Annual Themes

Historically, the formation of law, but also the differentiation of jurisdiction, took place over long phases without a pronounced manorial monopoly of power, which only emerged successively in the course of state-building processes, but which repeatedly experienced new forms of limitation precisely as a result of territorial expansion processes. Although there was no lack of power relations (for example in the context of family structures, as an effect of unequally distributed economic resources or with regard to gender relations), these were not organised in such a way that they could have centralised law-making and law enforcement. Nevertheless, standardisation efforts can be identified at all times – but they were not necessarily initiated and enforced by means of power and domination. One can think here of forms of standardisation through academisation (e.g. the spread of Roman law in Europe through university legal training), through informal forms of legal transplant (e.g. in the case of the voluntary adoption of policey regulations within city networks or imperial circles in the Holy Roman Empire) or simply through the regular demand of courts as structures for offering conflict resolution (empowering interactions). However, such 'voluntary' demand was by no means arbitrary; rather, different power relations played a role here too, for example in the question of which forums were or could be called upon by whom and in which cases. These power relations also raise the question of which groups benefit from certain forms of legal standardisation and who benefits from forms of legalpluralism. As a rule, no generalising statements can be made about complex social constellations, because the answer varies depending on the point of observation: for example, indigenous groups that invoke international law against hegemonic legal standardisation may well benefit from forms of legal pluralisation, for example with regard to possibilities of land use, while women or minorities in these groups may at the same time be legally disadvantaged.

Standardisation as a demand effect can also be observed in the case of legal norms whose application by the respective courts could not be enforced for a long time (especially when it came to corporately organised courts). In this way, the medieval supreme court system was able to create comparatively stable legal circles, as so-called mother cities based their ius fori on the answers to questions from their daughter cities. This never had anything to do with political claims to power or territorial borders, and yet it was a way of striving for regional legal unity. By translating customary law sources into Slavic languages, for example, it was even possible to overcome ethnic boundaries in this way. The prerequisite for such a right was, of course, a minimum degree of voluntariness. If this consensus collapsed, uniform legal structures across the region were hardly conceivable (as was the case with the decline of the Feme in the late 15th century). In any case, state-centred concepts of law often prove to be outdated in historical retrospect. Law without rule or without a monopoly on power must therefore not be lost in historical comparison, and the border areas between law and other forms of normativity must also be kept in view. It has proven to be important to examine questions of unity and plurality not only in the context of state-building processes, but also to take a more overarching approach and ask much more openly about patterns and constellations of power relations to be found in specific situations and their effects on forms of legal unification or the organisation of plurality in law. In the second funding phase, we will expand and deepen the reflections on these connections that we began in the first phase of the programme.

Furthermore, with regard to structures of power in the past and present, it must be emphasised that the discussion about claims to unity begins with the question of which groups and spaces have been used by those in power to assert and enforce their respective claims to power. For a long time, the content of law and the respective geographical extent of sovereign territories were not congruent. On the one hand, the formation of law through custom and supra-regional courts could lead to comparatively uniform law above small-scale sovereign claims. At the same time, small-scale solutions that tended to be detached from political power structures are known in family property law, for example, which created different laws from village to village, indeed from house number to house number. On the other hand, the attractiveness of an orderly and, in view of the reduction of transaction costs, more predictable judicial settlement of conflicts should not be underestimated and led to standardisation, for example when legally exempt groups such as Armenians in cities of late medieval Poland voluntarily submitted to the German courts without pressure from the authorities, because this seemed useful for their trading activities.

In applicable law, there are fruitful parallels to the historical perspective in the inter- and transnational area. International law is not only fragmented into various regimes, each of which pursues its own regulatory claims and logic and has no hierarchical relationship to one another, so that in extreme cases regime collisions can occur in overlapping areas of application. In many cases, it also lacks coercive enforcement mechanisms, which is why it is dependent on being implemented in the respective local or national contexts. Particularly in the area of universal human rights, i.e. treaties that are not regionally limited, this always means a transposition of the common norms into legal ‘dialects’; it is therefore a matter of ‘translating human rights into the vernacular’ (Sally Engle Merry, Human Rights and Gender Violence, Chicago 2006). This also applies to the Council of Europe, which, in the European Court of Human Rights (ECHR), has a body that can make legally binding judgements, issue interim injunctions and even award damages. With the margin of appreciation, the ECHR has developed a form of tolerance of ambiguity for national particularities, which makes it possible to allow diversity in particularly controversial areas of law or in fields of particularly diverse practice without having to forego common minimum human rights standards. Although a common legal norm is applied, which cannot actually have several meanings at the same time, an integration of unavoidable plurality is thus achieved.

Much like in pre-modern contexts, a claim to standardisation in international law can hope less for top-down enforcement than for long-term processes of increasing norm acceptance and harmonisation, while at the same time – similar to imperial legal systems – living with a certain degree of pluralism for an indefinite period of time, perhaps forever. This follows from the fact that ‘local’ (national) law will not be reached everywhere in its deeper layers.

