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The author will deal with the relationship between law and technology from the viewpoint of technology security standard. One of the relationships can be found in that law has been providing a security level of technology. They have been saying that law would often follow technology. Law is too slow to adapt the changing technology through the advancement of technology. Above all, information technology has an electronic rapidity and a legislation technology has a paper one. There might be a big estrangement between law and technology. However, law must provide a security standard of technology. The standard must be based on a relative security level. The relative level would premise on the ordinary, lawful and ethical use of technology. Most technology has been opened to the public without any technology impact assessment. Technology would have some defect, which the producers have overlooked. As a result, the users might often meet with the accidents caused on the defects.
Then law should provide a technology security standard to exclude the defects from the users’ viewpoint as secure as possible. The security standard must be reflected on the architecture standard of technology. The architecture standard may be a yardstick whether the creators can evade the responsibility for the accidents.
The standard would also premise on the ordinary, lawful and ethical use of technology. The ordinary use means that the users should use normally technology within the extent of the architecture standard. The ethical use means that the users should use technology being conscious of the defects in order to avoid accidents.
The relative security level may be the sum of the architecture standard and the ethical use of technology.
In information society, legal norm communications have been never established in certain fields for a long time. That is, a few legal norms have never obeyed in the fields. Above all, legal norms which relate to data protection, information contents and information security, would often infringed. Most violation would be conducted by using information technologies. Information technologies would often be used in these infringing incidents. It can be said that these infringing incidents would have never been conducted without information technology. These infringing incidents include hacking actions, personal data abuse, personal information disclosure, unauthorized access, infringing copyrights, infringing privacy rights, and so on. A way of preventing those infringements is to raise the level of punishment against the violators. But, it will prove to be disappointing. Furthermore, it would be an ex post facto measure to the last. It would be needed to invent an ex ante measure, if it is possible. As the ex ante measure, the author proposes a fusion of law and information technology. An information technology will lead people to a lawful deed when they conduct actions in using computers and networks. They say that information technology cures information technology. After all, the fusion will aim at realizing laws, and it will contribute to recover a social justice.
The use of most if not all technologies is accompanied by negative side effects, While we may profit from today’s technologies, it is most often future generations who bear most risks. Risk analysis therefore becomes a delicate issue, because future risks often cannot be assigned a meaningful occurance probability. This paper argues that technology assessement most often deal with uncertainty and ignorance rather than risk when we include future generations into our ethical, political or juridal thinking. This has serious implications as probabilistic decision approaches are not applicable anymore. I contend that a virtue ethical approach in which dianoetic virtues play a central role may supplement a welfare based ethics in order to overcome the difficulties in dealing with uncertainty and ignorance in technology assessement.
Technocracy is usually opposed to democracy. Here, another perspective is taken: technocracy is countered with the rule of law. In trying to understand the contemporary dynamics of the rule of law, two main types of legal systems (in a broad sense) have to be distinguished: firstly, the legal norm, studied by the science of law; secondly, the scientific laws (which includes the legalities of the different sciences and communities). They both contain normative prescriptions. But their differ in their subjects‘ source: while legal norms are the will’s expression of the normative authority, technical prescriptions can be derived from scientific laws, which are grounded over the commonly supposed objectivity of the scientific knowledge about reality. They both impose sanctions too, but in the legal norm they refer to what is established by the norm itself, while in the scientific legality they consist in the reward or the punishment derived from the efficacy or inefficacy to reach the end pursued by the action. The way of legitimation also differs: while legal norms have to have followed the formal procedures and must not have contravened any fundamental right, technical norms‘ validity depend on its theoretical foundations or on its efficacy. Nowadays, scientific knowledge has become and important feature in policy-making. Contradictions can arise between these legal systems. These conflicts are specially grave when the recognition or exercise of fundamental rights is instrumentally used, or when they are violated in order to increase the policies‘ efficacy. A political system is technocratic, when, in case of contradiction, the scientific law finally prevails.
"Community and law approach" provides an illuminating insight into alternative legal orderings within a social unit. The comprehensiveness of legal systems within a community or a social unit, provides a suitable basis for a structural framework of alternative legal systems or Legal Pluralism, which is missing in the discourse on Legal Pluralism. "Identifying the locus of law within a community", provides us with an indication on how autopoetic a legal system can be within a social unit, taking into account the social rootedness of legal norms.
