(A2-7) Pluralism and the Justification of Norms in the Modern Age

The aim of the project is a monograph on “Normativity in the Modern Age”. Essentially, it is a normatively reasoning enterprise pursuing its objective with the specific legal philosophical (as well as moral philosophical and social philosophical) means. For this purpose (following Rawls and Habermas, but also exceeding them), the demanding assumption will first be explicated that only such reasons can be drawn on to justify norms under pluralistic conditions as can be made discoursively comprehensible basically to everybody. In a second step, this thesis of “public justification” will be incorporated into an overall concept of the normative modern age which centres around the terms of ‘post-conventionality’ or, respectively, ‘reflexivity’, ‘contingency awareness’, ‘normative and methodical individualism’ and ‘subjective rights’, identifying these at the same time as its fundamental elements. The object of study here are not least the institutionalisation processes of subjective basic and human rights. Thirdly, the concept of the normative modern age will explain how to understand the process of systematic secularisation of normative concepts, which intensified around 1650 and continues to this day. These concepts – such as the perceptions of moral universalism, of the person, of the assignment of individual responsibility, of voluntary action, or of “justice” – were initially formed (or at least decisively developed) in a Christian-theological context, but, in altered form, they are also central elements of “modern” law and “modern” ethics independent of religion.

To this extent, the analysis aims to reconstruct the immanent dynamic development of that which may be considered as a normative justification. In short: it aims at a theory of the development of norms. Constitutionalisation processes on the level of normative guiding principles are addressed, which serve as legitimacy criteria for the genesis and the setting of norms both in content-related and in procedural respect. The focus is on a reconstruction of the legal institutionalisation of an egalitarian normative individualism. Starting from here, the question will eventually be answered as to what resources of a substantial and procedural kind the liberal, pluralistic state can resort to today in the process of the justification of norms. Dr. Fateh-Moghadam’s habilitation project, which emerged from the context of the project, is not least attached to this point. Fourthly, eventually, this normative undertaking will put itself into relation with the concept of the modern age in the – descriptive and understanding – social sciences, and by explicitly reflecting the methodical problems of such an understanding, it will pursue the question as to how the normative modern age relates to the theoretical conceptions of the modern age in sociological macro theories, notably the differentiation theory.

The Project is part of interconnecting platform E Differentiation and De-Differentiation and coordinated project group The liquefaction and solidification of normativity.

Subproject: The religio-ideological neutrality of criminal law – on the penal monitoring of religious pluralisation (PD Dr. Bijan Fateh-Moghadam)

The habilitation project aims at the systematic development, justification and defence of the religio-ideological neutrality of criminal law under the conditions of increased pluralisation. For this purpose, the legislation-specific terms of alignment for the penal handling of social conflicts with reference to religion will be analysed in a comparative legal manner from a present-oriented perspective. The project’s general part will initially develop the sociological, legal philosophical and constitutional fundamentals of the relationship of religion and criminal law. The guiding principle of religio-ideological neutrality thus uncovered will then provide the shared reference for reconstructing the material concept of crime (theory of legal goods), the theories of criminal justice, the relationship of the state’s criminal law and religious legal concepts (legal pluralism), the discussion about religious reasons for justification and apology (cultural defence), and the legitimation of offences relating to religion and ideology (religious offences).

The special part of the project focuses on conflicts related to religion which are of urgent legal policy relevance: the criminal protection from the offending of religion (e.g., burning of the Koran); the legitimacy of criminal bans on veiling in public space (e.g., the French burka ban); the criminal liability of religio-ritual practices such as the circumcision of boys; the criminal relevance of religious motives (acts of conscience vs. hate crimes); the importance of religion as a normative resource of a biological criminal law (sacredness of life); religious matters of taboo protection in criminal proceedings (prohibition of torture) and the clergymen’s right to refuse to give evidence. In doing so, the work does not aim to exhaust all points of contact of criminal law and religion that may be imagined. On the basis of selected areas of application, it will rather be examined exemplarily how the theoretical foundations developed in the general part prove themselves when dealing with practical subsequent problems of religious plurality in a dogmatic manner as regards criminal law.