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ERC

TFL Report Summary

Project ID: 647313
Funded under: H2020-EU.1.1.

Periodic Reporting for period 2 - TFL (Transnational Force of Law)

Reporting period: 2017-03-01 to 2018-08-31

Summary of the context and overall objectives of the project

Transnational Force of Law is a five years research project, ongoing since September 2015 and led by Prof. Andreas Fischer-Lescano from the Law Faculty at Bremen University. In developing a concept of a transnational force of law, the project seeks to respond to both normative-theoretical questions as well as political issues that are posed by current developments in transnational law. The project aims at a normative foundation of law that, instead of relying on the nation state, considers the polycentric nature of transnational legal developments. In doing so, the project does not intend to provide a normative ground for ongoing developments. Instead, it is interested in developing a theoretical approach that takes into account and reflects upon the complicity of transnational legal regimes in upholding and institutionalizing political, economic and social violence.

With the transnational force of law, we seek to 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 more subtle 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 will survey 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) and agricultural and food markets (lex agraria).

Work performed from the beginning of the project to the end of the period covered by the report and main results achieved so far

During the first 18 month of the reporting period, 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, three 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/).

Finally, in February 2017, we hosted the first large conference titled “Kritik der subjektiven Rechte” 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 results of the conference will be made available to a wider public through the publication of the conference proceedings (to be published as “Gegenrechte. Rechte jensweits des Subjekts” with Mohr Siebek in 2018).

Already parallel to the work on the theoretical foundations of the project just described, the PI, the two-post docs and PhD students conducted empirical research in their respective sub-projects which was intensified once the first, predominantly theoretical project phase was concluded. First insights from this research have been published as monographs and articles (for a list of our publications visit our homepage at http://www.tfl.uni-bremen.de/en/events). 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.

By now, all postdoctoral and doctoral researchers have been hired and are working on their respective sub-projects.

Progress beyond the state of the art and expected potential impact (including the socio-economic impact and the wider societal implications of the project so far)

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, it is able to better understand and respond to the impacts these legal developments have on affected institutions and communities. It is expected that by the end of the project, the team is able to present an analysis of and potential 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.
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