Researchers at the Institute work in a variety of legal fields, addressing a broad spectrum of topics, and using diverse methods. The research deals with issues of public international law, European law and domestic public law. Research questions vary, and range from the doctrinal and theoretical analysis of fundamental issues over a systematization or systematic comparison of legal norms to proposals for law reform and solutions for current legal problems.
The research of the Institute is characterized by thematic, theoretical and methodological pluralism. It is part of the mission of a Max Planck Institute to foster and practice academic pluralism. A number of events and projects at the Institute are aimed at confronting the different thematic and methodological approaches with each other and at allowing for a mutually stimulating dialogue. This is also one of the reasons why the Institute is not formally divided into departments.
The Institute is mainly dedicated to problem-oriented foundational research, and is also engaged in “applied science”. Through research, the Institute aspires to contribute to tackling pressing societal problems. Therefore, it seeks a dialogue with the public, with stakeholders, and is involved in policy counselling in the fields of public international law, European Union law and public law in Europe. All researchers are asked to monitor current legal developments. To this end, short reports on current topics are presented in the weekly meeting of the research staff. The discourse on scholarly texts is conducted in weekly research seminars and in various discussion groups. Both regular events are attended by all researchers and also by guests of the Institute.
Our research starts from the premise that public international law should constitute a global order, and should ideally be neither just one manifestation of national or regional hegemony nor merely an instrument for realizing particular policy interests. Projects of the Institute seek to study and elaborate both the normative autonomy of international law and its quality as a global, not regionally or culturally fragmented order. They thus seek to contribute to the further globalization of the discourse on international law.
Because public international law and domestic public law are closely interdependent, a doctrinal, theoretical, empirical, ethical and interdisciplinary examination of both bodies of law and their mutual relations is needed. A number of studies are dedicated specifically to the linkages between international, supranational and domestic regimes. In this context, comparative law is not considered as a separate academic discipline, but as an integral part of doctrinal, theoretical, and empirical analysis.
The research of Armin von Bogdandy focuses on the necessary elements of a legitimate and effective public law in the European legal area. Since this legal area is composed of the legal orders of 28 different states, a supranational organisation and various international regimes, the research must be multidimensional, covering European Union law and international law as well as issues of comparative law. The novelty of this approach consists in the integration of these three layers of law in a way which reflects the specific characteristics of the European legal space. Since this aim can be achieved by means of legal analysis alone, the research is eminently practical. This understanding of legal analysis necessarily affects not only its object, but also the discipline itself: how has legal scholarship to be organised in thematic, methodological and institutional terms in order to be able to meet the challenges of the European legal area?
The research deals with the theoretical foundations and the doctrinal structure of the bodies of law composing the European legal area within a common framework of legal analysis. This will be the overall topic of the coming years. The aim is to improve the understanding and the conceptualization of these bodies of law and their interaction. Although many issues are still under discussion, there seems to be solid support for the view that such a framework can be built on a concept of public authority which is based on communication theory. From this perspective not only national but also supranational and international institutions appear as entities wielding public authority. The relevant legal regimes must therefore be analysed and criticised in the liberal democratic tradition of public law theory.
This research is carried out first by using the established methodological tools of legal science. However, they need to be further developed and refined. There are staff members who have been educated and socialized in a different legal tradition. They guarantee that other legal traditions are present in the Institute, thus pushing the German researchers towards greater openness in exposing their ideas to international scrutiny and debate. The doctrinal work is supplemented by interdisciplinary approaches. There are even researchers who use primarily methods of other disciplines; some of them have a degree in history, political science, economic, philosophy or sociology. Legal research conducted in this way shall, wherever relevant, strengthen the dialogue with other academic branches and integrate the results of their research in its own discussions.
