Internationalisation and Transnationalisation of Law – a German Perspective

Statement about the conference “Areas and Disciplines” by Thomas Duve ((For a more detailed vision of the problem see: Thomas Duve, “Internationalisierung und Transnationalisierung der Rechtswissenschaft – aus deutscher Perspektive”, LOEWE-Schwerpunkt “Außergerichtliche und gerichtliche Konfliktlösung” / LOEWE research focus “Extrajudicial and judicial conflict resolution” : Arbeitspapier / Working Paper 6 (2013), online.))

1. As part of the science system, also legal scholarship is affected by the development of new global knowledge structures and systems. As a profession-oriented discipline and as a result of its role in the legal system, however, legal scholarship at Universities displays some peculiarities. It will not and cannot completely ‘inter-‘or ‘transnationalise’ itself.

2. Notwithstanding this, due to the transnationalisation of law, legal scholarship is facing major challenges. There is a huge body of Transnational Law emerging which cannot be understood, conceptualised or shaped with the ideas and concepts deriving from the legal order of nation states. One of the major tasks of legal scholarship today is therefore to reflect on the formation of normative orders under the condition of an emerging ‘world society’.

3. In this context, an important field of jurisprudence is ‘Transnational Law’. The increase in so-called ‘Transnational Law’ and in the research carried out in relation to this does, of course, not mean that we already have a ‘Transnational Jurisprudence’. Such a ‘Transnational’ or ‘General Jurisprudence’ presents major epistemic and theoretical and ultimately also practical problems. More than anything, it faces the task of developing a conceptual and terminological framework for communicating about normative orders which are constituted and applicable transculturally.

4. Thus, transnational jurisprudence requires a turn to basic research on normativity, and to transdisciplinary work. Only once we open up to the phenomena of multinormativity which can no longer be understood in purely juridical terms, can we develop basic concepts that can be applied transculturally and, in so doing, perhaps also be able to define the locus of ‘law’ in this broader field of normativity. We will also have to learn about the process of ‘Cultural Translation’ in the field of normativity, and become aware of how law is embedded into its context. Legal scholarship will not be able to fulfil its creative and critical functions without looking at contexts and at ‘law as culture’.

5. For a number of reasons, German jurisprudence could play an important role in the discussion about Transnational Law. Its orientation towards systematic legal reasoning and its high level of abstraction, but also the ability of its members to work in other legal systems, could make a fruitful contribution to the discussion and development of Transnational Jurisprudence. Its strengths and its success in the past may, however, also be a barrier to its integration. Its exclusive focus on the dogmatic as well as self-perception and the lack of effective language-policy threatens to impede its opening to ‘Transnational Jurisprudence’.

6. ‘Transnational Jurisprudence’ needs an institutionalisation that facilitates coping with the theoretical and epistemic challenge it entails. We need a framework that enhances epistemic plurality and decentres discourses. The necessary intellectual decentralisation of research must be facilitated by institutional decentralisation: as is emphasised repeatedly in the ‘Area Studies’, what is needed is ‚research with‘, not ‚research about‘. This institutionalisation would need transregional cooperation and can only be achieved by the interplay between universities and strong research institutions and by the establishment of a research infrastructure that supports long-term communication processes. ‘Transnational Jurisprudence’ offers fruitful perspectives for high-level graduate programs and junior researchers, and it should not be implemented at the expense of the law departments whose fundings are already deficient.

7. Especially with a view to ‘Transnational Jurisprudence’, cooperation with ‘Area Studies’ should yield special synergy effects for German legal scholarship.

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