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This paper explores how University as social entity has great potential to confront epistemic injustices by expanding epistemic capabilities. To do this, we primarily follow the contributions of scholars such as Miranda Fricker and José Medina. The epistemic capabilities and epistemic injustice nexus will be explored via two empirical cases: the first one is an experience developed in Lagos (Nigeria) using participatory video; the second is a service learning pedagogical strategy for final year undergraduate students conducted at Universidad de Ibagué (in Colombia). The Lagos experience shows how participatory action-research methodologies could promote epistemic capabilities and functioning, making it possible for the participants to generate interpretive materials to speak of their own realities. However, this experience is too limited to address testimonial and hermeneutical injustice. The Colombian experience is a remarkable experience that is building epistemic capabilities among students and other local participants. However, there is a hermeneutical and structural injustice that tends to give more value to disciplinary and codified knowledge at the expense of experiential and tacit knowledge.
Ethical issues of justice and human rights are central to countries emerging from conflict. Yet involving women in transitional justice processes rarely is articulated in ethical terms. To make a case for an ethical commitment to improving women’s participation in these processes, the paper begins by exploring why transitional justice strategies should bother with gender. Women and men often experience conflict and injustices differently which may require different responses to redress harms suffered. Timor-Leste is used as a case study. The paper explores whether hybrid traditional and formal justice systems can address women’s justice claims in principle and specifically, when applied to Timor-Leste. The paper maintains that customary justice practices can be combined with conventional ones, but only when both practices adhere to international human rights conventions, which rarely happens where patriarchal practices are entrenched. The conclusion addresses what might be done to create gender-responsive justice systems given that they are crucial in building environments that are conducive to sustainable peace and security.
Dworkin`s political theory is characterized by the interpretative integrity of morality, law, and politics, the so-called “hedgehog’s approach”. The interpretative integrity approach functions on multiple levels. Firstly, philosophical foundations of his theory of justice are linked to his conception of just liberal society and state. Secondly, from the perspective of political morality, interpretative concepts of law and morality are internally connected, in addition to interpretative concepts of equality, liberty, and democracy. Thirdly, from the perspective of philosophical foundations, individual ethics, personal morality and political morality are mutually connected. The aforementioned ethical and moral foundations are also related – in a wider sense of philosophical foundations - with his gnoseological conception regarding value concepts in law, politics and morality, and with his episthemological conception regarding an objective truth in the field of values, in a sense that the value concepts are interpretative and can be objectively true when articulated in accordance with methodological rules and standards of a »reflexive equilibrium« and an interpretative integrity, and in accordance with the so-called internal scepticism in the context of value pluralism.
The term “ethics” in a “narrower” sense refers to individual ethics, the study of how to live well, while the “ethics” in a “broader” sense refers to personal morality, the study of how we must treat other people. The term “morality” however, is used primarily to denote a political morality, the issue of how a sovereign power should treat its citizens.
Philosophical foundations of Dworkin`s political theory of justice, his conception of two cardinal values of humanity, his concievement of individual ethics, personal morality and political morality will be in the focus of consideration.
The Brazilian Constitution of 1988 declares Brazil as a Democratic State of Law. This formally democratic legal status has been facing difficulties when it comes to its material implementation. Brazilian legal procedures are still greatly influenced by the catholic heritage from Portugal in the times of colonization, translated in the present times into a strong moral set of dogmas that still reflects upon the legal production and interpretation in the country. Recently in Brazil, a debate brought to the Supremo Tribunal Federal, the Brazilian Federal Supreme Court, has evidenced the struggle between Ethics and Morality in the country’s legal scenario. The focus of the discussion was the possibility of abortion of anencephalic fetuses (in Brazil, abortion in considered a crime against life). In order to properly ground its decision, the Court invited scientists, doctors, members of feminist movements and representatives of certain religions to a public dialogue, in which both scientific-technical and purely moral-religious arguments were presented. Although these procedures encouraged and promoted a democratic and pluralistic legal debate, it seems like the crucial point of the discussion were not taken into account: the scientific character of Law. This is the object of the present manuscript: in order to ensure an intersubjective construction and application of Law, this must be perceived as an Applied Social Science and judges, lawyers, legislators and all other legal actors must proceed in a scientific way. To illustrate the theme, the specific case of abortion of anencephalic fetuses will be mentioned through the text.
Defenders of current restrictions on EU immigrants’ access to welfare rights in host member states often invoke a principle of reciprocity among member states to justify these policies. The argument is that membership of a system of social cooperation triggers duties of reciprocity characteristic of welfare rights. Newly arriving EU immigrants who look for work do not meet the relevant criteria of membership, the argument goes, because they have not yet contributed enough to qualify as members on the grounds of reciprocity. Therefore, current restrictions on their access to welfare rights are justified. In this article, I challenge this argument by showing how restrictions on EU immigrants’ access to welfare rights are inconsistent with duties of international reciprocity. There are different variations of this challenge, but my focus here will be on one that uses a veil of ignorance device to support this claim. What matters from a perspective concerned with international reciprocity, I will argue, is what kind of welfare policy EU member states would choose were they not to know whether those receiving EU migrants were net contributors or net beneficiaries to the relevant scheme of international cooperation made possible by the four freedoms, and freedom of movement in particular. I argue that framing the requirement of reciprocity in this way provides a more comprehensive understanding of what should count as an ‘unreasonable burden’ on the welfare systems of host member states. The paper also examines alternative accounts of ‘unreasonable burdens’. It shows when and how the current institutional structure of the EU could take steps to deal with such burdens by preventing member states from gaming a comprehensive system of welfare rights protections across member states and by recognising the achievements of those member states that best serve them.
Populists in the EU often call for restrictions on EU immigrants’ access to welfare rights. These calls are often demagogic and parochial. This paper aims to show what exactly is both distinct and problematic with these populist calls from a normative point of view while not necessarily reducible to demagogy and parochialism. The overall aim of the paper is not to argue that all populists call for such restrictions nor to claim that all calls for such restrictions are populist. The purpose of the paper is rather humble. It only aims to show that populist calls for restrictions on EU immigrants’ access to welfare rights are characterised by two normatively problematic arguments that target two different subsets of the citizenry: what I dub for the purpose of this paper the moralists and the immoralists. It is the way populists address these two subsets of the citizenry, as well as the fact that they could simultaneously appeal to the concerns of both groups, that makes populist approaches to welfare rights both conceptually distinct to other approaches as well as potentially politically appealing to a more diverse population of voters.
In this study prepared for the ECON Committee of the European Parliament, Gellings, Jungbluth and Langenbucher present a graphic overview on core legislation in the area of economic and financial services in Europe. The mapping overview can serve as background for further deliberations. The study covers legislation in force, proposals and other relevant provisions in fourteen policy areas, i.e. banking, securities markets and investment firms, market infrastructure, insurance and occupational pensions, payment services, consumer protection in financial services, the European System of Financial Supervision, European Monetary Union, Euro bills and Coins and statistics, competition, taxation, commerce and company law, accounting and auditing.
This article examines whether restrictions on access to welfare rights for EU immigrants are justifiable on grounds of reciprocity. Recently political theorists have supported some robust restrictions on the basis of fairness. They argue that if EU immigrants do not immediately contribute sufficiently to the provision of basic collective goods in the host state, restrictions on their access to the welfare state are justified. I argue that these accounts of the principle of reciprocity rely on an ambiguous conception of contribution that cannot deliver the restrictions it advocates. Several strategies open to those advocating reciprocity-based restrictions are considered and found wanting. This article defends that verdict from a number of objections.
This paper will sketch out some of the developments in European company law as seen from the current moment, which might be referred to as post- 2003 Action Plan, and from my purely personal viewpoint. I will thus restrict myself to presenting the current and expected legislative projects of the EU, with particular focus on the plans and activities of the Commission, and for the moment bracket out both a number of important and interesting decisions of the European Court of Justice and the debates among European legal scholars.