Currently, this approach is implemented in four main areas. In the field of comparative law, the project “Ius Publicum Europaeum” identifies the historic, theoretical and doctrinal foundations of national legal systems from the perspective of the European legal area. In the field of European Union law, the focus is on the primary law which defines the constitutional dimension of this legal area. The main objective consists in the full development of the constitutional law in a way which adequately reflects the pluralist structure of this legal area. The various dimensions of constitutional crisis are of great interest at the moment. In the field of international law the project “The Exercise of International Public Authority” undertakes a public law (re-) construction of the law of those international institutions which contribute to the shaping of the European legal area. Special attention has been given to the law-making functions of the international courts and tribunals. Finally, the reporting period saw the intensification of the exchanges with researchers and academics from Latin America on the first three research projects. This relationship, which is characterised by great distance on the one hand and considerable affinity and familiarity on the other, favours an academic exchange that is particularly stimulating and productive. The most important cooperation partners are the Cluster of Excellence Normative Orders of the University of Frankfurt/Main, the Ludwig Maximilians University, Munich, the New York University School of Law, the University of Amsterdam, the Instituto de Investigaciones Juridicas, Mexico City, the Catholic University, São Paulo, the Universidad de los Andes and the Universidad Externado de Colombia both in Bogotá, the Eötvös Loránd University, Budapest, the Hungarian Academy of Sciences, the Scuola Normale Superiore, Pisa, the Vienna University of Economics and Business, the University of Turin, LUISS Guido Carli University, Rome and the University of Warsaw.
Our research lies in international law, concentrating on fundamental questions of international law and its history. Current foci are the law of peace and war, global constitutionalism, the status of the individual in international law (including human rights law), and global animal law. Projects often include a “vertical” and/or a “horizontal” comparative dimension, and to that extent also involve research on European and domestic law. Our overarching methodological maxim is to produce arguments and findings that can be understood by researchers with diverse regional or cultural outlooks (global intersubjective comprehensibility), and thereby to contribute to a genuinely global scholarship which accommodates pluralism.
Foundational and applied research
Our foundational scholarship seeks to furnish knowledge about basic structures, developments or patterns of international law and constitutional law. Because the object of our studies, the law, is a mode of governance, a societal discourse and an element of culture, this foundational research is at least indirectly related to the application of the law, and its practical and societal ramifications, too. Some projects can in a more direct fashion be qualified as applied international legal scholarship. These seek to generate knowledge at a comparatively low level of abstraction so as to provide concrete advice to decision-makers and office-holders, preparing international agreements, or to courts. Generally speaking, the research group seeks to stay in touch with legal practitioners in order to continuously check the societal relevance of our topics and findings. We also consider knowledge transfer into broader sectors of society as one of our tasks.
Plurality of approaches
Most projects pursue one or several of the following approaches:
Doctrinal analysis: Projects with a strong doctrinal component seek to order and structure legal concepts, basic principles and rules on decision-making with regard to a specific question. In this research dimension, we accept the existing legal rules, principles and decisions as premises; the research is situated fully “inside” the law, using primarily logical semantic analysis. Because of specific qualities of international law (its low density, its uncodified parts, its low degree of systematization and its politically-induced lack of clarity and precision), doctrinal analysis taken by itself can yield only limited results.
Empirical analysis: The group’s empirically informed research attempts to study the conditions under which international law is formed and has effects. It requires moving back and forth between collecting (historical, political and societal) data, construing models, and testing those in the real world.
Theoretical analysis: The team’s more theory-oriented projects ask questions about the law, its functions, its structure, its normativity and the like from the perspective of an outside observer. Along this vein, a wide array of approaches ranges from critical legal theory over law and literature to law and economics.
Ethical analysis: A number of projects encompasses investigation of the ethical contents of international law (often embedded in specific world views) and criticizes these with reference to standards of justice. This comprises reflexion about how to deal with the pluralism of values which is visible in global legal practice.