Legal practitioners and legal scientists need to have knowledge of the general rules that apply in the legal system. This involves both knowledge of the legislation and knowledge of the decisions by judges that function as general rules of law. Law students preparing themselves for the legal profession need to acquire these kinds of knowledge. A student has to have knowledge about where to look for decisions, understand the structure of decisions and learn to determine what makes a decision relevant to the body of applicable rules in the legal system. Legal education primarily aims at acquiring insight in the legal sources, their history and background. This basic knowledge is of great importance; legal problem solving is hardly possible without an understanding of the legal knowledge. To illustrate the use of this knowledge in practice, teachers work through decisions as examples. However, it is difficult, if not impossible, to learn by explanation or by imitation alone. A more effective way to obtain expertise is by actually performing the task, i.e. students should do the exercises, while the teacher provides feedback on their solutions. For effective learning, also the solution process should be monitored and provided with feedback. Furthermore it is desirable for students to be able to ask for help at any time during the process. They should also be able to practice over and over again. An ideal situation would have a teacher available for every student, monitoring the student while practicing and providing support where and whenever necessary. However, this being not practically feasible, the second best option is to offer the student electronic support.
CASE (Case Analysis and Structuring Environment) is an environment where a law student can practice with finding decisions, with structuring its text and with analysing the decision in order to be able to determine in what way it adds to the body of applicable rules in the legal system.
CASE is developed using a principled and structured design approach. A short description of this approach is followed by an analysis of the learning task, the difficulties law students experience and the remedies proposed on the basis of both the task analysis and the stated difficulties. This is followed by a description of architecture, functionality, platform and implementation of CASE and a description of a session with CASE and future work.
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.
Germany is the focus of this paper, owing to the fact that since 1938 it has had the strictest laws on compulsory schooling worldwide. As a result, homeschooling in Germany has become virtually impossible. There are interesting divergences between policy and practice in the German setting, both in the country’s educational history and present educational problems. The Länder (federal states) have the responsibility for education, and they are taking a much stricter line against homeschoolers than a decade ago, especially by depriving parents of the custody of their homeschooled children at an early stage. The laws relied upon, however, were never intended to deal with such educational matters; they were designed to punish parents who abuse or neglect their children. The present, highly questionable legal action succeeds only because of the consent of state schools, state social welfare offices, and courts. The same laws are not used against the parents of the approximately 250,000 teens who are truant. The functioning of the legal and sociological machinery in Germany is being employed aggressively to stamp out homeschooling, while at the same time it ignores the crucial issue of parents who allow their children to skip school—thus depriving them of an adequate education at home or elsewhere. At the same time, the number of specialists in law and education, as well as politicians and governmental experts who argue in favor of homeschooling is growing, and media reports on homeschooling are much more positive than they were a decade ago.
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.
The problem of this paper is prompted by the claim of Zagreb University students residing in government subsidized dormitories that their duty to act for free as dorm night porters amounts to forced labour. After a preliminary note on the nature and types of legal scholarship, the paper restates jurisprudential arguments against student rights and analyses limitations inherent in legal scholarship in action, or jurisprudence, that make it unresponsive to student rights: a limited normative framework and a limited subject-matter, most notably a limited focus of inquiry when it comes to force or coercion. A glimpse at an analysis of force in international law indicates that the naked force typical of elementary criminal law has dissolved long ago into phenomena remotely related to naked force, such as economic pressure and ideological propaganda. Two legal and social contexts of force are of primary interest to understanding student rights. The first is legal recognition of the vulnerability of children to naked force. The second is the blind eye of jurisprudence for the vulnerability of workers to economic need. The belief in economic necessity and subjugation of the state to capital has resulted in a bizarre reversal of the roles of corporations and students. Jurisprudence cannot change the world but can interpret it more sensibly. What is required is a re-examination of maturity and emancipation within the emerging world law.