On 15 December 2020, the European Commission submitted a proposal for a regulation on a single market for digital services (Digital Services Act, DSA) and amending Directive 2000/31/EC. The legislative project seeks to establish a robust and durable governance structure for the effective supervision of providers of intermediary services. To this end, the DSA sets out numerous due diligence obligations of intermediaries concerning any type of illegal information, including copyright-infringing content. Empirically, copyright law accounts for most content removal from online platforms, by an order of magnitude. Thus, copyright enforcement online is a major issue in the context of the DSA, and the DSA will be of utmost importance for the future of online copyright in the EU. Against this background, the European Copyright Society takes this opportunity to share its view on the relationship between the copyright acquis and the DSA, as well as further selected aspects of the DSA from a copyright perspective.
For centuries, it may have seemed as if standards of normative thinking now valid across the globe had first been instituted in Europe. These normative orders form the foundations of our verdicts that define and distinguish right and wrong, good and bad or even beautiful and ugly. But in order to better understand the global presence of such normative orders that evolved from within the European horizon, the history and implications of European expansion in the early modern era cannot be swept under the rug. ...
Deutsche Fassung: Expertise als soziale Institution: Die Internalisierung Dritter in den Vertrag. In: Gert Brüggemeier (Hg.) Liber Amicorum Eike Schmidt. Müller, Heidelberg, 2005, 303-334.
Disagreement among philosophers over the proper justification for political institutions is far from a new phenomenon. Thus, it should not come as a surprise that there is substantial room for dissent on this matter within democratic theory. As is well known, instrumentalism and proceduralism represent the two primary viewpoints that democrats can adopt to vindicate democratic legitimacy. While the former notoriously derives the value of democracy from its outcomes, the latter claims that a democratic decision-making process is inherently valuable. This article has two aims. First, it introduces three variables with which we can thoroughly categorise the aforementioned approaches. Second, it argues that the more promising version of proceduralism is extrinsic, rather than intrinsic, and that extrinsically procedural accounts can appeal to other values in the justification of democracy without translating into instrumentalism. This article is organised as follows. I present what I consider to be the ‘implicit view’ in the justification of democracy. Then, I analyse each of the three variables in a different section. Finally, I raise an objection against procedural views grounded in relational equality, which cannot account for the idea that democracy is a necessary condition for political legitimacy.
Facts about global justice
(2014)
The concept of solidarity has been receiving growing attention from scholars in a wide range of disciplines. While this trend coincides with widespread unsuccessful attempts to achieve solidarity in the real world, the failure of solidarity as such remains a relatively unexplored topic. In the case of the so-called European Union (EU) refugee crisis, the fact that EU member states failed to fulfil their commitment to solidarity is now regarded as established wisdom. But as we try to come to terms with failing solidarity in the EU we are faced with a number of important questions: are all instances of failing solidarity equally morally reprehensible? Are some motivations for resorting to unsolidaristic measures more valid than others? What claims have an effective countervailing force against the commitment to act in solidarity?
Fair Trade is under fire. Some critics argue, for instance, that there is no obligation to purchase Fair Trade certified products and that doing so may even be counter-productive. Others worry that well-justified conceptions of what makes trade fair can conflict. Yet others suggest that the common arguments for Fair Trade cannot justify purchasing Fair Trade certified goods, in particular. This paper starts by sketching one common argument for Fair Trade and defends it against this last line of criticism. In particular, it argues that we should purchase Fair Trade certified goods because doing so benefits the poor even though there are other ways to alleviate poverty. It then considers how other common arguments for Fair Trade fare in light of similar criticism and concludes that they may well succeed.
Finding the peripheries : sovereignty and colonialism in nineteenth-century international law
(1999)
In my following remarks I will focus on a differente which we find in German law as well as in other legislations, the differente b e t w e e n entrepreneurial investments among firms and merely financial investments. Whereas OUT law of groups of companies o f Konzernrecht contains quite an elaborated set of rules, the rules governing financial investments, especially Cross-border financial investments, seems to be somewhat underdeveloped.
In the article the state of forming of communicative competence of future lawyers in higher education of Ukraine and Germany is analyzed. There is made the comparative description of preparation of the students of law faculty with an accent on forming of communicative competence on the example of the University of modern knowledge (Ukraine) and Frankfort university is named after Goethe (Germany).
It is drawn the conclusion, that the structure of professional preparation of future lawyers is folded educational and cognitive, research constituents, and also productive practice. A main place is taken to conception of communicative preparation of the future lawyers, the essence of it consists in integration of the special courses of the special and professional disciplines, in continuous perfection of skills of the verbal and writing broadcasting, receptions of analytical mental work, that need knowledge. It is also outlined the aim of productive practice of future lawyers in Ukraine that begins from the second course: the forming of professional abilities and skills of acceptance of independent decisions; the education of necessity systematic to proceed the knowledge, to promote a legal culture and professional legal consciousness; to teach to apply knowledge in practical activity. In Germany the practice for future lawyers begins from the first course and lasts two years in legal establishments (from civil cases, court from criminal cases or office of public prosecutor, administrative and managerial establishments, advocacy). The sign line of studies is an active collaboration with the faculties of law of the foreign states. All these factors assist the forming of communicative competence of lawyers.
Free riders play fair
(2012)
After the demise of the social contract theory, the argument from fair play, which employs the principle of fair play, has been widely acknowledged as one of the most promising ways of justifying political obligation. First, I articulate the most promising version of the principle of fair play. Then, I show that free riders play fair, that is, that their moral fault lies not in unfairness but in the violation of a rule by appealing to the example of three-in-a-boat. Finally, I conclude that even the most promising version is false because those who have accepted benefits from a social cooperative scheme do not owe an obligation of fair play.
Freiburg School of Law and Economics, Freiburg (Lehrstuhl-)Tradition and the Genesis of Norms
(2014)
The paper analyzes the parallels and differences between the Freiburg School of Law and Economics represented by the works of Eucken (and Röpke) and the Freiburg (Lehrstuhl-)Tradition represented by the works of Hayek and Vanberg. The parallels are illustrated by making use of the constitutional economics concepts Ordnungspolitik (i.e., order of rules/choices over rules) as well as freedom of privileges and discrimination. The differences, which have received surprisingly little attention, include the following aspects: 1. philosophy of science and epistemology, 2. genesis of norms, and 3. political philosophy. The paper tackles these issues in three steps. The second chapter presents Vanberg’s constitutional economics theory with special emphasis on the concepts of citizen sovereignty and normative individualism. The third chapter reviews the ordoliberal concepts of science and the state which are – to a certain degree – elitist and expertocratic, that is, they rely to a considerable degree on intellectual experts (in particular, scientists) being part of the societal elite. The fourth chapter differentiates two kinds of genesis of norms: an evolutionary one and an elitist-expertocratic one allowing for a differentiation between Eucken’s and Röpke’s Ordoliberalism on the on the hand and Vanberg’s Hayekian -- and Buchanan-style constitutional economics approach on the other hand. The paper ends with a summary of the main findings.
This article examines the reflections on legal translation set out in two Relaciones written by the 16th century Spanish jurist Alonso de Zorita. These serve as excellent illustrations for the creative dimension motivating several of the proposals for the adaptation of Castilian law to native legal custom in the Americas. My analysis focuses on some of the linguistic issues implied by Zorita’s proposal for the restoration of an idealized pre-Hispanic polity: the use of the native pictorial legal sources, and it considers some of the issues and dilemmas related to their proper interpretation and translation.
In the intersection between law, science and technology lies the debate on the overcoming of the boundaries of the biological structure of the human being and its implications on the idea of human rights, on the concept of person and on the conception of equality – being the latter a fundamental tenet of a democracy.
Posthumanism assumes a biological inadequacy of the human body regarding the quantity, complexity and quality of information which it can muster. The same occurs with the needs of accuracy, speed or strength demanded by the contemporary environment. Under such perspective, the body is considered to be an inefficient structure, with a short lifespan, easy to break and hard to fix.