Positive and normative analysis
In our – ideal-typically – positive analysis, the law is described, explained and prognosticated, while the observer’s preconceptions pre-structure his/her “positive” description. In our normative analysis, existing norms are justified and criticized, reform proposals are made and the propriety of the application of the law is assessed. In this regard, a broad range of options for making “correct” scholarly statements exists, because a leeway is inherent in any interpretation and application of the law. Due to the typical indeterminacy of treaty provisions, the high amount of unwritten norms, and the inherent dynamics and gradualism of the international legal process, neither the canons of construction for treaty interpretation nor the empirical research on the existence of a rule of customary law yield clear “positive” results. Therefore, these should be complemented by normative considerations (in the form of evaluative systematization and evaluating closure of legal gaps).
Some projects combine legal methods with methods of other disciplines, notably of political sciences, historical studies, philosophy, sociology, and economics. Others only use the findings of those disciplines for complementing the legal answers. The types of interdisciplinary linkages sought depend on the concrete research question at hand.
References on approaches and methods
Anne Peters, “International Legal Scholarship under Challenge” in: Jean d’Aspremont, Tarcisio Gazzini, André Nollkaemper and Wouter Werner (eds), International Law as a Profession (Cambridge UP 2017).
Anne Peters, “Realizing Utopia as a Scholarly Endeavour”, in: European Journal of International Law 24 (2013), 533-552.
Anne Peters, “Rollen von Rechtsdenkern und Praktikern – aus völkerrechtlicher Sicht”, in: Paradigmen im internationalen Recht. Implikationen der Weltfinanzkrise für das internationale Recht, Berichte der deutschen Gesellschaft für Völkerrecht 45 (Heidelberg: C.F. Müller 2012), 105-173.
Anne Peters, “Die Zukunft der Völkerrechtswissenschaft: Wider den epistemischen Nationalismus“, in: Zeitschrift für ausländisches öffentliches Recht und Völkerrecht/Heidelberg, Journal of International Law 67 (2007), 721-776.
Anne Peters, “There is Nothing More Practical than a Good Theory: An Overview of Contemporary Approaches to International Law”, in: 44 GYIL (2001), 25-37.
During the last years the research projects of the independent junior research groups have become increasingly important in the research activities of the Institute. Already in 2006 a Max Planck Research Group on “Democratic Legitimacy of Ethical Decision Making – Ethics and Law in modern Biotechnology and Medicine” had been established under the direction of Silja Vöneky. This was followed by the setting up of the following research groups: the Max Planck Society Otto Hahn Group “Diversity and Homogeneity – Legal Mechanisms for the Accommodation of Diversity in Unitary Structures” (Holger Hestermeyer); Max Planck Society Minerva Research Group “Judicial Independence” (Anja Seibert-Fohr); the Volkswagen Foundation Schumpeter Research Groups “Law and Governance in Development Cooperation” (Philipp Dann) and Constitutional Reasoning in Europe (András Jakab); a project entitled Transnational Private-Public Arbitration as Global Regulatory Governance: Charting and Codifying the Lex Mercatoria Publica (Stephan Schill) funded by a European Starting Grant.
In 2018 the Max Planck Research Group Shades of Illegality in International Peace and Security Law (SHADES) under the direction of Christian Marxsen has been established.
In 2019 Borderlines a Research Group led by Carolyn Moser under the Minerva Fast Track scheme of the Max Planck Society has been established. In 2020 the DFG sponsored Heisenberg Project: Grotius Census Bibliography led by Mark Somos and the newly founded Max Planck Research Group The Multiplication of Authorities in Global Governance Institutions, under the direction of Janne Mende were established. Followed in 2021 by the Max Planck Law Fellow Group Independence and Democracy in the European Union: A Historical and Socio-legal Approach headed by Antoine Vauchez in cooperation with Armin von Bogdandy and Stefan Vogenauer. 2022 the Max Planck Law Fellow Group Populism and the New Foreign Relations Law headed by Karen Knop and the Max Planck Law Fellow Group ENSURE (European security revisited) headed by Carolyn Moser.
Next to that the Institute hosts, in cooperation with FAU Erlangen-Nuremberg, the Research Group “Transnational Solidarity Conflicts” under the direction of Anuscheh Farahat, sponsored by the Deutsche Forschungsgemeinschaft within the Emmy-Noether-Programme.