Prof. Dr. Ulrich Haltern

Leibniz Universität Hannover

Curriculum Vitae

• Univ.-Professor, Dr. iur., LL.M. (Yale)
• Inhaber des Lehrstuhls für Öffentliches Recht, Europarecht und Rechtsphilosophie sowie Ko-Direktor des Instituts für Internationales Recht an der Leibniz Universität Hannover
• Studium der Rechtswissenschaft an den Universitäten Bochum, Genf, Yale und Harvard
• Habilitation an der Humboldt-Universität zu Berlin
• Lehrtätigkeit an den Universitäten Yale, Michigan, Connecticut, St. Gallen und HU Berlin
• Rufangebot St. Gallen (abgelehnt), Ruf Frankfurt/Oder (abgelehnt)
• Einladungen als Fellow an das Straus Institute, New York University (2011/12) und an das Wissenschaftskolleg zu Berlin (2012/13)
• Prof. Dr. Ulrich Haltern war von Oktober 2010 bis März 2011 Fellow am Käte Hamburger Kolleg „Recht als Kultur“

 

Forschungsprojekt

Law as Political Identity

Rule of law and Rule of the people are coextensive. That, at least, is one of the shared fundamental beliefs of Western societies and nation-states, and it is a central tenet of a narrative of progress that we tell ourselves – a narrative of progress in and through reason. In it, law is imagined as the realization of reason within the space of political life, with justice as reason’s normative claim.

We find three central elements in this belief. 

First, there has been a transition from personal to democratic forms of power (from kingdoms to republics). The people are the sole legitimate source of power today; its expression is the law. Second, there has been a transition from torture to procedure (from the spectacle of the scaffold to the science of penology). Law applies to every citizen, even to those who violate it. In this way, the rule of the people is simultaneously the rule of law. Third, the transition from chaos and bloodshed to international law and institutions (from war to law); if war cannot be avoided, it is humanized by prescriptions of humanitarian international law. Each aspect of this narrative of progress appeals to law; indeed, the rule of law is the dominant theme of its entire story. The larger framework of this theme is the working through of reason. After all, justice is the normative claim of reason. Little wonder, then, that we see this theme played out not merely in politics, but in economics (production is rationalized) and science (scientific beliefs are cleansed of irrational beliefs) as well; nature is tamed, and since Freud man may be subject to a therapy of reason. All of these claims are deeply ambiguous; we know all too well that modernity has given rise to its very own anti-modern moments. Still, progress within the narrative that law constructs of itself is both, more visible (in that it defines the very ethos of most scholars, practitioners and activists alike, and in that it is put to work for moral and political claims), and more dubious (in that while the legal regime became ever more refined in the 20th century, violence and war itself moved in the direction of „total war“). While law expands, proliferates, and differentiates into numerous regimes and institutions, so does violence. The nomos of law, it seems, is fundamentally out of sync with the narrative of the modern nation-state.

How to make sense of this? How can we, descriptively, conceive of the authority of law? How can we, normatively, use law in studying, and living in, national and international relations? How can we, methodologically, avoid the traps of positivism without sacrificing the virtues of rationality and autonomy of law?

This project’s starting point, and key question, is whether the rule of law and the rule of the people really are coextensive. Is there really no space left for a politics outside law, a moment when law gives way?  His-torically, this is doubtful because law, at least outside the common law tradition, leads back to an instant of inception that cannot be measured against a matrix of legality. The origins of law lie in political action, which is very much in contrast with the legal imagination: It is literally nonsensical to ask whether a revolution, the dominant myth of origin, was legal or not. Empirically, political practice operates well outside even our most basic, and valued, legal norms. Democratic western nation-states, in the twenty-first century, practice torture. Geographically, while Europe associates a space outside the law with 20th century totalitarianism, we need only look to the United States – a „nation under law“ – in order to find a puzzling resistance to claims of transnational justice and international human rights law, and a deep reluctance of courts to intervene in certain areas. Individually, we often expect more from the state than merely justice – we expect care, and a sense of belonging: being citizens, we acquire a past beyond our own existence, and a future beyond our death. We know our place in the world.