The body, always seen as the locus for the definition of human, emerges as the object of a commodification process that seeks to exonerate men from their burden - by declination towards a virtual existence, totally free and rational - or to enhance them with bionic devices or drugs.
This issue has already been the subject of attention by many scholars like Savulescu, Rodotà, Broston, Fukuyama and even Habermas.
Therefore, the aim of this paper is to seek, by criticism and revision of the positions on the foreseen problems of this process, an adequate theoretical approach on issues like the concept of person and its connection with the idea of human rights in order to promote the fundamental statement that all men are equal without disregard to the values of diversity and personal identity.
This paper is a prolegomenon to further study of the intensified relationship between law and moral theology in early modern times. In a period characterized by a growing anxiety for the salvation of the soul (»Confessional Catholicism«), a vast literature for confessors, which became increasingly juridical in nature, saw the light between roughly 1550 and 1650. By focussing on some of the most important Jesuit canonists and moral theologians, this article first seeks to explain why jurisprudence became regarded as an indispensable tool to solve moral problems. While Romano-canon law showed its merits as an instrument of precision to come to grips with concrete qualms of conscience, with the passing of time it also became studied for its own sake. The second part of this paper, therefore, illustrates how the legal tradition, particularly with regard to the law of obligations, was reshaped in the treatises of the moral theologians.
From reparations for slavery to international racial justice: a critical republican perspective
(2017)
This paper focuses on demands for reparations for colonial slavery and their public reception in France. It argues that this bottom-up, context-sensitive approach to theorising reparations enables us to formulate a critical republican theory of international racial justice. It contrasts the critical republican perspective on reparations with a nation-state centred approach in which reparations activists are accused of threatening the French republic’s sense of homogeneity and unity, thus undermining the national narrative on the French identity. It also rejects the liberal egalitarian perspective, which itself rejects reparations in favour of focusing on present disadvantages. In so doing, this paper illustrates how the notion of non-domination offers a superior way of conceptualising global racial injustices compared to more traditional distributive outlooks.
Until three years ago, ICT Technologies represented a main “subordinate clause” within the “grammar” of Participatory Budgeting (PB), the tool made famous by the experience of Porto Alegre and today expanded to more than 1400 cities across the planet. In fact, PB – born to enhance deliberation and exchanges among citizens and local institutions – has long looked at ICTS as a sort of “pollution factor” which could be useful to foster transparency and to support the spreading of information but could also lead to a lowering in quality of public discussion, turning its “instantaneity” into “immediatism,” and its “time-saving accessibility” into “reductionism” and laziness in facing the complexity of public decision-making through citizens’ participation. At the same time, ICTs often regarded Participatory Budgeting as a tool that was too-complex and too-charged with ideology to cooperate with. But in the last three years, the barriers which prevented ICTs and Participatory Budgeting to establish a constructive dialogue started to shrink thanks to several experiences which demonstrated that technologies can help overcome some “cognitive injustices” if not just used as a means to “make simpler” the organization of participatory processes and to bring “larger numbers” of intervenients to the process. In fact, ICTs could be valorized as a space adding “diversity” to the processes and increasing outreach capacity. Paradoxically, the experiences helping to overcome the mutual skepticism between ICTs and PB did not come from the centre of the Global North, but were implemented in peripheral or semiperipheral countries (Democratic Republic of Congo, Brazil, Dominican Republic and Portugal in Europe), sometimes in cities where the “digital divide” is still high (at least in terms of Internet connections) and a significant part of the population lives in informal settlements and/or areas with low indicators of “connection.” Somehow, these experiences were able to demystify the “scary monolithicism” of ICTs, showing that some instruments (like mobile phones, and especially the use of SMS text messaging) could grant a higher degree of connectivity, diffusion and accountability, while other dimensions (which could risk jeopardizing social inclusion) could be minimized through creativity. The paper tries to depict a possible panorama of collaboration for the near future, starting from descriptions of some of the above mentioned “turning-point” experiences – both in the Global North as well as in the Global South.
In 2007, the Treaty makers ennobled the former fundamental principles of the Treaty on European Union as European values. Respect for human dignity, freedom, democracy, equality, rule of law and the protection of human rights have henceforth transcended the sphere of ‘merely’ legal matters. They have been posited as widely shared and deeply rooted normative orientations and thus the true foundations of the common European house. This step was probably meant to tap a new source of legitimacy and stability.
Expectations about economic variables vary systematically across genders. In the domain of inflation, women have persistently higher expectations than men. We argue that traditional gender roles are a significant factor in generating this gender expectations gap as they expose women and men to different economic signals in their daily lives. Using unique data on the participation of men and women in household grocery chores, their resulting exposure to price signals, and their inflation expectations, we document a tight link between the gender expectations gap and the distribution of grocery shopping duties. Because grocery prices are highly volatile, and consumers focus disproportionally on positive price changes, frequent exposure to grocery prices increases perceptions of current inflation and expectations of future inflation. The gender expectations gap is largest in households whose female heads are solely responsible for grocery shopping, whereas no gap arises in households that split grocery chores equally between men and women. Our results indicate that gender differences in inflation expectations arise due to social conditioning rather than through differences in innate abilities, skills, or preferences.
The main purpose of my article is to discuss what GMOs are, the controversies about this specific issue and the related regulations that are put forward by the authorities. GMOs are genetically altered organisms which have been widely produced and breeded in certain parts of the world. According to some experts, this special practice of agriculture emerged in order to put an end to famine and prevent food scarcity. As growing GMOs seems to be more convenient than the traditional farming, it is more eligible to produce food in large scale which will be a fine solution for food scarcity. However, there are some oppositions to the GMOs. It is strongly believed that the real causes of famine is not related to production, it is a problem of distribution of food. Moreover, patenting the seeds leads to an unstoppable control and dominance over food by the private enterprises. Therefore, the opponents state that the aims of these companies are solely financial gain and monopolisation in food production. Patenting the seeds is another arguable issue. It poses a great threat for the organic farmers since GMO seeds can contaminate the others through natural ways. This is not the only danger that organic farmers face with; thay can also be sued by the GMO producers for this unintended exposure to GMO seeds. Not only the diminishing of the variety of species but also the possible adverse effects of GMOs on human health create a debate between the two groups. These are not the only topics that are open to discussion. In addition to these, labelling the products creates a huge problem among the poorly educated consumers as they have not been clearly regulated in some countries. Hence, this subject having such a close connection to human health cannot be ignored by the law. In fact, a number of countries have enacted legislation in order to regulate this sensitive field. Turkey, having been dependent on the import of the agricultural goods for a period of time, has to join these countries with a recent legislation. All these contemporary issues for Turkey will be highlighted in my article.
This article focuses on the ius theutonicum Magdeburgense, its meaning and functions, attempting to understand what ius theutonicum meant for contemporaries. It starts with the present interpretation of the term. This is followed by a detailed analysis of the available medieval privileges for Magdeburg law issued for towns in Galician Rus’. The result was not an identification or "reconstruction" of a particular "law" or combination of different "laws" adopted in town courts of Galician Rus’ under the term ius theutonicum. It was rather the recognition that the notion called ius theutonicum in medieval documents was an adaptable pattern applicable to different conditions, a model with many variants or a general set of principles which was filled with real content and adapted to concrete circumstances.
In this article, I review select institutional and analytical traditions of Legal History in 20th century Germany, in order to put forth some recommendations for the future development of our discipline. A careful examination of the evolution of Legal History in Germany in the last twenty-five years, in particular, reveals radical transformations in the research framework: Within the study of law, there has been a shift in the internal reference points for Legal History. While the discipline is opening up to new understandings of law and to its neighboring disciplines, its institutional position at the law departments has become precarious. Research funding is being allocated in new ways and the German academic system is witnessing ever more internal differentiation. Internationally, German contributions and analytic traditions are receiving less attention and are being marginalized as new regions enter into a global dialogue on law and its history. The German tradition of research in Legal History had for long been setting benchmarks internationally; now it has to reflect upon and react to new global knowledge systems that have emerged in light of the digital revolution and the transnationalization of legal and academic systems. If legal historians in Germany accept the challenge these changing conditions pose, thrilling new intellectual and also institutional opportunities emerge. Especially the transnationalization of law and the need for a transnational legal scholarship offers fascinating perspectives for Legal History.