Some advances in legal practical reason: for a progressive dialogue with contemporary hermeneutics
(2012)
This paper intends to critically discuss some points of the contemporary thesis concerning constitutional hermeneutics and methodology of law. Once identified some authors and the lines of argumentation affiliated grosso modo to the linguistic turn and rhetoric, as well as the core of the transcendental powers of communication (v.g. N. MacCormick, R. Alexy, K. Günther), the objective is to identify some dialogue with economics and political science, enlightened by recent researches about Hegel-Marx interpretations of social life. Of course the discussion inevitably passes through methodological questions, opposing analytics vs. dialectics, idealistic vs. realists standpoints. In a effort to foment the inclusive dialogue between points of view concerning the concept of law that may create (not necessarily) radical opponents, the lines of conclusion intents to revisit some foundations of Hegelian "method" (so to speak) and intends to give a modest contribution to a more profound analysis of the relations between sein and sollen categories, in order to enrich the discussions about technology and social life, specially the life of the law nowadays.
The doubt about certainty like an absolute value in law and as an ideal full in legal system (argument about impossibility) is a controversial fact in contemporary legal theory. In this text I examine some contemporary doctrines about the classic understanding (in critical sense) of this ideal. I have selected the most representative doctrines: doctrine about "open texture of Law" (H.L.A. Hart), starting point in this discussion; doctrine about "Il Diritto mite" (G. Zagrebelsky), from the continental European legal tradition at present; and doctrine about "vagueness in Law" (T.A.O. Endicott), this doctrine is the most recent, from the Anglo-Saxon legal tradition. Finally, in Conclusions, I analyze if this doubt (argument about impossibility) contaminates (in some sense) to the concept of law or to the characteristics that describe law in the contemporary Constitutional State.
It is a fact that mediation and other alternative dispute resolution means are becoming increasingly popular. Actually, governments are encouraging people to use them instead of going to Court, as they are quicker, cheaper and more informal than trials, and can be implemented using internet. The author focus on the analysis of the structure and purposes of mediation, in particular. The paper aims to discuss and understand what kind of justice, if any, is offered by alternative dispute resolution.
The relation between law, moral, society and science is shifting in Brazil as it is changing in democratic contemporary societies. This paper proposes to reflect about this change in the Brazilian legal and social context. Jurisprudence and legal practice have been transformed intensively after the Brazilian redemocratization that began in 1985 and Federal Constitution of 1988. In the field of Jurisprudence (Legal Theory), a new legal theory called post-positivism progressively has been overcoming legal critical studies and legal positivism. In recent years, ideas as any moral values can be improved by law (positivism) or law is one of many oppressive institutions in capitalist society (legal critical studies – Marxism) have been losing place in legal theory. Nowadays, when Brazilian Constitution implements just society and legal system, different from the authoritarian military regime (1964 – 1985), it is difficult to work with a complete relativistic idea of law (positivism) or difficult to accept that law is necessarily oppressive in capitalistic societies. Otherwise the idea of science in law at post-positivistic point of view try to overcome in a dialectic way a pure science methodology (normativistic positivism) and the complete political and economic studies of law (critical legal studies – Marxism). After that, the text will show that Brazilian legal practice have changed intensively after post positivistic methodology of law and will reflect about same dilemmas of post-positivism in Brazil in the legal theory and practice.
The paper is concerned with the Hartian idea that the justification of law’s normativity can be traced back to the exquisite social fact, viz. special kind of social convention. After discussing the view that the rule of recognition is a coordinative convention A. Marmor’s idea of constitutive convention is introduced. Relying on J. Dickson’s brilliant enquiry I finally argue that this latter idea is deprieved of any explanatory power, which was pressuposed by H.L.A. Hart when he himself reffered to the conventional rule of recognition as social fact having full normative significance.
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.
Based on Walter Benjamin’s reflections on history and social struggles, this paper drafts an analysis of the relations of the subject with some problems of constitutional theory, in a first effort to bring the field nearer to social philosophy. After tracing a short narrative on modern constitutionalism and its new relationship with the historical time, we argument that Constitution shall be seen as a cultural document of memory of the social struggles of the past and at the same an object of the struggles of the present. Some inconclusive reflections on the possibility of human emancipation through law are presented as conclusion.
