Thematic Field I: Law and Politics (2016-2018)

Political cultures cannot be reduced to a decision-making mechanism, the selection of their leaders and particular institutional settings. It is necessary to analyse their symbolic forms and rituals. As such, the thematic field of Law and Politics sees legal and constitutional cultures interacting with a political sphere which cannot be viewed purely from the perspective of system rationality. However, if the law and politics are both viewed comparatively using tools of cultural analysis, then there are a number of highly specific ways to determine how they relate to one another. If political cultures clearly differ with regard to the issues they wish to resolve politically in the first place, with models of parliamentary sovereignty (such as in the United Kingdom and, for a long time, in France) competing in sensitive constitutional matters with models of the absolute primacy of a constitutional court (as in Germany), it would appear that it is not always possible to assign issues precisely to the different spheres. Even constitutional bodies such as the Federal Constitutional Court in Germany and the US Supreme Court rarely limit themselves to simply applying the law, but rather use their jurisdiction to create new law. Another central issue when it comes to distinguishing between the legal and the political is whether sufficient account can be taken of changing societal conditions by interpreting the constitution or whether changes need to be made to the constitution itself in specific cases.
At the same time, comparative study can be undertaken to determine the extent to which the dressing up of political demands in legal language is a universal trend. Martti Koskenniemi, for example, has expressed unease at the inflation of human rights and fundamental rights language, a practice that seeks to assign ultimate justification to frequently disputed normative positions in order to remove them from political discourse. Conversely, the law can also (intentionally) come to apply political pressure, as is the case in Europe’s multi-level system of governance when private international and procedural law is harmonised in an alleged attempt to agree neutral procedural arrangements and instructions, which instead puts member states under political pressure to act in order to ensure that their legal systems remain competitive at international level (regulatory competition).
However, the idea of the constitution as a normative modernisation project is also finding its way onto the agenda of societies that have been caught up in the modernist mindset. These constitutional projects and the processes for implementing them vary enormously, from the imposed constitutions of victorious powers to the constitutions of liberated former colonies, constitutions mandating bondage, and constitutional fundamentalism. Finally, constitutional projects played an extraordinary role in the wake of the Arab Spring. The question arises as to how, given the clearly pluralist legal culture of the constitutional ideas, models and practices, the UN Charter can be conceived as a global constitution for a global society, that is, in accordance within the scope of constitutionalism under conditions of globalisation and localisation of social settings and communities. The collision in this context between supranational and global constitutional models on the one hand and national and local claims to sovereignty and constitutional traditions on the other is expressed not least in the protection of human rights and, more than any lip service to universalism, in the fleshing out of fundamental rights. In a regional context, a vigorous discussion has arisen about the hollowing out of democra­tic decision-making processes and the ability of nations to determine their own political destiny by dynamically interpreting human rights treaties to provide themselves with political options. This discussion is restricting the scope for frank political discourse and democratic decisions, at times even appearing to remove it entirely. In those states in particular that are defined by democratic, legitimising decision-making processes, the unforeseen and even unforeseeable development of new human rights standards is often seen as a restriction of political freedom of choice or as an incursion into historically rooted legal cultures.
In this context, the issue of legitimation points in a general sense to the binding force of constitutions, which in the end also draws on politically inspired and induced symbols, narratives and rituals. At the same time, emotionally charged political campaigns can also call into question the validity of the law. Even if the “constitution” is intended to operate independently of values and prerequisites, it requires even greater symbolic efforts in order to effect its validity. The constitution requires a common constitutional belief or awareness in order to be effective, though the affective relationship between communities and their constitutions varies greatly in a national context, from the religious style constitutional cult of the United States to the (in some cases academically invoked) constitutional patriotism of Germany and the “avalanche of constitutions” in France since the Revolution, which for a long time had neither a constitutionalising effect on the political process nor an affective impact. The French case is representative of the emotion­al linkage of a collective of ideas of the nation which often negated the legitimate legal claims of its own population and, as was the case during colonial rule, the “rights of others” (Seyla Benhabib).
There is one more dimension of the political form of organisation of the law to be examined under the aspect of the law’s binding force. Ever since political rule transformed social norms into law with the transition from segmented to stratif­ied societies, the state has been considered a central organisational unit in the creation of laws, the finding of justice and the enforcement of legislation. Consequently, it has also been considered a constitutive requirement of modern law, even though the Bonn-based Center’s decision to adopt a multidimensional concept of law with a social science explanation brings into greater focus the organisational diversity of the law, which gives rise to a historical and comparative cultural perspective. A comparative cultural sociology of the state promises to yield insights into the specific regional weighting of law and politics and the issue of the validity and binding force of the law. This is all the more true now that the state has come under pressure from many different angles as the organisational form of political activity based on the pattern of European nation states, that is, as the sovereign foundation of the legal system and as a producer of legal legitimation. While the list of failing states and concentric legal spheres constitutes a new fact in the relationship between politics, the law and culture which requires thorough examination, the boundaries of the traditional nation state are also seen in the process of economic globalisation and the emergence of supranational and transnational political spheres which create law without state-building. At all these levels, the question arises as to what organisational forms lending legitimacy and legal binding force may arise as a functional equivalent to the state in order to guarantee a binding social framework for the law.