No social life is possible without order. Order being the most constituent element of society, it is not surprising that so many theories have been developed to explain what social order is and how it is possible, as well as to explore the features that social order acquires in its different dimensions. The aim of the research consists in leading back these many theories of social order to a few main matrices for the use of theoretical and practical reason, which we define as “paradigms of order”. In doing so, the plurality of conceptual constructs regarding social order is reduced to a manageable number of theoretical patterns and an intellectual map is produced in which, in an almost synoptic way, the most significant differences between paradigms are clearly outlined. Furthermore, the “paradigmatic revolutions” are addressed that marked, in the past centuries, the most relevant turning points in the way a “well-ordered society” was understood. Against the background of the historic paradigms of order, the research also focuses on the more recent developments in the field, exploring the conditions for a new era in the conception of order in which – on the basis of an innovative epistemological organon – not hierarchy and unity, but pluralism and diversity are regarded as the barycentre of a well-ordered society.
As regards the topics that are in the focus of the research project, the Max Planck Institute collaborates with the Department of Law of the Turin University, as well as with the Cluster of Excellence “Normative Orders” of the Goethe University in Frankfurt, the Lauterpacht Centre for International Law of the Cambridge University, and the Tel Aviv University.
1. Research Topic
Inescapably, the legal discourse employs extra-judicial assumptions, which, as the references to values and principles like democracy, nation, justice, or the rule of law and the inalienable human rights show, cannot be founded in the law alone. Usually these assumptions remain implicit in the legal discourse. Not in times of change: here, the radical transformations also affect the carrying capacity of the implicit extra-judicial assumptions, so that the explanatory power of the legal discourse as well as the social function of law can be endangered.
Exactly such a development can be currently observed in the field of public law. The change in legal reality shall be addressed by means of adjusting the categories of understanding: the theory of public law, which to date remains largely committed to the distinction between constitutional law and international law, turns thus increasingly into a new theory of public law which systematically captures the international, supranational, and national public law in a coherent theoretical and dogmatic conception.
From the new situation problems arise which can also constitute a latent danger for the liberal and democratic order. They consist in the demise or even the loss of legal normativity and in the legitimacy crisis of a growing number of public decision makers. If a theory of national and supranational public law is not to elude its obligation towards the liberal and democratic order, it must not only theoretically capture the new phenomena, but also ascertain the values inherent in the respective conceptions of a national and supranational order.
2. Methodological Approach
The research project is a contribution to an adequate connection of the theory of national and supranational public law with the extra-judicial assumptions on the establishment of a contemporary liberal and democratic order. To this end it is necessary to leave the realm of legal discourse and to open up the field of legal and political philosophy for our task.
The first step of the analysis aims at elucidating the various consolidated paradigms of the national and supranational order, since the interpretation of the theories of national and supranational public law in the light of the paradigms of national and supranational order allows for a better clarification of the extra-judicial values inherent in every legal theory and in all paradigms of order. The paradigms are assessed with regard to their philosophical premises as well as their significance for legal theory in view of both national and international law.
The second step focuses on the analysis of how the paradigmatic panorama of the theories on national and supranational law has changed under the new societal conditions of an ever more closely interconnected world. Specifically, the most innovative theories on public law have largely abandoned the idea of a “unitary” order while starting to develop a highly innovative idea of order in the pluralist setting, or in a multilevel system, so as to represent adequately the worldwide, differentiated legal network in times of globalization.
Finally the attempt is made to ascertain which of these paradigms – especially among the more recent ones – is best suited to lay the foundation for a new legal discourse that addresses the theoretical and practical challenges. In this context, there is not only a need to adequately describe already existing phenomena, but the question arises as to how the globalized world of the 21st century can be legally configured in the sense of liberal and democratic values. Not all available paradigms are equivalent in this regard. Thus, the analysis concentrates on the elaboration of a paradigm which, on the one hand, realistically addresses the challenges of our time, while upholding the values of a liberal and democratic conception of the political and legal order on the other.
The subject analyzed here draws its topicality from the changes in law and policy in times of globalization as well as from the broad discussion that has evolved around them. The approach is insofar innovative as it explores the basic terms of a new conception of public law. This is done with the help of instruments which embrace the cognitive potentials of neighbouring disciplines. The inquiry on the most recent results of legal doctrine is complemented by insights originating from legal and political philosophy as well as from political science.
4. Research Objectives and Outlook
The research project’s objective is, first of all, to generate texts for the theoretical and systematic analysis of the problems in question. Many results of the research have been already published in German, English and Italian. In the next years the publication of two books is envisaged in which the overall epistemological results of the research are presented, as well as of a number of articles in which these results are applied to more specific questions of national and international law.
Furthermore, the results of the analysis will continue to be integrated into the didactics in Germany, Italy, China, the United States, and other countries. The results of the research so far have been discussed on various conferences in Germany, Italy, the United States, the United Kingdom and Israel.
von Bogdandy, Armin
von Bogdandy, Armin/ Dellavalle, Sergio