The Law between Objectivity and Power

Der Band untersucht das Recht im Spannungsfeld von Objektivität und Macht. Die Frage, was Recht ist – ein Instrument der Macht oder eine objektive Realität, die Macht enthält –, wird aus verschiedenen Perspektiven und in unterschiedlichen Kontexten betrachtet.


Foreword
This book is the result of two complementary projects -one substantive, the other organizational.The substantive project is to explore law within the tension field of objectivity and power.It is a topic that has been following me from the very beginning of my studies. 1 The chair of Professor Hans Christoph Grigoleit, for whom I worked as an assistant for over a decade, provided an extremely inspiring environment to further pursue this interest.In a way, the diverging conceptions of what law is -an instrument of power or an objective reality limiting power -always reappeared in very different contexts.In their extreme version they seem to capture only part of the truth but not the whole of it.This book wants to reflect the broad range of the topic and the justification of both ways of looking at the law, depending on the perspective and the specific problem one is about to examine.The organisational project is linked to how this book was born: by bringing together young scholars from different areas of interest, disciplines, and countries, with whom I have interacted at different stages of my career.Even though the idea was to create a legal theory dialogue, I wanted to include doctrinal statements on the issue of objectivity as well.This approach reflects the necessity of considering the peculiarities of each legal subbranch.But there is more to it: theoretical, and especially epistemological questions have practical normative implications, which cannot be answered without the mechanisms that normally settle normative disputes, ie constitutional enactments, majority votes or other emanations of a given legal system.I develop this understanding, which I call Constitutional Pragmatism, in the introductory chapter in more detail.
The two projects leading to this book would not have been possible without the invaluable support of a variety of institutions and people.First and foremost, I owe my gratitude to the Max Planck Institute for Tax Law and Public Finance in Munich for which I worked as a research associate during the past two years: the institute provided the generous funding for both the conference and this book.Especially its director, Professor Wolfgang Schön, unconditionally supported the idea from the very beginning.Not only did he contribute to the conference with his insightful and personal talk on the thinking of Werner Flume.He also helped to overcome each and every of the various organizational hurdles.In this regard, I also want to thank his secretary, Gabriele Auer, whose experience and dedication provided the backbone of this undertaking.I am also particularly grateful to Professor Hans Christoph Grigoleit and Professor Peter M. Huber for immediately accepting my invitation to the conference and for sharing their experienced views and insights with us.Finally, I want to thank all the peer reviewers involved that helped to get the book accepted and financed, as well as Florian Bode, who reported on the conference.2I will end this foreword by briefly sketching out the plan of this collected volume.In the first part, which consists of my introductory chapter ( § 1), I present different ways of thinking about objectivity to structure the theoretical discourse and to provide some notional clarification.I also explain why the topic of objectivity and power is relevant and how we should approach it.
The second part contains two general contributions regarding legal interpretation.The first one, by Hans Christoph Grigoleit ( § 2), underlines the need of objective teleological interpretation of statutes as a response to the rather fictious claim of the will of the legislator.The second one, by Franz Bauer ( § 3), points out how the subjective (historical) interpretation of statutes, rightly understood, can avoid many of the pitfalls underlined by its critiques.
Then, the topic of objectivity and power is approached in specific areas of law.In that spirit, the third part focuses on constitutional law.It contains an outline of how objectivity is pursued in the reasoning of the German Federal Constitutional Court (Bundesverfassungsgericht) by Peter M. Huber ( § 4), who also builds on his experience as its Justice.Daniel Wolff ( § 5) turns to US constitutional law and analyses the (implicit) assumptions of the concept of law and the possibility of objectivity in legal reasoning that underlie the debate on interpretive methodology between originalists and living constitutionalists.
The fourth part takes a closer look at private law.It starts with a contribution by Ben Köhler ( § 6) on remedial discretion -a particular form of institutionalized subjectivity and power.It is followed by the chapter of Victor Jouannaud ( § 7) on the scope of the essential matters doctrine (Wesentlichkeitsdoktrin) in private law adjudication.He argues for a limited applicability as long as the particular norms of private law aim at an (objective) balancing of interests.In contrast, for norms of private law that serve (subjective) regulatory goals, the constitutional doctrine applies.The part ends with a look at the international realm: following a comparative approach, Andreas Engel ( § 8) contrasts the power-based understanding of conflict of laws dominant in the United States with the European objective understanding of the system of private international law.However, he also points to the ongoing convergence of both approaches.
The fifth part turns to criminal law broadly speaking.Lucia Sommerer ( § 9) dwells on the risks of trying to create presumed objectivity in the field of predictive policing through the use of algorithms.Martín D. Haissiner ( § 10) analyses the presumption of innocence and its relation to (objective) truth as the goal of criminal proceedings.
The sixth part is dedicated to international arbitration, an area in which issues of legal theory are particularly present due to the lack of any sovereign to settle disputes authoritatively.Fabio Núñez del Prado ( § 11) starts this part by presenting his vision of arbitration, characterized by a strong belief in the market mechanism.Inspired by Hayekian thought, he entrusts spontaneous orders to create some kind of objectivity beyond the state.Even though Santiago Oñate ( § 12) also aims at an objective arbitral order beyond the nation state, the foundation of his approach does not consist in the market mechanism but rather in the value-judgments of the international community.
The contributions of the seventh part take an interdisciplinary approach.Whereas Peter Zickgraf ( § 13) analyses the potentials of the economic analysis of law to objectivize legal reasoning within the methodological positions of the German legal order, Emilia Jocelyn-Jolt ( § 14) explores the topic of this book from the angle of law and literature.
The final part is dedicated to what I call structural objectivity in my introduction: it is primarily not about the necessary power-or objectivity-based content of a legal decision but rather about the structures within which we think about law and the necessary consequences that come along with the decision for a particular path.In that vein, Jan-Erik Schirmer ( § 15) points out how metaphors pre-structure our legal thinking, and Alvin Padilla-Ba-bilonia ( § 16) unveils the duality of citizenship, which functions as both, a source of rights and an imperialist instrument of power.He thereby points to some kind of structural objectivity, because even though a government might be free in deciding whether or not to grant citizenship, it cannot escape the dual consequences that this decision entails.Philip M. Bender Munich, January 2022

