Identity Jurisprudence - Understanding Cultural and Interest Conflicts in International Family Law through Migration Studies

• Applicant: Vanessa Grifo
• Subject Area: Private Law
• Term: since 2025
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 577986953

The project develops, for the first time, a migration-sociological analytical framework for international family law. It aims to reveal the underlying conflicts of culture and interest that shape legislation and case law in the context of migration. Since the 2010s, the concept of the post-migrant society has gained increasing prominence in migration sociology. This concept stems from a political turning point in 2001, when the German Government officially recognised that Germany is a country of immigration. Since then, migration has been understood not as a temporary stay, but as a permanent settlement. The “postmigrant” concept shows how politics and society have since renegotiated cultural integration, i.e. how conflicts between the cultural identity of migrants and the national identity of the immigration country are balanced. In this process, national identity is often redefined, particularly in relation to Muslim migrants. In these post-migrant identity conflicts, private international law plays a key moderating role since it determines which legal system governs the personal status of immigrants and, the application of foreign law can challenge the substance of national identity. However, the jurisprudence of interests developed by Kegel in the 20th century – which is still widely considered the theoretical foundation of private international law – does not reflect this complexity. The thesis, therefore, proposes an alternative analytical framework for international family law: an identity jurisprudence. Its goal is to extract key sociological criteria for identity conflicts in post-migrant societies and translate them into the concepts and methods of private international law. This enables the systematic analysis of culture and interest conflicts within case law and legislation. The analysis focuses on three main criteria: (1) concepts of culture and identity, (2) concepts of integration, and (3) othering. In doing so, the framework challenges assumptions shaping most of the academic discourse. An analysis of selected legislative acts and judgments through the lens of identity jurisprudence reveals a shift in underlying interests within international family law. This shift is evident in two developments: courts and legislators no longer automatically equate the individual cultural identity of migrants with their home country’s legal system, and they are redefining the collective national identity as an expression of the state’s interests in integration. This emerging change in the understanding of identity leads to the replacement of a pluralist model of cultural integration by an assimilation-oriented approach. The thesis thus reveals that not only private interests of the migrant, but also the state’s integration interests influence the creation and application of conflict-of-law rules. It thereby also highlights the political dimension of private international law, challenging the commonly held belief that this field is apolitical.

• DFG Programme: Publication Grants