Max Planck Society

Max Planck Institute for Comparative and International Private Law

Media Information
Online version Handwörterbuch des Europäischen Privatrechts


Rethinking law between the systems –
The Institute’s new Director Ralf Michaels in conversation

On 1 July 2019, Ralf Michaels assumed his duties as Director of the Max Planck Institute for Comparative and International Private Law on a full-time basis, after having served in this role part-time since 1 January 2019. He is the successor to emeritus director Jürgen Basedow. To take on this position, Michaels has returned to Germany from Duke University School of Law, where he had been a professor since 2002. This also marks a return to the Institute, where Michaels worked as a Research Fellow prior to his appointment at Duke.

In this interview, he describes his research agenda and his professional journey from Hamburg to the US academic world and back.

 

What are the most important topics on your research agenda?

What I am interested in is nothing more and nothing less than developing a concept of law suitable for our times, along with its methodological and practical implications. In Europe we traditionally think of law as a unit: either there is the law, such as our national law, or there are many systems of law, each of which, however, is in turn a separate single unit. But the reality of law today is different from this. Law is global but also plural; it is at the same time both one and many. What I want to do is work out in theoretical, methodological and practical terms a concept of law that corresponds to this reality. In terms of theory, I speak of a concept of laws – in contrast to a concept of law. Methodologically, this is a matter of developing what I have termed a decolonial approach to comparative law, which can apprehend such laws and is open to non-Western and non-modern law. And practically, I want to develop an approach to conflict of laws that does not simply resolve conflicts between what are understood to be separate laws, but rather operates within global, plural law.

 

You are pursuing the development of a way of thinking between laws. Is this meant to be a sort of universal theory for comparative law?

Universal theories are always suspect because they suggest that one can observe the whole world from a neutral position. Scholars of conflict of laws know that there is no such thing as a neutral position. We always look at the world as a whole from a particular position, for example the position of German law. Our view of the world and its law is always relational: it produces the relationship between the self and the other. This brings us to thinking between laws: we do not see French law, for example, in itself, but rather in relation to ourselves. In conflict of laws we know that French law is applicable not in itself – that would be impossible without the inclusion of French judges – but rather in relation to German law and to the ways that French law is understood by German law.

Something else is relevant here. Law plays out in large part not within a single legal system, but rather between legal systems. Traditionally, the case within a single legal system has been treated as the norm, and the conflict of laws case has been regarded as marginal. I like the term “marginal” because conflict of laws (and also comparative law) does indeed take place on the margins of law. We need to understand that in this sense, the marginal case is the rule and not the exception.

 

You want to hold up alternative models against the traditional Western understanding of law. What might private international law that isn’t defined by ethnocentrism look like?

I starting thinking about this question a few years ago for my lectures at the Hague Academy, and I was surprised by the extent to which our entire private international law rests on a Western state-based model of law. This cannot be overcome simply by permitting non-state law through party autonomy, without altering the fundamental structure. We need to scrutinize the extent to which our entire set of instruments presupposes a Western understanding of law. To name just one example, we are accustomed to asking what answer a foreign legal system would give to a specific legal question. Such concrete answers exist in state legal systems that have institutions to provide binding answers to contentious questions, particularly legislatures and high courts. And they exist in legal systems that are understood to be systematic, such that it is possible to resolve previously unanswered questions from within the system. Neither of these things can be expected of non-state legal systems. Rather, we need to accept what Thomas Bauer described in regards to Islam as tolerance for ambiguity – the recognition that the foreign law holds ambiguities.

 

You have mentioned the decolonisation of comparative law as one of your focal points. Is law lagging behind other disciplines in this area?

I think so, especially in private law. In public international law, trends towards decolonisation have been evident for quite a while – first primarily in formerly colonised states and the US, recently also in Germany, especially with regard to the former German South West Africa. In comparative private law as well as private international law, many people do not consider decolonisation particularly pressing, as private law appears to have less to do with political issues. This is misguided: colonisation has a great deal to do with matters of property rights and contract law, to name just two areas. Above all, however, the epistemological assumptions that inform us in comparative law are derived from Western modernity. We need to move beyond these assumptions.

 

This sounds like a counter-programme to the traditional perception of Western- and European-influenced state law as a benchmark. How can global law be understood in a new way?

It is not simply a counter-programme, for Western- and European-influenced state law exists and also needs to be understood by comparative law. It is a matter of realising that Western- and European-influenced concepts do not exist everywhere. A global concept of law needs to be more comprehensive. Whether it is even possible to define law abstractly is a longstanding question in both anthropology of law and legal theory. At the moment I am experimenting with a relational concept of law: law is that which is recognised by other legal orders as law.

 

You would like to apply conflict of laws beyond the boundaries of private law, extending it to areas of public law all the way to public international law. What legal matters do you have in mind here?

