Sektion für Rechtssoziologie

In recent decades constitutional conceptuality has provided the central epistemological framework through which the issue of legitimacy of transnational orders has been addressed. Departing from a reconstruction of four central characteristics of transnational orders related to the concepts of organisational hierarchy, norm production, regimes and authority, the ongoing debate on transnational constitutionalism, and how the question of legitimacy beyond the state is addressed within this debate, is pinned out. Finally dimensions of a context adequate concept of the political is developed in order to provide a basis for evaluating the quest for legitimacy in the transnational realm.

"The concept of “network” has become the most central concept within the work of Karl‐Heinz Ladeur (KHL). It is an omnibus concept which he uses to extrapolate insights at all levels: It is used to provide a general framework at the level of Gesellschaftstheorie (social theory) in the sense that it provides insights into the general structure of society and thereby into the context within which legal processes unfold. At the level of organizational theory it provides a basis for understanding the transformation of organizational structures as it unfolds through the breakdown of hierarchy and the boundaries between the private and the public, just as the network concept plays an important role in its attempt to formulate a legal theory which is adequate for a society which, according to KHL, has become postmodern.
This article seeks to critically examine the function and “added value” of KHL’s network concept in relation to the European integration and constitutionalization process. It is argued that the concept provides a very useful overall framework, but that its usefulness might be enhanced when combined with more concrete studies of the actual function of networks in the EU context, just as the network concept should be more directly combined with an attempt to develop a conceptual framework for the juridification of networks."

The EU is a structure positioned “in-between” hierarchically organized nation-state governing structures and heterarchically structured global governance structures. Thus, the EU is a hybrid which relies partly on governing and partly on governance. This two-dimensionality is a central reason why the question of the constitutional character of the EU remains fundamentally unresolved. Thus, it is proposed that the EU should aim for developing a constitutional form aimed at alleviating the tensions inherent in the European construction through a conflict of laws approach. In order to respect the hybridity of the Union, such an approach, however, will have to be based on a three-dimensional conflict of laws concept. It would have to take account of horizontal conflicts between territorial units, vertical conflicts between the EU and its member states, and also horizontal conflicts between the functionally differentiated structures of the wider society.

""This book explains the emergence and functioning of three forms of governance structures within the context of the European integration and constitutionalisation process: comitology, (regulatory) agencies and the Open Method of Co-ordination. The point of departure is the insight that the intergovernmental/supranational distinction, which most theories of European integration and constitutionalisation rely on, has lost its strength. A new paradigm of EU research is therefore needed.

Against this background it is suggested that the distinction between governing and governance provides a more appropriate basis for analysing the phenomenon of integration and constitutionalisation in Europe. The distinction between governing and governance allows for an understanding of the EU as a hybrid consisting of a governing dimension, characterised by legal and organisational hierarchy, and a governance dimension which operates within a network form characterised by legal and organisational heterarchy. The function of governance structures is to ensure the embeddedness of the governing dimension in the wider society. Instead of representing contradictory developments, the two dimensions are therefore mutually constitutive in the sense that more governing implies more governance and vice versa. These theoretical insights are illustrated through two detailed case studies which respectively reconstruct the operational mode of the Open Method of Coordination within EU Research & Development Policy and the regulatory system for the EU chemicals market (REACH).

The book is inter-disciplinary in nature and incorporates insights from law, political science and sociology.

Reviews and review essays:

- Thomas Conzelmann, European Law Journal, volume 19, Issue 1, 143 – 45, 2013.
- Agustin José Menéndez, European Public Law, Vol. 18, Issue 3, pp. 556–563, 2012.
- Sarah Kahn-Nisser and Gianluigi Palombella: ‘Integration and Function: Taming Governance in the EU?, Transnational Legal Theory, Vol. 1, 4, 587 – 595, Dec. 2010.
- Chris Thornhil, Journal of Law and Society, Vol. 37, 4, 687-90, Dec. 2010.
- Edoardo Chiti, The Common Market Law Review, Vol. 48, 1, 265-66, 2011.
- Maartje de Visser, European Law Review, Vol. 36, 3, June, 440 – 442, 2011.
-Mark Fenwick, The European Union Institute in Japan Review, Feb., 1 – 5, Feb. 2012.""

The use of constitutional language and concepts has enjoyed a widespread expansion in recent decades. From the relatively narrow confinement within national constitutional law discourses it has, in the wake of globalisation, crept into almost all legal sub-disciplines as well as into political science, international relations and sociology. Does this development mark the triumph of constitutionalism or is it rather an indication of its demise taking the form of an increasingly desperate attempt to maintain the constitutional outlook in the face of structural developments which threaten to undermine state-based constitutional orders? This crucial question, which goes to the core of the future of democracy and the rule of law, is the topic of this brilliantly edited volume.

This is an extremely ambitious book. Its point of departure is that the study of the origins, status and functions of constitutions was a central element of early sociology. It is argued that classical sociological scholars such as Tönnies, Durkheim and Weber initiated a break with the normative ideals of the Enlightenment and established the defining features of a positive-descriptive political sociology through the study of constitutions. The strong centrality of the study of constitutions in political sociology, however, drastically declined in the post-war period. Instead, constitutional theory and practice became dominated by formalist-normative approaches developed within the realm of legal and political philosophy. The book is aimed at turning this development around by introducing a fully-fledged empirically founded, essentially positivist, sociological theory of constitutions capable of re-establishing constitutional sociology as a specific sub-discipline within law, politics and sociology.

We contrast two political inquiries in light of Luhmann’s system theory of procedure. The article asks whether and to what extent these inquiries can be considered as procedural systems, meaning as distinct frames of action that generate specific meanings and relevancies. Starting from the micro-sociological analysis of interactions in the British ‘‘Hutton Inquiry’’ and the European Union’s ‘‘CIA Inquiry’’ the authors reconstruct the specific functionalities of each with regard to their different ways of engaging and enabling self-referential processes of communication, knowledge production, and decision-making. As a system, each merges these three processes into a consistent, relatively strong or weak procedure, but they do so to different degrees. Overall, the article encourages a sociological understanding of the procedural mechanism as well as an empirical qualification and variation of system-theoretical assertions.

Die Autoren skizzieren das Vermögen der Soziologie, in interdisziplinären Zusammenhängen zu kooperieren. Es ist gerade die multiparadigmatische Verfasstheit, die produktiven Spannungen zwischen Mikro und Makro, qualitativ und quantitativ, Handeln und Struktur, etc. die das Fach qualifizieren. 

Co-edited special issue on the relations of biography (and biography work) and the law (legal rules). The compilation touches on biographies of prisoners, judges, immigrants, etc. And it spells out, how legal rules relate to the biographical narratives and representations.