Project leader: Prof. em. Dr. Dr. h.c. mult. Michael Stolleis

The Cluster of Excellence project “Regulated self-regulation from a legal-historical perspective” was part of research field 4 of the first funding period as an attempt to analyze the development of normative structures outside of the normative power of the nation state, or rather: autonomous from it, but under its protective umbrella, and at the same time to work out forms in which this autonomy was put to use by the state. The research was guided by the question of how, from a historical perspective, norm creation and norm enforcement took place as processes external to the state and how they simultaneously interacted with the state’s regulatory power. With this approach, this project also broke away from the traditional legal-historical perspective, which focused on the state as legislator and law enforcer. At the same time, it captured the fundamental conflict over normative orders that characterized the 19th and 20th centuries: the struggle to balance the demands of society and the state.
In this context, regulated self-regulation was understood as the self-coordination of social actors which, due to its relevance to public interests – however charged in terms of content – is embedded in state programmes, instrumentalized for state objectives and subjected to regulation geared towards this purpose – regulation that goes beyond the general regulation of market behaviour. Thus, not all forms of social self-coordination, not all phenomena of the creation of legally binding effects among private individuals have been included, but only those that exhibit a relationship to aspects of overarching “common good” concepts – which are, of course, changeable and repeatedly called into question. The boundaries, which are not easy to draw, must be discussed on a case-by-case basis.
The project addressed regulated self-regulation as a phenomenon of the 19th and 20th centuries and thus as a manifestation of social development in a developmental process of modern statehood, in which the emergence of a more reactive state that ensured order was followed by the establishment of a more proactive intervention and welfare state. The project took account of this developmental process – albeit presented here in a coarser form – by initially approaching the problem in a historical two-step approach.

A first conference was dedicated to the “incubation phase” of regulated self-regulation in the 19th century (July 2009), the following conference (June 2010) dealt with its manifestations in the intervention and welfare state of the late 19th and early 20th centuries. The thesis of a stronger statist transformation in the second period was confirmed for numerous social sub-sectors. Traditional forms of organization and action under public law were used and modified (e.g. from corporate and regal law), but in some cases new instruments and concepts were also developed or old ones took on a completely new form; for example, the self-government model was extended to the economic and social sectors. On the other hand, it became apparent that forms of private law, above all the association, were strongly integrated into the performance of public tasks and combined with strong elements of state control.
In themselves, these are not new legal-historical findings; however, these insights have so far tended to be formulated at a meta-level and have mostly been characterized by a one-sided perspective: either the genesis of forms of securing social freedom or the development of instruments of state regulation. The lectures, on the other hand, not only made a contribution to demonstrating forms of regulated self-regulation in numerous sub-areas in which they have so far been little addressed in legal history (the concept of regulated self-regulation had so far only been worked out for one specific sector: collective bargaining law), they also illustrated that the significance of the corresponding instruments can only be understood with sufficient precision as parts of regulatory arrangements in which self-determination and heteronomy are expressed in equal measure. With regard to the modern discussion on regulated self-regulation, it also became clear that, unlike this self-administration, it cannot be excluded from the area of regulated self-regulation (because it is only “indirect state administration”), but must be understood substantially as social self-regulation (albeit with a strong state control component), at least until the 1920s. – The two conference proceedings are available in print. (Collin, Peter/Bender, Gerd/Ruppert, Stefan/Seckelmann, Margrit/Stolleis, Michael (eds.) (2011): Selbstregulierung im 19. Jahrhundert – zwischen Autonomie und staatlichen Steuerungsansprüchen (Studien zur europäischen Rechtsgeschichte 259, Moderne Regulierungsregime 1) Frankfurt/M.: Klostermann; Collin, Peter/ Bender, Gerd/Ruppert, Stefan/Seckelmann, Margrit/Stolleis, Michael (eds.) (2012): Regulierte Selbstregulierung im frühen Interventions- und Sozialstaat (Studien zur europäischen Rechtsgeschichte 270, Moderne Regulierungsregime 2), Frankfurt/M.: Klostermann).

At a third conference (June 2011), the focus was extended to phenomena of regulated self-regulation in legal systems outside Germany (Central and Western European countries, USA). In doing so, it was necessary to take into account the fact that the term itself was already partly charged with other meanings from a contemporary perspective, and in some cases has hardly been included in the discussion. It has established itself even less as a key legal-historical term. However, the contributions showed that it is a thoroughly fruitful analytical category for legal developments outside Germany as well. It became clear that, from an international perspective, four types of regulated self-regulation can be distinguished: liberal-civil society (especially the USA), liberal-“Jacobin” (especially France), corporate (e.g. Italy, Austria) and cooperative (partly the Netherlands, Sweden) – admittedly taking into account a considerable change in form over time and with numerous mixed forms. – The contributions were published in another conference volume. (Collin, Peter/Bender, Gerd/ Ruppert, Stefan/Seckelmann, Margrit/Stolleis, Michael (eds.) (2014): Regulated self-regulation in the western world of the late 19th and early 20th century (Studien zur europäischen Rechtsgeschichte 290, Moderne Regulierungsregime 4), Frankfurt/M.: Klostermann.)

At a fourth conference (January 2013) – in cooperation with the LOEWE focus area “Judicial and extrajudicial conflict resolution” – a special form of regulated self-regulation was discussed: judicial self-regulation. This was based on the consideration that self-regulation is usually perceived primarily as norm-setting (and partly administrative) self-regulation, but not in its judicial forms. It turned out to be useful to distinguish between self-regulation by (or through) the judiciary and self-regulation of the judiciary. The latter variant can be seen as a form of functional differentiation of the legal system and autonomy required by the rule of law and takes the form of judicial self-administration. The first variant presents itself as a (possible) mode of self-regulation of social sub-sectors; this was illustrated comparatively (Germany, England, France) for judicial non-state and semi-state conflict resolution in the area of labor law. – The resulting conference proceedings were further processed and finalized after the end of the project. (Collin, Peter (ed.) (2016): Justice without the State within the State. Judicial Self-Regulation in the Past and Present (Studien zur europäischen Rechtsgeschichte 295, Moderne Regulierungsregime 5), Frankfurt/M.: Klostermann.)

