Periodic Reporting for period 4 - TFL (Transnational Force of Law)
Okres sprawozdawczy: 2020-03-01 do 2021-08-31
Transnational Force of Law research project was concluded in August 2021. Over a period of six years, Prof. Andreas Fischer-Lescano from the Law Faculty at Bremen University and his team have worked on a concept of a transnational force of law that would respond to both normative-theoretical questions as well as political issues that are posed by current developments in transnational law. It successfully developed a normative foundation of law that, instead of presuming the centrality of the nation state, considers the polycentric nature of transnational legal developments. This normative foundation does not seek to provide an external legitimating ground for a transnational legal order. Instead, it commits transnational legal regimes to reflect and counter their own complicity in upholding and institutionalizing political, economic and social violence.
With the transnational force of law, we propose a concept that is able to take into consideration the transformation of legal authority in the transnational sphere. Emerging transnational law undermines traditional concepts of law and legal theory. The synthesis of law with state authority within the constitutional state relies on the presupposition that the state, following a process of primary dispossession, deprived society of its ability to exert physical violence. However, the violence of law is more fundamental: it is broader, and subtler than the manifestations of state’s monopoly of violence. Law generates, distributes and limits political authority as well as economic powers. Law constitutes private and public authorities and that which is traditionally identified as “public authority” is also exercised by and within private organizational entities. Law and its enforcement apparatus are already deeply entangled in societal power relationships.
Against this background, the concept of the transnational force of law refers in a descriptive sense to the fact that treaties, laws and legal decisions “enter into force.” In German, this effect is called Rechtskraft. There are no legal phenomena that do not possess this Rechtskraft, this force of law. This notion is distinct from that of Rechtsgewalt, in the sense that Gewalt—as in Staatsgewalt or state power—is often used exclusively with reference to the authority of the state, whereas Kraft does not have this inherent connection to state power. Rather, the origin of Kraft is not specific and can refer to societal legal forces as well.
In its normative dimension, the concept of transnational force of law extends the demand for the normative foundation of legal force to all societal legal forces. It envisages that if transnational legal force is not limited to the state and its organs, its normative foundation also has to include all instances in which transnational force is at play. The concept therefore seeks the normative foundations of all forces of law and explores the possibility of law becoming a “non-violent force” (Derrida) within the transnational arena.
In order to identify the normative challenges of such a transnational force of law, the research project has surveyed three exemplary areas of transnational law in which new forms of rulemaking coincide with a broad societal discussion of their normative foundation: transnational financial markets (lex financiaria), internet governance (lex digitalis), agricultural and food markets (lex agraria) and transnational migration regimes (lex migratoria). For each of these areas, it provides guidance for the development of transnational regimes that considers all societal forces.
With the transnational force of law, we propose a concept that is able to take into consideration the transformation of legal authority in the transnational sphere. Emerging transnational law undermines traditional concepts of law and legal theory. The synthesis of law with state authority within the constitutional state relies on the presupposition that the state, following a process of primary dispossession, deprived society of its ability to exert physical violence. However, the violence of law is more fundamental: it is broader, and subtler than the manifestations of state’s monopoly of violence. Law generates, distributes and limits political authority as well as economic powers. Law constitutes private and public authorities and that which is traditionally identified as “public authority” is also exercised by and within private organizational entities. Law and its enforcement apparatus are already deeply entangled in societal power relationships.
Against this background, the concept of the transnational force of law refers in a descriptive sense to the fact that treaties, laws and legal decisions “enter into force.” In German, this effect is called Rechtskraft. There are no legal phenomena that do not possess this Rechtskraft, this force of law. This notion is distinct from that of Rechtsgewalt, in the sense that Gewalt—as in Staatsgewalt or state power—is often used exclusively with reference to the authority of the state, whereas Kraft does not have this inherent connection to state power. Rather, the origin of Kraft is not specific and can refer to societal legal forces as well.
In its normative dimension, the concept of transnational force of law extends the demand for the normative foundation of legal force to all societal legal forces. It envisages that if transnational legal force is not limited to the state and its organs, its normative foundation also has to include all instances in which transnational force is at play. The concept therefore seeks the normative foundations of all forces of law and explores the possibility of law becoming a “non-violent force” (Derrida) within the transnational arena.
