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11 November 2011, 10.30am

Panel I: Global Legal Pluralism: Fact, Fiction, Forecast, Norm?

Introduction:

Christoph Menke

The traditional nation state is no longer the only sovereign and supreme legislator. In the era of globalisation other legal actors play a more and more important role: International
and supranational organizations like the EU are sometimes empowered to make valid law or they influence the lawmaking of national legislators. Governments regulate many issues
by intergovernmental agreements that have an indeterminate legal status. Private actors like multinational companies or NGOs are active in different processes of law making or they set
their own rules and create normative orders by self-commitment. As a consequence the law becomes pluralised with regard to the different de-territorialized agencies and actors of legislation and jurisdiction and with regard to different kinds of normativity (like, e.g., “soft law”). Is the fact of such a legal pluralism a challenge to traditional concepts of a unified law, is it a problem which has to be solved, is it an exaggerated description – or is it a new kind of order which we should promote because its advantages outweigh its disadvantages?

Christoph Menke is Professor for Practical Philosophy in the Cluster of Excellence „Normative Orders“ at the Goethe University Frankfurt am Main. The center of his work is in the fields: Political and Legal Philosophy; Aesthetics. Publications (choice): Die Souveränität der Kunst (1988), Tragödie im Sittlichen (1996), Spiegelungen der Gleichheit (2000, 2004), Die Gegenwart der Tragödie. Versuch über Urteil und Spiel (2005), Kraft. Ein Grundbegriff ästhetischer Anthropologie (2008), Recht und Gewalt (2011).

Lecture 1:

“Global Legal Pluralism as a Normative Project”

Paul Schiff Berman

Anthropologists and historians have generally framed the study of legal pluralism in descriptive terms. Accordingly, they have catalogued both the inevitable hybridity that arises when two legal or quasi-legal systems occupy the same social space and the resulting strategic interactions that occur among actors in navigating the multiple regimes. As a descriptive enterprise,
legal pluralism is relatively uncontroversial. After all, even the most die-hard sovereigntist would likely acknowledge that sub-, supra-, or non-state normative systems do impose real constraints that have real impacts. More controversial is the idea that legal pluralism might be a normatively desirable approach to the design of legal systems. As a normative project, legal
pluralism can be seen to support two different strategies. First, what we might call substantive legal pluralism seeks a sort of multicultural accommodation of alternative norms, at least in certain delineated spheres. Second, a more proceduralist vision of legal pluralism aims to design procedural mechanisms, institutions, and discursive practices that seek to manage, without eliminating, pluralism, without making a priori substantive decisions regarding when deference to alternative norms is appropriate and when it is not. I will defend this proceduralist version of legal pluralism‘s normative project, arguing that the mechanisms, institutions, and practices that result may at times be preferable to either sovereigntist territorialism on the one
hand, or universal harmonization on the other. Moreover, I argue that such a proceduralist version of legal pluralism, unlike the substantive version, need not commit one to a program of inevitable deference even to illiberal norms. Nevertheless, this proceduralist approach, precisely because it refuses to engage with some of the most contentious substantive political
battles over when deference is appropriate and when it is impossible, may be distrusted or rejected by those on both sides of the pluralism debate who want more substantive normative certainty.

Paul Schiff Berman serves as the 18th dean of The George Washington University Law School, a school dedicated to teaching and scholarship that emphasizes law in action in the nation’s capital. He joined GW Law in 2011, bringing experience as both an academic administrator and as a renowned teacher and scholar. Berman’s scholarly work focuses on the ways in which globalization affects the intersection of legal systems. From 2008 to 2011, Berman served as dean and Foundation Professor of Law at the Sandra Day O’Connor College of Law at Arizona State University, where he helped to transform the school and build an innovative and expansive model for 21st century public legal education. Among his many accomplishments Dean Berman exponentially increased programmatic offerings and pathways for students while significantly raising the national and international profile of the school. Berman is the author of numerous books and scholarly journal articles. His most recent book, Global Legal Pluralism: A Jurisprudence for Law Beyond Borders, will be published by Cambridge University Press in 2011.

