Public Law: Research Program
The research agenda of the Department of Public Law is structured on the basis of a three-dimensional topical matrix. The general doctrinal structures and theoretical questions that underlie public security law are located on the fundamental axis of the matrix. The second axis reflects the major trends in the field: internationalization, digitalization, and fragmentation. The third axis represents the normative challenges to public security law: fundamental rights, rule of law, and democracy. The matrix aims to structure a field that is less established in the international discourse than are more traditional areas of legal research. On the one hand, the matrix will serve as a framework for departmental projects; on the other hand, the matrix will either be corroborated by these projects or it will be adjusted and modified in accordance with their results. Some projects will have a focus in one dimension of the matrix; others will be located at the intersection of two or more dimensions. For example, a theoretical project on deep disagreements, which concentrates on the epistemological, meta-ethical, and methodological implications of unresolvable disagreements for politics and law, addresses the fragmentation trend at a fundamental level. A junior research project whose goal is the development of a philosophically-grounded fundamental right to civil disobedience is positioned at the intersection of all three dimensions since it also involves fragmentation along the fault lines of our deep disagreements.
Research projects at the fundamental level focus, on the one hand, on the theoretical aspects of law and how they relate to the interpretation of public security law and to its basic concepts and structures. Current research projects aim at an analytical reconstruction of legal hermeneutics, at deep disagreements in politics and law, and at the discussion about the theoretical character of legal principles, which play a central role in the constitutional evaluation of some of the most invasive security measures. On the other hand, research projects in this dimension examine the general doctrinal structures of public security law. Building on a structural analysis of German public security law, the aim of one ongoing project is to utilize the resulting structure to systematize the multitude of police powers in the various German police codes at the federal and state levels. The project is guided by the more general question whether it is possible to systematize preventive public security regulation at an even more abstract level that goes beyond the boundaries of the German tradition.
Internationalization, digitalization, and fragmentation – three strong trends in public security law – share a dialectical structure.
The first of these trends involves the internationalization of dangers to public security – e.g., terrorism and organized crime – as well as the internationalization of efforts to counter them. The preventive turn in criminal law has been promoted by a no lesser body than the United Nations Security Council, an entity that, with its anti-terrorism resolutions, became the first in the history of humankind to act as a global legislature. Cooperation at the supranational level of European Union law is even more intense. Both sides of internationalization put national public security regimes under stress. Projects will aim at doctrinal frameworks and solutions for a multi-level public security law.
Digitalization is one of the driving forces behind the evolution of public security law into a field of reference in public law. The growing digital interconnectedness of every aspect of contemporary life has heightened the vulnerability of modern societies through network- and cascading-effects to such a degree that security has become an ever more pervasive topic. The dialectic of public security and its law lies in the fact that efforts to counter the risks and dangers of digitalization themselves rely largely on digitalization and thus contribute to the very vulnerabilities they aim to counteract. Security agencies may keep zero-day software vulnerabilities secret in order to make offensive use of them against their adversaries; however, the failure to disclose such vulnerabilities exposes millions of systems to attacks the agencies are supposed to prevent. How can public security law address and accommodate such dialectics?
A third trend that affects public security is the fragmentation of contemporary western societies. It ties into digitalization in that the tectonic shifts in our communication and media structures spurred by digitalization have led to a growing fragmentation of public discourse. Increasing inequality, migration, and religious and cultural pluralization are also prominent. How can the law address the challenges to public security caused by these trends? However, fragmentation can also be observed on the side of public security agents. Private security personnel in many countries already outnumber the public police forces. Due to the privatization of many key infrastructures such as telecommunication and energy and water supply, private enterprises have grown into a position of immense security responsibility. Public security law must also address the needs for coordination and cooperation that are associated with the fragmentation of the supply side.
On the one hand, public security law serves to protect the fundamental rights of individuals and the functioning of our legal institutions and democratic processes. The dangers posed by the developments mentioned above challenge this function of public security law. This is obvious with regard to the internationalization of terrorism and crime and to the increase in vulnerability due to digitalization, but it is also true with regard to the fragmentation of western societies, a phenomenon that is especially challenging to our democratic processes. Public security law must adapt to the dynamic of these trends.
On the other hand, some of the newly developed instruments of public security law themselves challenge individual and collective autonomy and rule-of-law values. They often come with unintended consequences that infringe on the fundamental rights of those whom they aim to protect. They can undermine rule-of-law standards that are in danger of collapsing in the face of national security threats. Some instruments especially of the intelligence agencies are notoriously difficult to submit to legal or democratic control due to their functionally inevitable secrecy.
Some of the answers to these challenges will also have to be dialectical. On occasion, instruments must be modified in order to comply with existing legal standards. The greater challenge, however, lies in developments that call for changes to the legal standards themselves. Is it possible to develop anti-discrimination doctrines that remain true to their aims but allow for the processing of incriminated information in big data based security technologies? How should the fundamental right to data protection be conceptualized and protected in public security law in a world in which personal data is collected and marketed in ubiquitous ways, especially by multinational data monopolists?