None of this can be explained through principles, abstract norms, or reason. Rule of the people and rule of law are deeply intertwined, but they may be different, despite the myths we tell. Law and popular sovereignty are not the same, just as the popular sovereign is not identical to the words he speaks. Courts may engage in balancing, but they may also construct stories of collective political identity that have nothing to do with justice. Judicial reason may seem scientific, but it may also be a form of reason that relies less on science than on the humanities. Constitutions link popular sovereignty to law, but they are never merely a set of provisions to align conflicting claims of justice. They are also a bridge to the political rupture that brought into existence the constitutional order. Thus, they link the norm to the exception.

To understand law spoken „in the name of the people“, we need to grasp the social imaginary that relies on the judge no less than on the soldier, on the words of the popular sovereign no less than on his imagined body, and on a culture of, and belief in, the law that at the same time spawns political violence. It may be that, in spite of all intuitions to the contrary, political theology and the notion of the sacred speak directly to these paradoxes. If there is any truth to this hunch, it may be rewarding, in a culture of legal and political faith, to turn from political science to political theology. The scope of that inquiry is inherently broad and covers both legal practices and social imaginations. It is historical in that it looks at the genealogy/geology of legal core coordinates, and at the same time systematic/structural in that it analyses how these relate to each other today. It inquires into conditions of individual and collective existence just as it aims to take seriously the stories and myths we tell about our past and future. It covers national law and national imagination just as the move towards universalism and cosmopolitan justice. It deals with law just as with political philosophy, especially liberalism. One of the main problems, I find, is an impoverished intellectual discourse framed by a narrow understanding of liberal political theory shorn of context and history.  Social science and law increasingly employ a sanitized language that banishes overt reference to politics by deploying concepts such as „governance“, „best practice“, and the vocabulary of managerialism. Of course, these scarcely hide deeply rooted value judgments and normative orientations. Above all, the liberal „democratic peace thesis“ (democracies supposedly do not go to war with one another) naturalizes liberalism and presents it as the only form of political rationality that is able to meet the challenges of the modern world. Liberalism is rendered unviolent and pragmatic (rather than ideological) and detached from its coercive legacies of empire and domination. Indeed, this is precisely the problem we meet when we think of liberalism, political identity and political violence: there is nothing liberal about killing and being killed. Liberalism is a family of normative political theory that is all set in opposition to violence. While liberal states will explain the use of force through acknowledged values – peace, freedom, democracy – these are not the explanation for war. To understand the use of force (including terror and torture) we need to turn elsewhere, to other elements of the imagina-tion.

It is this imaginative space – largely invisible to liberalism, and actively invisibilised by the law – that will be the focus of my project at the Kolleg. Its existence is tossed between legal and political science, and the political practice that occupies it is not answered by mere institution-building and more law. While more law may signal more reform, and more reform may mean more reason, it seems important to understand that reason is not the sole vector moving us from chaos and bloodshed towards order and peace. Political psychology – different from what liberalism has it – rests not only on reason and interest, but on thick and tenacious conceptions of will also. A richer notion of law may yield insights that are hard to hear, but may pave alternative roads toward an understanding of the deeply political nature of law and law-based political identity.

My method of inquiry is genealogical (or geological) and architectural (or mapping). (1) Legal concepts (such as constitutionalism, the judicial role, sovereignty, and the rule of law itself) have their own histories. The point of genealogy is not merely to show the historically contingent character of our beliefs, but to grasp the way in which these concepts continue to bear remnants of the past – to understand how we are still bound to older structures of belief even as we think of ourselves as living in the modern age of reason. (2) While the genealogical approach emphasizes contingency, the architectural approach holds up a standard of coherence. It assumes that the rule of law is an entire system of order, and that each of its elements rests on a network of meanings constitutive of the whole – just like the interpretation of a novel, in which we can ask how each aspect makes sense in light of all the others, and how the whole appears from the perspective of each aspect.

 

Publikationen (Auswahl)

• Obamas politischer Körper, Berlin (Berlin University Press) 2009.
• Was bedeutet Souveränität?, Tübingen (Mohr Siebeck) 2007.
• Gemeinschaftsrechtliche Aspekte des Glücksspiels, Berlin (Duncker & Humblot) 2007.
• Europarecht und das Politische, Tübingen (Mohr Siebeck) 2005.
• Verfassungsgerichtsbarkeit, Demokratie und Misstrauen, Berlin (Duncker & Humblot) 1998.