With the Council regulation (EC) No. 1346/2000 of 29 May 2000 on insolvency proceedings, that came into effect May 31, 2002 the European Union has introduced a legal framework for dealing with cross-border insolvency proceedings. In order to achieve the aim of improving the efficiency and effectiveness of insolvency proceedings having cross-border effects within the European Community, the provisions on jurisdiction, recognition and applicable law in this area are contained in a Regulation, a Community law measure which is binding and directly applicable in Member States. The goals of the Regulation, with 47 articles, are to enable cross-border insolvency proceedings to operate efficiently and effectively, to provide for co-ordination of the measures to be taken with regard to the debtor’s assets and to avoid forum shopping. The Insolvency Regulation, therefore, provides rules for the international jurisdiction of a court in a Member State for the opening of insolvency proceedings, the (automatic) recognition of these proceedings in other Member States and the powers of the ‘liquidator’ in the other Member States. The Regulation also deals with important choice of law (or: private international law) provisions. The Regulation is directly applicable in the Member States3 for all insolvency proceedings opened after 31 May 2002.
This paper argues that it is necessary to focus on gender rather than exclusively on women in discussions on global poverty eradication. It argues firstly, that the drivers of poverty are complex and multifaceted leading to a least two different forms of deprivation – transitory and structural poverty – each requiring different forms of analysis and treatment. Transitory poverty can arise as a consequence of an event or shock that would diminish an individual’s capacity to retain or secure employment and where a State lacks an appropriate form of social protection. Structural poverty, on the other hand, arises where groups are excluded from the workforce on a more permanent basis due to a wide variety of factors of discrimination such as sex, race, ethnicity, and age. Focusing on the sex of an individual alone cannot explain why some are more likely to experience different forms of poverty than others. Policies that protect women against transitory poverty, such as care related allowances, are not sufficient to eradicate structural poverty. Secondly, structural poverty prompts an examination of gender roles and relations. Unlike the category of ‘women’, the concept of gender demands consideration of a wider range of intersecting factors that influence life chances. The structure of contemporary gender relations, where women continue to experience higher levels of violence, and carry the greatest burden of responsibility for non-market based production activities, create the social conditions where domination and dependence thrive, and where persistently high rates of poverty seem inevitable. Such circumstances are generated by human agency. Thus, thirdly, it argues that these circumstances can and should be changed through human action. Knowledge of these circumstances gives rise to moral obligations for both men and women to avoid upholding values and practices that lead to domination and dependence as a matter of basic justice.
s.a. Deutsche Fassung: Rechtshistorisches Journal 15, 1996, 255-290 und in: Eric Schwarz (Hg.) La théorie des systèmes: une approche inter- et transdisciplinaire. Bösch, Sion 1996, 101-119. Italienische Fassung: La Bukowina globale: il pluralismo giuridico nella società mondiale. Sociologic a politiche sociali 2, 1999, 49-80. Portugiesische Fassung: Bukowina global sobre a emergência de um pluralismo jurídico transnacional. Impulso: Direito e Globalização 14, 2003. Georgische Fassung: Globaluri bukovina: samarTlebrivi pluralizmi msoflio sazogadoebaSi. Journal of the Institute of State and Law of the Georgian Academy of Sciences 2005 (im Erscheinen)
This contribution develops a defence of a universalist conception of Global Citizenship Education (GCE) against three prominent critiques, which are, among others, put forward by postcolonial scholars. The first critique argues that GCE is essentially a project of globally minded elites and therefore expressive both of global educational injustices and of the values and lifestyles of a particular class or milieu. The second critique assumes that GCE is based on genuinely ‘Western values’ (e.g., in the form of a conception of human rights or conceptions of rationality or the self), which are neither universally accepted nor universally valid and therefore unjustly forced on members of non-Western cultures and societies. GCE, according to this critique, is assumed to be another version of the educational justification of a hegemonic and unjust global Western regime. The third critique focuses on the epistemological preconditions of GCE. It assumes that GCE relies on a particular, culturally embedded ‘Western epistemology,’ which perpetuates historically grown global educational and epistemic injustices by dominating and subjugating alternative epistemological approaches. With respect to the first critique I argue that it is to a certain extent sociologically plausible, but wrong when it is applied to the educational and political legitimacy of GCE. The second critique overestimates the consensus within the ‘Western tradition’ and underestimates the transnational dissemination of universalist ideals and values as well as its own reliance on universalist validity claims. I argue that in order to provide a plausible criticism of historically grown global educational and political injustices, it is imperative for GCE to integrate central insights provided by the postcolonial critique, without giving up on universalist ideals and values. The third critique is, according to my argumentation, based on flawed epistemological assumptions, which do not withstand critical scrutiny. Instead of identifying epistemic and scientific claims as the expressions of a particular ‘culture’ or geographical location (the ‘West’), I defend the position that philosophical and scientific research should ideally be conceived as a democratic and universalist project, whose emancipatory potential can only be realized on the basis of a universalist epistemology.
The origin and justification of human rights, whether anchored in biological theory, natural law theory, or interests theory, as well as their cultural specificity and actual value as international legal instruments are subject to ongoing lively debates. As theoretical and rhetorical discourses challenge and enrich current understanding of the value of human rights and their relevance to democratic governance, they have found their way into public health in recent decades and play today an increasing role in the shaping of health policies, programs and practice. Human rights define the obligations of states to their people and towards each other, create grounds for governmental accountability and inspire recognition of, and action on, factors influencing people’s attainment of the highest possible standard of health. This article highlights the evolution that has brought health and human rights together in mutually reinforcing ways. It draws from the experience gained in the global response to HIV/AIDS, summarizes key dimensions of public health and of human rights and suggests a manner in which these dimensions intersect in a framework for analysis and action.
In the current globalization debate the law appears to be entangled in economic and political developments which move into a new dimension of depoliticization, de-centralization and de-individualization. For all the correct observations in detail, though, this debate is bringing about a drastic (polit)economic reduction of the role of law in the globalization process that I wish to challenge in this paper. Here one has to take on Wallerstein’s misconception of “worldwide economies” according to which the formation of the global society is seen as a basically economic process. Autonomous globalization processes in other social spheres running parallel to economic globalization need to be taken seriously. In protest against such (polit)economic reductionism several strands of the debate, among them the neo-institutionalist theory of “global culture”, post-modern concepts of global legal pluralism, systems theory studies of differentiated global society and various versions of “global civil society” have shaped a concept of a polycentric globalization. From these angles the remarkable multiplicity of the world society, in which tendencies to re-politicization, re-regionalization and re-individualization are becoming visible at the same time, becomes evident. I shall contrast two current theses on the globalization of law with two less current counter-theses: First thesis: globalization is relevant for law because the emergence of global markets undermines the control potential of national policy, and therefore also the chances of legal regulation. First counter-thesis: globalization produces a set of problems intrinsic to law itself, consisting in a change to the dominant lawmaking processes. Second thesis: globalization means that the law institutionalizes the worldwide shift in power from governmental actors to economic actors. Second counter-thesis: globalization means that the law has a chance of contributing to a dual constitution of autonomous sectors of world society.
The paper examines obligations towards bearers of the right to asylum in circumstances of partial compliance. Who should bear the burdens when a state responsible for assisting bearers of the right to asylum fails to comply with the requirements of justice and unjustly defaults on its responsibilities? Are the complying states obligated to ‘take up the slack’ and assist the bearers of the right to asylum, or are they obligated to bear only their ‘fair share’ of burdens in the global protection of the right to asylum? The paper argues that the complying states with the capacity to assist can have an obligation of justice to assist bearers of the right to asylum when other states unjustly default on their responsibilities.