In addition, work was completed on a source volume that deals with areas of regulated self-regulation that are not covered in the conference proceedings, or only in brief form. This concerns, for example, the maintenance of river infrastructure by water cooperatives, the electricity industry, private welfare, the semi-public financial sector (savings banks and credit cooperatives) and the railroads. For each of these sectors, the relevant framework regulations are reproduced, i.e. the statutory provisions as well as the sub-legislative standards material (e.g. model statutes, administrative guidelines, framework agreements). Each chapter includes a detailed introduction that reviews the existing research and introduces the reader to the problems of the respective subject area. The period covered extends from the middle of the 19th century to the end of the Weimar Republic. – The work on the volume was completed during the project period and was subsequently published. (Collin, Peter (2014): Treffräume juristischer und ökonomischer Regulierungsrationalitäten (Studien zur europäischen Rechtsgeschichte 286, Moderne Regulierungsregime 3) Frankfurt/M.: Klostermann.) Further publications are noted in the list of publications.
The overall result of the project is a comprehensive analysis of the legal manifestations of regulated self-regulation in the 19th and early 20th centuries. The organizational framework conditions and the sets of instruments are made visible. The embedding in contemporary key debates, e.g. on self-administration, (private) autonomy, economic democracy and subsidiarity, becomes recognizable. One striking result is the strong affinity of collective social actors for public-law forms of organization, which promised official dignity, authoritative powers and more reliable funding. Although the resulting stronger state influence was problematized, it was not a fundamental obstacle. A look at legal systems outside Germany has shown that regulated self-regulation is a sign of modern societies, but that its form varies, and not only depending on how “strong” the state is, as can be seen, for example, in a comparison of Germany and France.

Further information on the continuation of the project after the end of the first term of the Cluster of Excellence: https://www.rg.mpg.de/forschung/regulierte-selbstregulierung-in-rechtshistorischer-perspektive

Project leader: Prof. em. Dr. Dr. h.c. mult. Gunther Teubner

The project dealt with two questions: Can constitutional processes beyond the nation state be identified in the global space? Can constitutional elements beyond the nation state be identified in non-state, social, “private” global contexts? The aim was to clarify empirical and normative preconditions of the constitution of transnational private regimes.

The constitution of world society is not realized exclusively in the proxy institutions of international politics, nor can it take place in a world constitution that spans all areas of society; rather, it emerges incrementally in the constitutionalization of a multiplicity of autonomous world societal subsystems.

The question of the “horizontal” effect of fundamental rights in the transnational area, i.e. the question of whether fundamental rights impose direct obligations not only on state actors but also on private actors, takes on much more dramatic dimensions than it ever had in the national area. Here, the omnipresence of national state action and national state law is lacking, so that the conventional dogmatic constructs of state action and the structural effect of fundamental rights only apply in a few constellations. On the other hand, transnational private actors, especially multinational companies, regulate entire areas of life, so that the question of the validity of fundamental rights in private transnational orders can no longer be avoided.

In various global regimes, the two theses of regime-specific organizational constitutions and the equally regime-specific application of fundamental rights were to be examined in detail. The focus was on the question of global constitutional pluralism – heteronomy or autonomy of social constitutionalization processes? To what extent does this involve the constitutional self-organization of global regimes? To what extent are constitutional norms imposed on transnational regimes from the outside? Or is it a complex interplay of internal self-organization and external constitutional requirements? This ultimately leads to the question of whether a universal, albeit fragmented, “political” concept of constitution also makes sense for the global society or whether instead only a multiplicity of particular constitutions of the self-rationality and self-normativity of autonomous global social sectors can be expected, the integration of which then becomes the main problem of a global social constitutionalism.

The end result is mainly two complementary monographs. Prof. Teubner dealt with the topic of global civil constitutions primarily from a legal perspective. Prof. Kjaer took a more sociological perspective. The result was an intensive mutual influence between the disciplines and at the same time a deepening within the respective discipline.

Prof. Teubner’s research on social constitutionalism in globalization followed on from a series of public scandals that have raised the “new constitutional question” in recent years. Human rights violations by multinational corporations, corruption in the medical and scientific sectors, threats to freedom of expression by private intermediaries on the Internet, massive encroachments on privacy through data collection by private organizations and, with particular force, the unleashing of catastrophic risks on the global capital markets – they all raise constitutional problems in the strict sense. Whereas in the past it was a question of releasing the political power energies of the nation state and at the same time effectively limiting them under the rule of law, the new constitutional question is about releasing completely different social energies, particularly visible in the economy, but also in science and technology, in medicine and in the new media, and effectively limiting their destructive effects. Constitutionalism beyond the nation state – this means two things: the constitutional problems arise outside the boundaries of the nation state in transnational political processes and at the same time outside the institutionalized political sector in the “private” sectors of global society. Prof. Teubner’s research in the project dealt with the following complexes: (1) Partial social constitutions in the nation state, (2) Transnational constitutional subjects: Regimes, organizations, networks, (3) Transnational constitutional norms: Functions, areas of regulation, processes, structures (4) Transnational fundamental rights: horizontal effects (5) Collision and interconnectedness of transnational constitutions.

