Max Planck Institute for Foreign and International Criminal Law

The philosophy project deals with the reciprocal relationship between legal and moral norms, which are understood to be historically variable structures of human societies. Human life always takes place in social groupings; these are simultaneously historically dependent communities of values. In their entirety these values form the normative basis for members of a society's subjective actions.

Despite the plurality of ethical convictions that exists, human rights constitute the most important part or the canon of societal values in modern Western democracies. Ideas having to do with how to deal with guilt are the basis for another aspect of this canon of values: such ideas may have to do with guilt on the level of immediate relationships or with guilt on the collective level.

On the one hand human rights are based on mutually entwined justifications based in moral philosophy and the philosophy of law. On the other hand the actual enforcement of human rights depends on their being codified in law as well as their being accepted by the people whose society they pertain to. Similarly, the foundational relationship between moral and legal norms may be studied by examining guilt and forms of compensation that take into account the common future of people who have incurred a debt towards each other: this is the case, whether the incurred debt is one that may be addressed through jurisdiction or is the kind of guilt that can only be dealt with at a distance from regulatory institutions. In the latter case humans are aware of the much more difficult to understand phenomenon of forgiveness or pardon as a manner of dealing with the unavoidability of guilt in all human interaction. The phenomenon of forgiveness exists independently of the categories of jurisdiction and sentencing.

Moral and legal norms represent different forms of normativity. The ethical convictions of the members of a society are expressed in moral norms which relate to the reciprocal relations between people. With their appellative character, moral norms formulate criteria for the legitimacy of subjects' actions. By contrast, legal norms demonstrate a markedly higher level of institutionalization. Legal norms relate more to outward behavior and less to the subjectivity of the self; they name criteria for legality that may have a compulsory character. Taken together, moral and legal norms thus determine whether a subject's actions are in accord with a society's accepted values. Actions which are bound by this collective canon of values are manifested in historically and culturally variable forms of life. These forms of life are the acting subject's basis for social contact. Simultaneously, these forms of life have to be understood as the normative basis that at once precedes and at the same time is dependent upon the subject.

• Gander - Project Description
• Dürr - Project Description
• Krenberger - Project Description

Gander - Project Description

Prof. Dr. Hans-Helmuth Gander is planning to publish several articles about the items mentioned above.

At this point, Gander is revising a lecture 2000/2001 which will be published under the title: “Toleranz - Anerkennung - Solidarität” (Tolerance - Acknowledgement - Solidarity). In this lecture, he specifies the conditions under which social change leads to a normative change of the conceptual guidelines named in the title.

Connected to these topics, Prof. Gander gave speeches at the State University of Rio de Janeiro in April 2004 and at the Chinese University of Hong Kong in May 2004.

In autumn 2004, the ERGON-Verlag (Würzburg) will publish an anthology edited by Prof. Gander under the title “Anerkennung. Zu einer Kategorie gesellschaftlicher Praxis” (Acknowledgement. About a Category of Social Practice). Additionally, he wrote the following articles published in “Politische Theorie der Gegenwart” (Recent Political Theory), edited by Gisela Riescher (Kröner Verlag, Stuttgart): “Otfried Höffe”, “Wolfgang Kersting”, “Charles Taylor”. These authors and their thoughts form an essential part of the project's theoretical foundation.

During the winter term 2004/2005, Prof. Gander will give a lecture on “Phenomenology of social life” and a seminar on “Theories of Justice”.

Additionally, the project will organise several interdisciplinary seminars together with Prof. Dr. Fludernik and Prof. Dr. Albrecht. For example, Gander will organise a seminar on philosophical and judicial aspects of penal justice in collaboration with Albrecht as well as a seminar with Fludernik on the medial transportation of moral concepts. Additionally, the members of the three projects will meet on a monthly basis which will provide the opportunity for an intensive exchange between the projects.

