Research Programme

Law and Transformation

Multiple conflicts, diverging objectives, conflicting interests as well as colliding values that accompany societal transformation processes lead to major challenges for peaceful and cooperative societal interaction. Against this background, the viability of societies in the 21st century lies in particular in their capacity to cope well with disruptions and transformations. Law plays a central role in this respect. It is a prerequisite for the legitimacy and performance of democracies and an indispensable necessity for freedom and prosperity, especially with regard to far-reaching transformations.

This raises questions about the possibilities, limits, and legitimacy of political-social control, stabilisation and enabling, which are to be seen in particular in the field of tension between juridification and democratic decision-making. These questions will be the focus of the new Joachim Herz Doctoral School, whose research will make important contributions to the future viability of democratic societies. The programme will extend its research beyond classical dogmatic perspectives on jurisprudence by analysing "law in context". The accentuation of transformation in the research of the fellows, for example through legal considerations of decarbonisation, digitalisation, or international conflicts, contributes to the university-wide profile focus on "transformation".

Climate Change/Decarbonisation and Law

The climate crisis is omnipresent today and reports keep coming in on a quickly growing rate on new weather-related disasters, crop failures and famines, the destruction and even desertification of areas, or the deforestation of the rain forests. At the same time, thirst for consumption, wealth, and new technologies prevails – or even growth – all around the world, but especially in the already industrialized and the wealthy middle classes in emerging countries. Maintaining the status quo of a lifestyle as carefree and pleasant as possible is, therefore, a factor which directly collides with transition efforts towards an eco-friendly and sustainable future.

Moreover, as Alexandra R. Harrington, professor at Albany Law School, framed it in her treatise Just Transitions and the Future of Law and Regulation (Springer Int. Publishing, 2022):

[…] the history of innovation can often be seen as working parallel to or in conflict with the wish of multiple actors to retain the status quo in order to preserve current jobs, social structures and sources of economic power. As has been noted, ‘[a]ny transition away from the current fossil fuel-based energy systems will not only involve massive changes in energy production and infrastructure but will also impact workers in these industries, their families, and the communities in which they live'.1

Consequently, the absolute necessity to adapt our lifestyles, economies, and societies to the needs for ecological compatibility and sustainability in order to be able to preserve the planet and its ecosystem for future generations, collides with economic and powers interests, with the wish for wealth and comfortability, and for being able to preserve the so far known modus vivendi. Changing the current situation and introducing a sustainable way of life can, therefore, only succeed if the whole of our societies work together, takes decisions in accordance with established democratic procedures, and bases decisions on the foundation of law, legality, and legitimacy. How these changes can take place and can be framed in legal terms, is one of the core aspects of the research agenda of the Joachim Herz Doctoral School.

1 Sandeep Pai, A Systematic Review of the Key Elements of a Just Transition for Fossil Fuel Workers (Smart Prosperity Institute, Clean Economy Working Paper Series, 2020), 2.

Relevant Literature

  • Alexandra R. Harrington, Just Transitions and the Future of Law and Regulation (Springer Int. Publishing, 2022)
  • Jonas Ebbesson, Ellen Hey (eds.), The Cambridge handbook on the sustainable development goals and international law (Cambridge University Press, 2022)
  • Felix Ekardt, Sustainability: Transformation, Governance, Ethics, Law (Springer, 2020)

Digitalisation/Digitality and Law

In the decision Cengiz and Others v. Turkey (judgment of December 1, 2015, nos. 48226/10 and 14027/11), the European Court of Human Rights (ECtHR) declared the following with regards to the on-going digitalization:

The Internet has now become one of the principals means by which individuals exercise their right to freedom to receive and impart information and ideas, providing as it does essential tools for participation in activities and discussions concerning political issues and issues of general interests.

The internet, digital connections, and the exchange of ideas, thoughts, and information through digital means has, therefore, become an integral part of many people’s lives and daily routine. Due to the fundamental nature of the listed principles – in particular, free access to information, participation rights in democratic procedures, the right to unimpeded and secret communication – their preservation and protection against any kind of (unlawful) intrusions plays a key role in the fulfilment of the rights of individuals in democratic structures.

Threats to these rights are manyfold in the 21st century, however. In June 2013, e.g., leading newspapers revealed details about intelligence operations led by the United States and Great Britain for digital surveillance. Today, several governments already control their citizens’ access to the internet through national legislation and technical burdens (through censorship, mass surveillance, geo-blocking, etc.). On the other hand, people are facing the question how to protect their individual rights and interests before the background of the on-going digitalization and the availability of all kinds of personal information in the internet. Despite technical possibilities for spreading information and having constant instant access to them, the individuals’ dignity and their human rights must be respected; as agreed on the 2003 World Summit on the Information Society, it is necessary to achieve a “people-centred, inclusive and development-oriented Information Society […] respecting fully and upholding the Declaration of Human Rights”. Thus, legal science is facing the challenge of balancing these conflicting interests – the protection of fundamental freedom rights against the individual’s right of privacy and control over personal information – in order to protect fundamental elements of the constitutional order while, at the same time, keeping track with technological developments in the digital sphere.