If Third World women form ‘the bedrock of a certain kind of global exploitation of labour,’ as Chandra Mohanty argues, how can our theoretical definitions of exploitation account for this? This paper argues that liberal theories of exploitation are insufficiently structural and that Marxian accounts are structural but are insufficiently intersectional. What we need is a structural and intersectional definition of exploitation in order to correctly identify global structural exploitation. Drawing on feminist, critical race/post-colonial and post-Fordist critiques of the Marxist definition and the intersectional accounts of Maria Mies and Iris Marion Young, this paper offers the following definition of structural exploitation: structural exploitation refers to the forced transfer of the productive powers of groups positioned as socially inferior to the advantage of groups positioned as socially superior. Global structural exploitation is a form of global injustice because it is a form of oppression.
This paper argues that land and resource rights are often essential in overcoming colonial inequality and devaluation of indigenous populations and cultures. It thereby criticizes global welfare egalitarians that promote the abolition of national sovereignty over resources in the name of increased equality. The paper discusses two ways in which land and resource rights contribute to decolonization and the eradication of the associated inequality. First, it proposes that land and resource rights have acquired a status-conferring function for (formerly) colonized peoples so that possession of full personhood and relational equality is partially expressed through the possession of land and resource rights. Second, it suggests that successful internal decolonization depends on access to and control over land and resources, especially for indigenous peoples.
Globalized justice - fragmented justice. Human rights violations by "private" transnational actors
(2005)
Plenarvortrag Weltkongress der Rechtsphilosophie und Sozialphilosophie, 24.-29. Mai, Granada 2005. S.a. die deutsche Fassung: "Die anonyme Matrix: Menschenrechtsverletzungen durch "private" transnationale Akteure". Spanische Fassung: Sociedad global, justicia fragmentada: sobre la violatión de los derechos humanos por actores transnacionales 'privados'. In: Manuel Escamilla and Modesto Saavedra (eds.), Law and Justice in a global society, International Association for philosophy of law and social philosophy, Granada 2005, S. 529-546.
This paper documents that resource reallocation across firms is an important mechanism through which creditor rights affect real outcomes. I exploit the staggered adoption of an international convention that provides globally consistent strong creditor protection for aircraft finance. After this reform, country-level productivity in the aviation sector increases by 12%, driven mostly by across-firm reallocation. Productive airlines borrow more, expand, and adopt new technology at the expense of unproductive ones. Such reallocation is facilitated by (i) easier and quicker asset redeployment; and (ii) the influx of foreign financiers offering innovative financial products to improve credit allocative efficiency. I further document an increase in competition and an improvement in the breadth and the quality of products available to consumers.
In this paper, an analysis of Robert Frost’s poem Mending Wall is presented as a hermeneutical key to investigate and criticize two examples of the oblivion of the reasonable distinction and the reasonable relationship between ethics and law proposed by a new Brazilian private law movement called Escola do Direito Civil-Constitucional (The Private-Constitutional School of Thought). Those examples of unreasonable relationship between ethics and law are: 1) the right to be loved and 2) the right to get a private education without paying for it.
The institutionalization and internationalization of shareholdings, the globalization of capital markets and the rapid development of information technologies have placed our corporate law system under increasing pressure to adapt to the ever changing requirements of the market. For this reason, in May 2000, the German government called together a group of industrialists, representatives of shareholder associations and institutional investors, trade unionists, politicians and scholars to form an expert Panel with the task of reviewing the German corporate governance system. This Government Panel on Corporate Governance prepared a questionnaire on key issues in the field, and solicited responses and input from numerous national and international experts and institutions. In July 2001, the Commission presented its 320 page report (available at www.ottoschmidt. de/corporate_governance.htm) to the German Chancellor. The Report made nearly 150 recommendations for amendments or changes to existing provisions of German law and also set forth proposals on how the German corporate governance system should be further developed in order to maintain a normative framework that is suitable and attractive not only for companies, but also for domestic and foreign investors. In order that the Panel s proposals may receive careful consideration from a diverse audience, it seems very useful to keep a wider public informed of the Panel s recommendations. Therefore, also on behalf of the Panel, I very much appreciate that the international law firm Shearman & Sterling has taken the initiative to have the summary of the Panel s recommendations translated into English.
In Justice and Natural Resources: An Egalitarian Theory (2017), Chris Armstrong proposes a version of global egalitarianism that – contra the default renderings of this approach – takes individual attachment to specific resources into account. By doing this, his theory has the potential for greening global egalitarianism both in terms of procedure and scope. In terms of procedure, its broad account of attachment and its focus on individuals rather than groups connects with participatory governance and management and, ultimately, participatory democracy – an essential ingredient in the toolkit of green politics and policy-making. In terms of scope, because it does not commit itself to any particular moral framework, Armstrong’s theory leaves the door open for non-human animals to become subjects of justice, thus extending the realm of the latter beyond its traditionally anthropocentric borders. I conclude that these greenings are promising, but not trouble-free.
Recent trade negotiations such as TTIP include investor protection clauses. Against the background of an analysis of the case for trade, the paper asks whether such clauses can be justified from a normative perspective. More specifically, what is the impact of investor protection on the domestic distribution of the gains from trade between labour and capital, and how should we assess this impact from the perspective of justice? In order to answer this question, the paper develops a series of ideal-type scenarios that reflect the consequences of investor protection on employment on the one hand, and on the distributive conflict between labour and capital on the other. While no claim is made which of these scenarios corresponds to TTIP or other trade agreements, they provide a useful normative framework to analyse such agreements.
Political realists claim that international relations are in a state of anarchy, and therefore every state is allowed to disregard its moral duties towards other states and their inhabitants. Realists argue that complying with moral duties is simply too risky for a state’s national security. Political moralists convincingly show that realists exaggerate both the extent of international anarchy and the risks it poses to states who act morally. Yet moralists do not go far enough, since they do not question realism’s normative core: the claim that when national security is really at risk, states are allowed to disregard their moral duties. I contend that there is at least one moral duty that states should not disregard even if their inhabitants are at risk of death by military aggression: the duty to reduce extreme global poverty. The reason is that even granting that national security is about securing individuals’ right to life, global poverty relief is about that as well.
In this article the author, in the context of the fiftieth anniversary of H.L.A. Hart’s “The Concept of Law”, reconsiders the moderate indeterminacy of law thesis, which derives from the open texture of language. For that purpose, he intends: first, to analyze Hart’s moderate indeterminacy thesis, i.e. determinacy in “easy cases” and indeterminacy in “hard cases”, which resembles Aristotle’s "doctrine of the mean"; second, to criticize his moderate indeterminacy thesis as failing to embody the virtues of a center in between the vices of the extremes, by insisting that the exercise of discretion required constitutes an “interstitial” legislation; and, third, to reorganize an argument for a truly “mean” position, which requires a form of weak interpretative discretion, instead of a strong legislative discretion.
After the absurd terrorism and violence of the totalitarianism and bureaucratic administrative and legal systems of the 20th century it does not give any meaning to rationalize harm as meaningful evil that even though it is evil may have some importance for the development of the world towards the good. Rather, evil is incomprehensible and as radical and banal evil it challenges human rationality. This is indeed the case when we are faced with instrumental and rationalized administrative and political evil. Therefore, we must analyse the banality of evil in politics and in administration in order to understand the concept of evil. Moreover, as proposed by Hannah Arendt, we need to fight this evil with political thinking and social philosophy. The only way to deal with harm and wrongdoing is to return a concept of responsibility that is closely linked to reflective thinking. In this paper, we will on the basis of a discussion of the banality of evil explore this in relation to Hannah Arendt’s analysis of the administration of evil, as expressed by the personality of Adolf Eichmann. Finally, we will place this concept of administrative evil in Hannah Arendt’s general political philosophy.