Based on this aspect, it can be formulated as a working hypothesis for the formation of types in the second phase that the relationship between unity and plurality plays a similar role in each case where standardisation cannot be enforced qua monopoly of power and specific forms of standardisation that are remote from power therefore occur in the legal systems. Subsequently, the question arises as to how plurality can be made manageable if all relevant rules have to be formed and enforced without enforcement authority.

As part of the second theme of the year, we want to turn our attention to the mechanisms of integrating existing social diversity into legal systems. Even in the first funding phase, the focus on rules and exceptions proved to be very fruitful. The first annual conference (2022) and three special legal history conferences on exceptions and diversity in antiquity (2022), pre-modernity (2023) and modernity (2024) emphasised important individual aspects. In the second funding phase, we want to broaden the focus from technical legal and legal-systematic aspects and focus more strongly on the basic social conditions of legal education.

Historically, at least in Europe, the need to legally structure a society as a whole in terms of rules and exceptions only arose with the abandonment of the principle of personality in favour of republican equality in the course of the French Revolution. Whereas a person's legal status had previously been determined by their class or group membership, the same law now applied to everyone – at least in terms of the claim. Article 1 of the Declaration of the Rights of Man and of the Citizen of 1789 proclaimed the abolition of all distinctions of status. In this sense, a uniform legal status of citizens was the rule, legal plurality the exception. Prior to this, the model of legal equality had only existed in a narrower context – for example in the context of urban citizenship or in the case of religious concepts of communities. This was generally preceded by certain forms of membership, which were often conditional in nature and limited the circle of potential equals (classic examples include the acquisition of citizenship in pre-modern cities). At the same time, these are phenomena that are also relevant in other regions of the world. From a comparative perspective, for example, one can ask where in this spectrum the strong equality postulate for all men in Pashtun law in Afghanistan is to be located - bearing in mind that the French Declaration of Human and Civil Rights originally only focussed on men.

Here we would like to discuss which forms of legal concepts of equality can be observed in different constellations and how their emergence was integrated into overarching social processes and shifts. For example, we could reflect together on whether the functional differentiation of law from other social contexts and the sphere of politics promoted a decoupling of law from categories of class and other differences, in that law provided a resource for standardisation.

At the same time, in any model, the claim to legal equality in the face of actual inequality tends to require a flexibilisation of the uniform rule; the larger the group covered, the greater its potential for heterogeneity. Exceptions are one such way of doing justice to actual social diversity. They can operate at different levels: Exceptions can be used to limit the personal validity of the same law by making relevant norms inapplicable to certain social groups (women, children, foreign nationals, enslaved people) from the outset. As such exceptions are enshrined in law within a single legal system, they do not create formal diversity, but they do perpetuate actual diversity and inequality. A standardised legal system can therefore eliminate or reinforce social diversity. In the second phase, we will familiarise ourselves with and discuss examples of this.

In contrast to such European modern models, numerous pre-modern legal systems dispensed with legal unity and legal equality from the outset and therefore do not require coding according to rule and exception for the legal organisation of society. Something similar can be observed in legal systems characterised by religion. Here, in addition to generally binding law, there are often exempt areas that certain religious groups only fulfil normatively for their own members. Modern examples include countries such as India and Israel, which have regulated their family law on a religious basis, with the result that interfaith marriages, for example, can only be concluded with restrictions under secular law or even only abroad. This raises the question of whether this creates a new type of principle of personality.

However, the recognition of social diversity can also be internalised by the law. A standardised law does not require the use of templates, but rather leaves sufficient scope when applying it to individual cases - for example through interpretation based on the purpose of the norm - to do justice to cases that do not represent the ‘normal case’ from the point of view of the standard setter.

Feminist jurisprudence has long addressed the fact that the claim of the law to treat all those subject to the law equally is de facto only realised for one part of the population: the ‘normal citizen’, who is male, Christian, heterosexual and white. In this respect, the abolition of formal privileges has not yet eliminated the social privileges that result from the customisation of the law for some and the categorisation of others as ‘deviants’. A right that should apply regardless of the person cannot be tailored to specific individuals without raising fundamental questions of justice. In the dogmatics of anti-discrimination law, there is the legal concept of reasonable accommodation. It makes it possible to maintain a standardised rule and at the same time avoid discriminatory effects. In this respect, German law has received strong impetus from the development of human rights and EU law.

However, when social groups press for the law to be adapted not only to the needs of some, but also to those of others, this often appears as a claim to a special rule or an exception to burdens that the rest of society must bear without such special rules. Here, the justice of uniformity is negotiated in conflict with the plurality of legal regulatory regimes against the background of actual social diversity. The second funding phase will create scope for legal history, historiography, legal anthropology and modern law to explore these questions in greater depth.