Prof. Kjaer reconstructed the historical evolution of state and transnational constitutional structures, especially the relationship between the globalization of modern statehood and the emergence of private and public transnational constitutional structures, from the European Union and the World Trade Organization to multinational corporations and non-governmental organizations. A particular focus was the relationship between the decolonization processes in the mid-20th century and the emergence of new private and public forms of global governance. Subsequently, a reconstruction of the concept of the constitution was undertaken in order to develop a contemporary concept of the constitution.

The most important publications in the research project include
Teubner, Gunther (2012): Constitutional fragments: social constitutionalism in globalization, Berlin: Suhrkamp.
Poul Kjaer (2014): Constitutionalism in the Global Realm – A Sociological Approach, London: Routledge.
Poul Kjaer (2010): Between Governing and Governance: On the Emergence, Function and Form of Europe’s Post-national Constellation, Oxford: Hart Publishing.

The most important events include:
“After the Catastrophe? International Conference on Economy, Law and Politics in Times of Crisis”, Thursday 25 March – Saturday 27 March 2010, Goethe University Frankfurt.
International Conference “Transnational Societal Constitutionalism”, Torino, 17-19 May 2012.

Project manager: Prof. Dr. Joachim Zekoll

The project which began as a search for and evaluation of various facets of “extraterritoriality” emerged into a significantly more complex undertaking aimed at locating and assessing the various manifestations of transnational legal authority. The results are published in: Handl, Gunther/ Zekoll, Joachim/ Zumbansen, Peer (Eds.) (2012): Beyond Territoriality: Transnational Legal Authority in an Age of Globalization (Series: Queen Mary Studies in International Law, Vol. 11) Leiden/Boston: Brill.

By taking “extraterritoriality,” the touchstone for the traditional, state-centered allocation of transnational legal authority as the conceptual starting point, the project sought to trace the evolution of transnational legal authority in the course of globalization. In this respect, the project provided an accurate and up-to date map of changes in legal governance with regard to a number of fairly representative and important topics. The project’s aggregate findings thus help us to address the larger constitutive picture, namely that of the evolving global governance structure, and the extent to which the modern system of states is yielding to postmodern forms of configuring political space.

It is with these considerations in mind that individual contributions to the project paid special attention to any shift in transnational legal authority away from the state. More specifically, the various parts describe present-day transnational legal authority in terms of whether it is being exercised unilaterally or multilaterally; is minimally internationally coordinated or formally institutionalized; reflects a traditional state-centered as against a supra-national or “privatized” approach; and, finally, emanates from a single as against a multiple-layered normative system.

The project traced the evolution of transnational legal authority from being an exceptional derogation from the territoriality principle by offering a basic definitional part on jurisdiction and communities; a review of the implications for modern “globalized” society of jurisdictional concepts and practice in medieval times; and an introduction to the post-modern, present-day phenomenon of transnational legal pluralism, namely spatially co-existing and overlapping normative legal systems, involving both states and non-state actors in the making and application of transnational legal norms.
The project also evaluated prototypical transnational applications of domestic law, i.e. direct emanations of the assertion of territorial sovereignty. Without pretending to cover all possibly relevant scenarios, several different contexts, such as the application of domestic environmental laws were analyzed to illustrate the inevitability of “extraterritorial” jurisdictional effects associated with (routine) governmental acts within state territory.

Another part addressed the phenomenon of transnational authority based on – direct or indirect – transfers or “leakage” of constitutional norms, fundamental rights or human rights norms and/or basic governance concepts. Furthermore, situations were examined in which transnational legal authority is exercised in relation to real or virtual exterritorial spaces, thus is subject to special legal regimes, such as maritime law, or gives rise to special jurisdictional considerations as is the case with cyberspace and the emergence of a – real or only alleged – lex digitalis.

Finally, the focus shifted to the emergence of transnational governance structures which, though rooted in the state system, display a high degree of international substantive coordination as well as institutional developments. Several “case studies” focusing, inter alia, on capital market regulation, international investment regimes and arms control confirmed the assumption that transnational authority is being increasingly shared by the states with autonomous institutional structures and processes.

The findings of this joint research are multifaceted. This is in significant part due to the research topics, which follow different rule-making dynamics and the approach taken by the individual scholar to examine the heterogeneous subject matter areas. As Per Zumbansen, one of the editors of the volume, puts it (at 553 et seq.): “While for many of the authors represented in this volume, the state continues to be the primary reference framework for the creation and implementation of the applicable norms, other scholars in this book understand references to the state’s legal authority as less definitive. At the same time, both groups of authors testify to the many ways in which national legal systems have been adapting to the growing number of border-crossing legal conflicts. Defining and comprehensively explaining the ‘nature’ of this adaptation process is what can arguably be seen to be at the heart of the yet not fully resolved conundrum of ‘globalization and the law’. The differences in value assigned to the ‘state as container’ by the legal authors collected here reflect on the wealth of approaches toward unpacking this complex relationship. As shines through some of the contributions to this volume, this has long ceased to be un champ de recherche alone for lawyers. Importantly, explorations into the relevance of territoriality for an understanding of today’s legal systems have been at the center of a number of other disciplines for quite some time.”
And, indeed the inclusion of and cooperation with other disciplines, such as political science and anthropology, appear to be indispensable prerequisites for an even better understanding of the evolving nature and dynamics of transnational norm production.

The following individuals cooperated in and contributed to this project:
Adeno Addis (Tulane Law School, New Orleans), Larry Catá Backer (Pennsylvania State University, University Park), Michael Bothe Goethe University, Frankfurt); Eric Dannemaier, Indiana University Robert H. McKinney School of Law, Indianapolis), Martin Davies (Tulane Law School, New Orleans), Onnig Dombalagian (Tulane Law School, New Orleans) James Gordley (Tulane Law School, New Orleans), Günther Handl (Tulane Law School, New Orleans), Rainer Hofmann (Goethe University, Frankfurt), Stefan Kadelbach (Goethe University, Frankfurt), Imelda Maher (University College, Dublin), Jonathan Nash (Emory University School of Law, Atlanta), Alexander Peukert (Goethe University, Frankfurt), Eckard Rehbinder (Goethe University, Frankfurt), Edward Sherman ((Tulane Law School, New Orleans), Friedl Weiss (Univeristy of Vienna) and Peer Zumbansen (Osgoode Hall Law School, Toronto).