Dürr - Project Description

Forgiveness: Arendt's Theory of Action and the Ambivalence of Modernity

Perceptions pertaining to guilt are part of the above mentioned basis for social contact. Social collectives reach agreements, draw up contracts, and create institutions in order to reach a new basis for living together that is orientated both by the past and the future. On an individual level, we are familiar with forgiveness of sins, court trials, and forgiveness or forgetting as reactions to the unavoidability of guilt. Hannah Arendt's conceives of forgiveness as a happening which refers to the people involved rather than to their actions. This concept of forgiveness is aimed at opening up of a shared future perspective while being conscious of a guilt ridden past. Forgiveness gives raise to questions concerning the relation of moral and legal norms. Law provides criteria on the basis of which the perpetrator's degree of guilt and an appropriate measure of punishment can be defined. New models of mediating between victims and perpetrators, which have been initiated by but are not actually part of legal proceedings, direct attention to the necessity of concentrating on perpetrator who is to be judged and his or her deed. These models differ but are not opposed to the philosophical concept of forgiveness which emphasizes reciprocity and reconciliation between people who have incurred a debt towards each another. By contrast, religious forgiveness transforms past occurrences into a conversation with God, ignores the interpersonal aspect of guilt, and thus aims to enable a common future. In relation to the phenomena of guilt and forgiveness, the question arises as to in what way local convictions about what is allowed and not allowed are reciprocally related to convictions about what is legal and illegal in terms of codified law. Factual similarities and affinities as well as characteristic differences regarding juridical and everyday dealings with guilt need to be defined. Similarly, the interaction between law and morality has to be determined with regard to predominating convictions about what is forgivable and not forgivable. Finally, attention has to be paid to the influence that the theological conception of forgiving sins has had on the relationship between law and morality. Thus, the interaction between the legal administration of justice and guilt in a philosophical sense is complemented by the religious practice of forgiving sins. An analysis of this interaction provides insight into the reciprocal relationship between legal and moral norms as exemplified by one of the foundational aspects of human life, namely guilt.

The essence, possibilities, and limits of Hannah Arendt's philosophical concept of forgiveness will be studied in this project. The central aim of this project is to explain the conceptual foundation, the central ideas, the most important concepts - namely forgiveness and promise - and the systematic additions in Arendt's theory of action. Each of these items will be regarded as part of a specific set of terms and a line of argumentation which contains its own inherent difficulties. Simultaneously, the study will include a discussion of other philosophers who have dealt with the concept of forgiveness. The frame of reference for the study is Arendt's theory of action in specific and her entire way of thinking in general. This last point refers to a basic assumption of this project: Arendt's diagnosis of modernity is systematically linked with her practical philosophy. This connection needs to be illuminated in order to define the scope and the limits of her concept of forgiveness within the larger context of modern society which is experienced as being deeply ambivalent.

Krenberger - Project Description

Anthropology of Human Rights - Hermeneutic Investigations of Legal Texts

In Western democracies, human rights are considered to be an essential part of a normative contact basis. They ambivalently waver between the moral and the judicial sphere. From a purely moral perspective, they are universal concerning their scope and with regard to obedience they inhere an individual unconditionality in the social context. With regard to the relationship between the individual and the state, human rights consist of the protection of the individual against the arbitrary use of governmental power.

With the codification of human rights to fundamental rights, states are voluntarily obliged to guarantee civil and political as well as economic and social rights. That is to say that the individual is judicially in a position to sue for fundamental rights, and these fundamental rights are not to be seen as universal norms but limited to the scope of the law. Consequently, human rights waver between moral norms (which are valid concepts of human beings, the “picture” of the human being) and judicial norms (the codified catalogue of fundamental rights).

In this ambit of legislation, the fact that social power is represented in the historical-dynamical process on which basic conflicts between norms and the understanding of norms as well as decision conflicts and marginalisation are organised within the social unities. This process is important for the definition of norms. The codification of judicial norms consists of their ratification and de-ratification through normative acts in view of the addressee, which means that they are historically changeable.

Through this coexistence of moral concepts and fundamental rights, the founding relation of judicial and moral norms is visible in its historical relativity. Therefore, positive law has to find its source in a judicial morality, like human rights, which formulates the scope. If this scope is neglected, actions can be defined as unlawful and its codification as statute law facilitates the punishment with the means of justification.

The above given distinction between human rights and fundamental rights is essential for the dissertation project. It refers to a problem that Immanuel Kant raised about two hundred years ago: "Does the human species contain a tendency to the better?" The question about the existence of a human tendency to the better shall be answered by an analysis of the developments in the human rights standard using an interdisciplinary extent. Kant assumed the acceptance of the French ideals to be a proof and furthermore an evidence for a human tendency to the moral better by observing the effect and the reception of the results of the French Revolution.

Today, the establishment of the European Charta of Fundamental Rights and its implementation into the European Constitutional Treaty can be seen as a similar situation. An empirical analysis of the changes within the human rights system following specific criteria shall support to trace back the judicial fundamental texts to their moral sources. If it is possible to ascertain a change in the arrangement of the human rights, a quantitative registration of these changes under certain conditions can follow.

Among others, an extension of the private law protection system would lead to the ability to speak of a progress (in contrast to stagnation or regress). The result has to be assessed in a qualitative manner to return to the question raised at the beginning of the dissertation: Does the development of the human rights system express some sort of moral progress? The link with moral progress, as a synonym for the progress to the better, will be derived from the enforcement of moral concepts within a community of values.

Questions like the connection between descriptive and prescriptive issues, conceptions of the idea of the Good and anthropological models are to be considered in the philosophical part of the dissertation. Questions like the universality and the need for the codification of human rights will be discussed in the judicial part.
The thesis was submitted during the winter semester 2006/2007; the oral examination will take place during the summer semester 2007.