In his works, Hans Kelsen elaborates several objections to the so-called “doctrine of natural law”, especially in his essay The Natural-Law Doctrine Before the Tribunal of Science. Kelsen argues that natural law theorists, searching for an absolute criterion for justice, try to deduce from nature the rules of human behavior. Robert P. George, in the essay Kelsen and Aquinas on the ‘Natural Law Doctrine’ examines his criticism and concludes that what Kelsen understands as the Natural-law doctrine does not include the natural law theory elaborated by Thomas Aquinas. In this paper, we will try to corroborate George’s theses and try to show how Aquinas’ natural law theory can be vindicated against Kelsens criticisms.
In times of crisis, governments have strong incentives to influence banks’ credit allocation because the survival of the economy depends on it. How do governments make banks “play along”? This paper focuses on the state-guaranteed credit programs (SGCPs) that have been implemented in Europe to help firms survive the COVID 19 crisis. Governments’ capacity to save the economy depends on banks’ capacity to grant credit to struggling firms (which they would not be inclined to do spontaneously in the context of a global pandemic). All governments thus face the same challenge: How do they make sure that state guaranteed loans reach their desired target and on what terms? Based on a comparative analysis of the elaboration and implementation of SGCPs in France and Germany, this paper shows that historically-rooted institutionalized modes of coordination between state and bank actors have largely shaped the terms of the SGCPs in these two countries.
In The Gentle Civilizer of Nations, I suggested that international law began in the 1860’s as part of liberal entrenchment in Europe as the clouds of nationalism, racism and socialism were rising in the political horizon. It began as a project of practicalmen, attorneys and lawyers active in politics and parliament, and not out of philosophical contemplation or system-construction. University professors were involved, but these were professors of something that was seen more as a craft than a science. What they aimed at was to "civilize" the behaviour of their nations, but also the colonies, and to do this by coordinating liberal legislative reform in Europe, by supporting formal empire in the colonies, and by doing all this as part of a set of cosmopolitan legal projects they grouped into their "international law" (Droit international, diritto internazionale, Völkerrecht). ...
On February 20 at the Max Planck Institut für europäische Rechtsgeschichte, the Legal Historian and member of the Constitutional Court of Peru, Dr. Carlos Ramos Núñez, presented a crucial intervention on the problems that face the current constitutionalism in Latin America. Faced with a heterogeneous group of historians, philosophers and theoreticians of law, interested in the vicissitudes of Latin American juridical evolution, the political-juridical tensions of the Peruvian present served him as a framework to raise various constitutional problems and controversies. ...
Rising powers are fundamentally shifting the relations of power in the global economic and political landscape. International political theory, however, has so far failed to evaluate this nascent multipolarity. This article fills this lacuna by synthesizing empirical and normative modes of inquiry. It examines the transformation of sovereignty exercised by emerging democracies and focuses especially on the case of Brazil. The paper shows that – in stark contrast to emerging democracies' foreign policy rhetoric – the "softening" of sovereignty, which means that emerging powers gain as well as lose certain aspects of sovereignty, has become the norm. The paper explores this softening of sovereignty from the perspective of global justice by assessing it on the basis of globalist, statist, and internationalist conceptions of global justice. We find that the emergent multipolarity contributes in various ways to the realization of the distinct socioeconomic and political criteria of these three conceptions of global justice. However, we also point out that the transformation of sovereignty generates particular problems for the realization of all three conceptions.
Can the democratic constitutions of Hungary and Poland survive an autocratic majority? Hardly. Hungary and Poland seem to be lost for liberal and democratic constitutionalism. At least for the time being, the next question is how democratic constitutionalism can prevent an autocratic majority. The task is to make it difficult for an autocratic parliamentary majority to capture the institutions of critique and control of government and to undermine separation of powers.
We estimate the cost of cultural biases in high-stake economic decisions by comparing agents’ peer-to-peer lending choices with those the same agents make under the assistance of an automated robo-advisor. We first confirm substantial in-group vs. out-group and stereotypical discrimination, which are stronger for lenders who reside where historical cultural biases are higher. We then exploit our unique setting to document that cultural biases are costly: agents face 8% higher default rates on favored-group borrowers when unassisted. The returns they earn on favored groups increase by 7.3 percentage points when assisted. The high riskiness of the marginal borrowers from favorite groups largely explains the bad performance of culturally-biased choices. Because varying economic incentives do not reduce agents’ biases, inaccurate statistical discrimination—unconscious biased beliefs about borrowers’ quality—can explain our results better than taste-based discrimination.
he ECB is independent, but it is also accountable to the European parliament (EP). Yet, how the EP has held the ECB accountable has largely been overlooked. This paper starts addressing this gap by providing descriptive statistics of three accountability modalities. The paper highlights three findings. First, topics of accountability have changed. Climate-related accountability has increased quickly and dramatically since 2017. Second, if the relationship between price stability and climate change remains an object of conflict among MEPs, a majority within the EP has emerged to put pressure for the ECB to take a more active stance against climate change, precisely on behalf of its price stability mandate. Third, MEPs engage with the climate topic in very specific ways. There is a gender divide between the climate and the price stability topics. Women engage more actively with climate-related topics. While the Greens heavily dominate the climate topic, parties from the Right dominate the topic of Price stability. Finally, MEPs adopt a more united strategy and a particularly low confrontational tone in their climate-related interventions.
Regulators worldwide have been implementing different privacy laws. They vary in their impact on the value for advertisers, publishers and users, but not much is known about these differences. This article focuses on three important privacy laws (i.e., General Data Protection Regulation [GDPR], California Consumer Privacy Act [CCPA] and Personal Information Protection Law [PIPL]) and compares their impact on the value for the three primary actors of the online advertising market, namely, advertisers, publishers and users. This article first compares these three privacy laws by developing a legal strictness score. It then uses the existing literature to derive the effects of the legal strictness of each privacy law on each actor’s value. Finally, it quantifies the three privacy laws’ impact on each actor’s value. The results show that GDPR and PIPL are similar and stricter than CCPA. Stricter privacy laws bring larger negative changes to the value for actors. As a result, both GDPR and PIPL decrease the actors’ value more substantially than CCPA. These value declines are the largest for publishers and are rather similar for users and advertisers. Scholars and practitioners can use our findings to explore ways to create value for multiple actors under various privacy laws.
In order to understand the impact of new technologies on the law through the science of law, it is essential to observe how Law researches are done. This paper pursues the following models of legal science: analytical (theory of formal rule); hermeneutics (interpretation theory) and empirical (decision theory) to appraise methodological procedures used in monograph researches in some Brazilian Law courses. This study was to detect which model of law science was used in the development of Law researches. The study was conducted, through Juris Doctors’ interviews. All of these respondents have written a monograph, which is a requirement to complete a Law course in Brazil. The main conclusions of this study were the following: 1) most of the monographs produced do not specify the methodology used for developing the work; 2) when the papers indicate the methodology used, the analytical model was prevalent. In these cases, the science of law appears as a systematization of rules for obtaining possible decisions. 3) Hermeneutic and empirical models were also used, but on a smaller scale. These researches revealed the inaccuracy of the methodological tools used to apprehend the reality. However, these strategies are significant to define the objects of study of law in the contemporary time. Answering the question about how Law researches are done in some Brazilian Law schools, this paper discusses the construction of classical models of science of law, which were taken as the theoretical framework of this work before the hypercomplex current problems.
Deutsche Fassung: Die Episteme des Rechts. Zu den erkenntnistheoretischen Grundlagen des reflexiven Rechts. In: Dieter Grimm (Hg.) Steigende Staatsaufgaben - sinkende Steuerungsfähigkeit des Rechts. Nomos, Baden-Baden 1990, 115-154. Französische Fassung: Pour une épistémologie constructiviste du droit. In Gunther Teubner, Droit et réflexivité. Librairie générale de droit et de jurisprudence, Paris 1994, 171-204. Veränderte Fassung in: Annales: Economies, Sociétés, Civilisations 1992, Paris, 1149-1169. Italienische Fassung: Il diritto come soggetto epistemico: Per una epistemologie giuridica "costruttivista," Rivista critica del diritto privato 8, 1990, 287-326.