Most of these scholars participated in two preparatory conferences/workshops, the first in December 17-18th 2008 at Goethe-University Frankfurt, entitled “The Extraterritoriality Project – A ‘Work in Progress'” and a follow-up conference in New Orleans November 12-14th 2009 in cooperation with Tulane Law School.

Project leaders: Prof. Dr. Klaus Günther and Prof. Dr. Cornelius Prittwitz

International criminal law plays a prominent role in the development of international legal norms, especially human rights, and their sanctioning. The question of its legitimacy or even the question of its penal purpose is controversial. As much as the legitimacy of international criminal law appears to be evident at first glance, the justifications for the sanctions, especially the infliction of evil in the form of punishment, are just as controversial. This is where the project attempts to find an answer. Günther and Reuss’ sub-project has made a new proposal in this regard. The sub-project by Prittwitz and Alatovic has taken the controversy surrounding the purposes of punishment in international criminal law as an opportunity to critically discuss the questionability of a normativist approach to punishment and its justifications.

The traditional penal purposes of national law, namely: retribution (compensation for guilt), security, resocialization, individual and collective deterrence or strengthening the awareness of norms, to legitimize criminal proceedings, imposition and execution, cannot be transferred seamlessly to international criminal law. Parts of the literature already take a similar view, but not the courts. As a first step, the project therefore examined the specific normative, legal-theoretical and empirical-criminological backgrounds of international criminal law, which differ fundamentally in some respects from the corresponding backgrounds of national criminal law. In view of this state of discussion, two different paths could subsequently be taken. The first (a) consists of a further development of the theories of crime with specific modifications for international criminal law, which are ultimately based on arguments of justice. The second path (b) leads to denying the possibility of a universally valid legitimation of international criminal law at all and to understanding its legitimation more as a particular and context-dependent one. Without being able to take the path of a universal justification via normative reasons, international criminal law is based on a broad factual consensus (including in legal practice); its legitimacy consists in the fact that the addressees recognize the legal norms as reasons for action. However, it must be borne in mind that de facto legitimacy is never absolute, but always limited, i.e. it is not supported by all addressees. This does not amount to a normative theory of international criminal law, as in (a), but to a realistic-pragmatic theory.

(a) Sub-project Günther/Reuss: A comparison of the expectations of international criminal law and the traditional purposes shows that none of the purposes in their traditional form can be completely convincing and that absolute theories of punishment in particular must be rejected. Instead, international criminal law, measured against its own claim to protect human rights from the most serious and massive violations, can only be legitimized as a preventive criminal law of guilt, which must also include the human rights of the accused and the convicted offender in its scope of protection. Its goal can therefore only be the strengthening of a global, civil society awareness of the validity of and respect for human rights. The traditional purpose of positive general prevention, i.e. the purpose of strengthening trust in the application of norms, must therefore be modified accordingly. International criminal law must not strengthen confidence in the validity of any given state order, according to the conventional view, but rather the awareness of the global validity of human rights, even beyond the state, in cases of doubt. In the event of conflict, these must be defended against state orders that are hostile to human rights, or at least must not be violated in compliance with state orders. The imperative of international criminal law therefore calls for a critical examination of the claim to validity and compliance with state orders and, if necessary, to resist them instead of adapting to them. The awareness that is to be created or reinforced in this way therefore serves to prevent the establishment of authoritarian regimes that are hostile to human rights, but is also intended to limit the normative power of already existing or still existing regimes. With its proceedings and its guilty verdicts, it makes an appeal to all citizens of the world to resist the anti-human rights imperatives emanating from these regimes. By doing so, and by also prosecuting the leaders of such regimes, it delegitimizes and deconstructs their authority as a legitimate source of law, i.e. as legitimate authorities for setting norms.

(b) Prittwitz/Alatovic sub-project: If one looks at international criminal law as a de facto accepted law, instead of looking for a normatively justified legitimation, it becomes apparent that this acceptance is not generally given – and collides here with the principle of state sovereignty, among other things (for example, some states have not acceded to the Rome Statute establishing an International Criminal Court). From this perspective, the function of international criminal law – as of law in general – is to enforce general norms of behavior against the will of those who do not accept it – in other words, to some extent without legitimacy – using coercive means if necessary. In the tension between the two sub-projects (a) and (b), the contrast in legal theory between natural law and the critique of natural law is repeated, as is the contrast between institutionalists and realists at the level of political theory. A corresponding pragmatic-realist theory of law was developed in Samir Alatovic’s dissertation. The main argument developed therein is that the contradiction between individual rights and the universality of law cannot be resolved on a normative level. The law is not only, but also a violent act against those who do not want to abide by man-made rules and who do not have to recognize these rules as justified. From a normative perspective, international criminal law stands on solid normative ground and only becomes entangled in aporias in practice – from a pragmatic perspective, these aporias are only apparent and even international criminal law, which prosecutes crimes that all people should actually also condemn, cannot completely overcome the contradiction between normative claim and legitimizing acceptance. The lesson for international criminal law should be to accept this contradiction and to seek acceptance. In practical terms, this position thus comes to a similar conclusion as sub-project (a): international criminal law should further promote the de facto acceptance of human rights at the international level and rely more on its educational character than on its sanctioning character.

