2014). The project’s most important publications also include: Seinecke, Ralf: Das Recht des Rechtspluralismus, Tübingen (Mohr Siebeck), 2015.

In addition to the lecture series mentioned above, one of the most important events in the research project was the 2011 Annual International Conference of the Cluster of Excellence on “Legal Cultures, Legal Transfer, and Legal Pluralism”.

The discourse-theoretical approach will be continued in project FF3-6 “Legitimation through international law and legitimation of international law” in the second funding period. The examination of legal pluralism and the discourse-theoretical reconstruction of the position of a third party will be continued in the second funding period in project FF1-2 “Multinormativity”.