 

Lecture 2:

"Normative Legal Pluralism and Its Discontents”

Klaus Günther

Whereas nearly nobody denies that “legal pluralism” is a correct description of the current status of legal orders in the era of globalization, it is still a controversial issue how one should react to it. Should legal pluralism be regarded as a challenge, in particular for a legal theory which still presupposes a unified and coherent concept of law? Or should it be defended because of normative reasons which claim that a plurality of legal orders and a plurality of different kinds of normative orders is advantageous compared to the traditional concept of law? In my presentation, I shall take legal pluralism as a normative project and ask for some of its consequences. In particular I shall focus on possible changes in the structure of legality which might emerge from pluralism, e.g. for the relationship between law and power, or for the concept of a legal subject.

Klaus Günther born 1957; studied Philosophy and Law in Frankfurt am Main; Professor for Jurisprudence, Criminal Law and Law of Criminal Procedure at the Goethe University Frankfurt am Main; Coordinator of the Cluster of Excellence “Normative Orders”; Member of the Research College at the Institute of Social Science in Frankfurt am main; Permanent Fellow of the Forschungskolleg Humanwissenschaften of the Goethe University in Bad Homburg v.d.H.; Fellow at the Wissenschaftskolleg zu Berlin (1995/96); Guest Professor in Buffalo (2000), Oxford (2001) and Paris (2003). Most important publications: Der Sinn für Angemessenheit (1988, eng. 1993, portug. 2004), Schuld und kommunikative Freiheit (2005).

11 November 2011, 4.30pm

Panel III: The Politics of Legal Pluralism and the Role of Experts

Introduction:

Gunther Hellmann

Theories of modern legal pluralism are variants of two discourses which have begun decades ago. The first is legal pluralism within a state. It dates back to the origins of sociology of law which lie in Eugen Ehrlich’s observations on the normative universe of the Bukowina and in anthropological enquiries of the law of colonized peoples. The second paradigm of pluralism is global began after the Second World war with models of transnational trade law. Later, concepts of that kind were projected to other ages and areas, mostly taking the 19th century as a starting point. The two lectures will deal with domestic and global pluralism separately. In both, specialized knowledge of particular normative environments plays a decisive role.

Gunther Hellmann is Professor of Political Science at Goethe-University, Frankfurt am Main and Adjunct Professor at the Bologna Center of the School of Advanced International Studies, Johns Hopkins University. He is a Principal Investigator and Member of the Board of Directors of the Frankfurt Cluster of Excellence “Formation of Normative Orders“. His research interests are in the fields of international relations theory, international security, and the theory of foreign policy in general and German foreign policy in particular. His recent publications include „International Relations as a Field of Studies“, in: Bertrand Badie, Dirk Berg-Schlosser and Leonardo Morlino (Eds.): International Encyclopedia of Political Science, London: Sage Publication 2011; Ed. „The Forum: Pragmatism
and International Relations“, International Studies Review 11:3 (2009), 638-662; Ed. „Special Section“ on „IR Theory and (German) Foreign Policy“, Journal of International Relations and Development 12:3 (2009); „Inevitable Decline versus Predestined Stability: Disciplinary Explanations of the Evolving Transatlantic Order“, in: Anderson, Jeffrey/Ikenberry G. John/Risse, Thomas (Eds.), The End of the West? Crisis and Chance in the Atlantic Order, Ithaca: Cornell University Press 2008, 28-52; Ed., De-Europeanization by Default. Germany´s EU-Policy in Defence and Asylum, Houndmills, Basingstoke: Palgrave MacMillan 2006.

Lecture I:

“The Politics and Risks of the New Legal Pluralism”

Jean Cohen

The discourse of legal pluralism is becoming ubiquitous. Not only has it been revived with respect to new quasi- federal regional political formations like the European Union, it is also being invoked to account for transformed relations among legal orders created by the morphing of international organizations into global governance institutions. Much ink has been spilled over whether a constitutionalist or pluralist discourse best suits these transformations and whether the black box of state sovereignty has been so penetrated by external, supranational jurisdictions or international regimes, (humanitarian and human rights law), that the very concept of sovereignty has become an anachronism. Even more striking, the discourse of legal pluralism has begun to emerge ‘from below” in the context of new forms of religious pluralism and public religion in ways that pose a challenge from within to internal “domestic” state sovereignty. Indeed it has now arisen in the context of long consolidated western, constitutional-democratic states. Here too the relation between constitutionalism and democracy, political equality and socio-cultural plurality, unified legal sovereignty and group “difference” is being put into question by demands for what is called “multicultural jurisdiction”. This paper will focus on the form of legal pluralism that delegates or shares state jurisdictional power with religious authorities particularly in the domain of personal law. I will discuss new uses of this discourse focusing on the US case, although status group legal pluralism has become a contentious issue around the globe. I will address the question of what is the potential impact of status based legal pluralism on citizenship, political equality and sovereignty. It is important to distinguish among types of legal pluralism and I will do so in this paper. I will also examine, whether and in what respects personal status based legal pluralism poses a threat to threat to the achievements of modern democratic constitutionalism, individual human rights and republican political principles.

