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Researching Courts: The Structural Transformation of Adjudication

About the Project:

Traditionally, the task of courts is understood to be the application of the law in individual disputes; in international law, one often refers, even more vaguely, to the peaceful settlement of disputes. At the same time, it is a commonplace of research that supreme courts and international courts in particular do much more today. However, much remains open, which is where our research comes in: committed to the tradition of public law, its chief concern is ensuring that courts make their decisions as effectively and legitimately as possible.

Our research is distinguished by four features: First, we want to capture structures. We are less concerned with an understanding of substantive case law than with courts as institutions, in particular their procedural and organizational law, competences, and instruments. Second, our work is doctrinal-reconstructive and comparative. In keeping with the idea of a comprehensive public law, we compare domestic as well as international courts. Third, the formation of networks between courts, especially in Europe and Latin America, is of particular interest. Fourth, one of our focal points is the Global South, specifically Latin America, where we use new formats of research cooperation.

Three core concepts guide our work. First, the activity of courts is understood as the exercise of public authority. Although international courts as well as constitutional courts usually lack physical means of coercion to enforce their judgments, they exercise public authority. The exercise of public authority, secondly, raises the question of the normative legitimacy of the courts (Armin von Bogdandy und Ingo Venzke, Beyond Dispute: International Judicial Institutions as Lawmakers). In accordance with the doctrinal approach of our research, the main focus in this context lies on the reconstruction of legitimatory yardsticks that are derived from the law. The third core concept of our work is that of the legal area (Armin von Bogdandy, The Idea of European Public Law Today, MPIL Research Paper No. 2017-04). Thinking in legal areas makes it possible to connect the functions of jurisdictions at different levels and to shed light on conflicts and convergences in the context of the normative objectives of a legal area. 


Ongoing Institutional Projects

Courts in the Ius Publicum Europaeum Project

The project Ius Publicum Europaeum develops, with the help of a large number of colleagues, the historical foundations and doctrinal features of the various legal systems that support the European legal area. Volumes VI and VII are devoted to constitutional adjudication, Volume VI to national reports, and Volume VII to cross-sectional reports. An English version of the two volumes will be published by Oxford University Press in 2019 and 2020 as Volumes III and IV of the Max Planck Handbooks in European Public Law.

 

International Judicial Legitimacy. New Voices and Approaches

The project “International Judicial Legitimacy. New Voices and Approaches” is carried out in close cooperation with the Luxembourg Max Planck Institute for International, European and Regulatory Procedural Law (Hélène Ruiz Fabri) and the Amsterdam Centre for International Law (Ingo Venzke). It builds upon and reflects further the project “In Whose Name? A Public Law Theory of International Adjudication”.

 

Handbook of Latin American Constitutional Justice

Constitutional adjudication plays a fundamental role in the democracies of Latin America today, particularly through its contribution to the constitutionalization of the legal order and the enforcement of human rights. The project Handbook of Latin American Constitutional Justice offers an analysis of the history, development, and current state of constitutional adjudication in Latin America.

Further Institutional Projects

Discussion Fora and Partner Institutions

The Heidelberg Discussion Group on the Multilevel Cooperation of Constitutional Courts (Heidelberger Gesprächskreis Verfassungsgerichtsverbund), hosted by the Institute, is an annual forum at which the results of this research can be discussed with judges from both European courts and numerous constitutional and supreme courts.

There are close links with other court-related research projects at the Institute, in particular with András Jakab, Constitutional Reasoning in a Comparative Perspective, funded by the Thyssen Foundation, with Stephan Schill, Private-Public Arbitration, funded by an ERC-starting grant, and with Anuscheh Farahat, Transnational Solidarity Conflicts, funded by the DFG under the auspices of the Emmy-Noether Programme.

Academic Qualification Projects (Selection)

Solidaritätskonflikte in der Eurozone (Anuscheh Farahat)

Gesetzgebungsauftrag aus Straßburg? (Markus Fyrnys)

Das Prinzip der Komplementarität. Ein Beitrag zur Legitimation des Inter-Amerikanischen Gerichtshofs für Menschenrechte (Simon Hentrei)

Il parametro negletto-Diritto dell’Unione europea e giudizio in via principale (Davide Paris)

Gegen die Einheit des Völkerrechts. Die kritische Vermengung von Menschenrechten und Völkerstrafrecht in der Rechtsprechung von ICTY und EGMR (Frauke Sauerwein)

Niklas Luhmanns frühe Systemtheorie und die vergleichende Verfassungsgerichtsbarkeit (Theodor Shulman)

Transformative Adjudication: the Case of the Inter-American Court of Human Rights (Ximena Soley)

Challenging Authority: How International Institutions Manage State Resistance (Silvia Steininger)