A selection of the most important publications resulting from the project includes:
Günther, Klaus / Reuss, Vasco (2014): ‘Die Legitimation des Völkerstrafrechts in Deutschland. Völkerstrafrecht als Bürgerstrafrecht”, in: Christoph Safferling/ Stefan Kirsch (eds.), International criminal law policy. Practice of international criminal law , Berlin/Heidelberg: Springer, 127-164.
Prittwitz, Cornelius (2012): “Die Rolle des Strafrechts im Menschenrechtsregime”, in: Arno Pilgram et al. (eds.), Einheitliches Recht für die Vielfalt der Kulturen, Münster: LIT Verlag, 23-39.
Reuss, Vasco (2012): Civil courage as a penal purpose of international criminal law. What does positive general prevention of global civil society mean? (Series: Rechtsgeschichte und Rechtsgeschehen – Kleine Schriften, vol. 28), Münster: LIT Verlag.

Project leader: Prof. em. Dr. Dr. h.c. mult. Michael Stolleis

The project examined paradigmatic changes in legal structures in international relations in the 19th and early 20th centuries. Both international law practice and international law scholarship were of interest. The aim was to understand international law as a separate type of normative order in an interdisciplinary research context and to analyze its historical structural features: What goals and values constituted international law in the 19th century? Who were the actors and what legal instruments did they use? In what form did global norms and orders become universalized?

As a result, it emerged that international structures underwent a remarkable development during the research period: Between the end of the Ancien Régime and the outbreak of the First World War, international law developed from a law of coexistence to a law of cooperation. New international regimes were established to regulate diverse political, social and economic interests, and relations between states became more legalized; at the same time, however, there were also areas in which legal avoidance dominated (sovereign debt; right of intervention). Principles that are still valid today, such as the fundamental rights of states or the international community, emerged. Intergovernmental organizations began to shape international relations. In the process, both a separation of international law from morality and the adoption of fields of activity that signify a “moralization” of law can be observed.

This change in the practice of international law was accompanied, promoted and reflected by numerous scholars of international law. In addition to individual authors, of whom Georg Friedrich von Martens, Theodor Schmalz, Julius Schmelzing, Friedrich Saalfeld, Carl Baron Kaltenborn von Stachau, Robert von Mohl, Henry Wheaton, August Wilhelm Heffter, August von Bulmerincq, Carl Bergbohm, Johann Caspar Bluntschli, Leopold Neumann, James Lorimer, William Edward Hall, Fedor Fedorowitsch von Martens, Carlos Calvo, Henry Bonfils, Franz von Liszt, John Westlake, Frantz Despagnet and Lassa Oppenheim should be mentioned, the founding of the Institut de Droit International in particular testifies to the importance and influence of science on the newly invented system of international law.

A particular concern of the project group’s research was the analysis of the academic accompaniment of the juridification process by the authors of international law and political science: they commented on the institutionalizations that took place in the course of the 19th century and accompanied the processes of negotiating an international normative order in their contemporary interpretations and historical narratives. In doing so, they often developed affirmative, rarely alternative concepts of order. The question of universalist claims to justice in a world order, whether based on the morality of nations or the demand for equal treaties through to the resolution of state bankruptcies, which took place in and through international law, emerged as an aspect of this, as did the emergence and establishment of general legal principles of international law, taking into account contemporary academic discourse.

The results are available in the form of several monographs and anthologies. The most important of these include
Nuzzo, Luigi/Vec, Miloš (eds.) (2012): Constructing International law – The Birth of a Discipline (Studien zur europäischen Rechtsgeschichte 273), Frankfurt/M.: V. Klostermann, XVI, 545 pp.
Heimbeck, Lea (2013): The resolution of state bankruptcies in international law. Legalization and legal avoidance between 1824 and 1907 (Studies in the History of International Law), Baden-Baden: Nomos.
Stefan Kroll (2012): Norm genesis through re-interpretation. China and European international law in the 19th and 20th centuries (Studies in the History of International Law 25), Baden-Baden: Nomos.
Klump, Rainer/ Vec, Miloš (eds.) (2012):International Law and the World Economy in the 19th Century (Studies in the History of International Law 26), Baden-Baden: Nomos, VII, 271 pp.
Lovric-Pernak, Kristina (2013): Morale internationale and humanité in international law of the late 19th century. Meaning and function in state practice and science (Studies in the History of International Law 30), Baden-Baden: Nomos, 200 pp.

The most important events in the research project include
“Storia teoria e diritto internazionale. La costruzione di una disciplina”, International Conference, Lecce (Italy) May 20-22, 2009, “Völkerrecht und Weltwirtschaft im 19. Jahrhundert. Die Internationalisierung der Ökonomie aus völkerrechts- und wirtschafts(theorie-)geschichtlicher Perspektive”, Workshop, 3-4 September 2009 in Frankfurt am Main, Max Planck Institute for European Legal History and “The Emergence and Transformation of Foreign Policy.” International Conference, Johns Hopkins University, Bologna, June 10-12, 2011.

Further information at: https://www.rg.mpg.de/forschung/voelkerrechtsgeschichte

Project manager: Prof. Dr. Klaus Günther

The American and German criminal justice systems have developed in opposing directions since at least the middle of the last century and have produced two different conceptions of punitive justice. The aim of the research project was to examine these two conceptions comparatively. The aim was not to formulate and justify normative principles in order to then confront them with the reality of criminal law in each case. Rather, this research project took a reconstructive approach: Normative reasons and narratives are always already inscribed and embedded in practice; the task was therefore to locate these reasons and narratives within practice, present them coherently and discuss them critically. The following guiding questions served as orientation: What implicit ideas of criminal responsibility underlie both criminal law systems? What punishments do the respective concepts of punitive, especially restorative, justice impose? And what kind of reaction to criminal misconduct is considered just? The main focus was on the role of moral concepts of “good” and “evil”, the status of the victim of crime, and the relationship between retribution and restitution on the one hand and prevention on the other.