Relevant Literature

  • Angelo Jr Golia, Matthias C. Kettemann, and Raffaela Kunz (Eds.), Digital Transformations in Public International Law (Nomos, 2022)
  • Wolfgang Hoffmann-Riem, Recht im Sog der digitalen Transformation (Mohr Siebeck, 2022)
  • Reza Montasari, Victoria Carpenter, and Anthony J. Masys (eds.), Digital Transformation in Policing: The Promise, Perils and Solutions (Springer, 2023)
  • Georg Glasze, Eva Odzuck, Ronald Staples (Eds.) Was heißt digitale Souveränität? Diskurse, Praktiken und Voraussetzungen »individueller« und »staatlicher Souveränität« im digitalen Zeitalter (transcript, 2022)
  • Marcello Ienca, Oreste Pollicino, Laura Liguori, Elisa Stefanini, and Roberto Andorno (eds.), The Cambridge Handbook of Information Technology, Life Sciences and Human Rights (Cambridge University Press, 2022)

(Inter-)National Conflicts and Law

National just as well as international crises can have a substantial impact on countries’ internal states, on their external relations, and – in certain cases even – on the international system as a whole. (Civil) Wars, economic crises, natural disasters, pandemics, terrorism, and many other factors are capable of influencing politics, a nation’s stability, and their position within the global system. States dragged into civil wars, e.g., can be turned from stabilizing factors within their world regions into sources of insecurity, terrorism, and chaos – affecting, thereby, their own national sphere, but also neighbouring countries and international partners.

Since the end of the Cold War, the international system has been reconfigured and this

[…] strategic global restructuring is characterized by uncertainties, and a new balance in power relations between the main actors has yet to be achieved.1

Events, such as the Ukraine War or the COVID-19 pandemic, have (again) demonstrated the global dimensions of crises and pose challenges for the entire international community. On the national level, however, they are equally important, influential, and dangerous. The last few years have shown us very plainly that responses to pandemics must not only be necessary and required for the preservation of public health. But it is equally necessary that they comply with (national) legal, constitutional, and democratic requirements for the adoption of laws (in order to be legitimate) and must respect the individual rights of the citizens. The Ukraine War, on the other hand, is extremely challenging for the Ukraine government also with regards to their own national politics. They are facing the danger of being extinguished as a state by the Russian aggressors; however, the Ukraine must still observe ius ad bellum, their citizens’ rights, and democratic procedures in order to avoid being torn internally due to the loss of the support their own population.

Especially in times of crises, it is of the utmost importance that democracies do not abandon necessary democratic procedures which guarantee legality and constitutionality of their actions. Otherwise, they take the risk of losing their legitimacy to rule and drift off towards dictatorships. How to face such dangerous and risky situations and how to comply at the same time with the factual circumstances, challenges, and demands, while upholding constitutional structures, democratic procedures, and complying with legal requirements is a question which requires considerate, thoughtful, but also critical research from legal science during the upcoming years.

1 Francisco Rojas Aravena, ‘Introduction: Hazardous and Erratic Times—Greater and Deeper Conflicts’ in Francisco Rojas Aravena (ed.), The Difficult Task of Peace: Crisis, Fragility and Conflict in an Uncertain World (Palgrave Macmillan, 2020), p. 3

Relevant Literature

  • Carsten Stahn and Jens Iverson, Just Peace after Conflict: Jus Post Bellum and the Justice of Peace (Oxford University Press, 2020)
  • Isabel V. Hull, A Scrap of Paper: Breaking and Making International Law during the Great War (Cornell University Press, 2014)
  • Francisco Rojas Aravena (ed.), The Difficult Task of Peace: Crisis, Fragility and Conflict in an Uncertain World (Palgrave Macmillan, 2020)
  • Ursula Werther-Pietsch, Transforming Security: A New Balance-of-Power Doctrine (Springer Int. Publishing, 2022)

Law as a Decisive Factor in Transformations

In the case of new social or technological developments, changes, or crises (of any kind), the law often has the task of containing the transformation processes triggered by these events in a legal framework and thereby ensuring stability. However, the law can also play the role of a factor inducing change. In such cases, it itself breaks with established convictions and provides impulses for transformations that have the potential to lead to changes or even disruptions within society.

Such developments can be observed in cases of controversial court decisions or legislative initiatives, among others. If, for example, new patterns of thought emerge and are discussed in the literature, in the media and/or in society, but have not yet been adopted by the broad majority of the population, the transfer of these views into a legal reality (through precisely those court decisions or laws) can have enormous political and social explosive power.  

In these cases, law is an action-oriented normative science, shapes transformation processes, sets impulses, and triggers changes itself. An investigation of the role of law as a generator of impulses (instead of remaining stuck in a purely dogmatic perspective and the role as a stabilising factor) will be the core focus of the work of the Joachim Herz Ph.D. programme.

Relevant Literature

  • Jürgen Habermas, Die postnationale Konstellation. Politische Essays (Suhrkamp 1998)
  • Dieter Grimm, Sovereignty: The Origin and Future of a Political and Legal Concept (Columbia University Press, 2015)
  • Jörg Philipp Terhechte, Europäische Verfassungsstudien (Nomos, 2020)