In ‘Strafe für fremde Schuld’ Harald Maihold uncovered how a doctrine of surrogate punishment in the legal treatises of the Salamanca school gradually gave way to the principle of guilt. This meant that punishment eventually could only be inflicted upon a culprit and no longer upon an innocent. We will use René Girard’s philosophy of (the disruption of) scapegoat mechanisms and sacrifice to develop a coherent interpretation not only of how this institution of surrogate punishment functioned, how it selected its victims and the way it was legitimated, but also of the theology that formed its background. We argue that most of what surrogate punishment is about can be grasped in two words: sacrificial logic. The elimination of surrogation from criminal law would then correspond to the rejection of this logic, an evolution which could be interpreted as a desacralisation or secularisation of criminal law under the influence of the upcoming principle of guilt.
About 200 years ago, legal concepts based on the idea of formal equality prevailed. Over the last 150 years, however, the law has tried on a large scale to establish substantive equality, or at least to alleviate social and economic imbalances. To this day, the law which has undertaken this task has grown in scope and become increasingly differentiated. It has become one of the most important components of modern legal systems and has a history with its own distinctive contours. The terms used to summarise the corresponding legal materials are manifold: law of the welfare state, law of the provident state (état providence) (François Ewald), social law, social welfare law, etc. ...
Does the Polish development concern us — the European citizens and the European institutions we have set up? There is a functional and a normative argument to state that it does. The normative argument is that the European Union organizes a community of states that profess allegiance to a set of fundamental values—among others, democracy, the rule of law, and human rights. The functional reason is that the European legal space presupposes mutual trust. European law operates on the presumption that all institutions are law-abiding. Otherwise, the legal edifice crumbles.
Ginsburg and Huq analyze the processes of democratic backsliding and perverting democratic constitutionalism in various countries and ask whether an intelligent constitutional design would be able to prevent this from happening or make it at least more difficult. They do so not out of pure academic interest, but with the intention to protect liberal democratic constitutionalism because they believe it to be morally superior to alternative models.
Human rights and climate policy – toward a new concept of freedom, protection rights, and balancing
(2012)
Neither the scope of “protection obligations” which are based on fundamental rights nor the theory of constitutional balancing nor the issue of “absolute” minimum standards (fundamental rights nuclei, “Grundrechtskerne”), which have to be preserved in the balancing of fundamental rights, can be considered satisfactorily resolved–in spite of intensive, long-standing debates. On closer analysis, the common case law definitions turn out to be not always consistent. This is generally true and with respect to environmental fundamental rights at the national, European, and international level. Regarding the theory of balancing, for the purpose of a clear balance of powers the usual principle of proportionality also proves specifiable. This allows a new analysis, whether fundamental rights have absolute cores. This question is does not only apply to human dignity and the German Aviation Security Act, but even if environmental policy accepts death, e.g. regarding climate change. Overall, it turns out that an interpretation of fundamental rights which is more multipolar and considers the conditions for freedom more heavily–as well as the freedom of future generations and of people in other parts of the world–develops a greater commitment to climate protection.
This paper intends to discuss some contemporary issues on human rights and democracy related to the concept of justice. Is the set of individual rights that is assumed by western democracies really universal? If so, how are they supposed to be interpreted? On the other side if I take into account the “other” and pluralism in a serious way how to conciliate different concepts of justice? Taking Jacques Derrida’s approach of justice as its standpoint this paper aims to stress the difficulty to achieve a unique concept of justice as well as to think justice in the sphere of international law and the problem of ensuring human rights in the international order. Western democracies has becoming more and more multiethnic and multicultural and the set of rights that is at the center of the legal order has to be interpreted in a dialogical sense, one that assumes difference and plurality as its starting point. The plurality of conceptions of the good and the impossibility of establishing a unique concept of justice demands the re-creation of a democratic sphere where the dissent and the conflict could be experienced and, at the same time, the legal order needs to ensure individual and group rights against majority’s dictatorship. The main goal of this paper is to re-think the interpretation of law in a multicultural scenario in which it is not possible to have only one criteria of justice and difference and pluralism are envisaged are values themselves.
Human rights and the law: the unbreachable gap between the ethics of justice and the efficacy of law
(2012)
This paper explores the structure of justice as the condition of ethical, inter-subjective responsibility. Taking a Levinasian perspective, this is a responsibility borne by the individual subject in a pre-foundational, proto-social proximity with the other human subject, which takes precedence over the interests of the self. From this specific post-humanist perspective, human rights are not the restrictive rights of individual self-will, as expressed in our contemporary legal human rights discourse. Rights do not amount to the prioritisation of the so-called politico-legal equality of the individual citizen-subject animated by the universality of the dignity of autonomous, reasoned intentionality. Rather, rights enlivened by proximity invert this discourse and signify, first and foremost, rights for the other, with the ethical burden of responsibility towards the other.
Human rights for liberals
(2010)
s.a.: Das Recht hybrider Netzwerke. Zeitschrift für das gesamte Handelsrecht und Wirtschaftsrecht 165, 2001, 550-575.. Italienische Fassung: Diritti ibridi: la costituzionalizzazione delle reti private di governance. In: Gunther Teubner, Costituzionalismo societario. Armando, Roma 2004 (im Erscheinen).
The aim of this paper is to explore the case of the Spanish ‘indignants’ movement of May 2011 as an example of the structural changes occurring in the public sphere after the emergence of a new type of social movement characterized by the widespread use of the ICTs. First I focus on the ideological dimension of discourse of the ‘indignants’ movement, so as to reconstruct the protesters’ self-image. They thought that ICTs were playing a prominent role in a wider trend towards a regeneration of democracy, but they were rather misguided because they lack an accurate description of what really happened. In the second part of this paper I will challenge some features of my case study, emphasizing three basic elements of a democratic public sphere. I aim to call into question the idea that a ‘truly’ democratic public may be hosted by the emergent communicative environment.
Imperialism is the domination of one state by another. This paper sketches a nonrepublican account of domination that buttresses this definition of imperialism. It then defends the following claims. First, there is a useful and defensible distinction between colonial and liberal imperialism, which maps on to a distinction between what I will call coercive and liberal domination. Second, the main institutions of contemporary globalization, such as the WTO, the IMF, the World Bank, etc., are largely the instruments of liberal imperialism; they are a reincarnation of what Karl Kautsky once called ‘ultraimperialism’. Third, resistance to imperialism can no longer be founded on a fundamental right to national self-determination. Such a right is conditional upon and derivative of a more general right to resist domination.
In memory of Brigitte Haar
(2021)
Nachruf auf Brigitte Haar (1965-2019).
According to international and national constitutional law, indigenous peoples in most Latin American countries have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions. As a consequence of this and of a long and ongoing process of political debate and recognition, ever more indigenous peoples are practicing their own laws, following their own cultural traditions and customs. In doing so, they often draw on history, recreating their identities and reconstructing their distinct legal pasts. At the same time, historical research has increasingly pointed out the intense interaction between indigenous peoples and European invaders during colonial period. It has become clear that it is difficult to draw a clear line between purely ‘indigenous’ and ‘colonial’ legal traditions due to the hybridisation of indigenous and colonial laws and legal practices. The aim of this paper is to introduce this historiography and its relevance to law and to present some methodological challenges in writing the history of indigenous rights in Latin America resulting from this shift in (legal) historiography.
This paper argues that the key mechanisms protecting retail investors’ financial stake in their portfolio investments are indirect. They do not rely on actions by the investors or by any private actor directly charged with looking after investors’ interests. Rather, they are provided by the ecosystem that investors (are legally forced to) inhabit, as a byproduct of the mostly self-interested, mutually and legally constrained behavior of third parties without a mandate to help the investors (e.g., speculators, activists). This elucidates key rules, resolves the mandatory vs. enabling tension in corporate/securities law, and exposes passive investing’s fragile reliance on others’ trading.