The project was realized in a series of essays dealing with the methodological questions of a reconstructive approach to normative orders as well as with conceptions of justice and the place that punitive, especially restorative justice occupies in them, and against this background, finally, with the comparison of both criminal justice systems.

Joshua Kleinfeld has developed a thesis, particularly with regard to the role that a moral concept of “evil” plays in both criminal justice systems, and developed it in detail in the following six argumentative steps: (1) The American system routinely and permanently locks away and excludes serious criminals, while the German system avoids this and maintains a chance for resocialization. (2) Minor offenses are interpreted there as signs of future (serious) crimes, whereas here they are seen more as misconduct due to circumstances, ultimately erroneous and therefore correctable. (3) In the USA, only the person is punished for recidivism, in Germany (predominantly) the actions. (4) In the case of those released from prison, the attribution of “residual criminality” is practiced there, whereas in Germany the criminal charge is completely eradicated once the sentence has been served. (5) With regard to the death penalty, the fundamental right to life is considered available in the USA (in that the offender voluntarily relinquishes his right to life with his criminal act), whereas in Germany the right to life is inalienable. (6) In the criminal policy discourses of the USA, voices that are convinced of the existence of (criminal) evil are heard, while such views are predominantly rejected here. As a result, Joshua Kleinfeld considers the German system to be too naïve because it denies the existence of (criminal) evil even in the most serious cases, while the US system indiscriminately understands all crime as an expression of evil and is not in a position to react in a differentiated manner, especially with regard to lesser accusations, erroneous misconduct and misconduct due to circumstances.

Another key question focused on the role of the victim in the conception of criminal justice. Here, Joshua Kleinfeld substantiated the thesis that the practice of criminal law reacts differently to the respective status of the victim and the degree of their victimization, but that this is hardly adequately justified in the theory of criminal justice. It makes a difference whether the victim of a crime is powerful or has even acted in a criminally reproachable manner, or whether he or she is a weak and innocent victim. Such unequal treatment can be justified if the moral status of an unlawful act is measured according to the vulnerability and innocence of the victim and, accordingly, if the perpetrator takes into account whether and to what extent he exploits the victim’s vulnerability and innocence in his criminal act. In this respect, the degree of victimization is relevant for a just criminal justice response, but it can also be used as a justification for an illiberal, freedom-threatening tightening of criminal law that outweighs and ultimately ignores the fundamental rights of the perpetrator against those of the victim. The latter aspect has been examined above all by Klaus Günther with a view to the current criminal policy debate on greater consideration of the victim in criminal law.

Klaus Günther has primarily investigated the concept of criminal responsibility, among other things in discussion with the theses of the American criminologist David Garland on the “culture of control”. The theory of a discourse-theoretical conception of accountability already developed in earlier publications, which takes the dual status of a citizen as author and addressee of legislation seriously, has been further developed and differentiated in this project. This includes a critical examination of the current debate on free will as the basis of criminal guilt and the question of whether and to what extent transitional justice presupposes criminal guilt.

The most important publications include:
Günther, Klaus (2012): “Ein Modell legitimen Scheiterns – Der Kampf um Anerkennung als Opfer”, in: Honneth, Axel/ Lindemann, Ophelia/ Voswinkel, Stephan (eds.), Structural change of recognition. Paradoxes of social integration in the present Frankfurt/New York: Campus, 185-248:
Günther, Klaus (2010): “Die Unordnung der Verantwortlichkeit. Kriminalpolitik im Zeichen einer Politik des Selbst”, in: Kriminologisches Journal 42, 90-101.
Günther, Klaus/ Prittwitz, Cornelius (2010): “Individuelle und kollektive Verantwortung im Strafrecht”, in: Felix Herzog/ Ulfrid Neumann (eds.), Festschrift für Winfried Hassemer, Heidelberg: C.F. Müller, 331-354.
Günther, Klaus/ Honneth, Axel (2008): “Foreword” to: David Garland, Die Kultur der Kontrolle – Verbrechensbekämpfung und soziale Ordnung in der Gegenwart, Frankfurt/New York: Campus, pp. 7-18.
Kleinfeld, Joshua (2016): ‘Two Cultures of Punishment’, Stanford Law Review, 68, 933-1036.
Kleinfeld, Joshua (2013): “A Theory of Criminal Victimization”, Stanford law Review, 65, 1087-1152.

In 2011, Joshua Kleinfeld accepted an appointment as Associate Professor of Law at Northwestern University in Chicago, Ill. He continues to work there on the above-mentioned topics, including in the form of a dissertation project with Axel Honneth, Klaus Günther and Rainer Forst on “Embodied Ethical Life”. The project has now been successfully completed. Klaus Günther is continuing his research on the above-mentioned topics in the research project of the second funding period on “Legal Normativity and Contestability”, together with Marcus Willaschek.

Head: Dr. Florian Rödl

The overall project of the junior research group was divided into three sub-projects and a framework project.

About the sub-projects: The individual sub-projects of the junior research group have investigated phenomena of transnational and international legal development in which central social conflicts over the legal constitution of transnational labor and economic relations are inscribed:

– the current intensification of the protection of foreign investments under international law,
– the efforts to legally bind transnational corporations to human rights guarantees, in particular under international labor law,
– the constant expansion of a transnational trade law understood as an autonomous legal system.

These phenomena have been analyzed on the one hand in the light of democratic legal and constitutional theory and on the other in the light of theories of international political economy.