Jean Cohen (Ph.D., The New School for Social Research, 1979) is the Nell and Herbert M. Singer Professor of Political Thought. She specializes in contemporary political and legal theory, continental political thought, contemporary civilization, critical theory, and international political theory. She works on civil society, sovereignty, human rights, gender, and the law. She is the author of numerous books and articles including Class and Civil Society: The Limits of Marxian Critical Theory (University of Massachusetts Press: 1982); Civil Society and Political Theory (co-authored with Andrew Arato) (MIT Press 1992); Regulating Intimacy: a New Legal Paradigm (Princeton University Press: 2002); and Rethinking Legitimacy and Legality in the Epoch of Globalization (Cambridge University Press, forthcoming 2011). She has published over 50 articles in journals such as Constellations, Ethics and International Affairs, Philosophy and Social Criticism, Social Research, Political Theory, Telos, Thesis 11, and in numerous law reviews in addition to chapters in edited books. Her work is translated into many languages including Chinese, French, German, Italian, Russian, Serbo-Croatian, Spanish, and Swedish. Professor Cohen has been awarded numerous fellowships and honors including the Fulbright Hays Research Fellowship, the Alfred Schutz Memorial Award, NEH summer fellowships, ACLS Travel Grants. She was a Fellow at The Max Planck Institute in Germany and at the Russell Sage Foundation in New York. She has held distinguished Professor posts in Canada (University of Toronto School of Law), France (College de France, Ecole des Hautes Etudes, Sciences Po), Germany (Johann Wolfgang Goethe University), and Sweden (Lund University). She was co-Director for 17 years of the Seminar on Philosophy and the Social Sciences, held yearly at the Inter-University Center of Dubrovnik, Yugoslavia, and since 1993 in Prague, The Czech Republic. Professor Cohen is Associate Editor of Constellations, and Global Constitutionalism. She has served on the board of many journals including Ethics and International Affairs, the Journal of Civil Society, Critical Horizons, The European Journal of Politics, Political Theory, Philosophy and Social Criticism, Thesis 11, Dissent, and Telos.

 

Lecture II:

„Law, Expertise, and the Legitimacy of International Governance“

Jens Steffek

Legal scholars often suggest public and administrative law as a key remedy for the legitimacy problems of international governance. This idea has a long pedigree. Since the late 19th century, academics and activists alike promoted legalization as a way of rationalizing the conduct of states and of taking the malicious ‘politics’ out of international relations. In a modernist fashion, functional international governance was envisaged as a ‘rule of law and expertise’, meant to replace the pushing and shoving of power politics. Such functional governance rests chiefly on what Scharpf has called ‘output legitimacy’ and thus sits uncomfortably with the recent calls for increased democratic input into, and control over, international governance. In this lecture I discuss whether law can be as instrumental in democratizing global governance as it was in de-politicizing it.

Jens Steffek is Professor of Transnational Governance at Technische Universität Darmstadt and Principal Investigator in the Cluster of Excellence “The Formation of Normative Orders”, hosted by the University of Frankfurt/Main. Before coming to Darmstadt he held appointments at the University of Bremen, Jacobs University Bremen and the Robert-Schuman-Centre for Advanced Studies in Florence/Italy. He has published widely on transnational governance, international organizations and the theory of international relations. Jens Steffek is the author of “Embedded Liberalism and Its Critics: Justifying Global Governance in the American Century”, and co-editor of “Civil Society Participation in European and Global Governance: a Cure for the Democratic Deficit?” and “Evaluating Transnational NGOs: Legitimacy, Accountability, Representation”, all published by Palgrave Macmillan.

11 November 2011, 2pm

Panel II: Transfer of Normative Orders – Normative Orders from Transfer

Introduction:

Annette Warner (Imhausen)

The plurality of normative orders and in particular the plurality of legal orders is by no way a new development. In the past it was the normal condition of human societies. Different actors and institutions had different degrees of a power of legislation and jurisdiction within one and the same society. Between different territories, groups and areas of legislation and jurisdiction complex processes of exchange and transfer took place. It was a quite usual  phenomenon that one took the law from a foreign county to create the legal order in one´s own country. In some areas a longue durée of normative influence can be observed – the more than thousand years of the influence of the Roman law in Europe is only one prominent example of many. It is an example where a lot of research has been done. But we still know very little about legal pluralism and the transfer of normative orders in Eastern Europe and Russia.