Following Foucault's analysis of German Neoliberalism (Ordoliberalism) and his thesis of ambiguity, this paper introduces a two-level distinction between individual and regulatory ethics. In particular, its aim is to reassess the importance of individual ethics in the conceptual framework of Ordoliberalism. The individual ethics of Ordoliberalism is based on the heritage of Judeo-Christian values and the Kantian individual liberty and responsibility. The regulatory or formal-institutional ethics of Ordoliberalism which has so far received most attention on the contrary refers to the institutional and legal framework of a socio-economic order. By distinguishing these two dimensions of ethics incorporated in German Neoliberalism, it is feasible to distinguish different varieties of neoliberalism and to link Ordoliberalism to modern economic ethics.
Brazil has one of the worst distributions of income in the world. The wealth of the richest 1% of the population is equal to that of the poorest 50%. Brazil has a greater concentration of wealth than ninety-five percent of the countries on which data is available. In the legal field, tax justice is based on the constitutional principle of the “ability to pay”, according to which taxes should be paid based on the economic capacity of the taxpayer. This principle first appeared in the Brazilian legal order in the 1946 Constitution, was excluded from the texts of 1967/69, and reappeared in § 1 of article 145 of the 1988 Constitution. The aim of this paper is to examine two possible grounds for the ability to pay principle (equal sacrifices and proportional sacrifices) to show how, in Brazil, the interpretations that seek to assign a positive content to the principle are limited to the horizons of a particular form of State associated with the theory of equal sacrifice. This theory for its turn is consistent with a theory of justice, under which no expense or charge levied by the government can alter the distribution of welfare produced by the market. As the application of the ability to pay principle is done within the limits of that horizon, as a consequence, this principle does not play an important role in the issue of reduction of inequality in Brazil.
In Justice and Reconciliation in World Politics Catherine Lu endorses the idea that those who contribute to the reproduction of structural injustice have responsibilities to address that injustice (Lu, 2017). However, in the book, Lu does not explore the grounds and justification for recognising such a responsibility. In order to address this deficit, this paper proposes that those likely to contribute to the reproduction of structural injustice, in the future, have precautionary duties, in the present, that require them to take action aimed at preventing their future contribution. It is proposed that these ‘collectivization duties’ (Collins, 2013) require them to act responsively with a view to forming a collective that can end the structural injustice in question. This account recommends a collective-action solution alongside recognising that each socially connected agent is obliged to act. However, it does not entail that amorphous groups bear responsibilities and is appropriate in its attribution of blame, thus avoiding both Nussbaum’s (2011) critique of perpetually forward-looking accounts and the ‘agency objection’ (Wringe, 2010).
Although intellectual property law is a distinctively Western, modern, and relatively young body of law, it has spread all over the world, now encompassing all but a very few outsiders such as Afghanistan, Somalia, and Vanuatu. This article presents three legal transfers that contributed to this development: first, from real property in land and movables to intellectual property in the late 18th century in Western Europe; second, from Western Europe, in particular from the United Kingdom and France to the rest of the world during the colonial era in the 19th and early 20th century; third, from the protection of new knowledge to the protection of traditional knowledge, held by indigenous communities in developing countries, on 5 August 1963. This story illuminates how legal transfers in a broad sense – including, but not limited to legal transplants - drive the evolution of law.
While distribution conflicts over natural resources were central to the debates on a New International Economic Order, during the last decades the specific distribution conflicts surrounding natural resource exploitation no longer have been at the core of international law. In this paper I trace the developments in the relationship between international law and resource distribution conflicts. I first argue that the New International Economic Order favored the political resolution of distribution conflicts over natural resources and envisaged international distribution conflicts to be addressed by the political organs of international institutions within legal procedures Second, I show how the NIEO was surpassed by a different order that relied largely on the market as a distribution mechanism for raw materials and how international institutions and international law played a crucial role in the establishment of this order by promoting the privatization of natural resource exploitation and protecting foreign direct investment and trade. With reference to the copper industry in Zambia I thirdly illustrate how international investment law, and more broadly international economic law, is shaping (and affecting the resolution of) not only distribution conflicts between, but also within States. I conclude with a call for a renewed focus on an international law of resource conflicts to allow for their political resolution given the countermoves we can observe with respect to international investment law and the persistence of (violent) conflicts over natural resource exploitation within States.
As a result of globalization, the number of people living outside of their countries of origin is on the rise. Among them are children of primary and secondary school age of varying socio-economic backgrounds. This article addresses the education-related challenges that children in such circumstances face. I first identify two principles – an educational adequacy principle and a presumption of responsibility on the part of a host country for meeting children’s educational
needs – which are widely employed to guide national policy decisions on educational content and the distribution of educational resources. I then discuss a number of problems that students living abroad face which, I argue, policies devised on the basis of these principles either systematically overlook or, in some cases, exacerbate. Finally, I offer two alternative principles – a cosmopolitan revision of the first and a replacement for the second with a focus on collective responsibility – designed to promote education policies better suited to a globalized world which might help to alleviate the barriers to success commonly encountered by children learning abroad.
One of the current trends in international law scholarship is the question of which influences specific legal cultures have on the understanding of international law. This contribution will trace the conditions of a German perspective and analyse the debate against the background of positive law. We will try to assess what the debate adds to the general theory of international law, how it fits into demands of legitimacy of international governance, and whether it contributes to a sensible reconstruction of current law. Furthermore, we try to develop our own perspective that matches the system of international law and is plausible in terms of international legal theory. For that purpose, we will first take It is probably in this context that the contention has to be understood that the ongoing debate on the constitutionalisation of public international law is particularly European, if not German. Whether or not this is the case is difficult to investigate with a lawyer’s tools. However, the idea that international law is the constitution of mankind has found many adherents in German legal writings. This contribution will trace the conditions of a German perspective and analyse the debate against the background of positive law. We will try to assess what the debate adds to the general theory of international law, how it fits into demands of legitimacy of international governance, and whether it contributes to a sensible reconstruction of current law. Furthermore, we try to develop our own perspective that matches the system of international law and is plausible in terms of international legal theory. For that purpose, we will first take up the debate and find its place in the landscape of international legal theory. In this context, we try to shed light on the central concepts used or presupposed when constitutionalisation is discussed by German-speaking scholars (see below, section B). Furthermore, we will discuss structures in positive law which are used as arguments in the debate (section C). Finally, we will try to give an account of constitutionalisation in terms of both sources doctrine and legal theory (section D), before drawing conclusions from the discussion (section E).
The article aims to investigate, under the aspect of translation, the process of legal appropriation and reproduction of international law during the course of the 19th century. An occidental understanding of translation played an important role in the so-called process of universalization in the 19th century, as it made the complexity of global circulation of ideas invisible. Approaches proposed by scholars of Postcolonial, Cultural and Translation Studies are useful for re-reading histories of the circulation of European ideas, particularly the international law doctrines, from a different perspective. The great strides made in Translation and Cultural Studies in the last decades, as well as the discernment practiced in the scholarship of Postcolonial Studies, are important for a broader and more differentiated understanding of the processes of appropriation and reproduction of the doctrines of international law during the 19th century. The present article begins by tracing the connection between translation and universalization of concepts in 19th century international law; after a short excursus on the Western idea of translation, the attention is focused on the translation of international law textbooks. The conclusive section is dedicated to a comparison between Emer de Vattel’s Droit des gens and Andrés Bello’s Principios de Derecho de Jentes.
Rezension zu:
Ruben Andersson, Illegality, Inc. (Oakland, CA: University of California Press, 2014)
Amy Nethery and Stephanie J. Silverman (eds.), Immigration Detention: The Migration of a Policy and its Human Impact. (London and New York: Routledge, 2015)
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