Rhea Hoffmann’s project examined current developments in international investment protection law. The starting point is the current legitimacy crisis of the institution of investor-state proceedings, which is particularly evident in the area of so-called indirect expropriations. Legitimacy problems result mainly from the institutional design of the investor-state system, the inconsistency of arbitral awards and the scope of arbitral tribunal requirements for state and thus always also potentially democratic self-determination. The project focused on approaches within the system and examined them critically with regard to the question of whether they can be used to solve the legitimacy problems of international investment protection. The study focused on the function of investment protection law in the context of asymmetrical globalization, the need for democratic legitimacy of the procedure and the problem of a “fair” balance between the sovereignty of states and investor interests.
The study concludes that international investment protection law essentially fulfils the function of shifting the constitutional compromises on the scope of property that are characteristic of the modern state in favour of business owners and at the expense of statutory restrictions. In contrast, legitimate investment protection would have to be limited to the procedural safeguarding of state law enforcement.
The work thus contrasts with the prevailing consensus on investment protection law, in which the current excesses are at best to be contained by propagating arbitration as an international constitutional function. This may create more scope for democratic politics, but it does nothing to change the socially partisan function of investment protection. It would be worthwhile highlighting this contrast in greater detail on the basis of pending disputes (such as Vattenfall v. Federal Republic of Germany) and the ongoing negotiations on investment protection in the context of a transatlantic free trade area.

The most important publications of the sub-project include
Hofmann, Rhea Tamara (2019): Divergence and transformation. Constitutional analysis of property protection in the democratic property constitution and the investment protection regime , Baden-Baden: Nomos.
Hofmann, Rhea Tamara (2013): “Universalism or enforcement of particular interests? Eigentum zwischen Menschenrecht, Investitionsschutz und demokratischem Eigentumskompromiss”, in: Juridikum 3/2013, 361-373.
Hofmann, Rhea Tamara (2013): “Rezension zu: Stephan W. Schill, International Investment Law and Comparative Public Law, Oxford”, in: Herrmann, Christoph; Krajewski, Markus; Terhechte, Jörg Philipp (eds.), European Yearbook on International Economic Law 4, 583ff.
Hofmann, Rhea Tamara (2012): “Staatsschuldenkrisen im Euro-Raum und die Austeritätsprogramme von IWF und EU”, in: Kritische Justiz 45 (2012), 2-17 (with Markus Krajewski).

The starting point of Sofia Massoud’s project is the widely perceived problem of human rights violations by transnational corporations. The subject of the work was the question of the possibility of legally binding corporations to human rights standards, with a focus on the human rights guarantees of international labor law. To this end, the project dealt with existing approaches to the direct responsibility of corporations under international law and alternative approaches of voluntary self-commitment, as well as with the approach of strengthening extraterritorial state protection obligations and the approach of civil liability; in addition, justification models and enforcement possibilities were examined and deficits identified. In addition, the framework of the global economic order was critically examined, which forms the often unthematized framework of the current discourse on “business and human rights”. In conclusion, the question of whether the human rights discourse also functions as a legitimization of the existing (economic) order was discussed.

The study came to the conclusion that the approach of civil liability, enforced de lege ferenda in the company’s home country – changes in procedural and corporate law would be necessary – would be entirely suitable for effectively countering serious human rights violations. The approach of articulating extraterritorial duties to protect also does not appear hopeless. The lack of implementation of these approaches can be traced back to the structure of the global economic order, according to which the states called upon to act benefit from the extensive lack of sanctions for corporate human rights violations. Against this backdrop, the enormous public activity on the topic of “companies and human rights” appears to be primarily a distraction and integration maneuver.

With regard to the current state of research, the main point of the project is to oblige the contributions to the current debate on the human rights obligations of companies to address both the legal and political conditions of the respective proposals. It would therefore be a promising continuation of the project to meticulously examine the almost innumerable voices in favor of binding companies to human rights under international law in terms of the legal and political prospects for their implementation. After all, there is a suspicion that this is generally a blind spot, which is the very condition for the astonishing proliferation of contributions.

The most important publications of the sub-project include
Massoud, Sofia (2018): Human rights violations in the context of economic activities of transnational corporations, Berlin: Springer.
Massoud, Sofia (2013): “Unternehmen und Menschenrechte” – überzeugende progressiven Ansätze mit begrenzter Reichweite im Kontext der Weltwirtschaftsordnung, in: Ralph Nikol /Thomas Bernhard/Nina Schniederjahn (eds.), Transnationale Unternehmen und Nichtregierungsorganisationen im Völkerrecht, 37-68.
Massoud, Sofia (2013): “Die Guiding Principles on Business and Human Rights – eine absehbar begrenzte UN-Agenda”, in: Kritische Justiz 46(1), 7-17.
Massoud, Sofia/Rödl, Florian (2011): “Waiting for the “Follow-Up”? – Guiding Principles for the Implementation of the United Nations ‘Protect, Respect and Remedy’ Framework”, Global Labor Column(http://www.global-labour-university.org/fileadmin/GLU_Column/papers/no_63_Roedl_Massoud.pdf).

Alexander Wagner’s project was dedicated to the problem of the legitimation of transnational normative orders in the context of the “lex mercatoria”. A critical evaluation of the genesis of autonomous transnational normative orders was carried out on the basis of a reconstruction of enlightened democratic and (private) legal theoretical positions and with reference to international political economy. Three legitimation strategies of transnational norm orders are brought into the focus of criticism. Firstly, it was shown that transnational normative orders do not meet (even the most minimal) formal-democratic requirements for the creation of law. Secondly, the thesis was refuted that transnational normative orders do not require democratic justification because only the respective contracting parties are affected by them. Finally, the concept of private autonomy, which is central to the legitimization of transnational normative orders, was critically reconstructed. The central thesis developed through these steps is that the existing approaches to the legitimization of autonomous transnational trade law must remain deficient from the perspective of both democratic theory and private law theory.