In order to identify the normative challenges of such a transnational force of law, the research project has surveyed three exemplary areas of transnational law in which new forms of rulemaking coincide with a broad societal discussion of their normative foundation: transnational financial markets (lex financiaria), internet governance (lex digitalis), agricultural and food markets (lex agraria) and transnational migration regimes (lex migratoria). For each of these areas, it provides guidance for the development of transnational regimes that considers all societal forces.
The research project was carried out in two steps. During the first part, the project’s focus lay on outlining the theoretical foundations of the project and clarifying the methodological issues that are at stake (cf. work plan set out in Annex 1). To this end, a series of research seminars were organised (one per semester), each of which was dedicated to a topic central to the action. The first focused on postcolonial approaches to international law, the second was dedicated to the theoretical insights produced by the field of “law and literature” and the third seminar critically examined the idea of subjective rights. These seminars took place fortnightly and served as a platform for common discussion among all team members working on the action.
Furthermore, the PI and the two postdocs organized several small-scale workshops. These workshops aimed at discussing concepts and ideas that are at the heart of our project with colleagues from various universities and disciplines in order to get a deeper understanding of the issues at stake (for a list of the workshop see http://www.tfl.uni-bremen.de/en/events/).
In February 2017, we hosted the first large conference titled “Kritik der subjektiven Rechte” (Critique of Rights) corresponding to the initial phase of the project. The aim of the conference was to evaluate the contribution of Christoph Menke’s seminal book “Kritik der Rechte” for the project’s theoretical framework. The conference was also an important event to present the tfl-project to the academic community in Germany. The publication of the conference proceedings under the title “Gegenrechte. Rechte jensweits des Subjekts” in 2018 concluded the work on the theoretical framework of the project.
Already parallel to the work on the theoretical foundations of the project just described, the PI, postdoctoral and doctoral researcher started to conduct empirical research in their respective sub-projects which was intensified once the first, predominantly theoretical project phase was concluded. The outcomes from this research have been published in a series of articles, monographs and blog contributions. Team members have furthermore been invited to give their advice as experts on their research topic (such as the legal protection of whistleblowers or the human rights impact of free trade agreements) on radio and television.
Furthermore, the PI and the two postdocs organized several small-scale workshops. These workshops aimed at discussing concepts and ideas that are at the heart of our project with colleagues from various universities and disciplines in order to get a deeper understanding of the issues at stake (for a list of the workshop see http://www.tfl.uni-bremen.de/en/events/).
In February 2017, we hosted the first large conference titled “Kritik der subjektiven Rechte” (Critique of Rights) corresponding to the initial phase of the project. The aim of the conference was to evaluate the contribution of Christoph Menke’s seminal book “Kritik der Rechte” for the project’s theoretical framework. The conference was also an important event to present the tfl-project to the academic community in Germany. The publication of the conference proceedings under the title “Gegenrechte. Rechte jensweits des Subjekts” in 2018 concluded the work on the theoretical framework of the project.
Already parallel to the work on the theoretical foundations of the project just described, the PI, postdoctoral and doctoral researcher started to conduct empirical research in their respective sub-projects which was intensified once the first, predominantly theoretical project phase was concluded. The outcomes from this research have been published in a series of articles, monographs and blog contributions. Team members have furthermore been invited to give their advice as experts on their research topic (such as the legal protection of whistleblowers or the human rights impact of free trade agreements) on radio and television.
The tfl-project has been able to push the theoretical discussions on transnational law beyond the confines of purely doctrinal questions or the problem of legitimacy by opening up to contributions from the fields of philosophy, socio-legal studies and law and literature. The transdisciplinary approach developed by the research team goes beyond the state of the art in that is enables a perspective on current developments in transnational law that combines analytical and normative dimensions. Thereby, we are able to better understand and respond to the impacts these legal developments have on affected institutions and communities. The project delivered an analysis of and normative solutions to the central problems posed by current developments in the three regimes of transnational law investigated in the project, namely legal regulations concerning financial and agricultural markets as well as internet governance and migration regimes. The research carried out throughout the project and the legal arguments development on that basis have provided important tools for societal actors that seek to push for a more inclusive world order by legal means.