Research Projects
Acting when Others Aren't - Arguments from Failure in Comparative Public and International Law
Habilitation thesis (submission in March 2023): Around the globe, we often encounter in public law what Michaela Hailbronner calls arguments from failure, i.e. the idea that one institution may expand its powers in a situation where another institution is failing to do its job. Examples range from structural reform litigation to the Uniting for Peace Resolution of the UN General Assembly. In her manuscript, Hailbronner argues for recognizing arguments from failure as a public law concept, ranging on a continuum between implied powers/effective realization and emergency arguments. She shows that such arguments may under certain, narrowly defined, conditions legitimately be used, taking into account both recent separation of powers scholarship and democratic theory.
Political Process and Representation Reinforcement in Courts
Building on John Hart Ely's work on democracy and distrust as well as the more recent comparative law literature, I explore the way in which courts, including the European Court of Human Rights, have contributed to safeguarding democracy in the sense envisaged by Ely and contemporary writers. A symposium on this theme, co-edited by Rosalind Dixon and Michaela Hailbronner, was published in the International Journal of Constitutional Law.
Prof. Hailbronner is currently working on another paper on political process theory in the European Court of Human Rights.
Law and Democracy: Safeguarding Democratic Principles against Semi-authoritarian and Authoritarian Movements
The dismantling of democracy and the erosion of the rule of law have been an important field of research in international and European comparative law for some time now. This literature shows that the traditional mechanisms of defensive democracy such as party bans often fall short here and do not offer sufficient protection against new authoritarian and semi-authoritarian governments. In many cases, such governments not only dismantle constitutional standards, which has also been much discussed publicly, but also undermine the conditions for democratic elections and an open exchange of opinions by various means (i.e. through modifications of the electoral law and the control of civil society organizations and actors). This raises the question of the importance of law and legal institutions in safeguarding such standards, which have already been widely discussed in the international literature but are sometimes little received in Germany.
Systemic Deficiencies in the System of Protecting the Human Rights of Migrants: the Inter-American and the European Court of Human Rights in Comparison
Human rights courts such as the European Court of Human Rights (ECHR) and the Inter-American Court of Human Rights (IACHR) not only assess individual rights violations ex post in specific individual cases, but also intervene directly in political and administrative processes in some cases. One reason for this development is that human rights violations are often of a systemic or structural nature, i.e. they have a common cause and affect a large number of people over a longer period of time.
Against this background, the project aims to fathom the dogmatic potential a procedural approach can open up (with regard to avoiding systemic deficits in the sense of good governance) and how the ECHR and the IACHR, in their function as courts, can deal with systemic deficits in a strategically successful and at the same time legitimate manner. Subsequently, it will be examined to what extent the obtained knowledge can be made fruitful for the current critical discussion on human rights.
The project is being carried out together with Dr. Giulia Santomauro and is part of a research group at the University of Giessen headed by Prof. Jürgen Bast on human rights discourses in the migration society.
Constitutional Canons Project (Oxford University Press, forthcoming (2024), with Sujit Choudhry and Mattias Kumm)
The rise of global public law has been halted for now. International standard setting from human rights to the rules of trade is increasingly viewed with suspicion and established global values such as democracy or human rights are rolled back in some places and redefined in others. The uncertainties these developments implicate make this a good moment to think about what we truly share and what divides us. We engage with this challenge from a new perspective: the search for the canonical texts in human rights and comparative constitutional law. We discuss both the role of such canons as well as what may count as a canonical text in this volume, which involves a range of others from all continents, including inter alia Rosalind Dixon, Ran Hirschl, Kate O'Regan, Jaclyn Neo, David Dyzenhaus and many others.
Separation of Powers Project
Research Cooperation with Eoin Carolan, Cora Chan, Erin Delaney, David Kosar, Mathieu Leloup, Joana Mendes and Sergio Verdugo, planning a handbook on the theme, involving a range of perspectives from different regions on this core theme of constitutionalism.
Minerva Centre for the Rule of Law under Extreme Conditions, University of Haifa
(Chairwoman of the Scientific Advisory Board 2022-2023)
The primary goal of the Minerva Center for the Rule of Law under Extreme Conditions is to concentrate on the comprehensive aspects of the rule of law, encompassing policy and regulation, amid three primary categories of extreme circumstances: These include natural calamities (such as epidemics, floods, storms, fires, and earthquakes), challenges to national security (including wars, terrorism, counter-terrorism, cyber-terrorism, and military operations), and socioeconomic crises (such as economic meltdowns and severe sociopolitical fragmentation).
International Journal of Constitutional Law (ICON) (Advisory Board)
In collaboration with the New York University School of Law, ICON is committed to promoting the exploration of international and comparative constitutional law in its most comprehensive scope. Presenting scholarly articles contributed by experts in international law, constitutional studies, judiciary, and related disciplines like economics, philosophy, and political science, ICON provides a platform for critical analysis of contemporary issues, debates, and worldwide developments with constitutional significance.
Verfassung und Recht in Übersee / World Comparative Law (Co-Editor)
World Comparative Law analyzes developments in the public law of states and regions outside Europe and North America as well as the legal structures of their regional and international integration. The journal was founded in 1968 and is committed to the ideals of decolonization and fair cooperation. It shows a particular interest in the links between the 'Global South' and the 'Global North', including the presence of the 'South in the North'. World Comparative Law provides a platform for legal research to analyze the legal forms and interdependencies of a globally interconnected world.
Verfassungsblog (former Associate Editor; currently: Cooperation on the Thuringia Project)
The Verfassungsblog is a scholarly and journalistic discussion forum with an open access approach, dedicated to current events and developments in constitutional law and policy in Germany, the emerging European constitutional area and beyond. It acts as an interface between academic discourse on the one hand and the political public on the other.
Völkerrechtsblog (Advisory Board)
The Völkerrechtsblog is an academic blog on all questions of international law and international legal thought.
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Sonderforschungsbereich 1385 Recht und Literatur im Projekt C01 "Rhetoriken. Begründung und Geltung in Recht und Literatur"
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Publication: Rhetoriken? Versuch einer kritischen Standortbestimmung und Reflexion; Schnetter, Marcus (2023), in: Arnold, Stefan; Heger, Gesine; Schnetter, Marcus; Wagner-Egelhaaf, Martina (Hrsg.), Rhetoriken zwischen Recht und Literatur. Literatur und Recht, Bd. 9, Berlin, Heidelberg: J.B. Metzler.
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Thuringia Project: Seperation of Powers
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The aim of the project is
a) to inform the public about the vulnerabilities of the democratic constitution in Thuringia and the possibilities for protection and intervention in the multi-level system
b) to strengthen the resilience of local functionaries and decision-makers in Thuringia in the event of an authoritarian-populist takeover, and
c) to mobilize legal sciences for the protection of the democratic constitution and to provide legal and political science knowledge for questions in this context.
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Research group „Human Rights Discourse in Migration Societies” (DFG Project), Sub-project of cluster A „Systemic Deficiencies in the System of Protecting the Human Rights of Migrants: the Inter-American and the European Court of Human Rights in Comparison”