About the framework project: Overall, the three sub-projects each examined phenomena of transnational law that result from structural problems of the fragmentation of global law into nation-state legal systems. The idea of constitutionalization beyond the state provides a fundamental answer to these problems. The junior research group’s framework project dealt with this alternative. It dealt with different forms of constitutionalization beyond the state, both on a global and European level. The constitutional consolidation of the EU is seen by some observers as a promising blueprint for the constitutionalization of international law, which should be characterized by a resilient protection of fundamental rights, a democratic basis and, ultimately, a genuine capacity to manage global problems. In contrast to this idea of constitutionalization, which in any case is always unspokenly oriented towards the form of the constitutional state, the idea of a conflict-of-law constitution was developed programmatically, which would allow for a “democratic juridification without nationalization”. Essential problems of a constitutionalization beyond the state oriented towards the constitutional form were examined on the basis of the constitution of the European Union. The focus of the analyses was on the potentials of a democratic and social constitution of the Union, with a focus on collective labor relations as the backbone of a welfare state constitution.

For the European Union, it can ultimately be stated that the welfare state constitution of the individual member states is obviously so complex and compact that a reproduction of a welfare state constitution at European level can be ruled out in the long term. This structure is reflected in the so-called democratic deficit of the Union. This raises the question of an orientation of constitutionalization processes that would no longer be based on the constitutional blueprint, without at the same time abandoning the idea of democratic juridification. In this sense, the theory of supranational constitutional law, in which the idea of a universal conflict of laws must play an essential role, continues to be a desideratum of post-national constitutional theory.

The most important publications of the framework project include
Rödl, Florian (2015): Justice among free equals. A normative reconstruction of tort, property and contract , Baden-Baden: Nomos.
Rödl, Florian (2011): “Demokratische Verrechtlichung statt Verstaatlichung: Kollisionsrecht statt Globalstaat”, in: Oliver Eberl (ed.), Transnationalization of popular sovereignty. Radical democracy beyond and on this side of the state , 271-294.
Rödl, Florian (2013): “Zum Begriff demokratischer und sozialer Union”, in: Jürgen Bast/Florian Rödl (eds.), Wohlfahrtsstaatlichkeit und soziale Demokratie in der Europäischen Union, Europarecht-Beiheft 1/2013, 179-204.
Rödl, Florian (2014): “Die dialektische Entwicklung des Sozialen im Prozess der europäischen Integration: Die Dimension der kollektiven Arbeitsbeziehungen”, in: U. Becker/St. Leibfried/P. Masuch/W. Spellbrink (eds.), Social Law and Social Policy: Foundations and Challenges of the German Welfare State. 60 years of the Federal Social Court Berlin: Erich Schmidt Verlag.

Project leaders: Prof. Dr. Andreas Fahrmeir, Prof. Dr. Gunther Hellmann and Dr. Miloš Vec

The project was based on a conceptual problem. The development of the understanding of “international politics” is closely linked to the establishment of what is commonly referred to in International Relations (IR) as the “Westphalian system of states”. However, if the historical consideration of “foreign policy” is related to the peculiarities of the Westphalian system, the history of foreign policy is reduced to the “early” and “late” modern period – i.e. to the era in which “states” can be identified without great difficulty and in which the modern vocabulary of describing foreign policy comes into use – a perspective that is both “presentist” and “Eurocentric”.

In contrast, the project was based on the hypothesis that a vocabulary for the description of foreign policy can be developed that focuses on the construction of a certain form of demarcation that can be observed in all epochs and that – regardless of the vocabulary used to describe them – can be treated as functional equivalents of foreign policy in the modern sense. Developing such a vocabulary was one of the aims of the project, which was carried out in cooperation between IB, history and legal history and which organized two international conferences (in Bologna in 2011 and in Frankfurt in 2012) for this purpose.

At the same time, three projects on the 18th, 19th and 20th centuries were used to more precisely determine continuities and caesuras between different forms of conceptualizing and shaping “foreign policy”, which focused on multiple boundaries between “inside” and “outside”: on the “old” empire, on the “European concert” and on the mandate system after the First World War.

The results were published in a conference volume edited by the PIs (Hellmann, Gunther/Fahrmeir, Andreas/Vec, Miloš (2016): The Transformation of Foreign Policy, Oxford University Press) and have been included in another edited volume (Hellmann, Gunther; Jacobi, Daniel; Stark Urrestarazu, Ursula (ed.) (2015): “Earlier, more decisive and more substantial”? The new debate on Germany’s foreign policy Wiesbaden: Springer-VS).

The most important publications in the research project also include:
Hellmann, Gunther (2017): “Linking Foreign Policy and Systemic Transformation in Global Politics: Methodized Inquiry in a Deweyan Tradition”, in: Foreign Policy Analysis, Vol. 13, Issue 3.
Hellmann, Gunther/Stark Urrestarazu, Ursula (2013): “Theories of Foreign Policy”, in: David Armstrong (ed.), Oxford Bibliographies in International Relations. New York: Oxford University Press.
Stark Urrestarazu, Ursula (2010): Us and Them. Culture, identity and foreign policy (Forschungsberichte international Politik, vol. 41), Münster: LIT-Verlag.
Vec, Miloš (2010): “Intervention/ Nichtintervention. Verrechtlichung der Politik und Politisierung des Völkerrechts im 19. Jahrhundert”, in: Ullrich Lappenküper, Rainer Marcowicz (eds.): Power and law. International law in international relations Paderborn: Schöningh, 135-160.

The project included a workshop “The Emergence and Transformation of Foreign Policy” with Iver Neumann and Johannes Paulmann, December 16, 2010, Goethe University Frankfurt and two international conferences on “The Emergence and Transformation of Foreign Policy” in Bologna, June 10-12, 2011, Johns Hopkins University SAIS Bologna Center and May 25-27, 2012 at the Max Planck Institute for European Legal History, Frankfurt am Main.