Annette Warner (Imhausen) is Professor for the History of Ancient Science at Frankfurt University since 2009 having previously held a junior professorship at Mainz University and research positions at the former Dibner Institute for the History of Science and Technology, (MIT, Cambridge, Mass.) and at Trinity Hall (University of Cambridge, England). She has published Ägyptische Algorithmen [Egyptian Algorithms – an analysis of ancient Egyptian mathematical problem texts](2003) and coedited Under One Sky. Astronomy and Mathematics in the Ancient Near East (2002) and Writings of Early Scholars in the Ancient Near East, Egypt, Rome, and Greece Translating Ancient Scientific Texts (2010).

Lecture 1:

„Transfer of Normative Orders. Building Materials for Young National States – a Southeast Europe Project.“

Michael Stolleis

Since the 17th century there has been historical reflections about how and why the ancient Roman law was  received, formed through teachings and practice of the medieval Italy north of the Alps. Also since the 19th century
there was discussion about the city status of Lübeck in the context of the Hanse as well as the spreading of the Magdeburg law onto cities in the Slavic east. The contemporary legal history searches for new models and terminologies in order to grasp the transfer of codes of law, principles of law, institutions, legal terminology or
cultural habits of executioners of law. Here it is going to be reported on a project on south-east Europe (1850 to 1933) regarding the transfer of normative orders (constitutional law, civil law, criminal law) in former provinces of the Ottoman empire that have now become young nation states such as Greece, Romania, Bulgaria, Bosnia, Serbia, and Albania.

Michael Stolleis was born in 1941, studied law in Heidelberg and Würzburg. First and Second State examination in 1965, 1969, Doctorate 1967, Habilitation 1973 in Munich. 1974 – 2006 Professor of Public Law, Modern History of Law and Canon Law at the Goethe University Frankfurt am Main. 1992 to 2009 Director at the Max-Planck-Institute for European Legal History, Frankfurt am Main. Important publications concerning Social Law and History of Law from the Early Modern Period to the Contemporary History of Law, in particular: Geschichte des öffentlichen Rechts in Deutschland, 4 vols, (Munich1988, 1992, 1999, 2012). DFG Leibniz Award in 1991, Balzan Award in 2000, Federal Cross of Merit, 2010. Honorary doctorates from Lund, Toulouse, Padua, Helsinki and member of numerous academies.

 

Lecture 2:

Jane Burbank

This lecture explores the law in operation in imperial Russia in the early 20th century, with a focus on „orders of justification“ and the rights of the empire‘s subjects. I provide an overview of Russia‘s kind of rule of law, and the legal pluralism it sustained and exploited. I then focus on the issue of personal dignity at different sites in the legal system. I argue that the state, through its legal structures, provided for the defense of individual dignity, and that this state-assumed right to protect its subjects‘ honor was a key element of patrimonial and legal sovereignty.

Jane Burbank, New York University, Professor of History and Russian and Slavic Studies, 2002-, Collegiate Professor, 2008-; Humboldt University, Berlin, Sonderforschungsbereich 640, Distinguished Visiting Professor, 2010-2011; Ph.D., Harvard University, Russian History, 1981; M.A., Harvard University, Soviet Studies, 1971; M.L.S., Simmons College, 1969; Empires in World History: Power and the Politics of Difference, with Frederick Cooper (Princeton: Princeton University Press, 2010, pb 2011); Russian Empire: Space, People, Power, 1700-1930, eds. Jane Burbank, Mark von Hagen, Anatolyi Remnev (Bloomington: Indiana University Press, 2007); Russian Peasants Go to Court: Legal Culture in the Countryside, 1905-1917 (Bloomington: Indiana University Press, 2004); Imperial Russia: New Histories for the Empire, edited with David L. Ransel (Bloomington: Indiana University Press, 1998); Perestroika and Soviet Culture, edited with William G. Rosenberg, Michigan Quarterly Review, special issue, Fall 1989; Intelligentsia and Revolution: Russian Views of Bolshevism, 1917-1922 (New York: Oxford University Press, 1986; paperback, 1989).