I believe that conflict of laws is fundamental to every form of law. This is not a new idea. Gerhard Kegel, who was otherwise considered conservative, expressed this idea, and Karl Neumeyer developed an international administrative law as early as 1910. Private international law is the part of conflict of laws that has been developed most extensively, primarily because private law seemed to give the least concerns of dependence on state interests. Today, the division between private and public law is no longer so stark and state interests have also been relativized through globalisation. As a consequence, the techniques of private international law can now be more readily expanded to other fields. I personally am most interested in market regulation law such as antitrust law and securities law, but also, for example, environmental regulation.

 

What concrete projects are you planning in these areas of research?

In the area of legal theory, I’m working on a book on a “concept of laws”, intended to bring together legal theory and conflict of laws. In decolonial comparative law, I am seeking to develop a more comprehensive methodology, which is first to be tested out on religious laws. Finally, in conflict of laws, I would like to test out models of decentralized regulation in selected areas of law; the first of these will be antitrust law. There will also be a number of accompanying projects: an attempt to understand the extent to which the basic understanding of private international law is the same in all countries, a conference on the philosophical foundations of private international law, a reading group on feminism and private international law, and a conference on the role of private international law in the UN Sustainable Development Goals. In addition to this, I’m working on a short textbook on comparative law.

 

You are returning to the Max Planck Institute for Private Law after an absence of seventeen years. What do you associate with the Institute?

As a student in Passau I thought of the Institute as a paradise for private international law, and I very much wanted to go there. Then, when I went to Hamburg for my Referendariat, I worked on my doctorate in the reading room as a guest, and had the good fortune to be hired as an assistant by Jan Kropholler. I also had the good fortune to meet my wife here. I did not fully realize what the Institute meant, however, until after I left. The fantastic library has almost every book that you find cited anywhere. For everyone here, it is a matter of course that they are working comparatively. This is perhaps the Institute’s greatest treasure: its people – the scholars and the guests in the reading rooms, as well as the great team of non-academic employees.

 

What does Hamburg mean to you personally?

I was born in Hamburg, although I grew up in the Rhineland. My parents considered themselves Hamburgers and upheld certain Hamburg values. And as a child, I cried when HSV lost. (That didn’t happen so often back then.) Today Hamburg feels oddly familiar to me. The mentality here appeals to me. Beyond this, many of my friends live here. In a certain sense, I feel like I’m coming home.

 

What are you particularly looking forward to about your new work as Institute Director?

I have received a very warm welcome, and there is a lot that I am looking forward to: training and advancing early career scholars, putting together new research groups, and working with the Institute’s other directors, the other scholars and the non-academic staff. And I especially look forward to doing something new that I don’t have much experience with and that gives me a lot of room to learn: heading an institute.

 

You are familiar with academic life in both Europe and the US. What are the biggest differences you see between the two?

Of course, above all there are differences in the object of study. German lawyers are incredibly knowledgeable about the entirety of German law after their Second State Law Examination. Their American counterparts have far less informational knowledge, but often have better argumentative skills. I was hired by a good US university in 2002 in part because they trusted that I could teach US law even though I had never studied it. The inverse would never occur with a German university and a foreign scholar. The boundaries between disciplines are also far more fluid in the US: private law specialists are also allowed to speak on constitutional law, or even on questions outside law. In Germany I’ve met fifth-semester students who already defined themselves as “public law specialists” because they’d taken an elective in it. This creates expertise, but it also restricts people.

What is reflected in academic life is that the US is more strongly influenced by a culture of individual competition. Scholars tend to understand themselves as lone warriors: they position themselves, keep trying for positions at better and better universities, and negotiate mercilessly with their dean’s office. As with any market, this can produce innovation and efficiency. But it also often results in less loyalty towards one’s own institution. German academia is perhaps less open to new things, but it often has more depth and thoroughness.

 

On the basis of this experience, what do you find to be the ideal combination of the different cultures?

There are no ideal combinations, and cultural differences shouldn’t be essentialised. But what I’ve learned is that every culture should draw upon its own strengths rather than emulating a different culture. For example, I do not think that law and economics in Germany can reach the same level of quality as in the US in the medium term. In the US, it is possible for an economist to be appointed to a faculty of law without having ever studied law. This enables an interdisciplinary expertise that a German faculty cannot replicate. Conversely, German doctrine has a level of differentiation that is unmatched elsewhere.

But I also believe that it is hard to be a good legal scholar without having experienced the culture shock of foreign law at least once. My impression of German LLM students in the US was that almost all of them went through the same three stages. In the first stage, they find US law barbaric, primitive and cumbersome, because it does not deliver clear answers to even the simplest questions. In the second stage, they notice the strengths of US law – its interdisciplinarity, its openness to realistic lines of argument, its workability and its orientation to real life – and become enthusiastic about it. It is only in the third stage that they are able to connect the two systems, applying their US experiences to German law and their German experiences to US law. The result is not a mishmash or a synthesis, but rather the ability to think between laws.