The third theme of the year focuses on the relationship between legal unity and pluralism from a spatial perspective. Historically, it can be observed again and again how – as a result of low enforcement power, but also as a consequence of pluralistic law – the binding effect of legal rules and the use of enforcement mechanisms dwindle with increasing distance from (power) centres. This often results in new centres and, from these, new peripheries. As a result, we are dealing with poly-centricity in relation to a particular area. The discussion about areas remote from the Holy Roman Empire (“Reichsferne”) in the late Middle Ages has intensively researched this finding with the very different ruling power of the kingship. At the same time, the fundamental recognition of royal and imperial law can be observed through the spread of law books in the 14th/15th century to the peripheral areas of the Empire and far into Eastern Europe. The question of centre and periphery is thus possibly posed differently in law than in the power of rulers at the same time. As an early centre of scholarly canonistics in the 12th century, Cologne does not fit in well with the grand narrative of the reception emanating from northern Italy. And the first quotation of Bartolus north of the Alps can allegedly be found at a Hanseatic conference in Northern Germany and not in an imperial city close to the emperor. Whether plurality arose here through islands of learned law or, on the other hand, the overarching knowledge and observance of the Ius Commune paved the way for a standardised European legal area cannot be answered with a yes or no, but depends on the respective direction of the question. Depending on the point of view, the findings for legal unity and plurality between different centres and their peripheries are likely to shift significantly. In times of weak rule, a high proportion of autonomous legal practices can also be expected in peripheries, sometimes even with clear linguistic differences to the respective centres (e.g. early vernacular records in Friesland). Centres (mother towns) and peripheries (daughter towns) can be easily identified in late medieval upper court territories, for example from Magdeburg to the area of present-day Ukraine. However, no uniform legal areas were formed, but rather urban-rural differences or the connection to different legal circles remained. In addition, the law had the possibility of legally eliminating peripheries, for example by extending Roman citizenship to all male inhabitants of the empire (Constitutio Antoniniana) or by recognising some French colonies as part of the mother country.

In principle, the law of the colonies could also be described as an exception to the domestic law of the mother country. However, post-colonial legal states can be considered even more productively in terms of poly-centricity and peripheries with regard to the applicable law. This is because the decline or suspension of the binding force of uniform rules on and beyond state borders, for example in the form of special legal zones as in colonial India, can still be observed today. The special colonial regime for the periphery is still formally reflected today in Article 56 of the European Convention on Human Rights (ECHR). It leaves it up to the contracting states to optionally apply the Convention in their overseas territories. Great Britain, for example, has not yet extended the application of the ECHR to the Chagos Islands in the Indian Ocean. And to this day, states use techniques such as the excision of peripheral territories (e.g. the Australian Christmas Islands, where the Migration Act does not apply), the definition of transit areas at national borders (e.g. in international airports or ‘hotspots’ where expedited procedures apply) or the creation of extraterritorial zones of sovereignty with special legal regimes (e.g. at the US military base at Guantánamo Bay in Cuba or in the Australian detention centre for migrants on the island state of Nauru) to circumvent the application of uniform international standards and create their own legal regimes. Through the dialogue with the fellows, we want to get to know and collect such illustrative material.

The polycentric nature of regional human rights protection can be observed. While the universal human rights instruments – i.e. the treaties at UN level – have so far only been subject to legally non-binding interpretation by the UN treaty committees in Geneva, regional courts have been established in America, Europe and Africa, which can issue legally binding judgements on the basis of regional human rights conventions. As they often apply rules that are similar or even identical in wording in various universal and regional instruments, this gives rise to the potential for polycentric diversification of human rights jurisdiction. In contrast, mechanisms of informal exchange and mutual citation, including via the common ‘centre’ of the UN mechanisms, can serve as instruments of standardisation. From the perspective of those subject to the law, the question arises as to how legal protection for the weak is guaranteed. With a high diversity of sources and little sovereign authority in peripheral regions, legal pluralism need not always be associated with romanticised islands of autonomous population groups. Rather, anthropology provides numerous examples of the uncontrolled local rule of mostly wealthy male elites (e.g. in Peru and Ethiopia). The comparison of historical examples with modern findings leads to delicate questions of the respective localisation of research and to evaluations. Following the very stimulating experiences of the first phase, we want to enter into a dialogue with the fellows on this topic.

For the fourth year, no further thematic focus is deliberately set as the annual topic. Rather, we will bring together the findings and discuss possibilities of type formation. Of course, our spatially and temporally broad approach at the research group is so complex that the search for general lines of development and generalised observations would fall short. Rather, the added value of the Kolleg lies precisely in its differentiated and nuanced view of the issues of legal unity and pluralism. This should not and cannot be abandoned in the fourth year. Therefore, based on the cases that our fellows bring to the discussion, we will first discuss which dynamics of standardisation and/or the creation or preservation of legal plurality can be observed for different spatio-temporal constellations. In a second step, we will then ask which insights for a comparative perspective we can use to analyse patterns of development dynamics along certain scales and reference levels.