Table of Contents
Objectivity and Private Law § 6 The Role for Remedial Discretion in Private Law Adjudication 195

Table of Contents
Part 7: Objectivity and Interdisciplinary Perspectives of Economics and Literature § 13 Economic Analysis of Law: Inherent Component of the Legal System 371 Peter Zickgraf § 14 From the Furies to 'Off with Their Heads': The Complex Inter-Relation between Law and Power in the Legal-Literary Canon 405

Table of Contents
Peter M. Huber is a Justice of the German Federal Constitutional Court (Bundesverfassungsgericht) and Professor of Public Law and State Philosophy at the Ludwig Maximilian University of Munich (LMU).He previously was Minister of the Interior of the Free State of Thuringia, held different judicial offices and served as a member of the parliamentary commission for a reform of the federal state and as president of the parliamentary commission controlling the concentration in the media.He is, among others, a member of the Erfurt Academy of Science and the Academia Europaea.His research focuses on the intersection between constitutional law and European Union law, comparative constitutional law, and general administrative law.Holt is a chilean lawyer, Licenciada en Ciencias Jurídicas y Sociales, Universidad de Chile, LL.M. Yale Law School 2019, J.S.D. Candidate Yale Law School.She is a full Time Scholar at the Law Faculty, Universidad de Santiago de Chile.Her research focus is law and humanities, particularly from the law and literature perspective.She is the author of the book Del caos al imperio del Derecho.La búsqueda de la justicia en Shakespeare (Rubicón 2018) and co-editor of the book Ficciones jurídicas.Derecho y literatura en Chile (Rubicón 2019).Ben Köhler is a Senior Research Fellow and Habilitand at the Max Planck Institute for Comparative and International Private Law in Hamburg, where he focuses on European and comparative private law and private international law.He is a fully qualified German lawyer with a Ph.D. in law from Saarland University as well as a Licence de droit from Paul Verlaine University-Metz and an LL.M. degree from Harvard Law School.LL.M. (Yale Law School), currently is a Ph.D. candidate at Oxford University and professor at the Pontificia Universidad Católica del Perú (PUCP) from where he graduated as valedictorian (summa cum laude).He previously was professor at Universidad Carlos III de Madrid, Universidad de San Marcos, and Universidad Científica del Sur, to which he is still affiliated as researcher.Fabio is a dual qualified lawyer (Peru and N.Y.).In 2019 he won the award for best article in the competition of the Chartered Institute of Arbitrators (N.Y.).He has written two books, Desmitificando Mitos (Reuters 2016) and La Tragedia del Consentimiento Peter Zickgraf is a Research Associate and Ph.D. candidate at Ludwig Maximilian University of Munich (LMU).His research focuses on civil law, corporate law, and capital markets law, building upon legal theory and law & economics as a theoretical basis.His doctoral thesis was supported by a scholarship from the Donors' Association for German Science (The Stifterverband) and a Harvard University Post-Graduate Research Fellowship from the Bavarian American Academy (BAA).
Victor Jouannaud is a research assistant and Ph.D. candidate at the University of Regensburg.He is a fully qualified German lawyer and holds a Maîtrise en droit (Paris II/Panthéon-Assas).His research focuses on private law theory, in particular the regulatory use of private law and its constitutional limits.Fabio Núñez del Prado,