To become self-reflexive, Jurisprudence must to establish a dialogue: the human sciences should lose their exotic character in the eyes of Legal Science. It is in the middle between the "order" and the thinking about it, where the "naked experience" happens, that culture and therefore Law builds itself e it is constructed. This paper demonstrates the need to use other human sciences, with emphasis on anthropology, as "methodological strategies" for Jurisprudence self-reflection to become more faithful to the reality of the researched object. Anthropology has the power to show what is "anti-modern". It questions the intellectual space of modernity where the hard definition of antagonisms detached from reality occurs - West/East, “I”/other, civilized/barbarian. Jurisprudence consolidates antagonisms: the diversity and plurality of human societies are rarely seen as a fact but as an aberration, always demanding a justification. It is necessary to create a methodology using what is most extraordinary and human in the analysis of fact: "Anthopological Blues". Anthropology is capable of breaking with the classical conception of scientific methodology that is based on stiffness to produce absolute truths and also support the fulfillment of legal concepts with content and meaning, providing a reinterpretation of science as a human instrument of intervention on reality.
The debates about the interrelations between reason and law have undergone a change after the eighteenth century. References to the recta ratio of jusnaturalistic tradition have not disappeared, but other comprehensions of legal reason have developed. The European debate over legal positivist science has contributed to this in a manifestation of the rationality of law. This transformation may be considered the basis for the development of true “legal technologies” throughout the twentieth century. On the other hand, in the context of theories of positive law which have taken the relation between ethics and legal reason as a problem, the formation of discourses on coercion (Austin and Holmes), on validity (Kelsen and Hart) and on justification (Alexy and Dworkin) has also contributed to the emergence of new models of legal rationality. In this paper, it is highlighted that the construction of these models is linked to the “points of view” which theories have proposed as legitimate for the interpretation of legal phenomenon. And it is suggested that the discussion over points of view (defined as “focuses”, term which is close to the notion of “attitude”, “stance” or “place of speech”) may aid in the debate on the normativity of law.
New technologies generate risks, for the evaluation of which various mechanisms have been developed; the most frequent of these mechanisms consists of advice from committees of experts to the bodies whose role is to decide whether a new technology should be implemented or not. Such committees try to measure the magnitude of the threats that accompany the introduction of a new technology in order that the policy-makers may take their decisions in the light of the reports of the experts. The legitimacy of such reports is not only found in the technical capacity of its authors, but also in the impartiality of their recommendations. On numerous occasions, nevertheless, the effective presence of this evaluation finds itself today under suspicion. There are various methods that can be employed to try to resolve this problem. Firstly by reinforcing the mechanisms on which the technocratic evaluation of the risk are based; for example, through transparency in the selection of the experts. Secondly, by means of the incorporation of democratic mechanisms in the scientific-technological policy. The exposure of the internal conditions to the dynamics of the technological change that make possible the institutionalised involvement of society in the control of risk, as well as of the mechanisms to realise it are the principal subjects of this work.
Akrasia, or weak-will, is a term denoting a phenomenon when one acts freely and intentionally contrary to his or her better judgment. Discussion of akrasia originates in the Plato's Protagoras where he states that “No one who either knows or believes that there is another possible course of action, better than the one he is following, will ever continue on his present course”. However, in his influential article from 1970, Donald Davidson argued that akrasia is theoretically possible yet irrational. Some other critics of Plato's stance point out that phenomenon of akrasia is common in our everyday experience, therefore it must be possible.
These two arguments in favor of akrasia existence – theoretical and empirical – will be discussed from both – philosophical and psychological points of view. Especially, George Ainslie's argument that akrasia results from hyperbolic discounting will be taken into consideration to show how it affects traditional thinking about weak-willed actions.
Finally, the paper will discuss how the contemporary notion of akrasia may affect the idea of responsibility and free will. Implications for the philosophy of law will be shown, i.a. whether it is possible to claim that a given example of a weak-willed action was indeed free and intentional and one should be held responsible for its results.
Occasionally, in pursuing their adjudicative duties over the course of a legal hearing, judges are called upon to acquire new concepts – that is, concepts which they did not possess at the commencement of the hearing. In performing their judicial role they are required to learn new things and, as a result, conceptualise the world in a way which differs from the way they conceived of things before the hearing commenced. Some theorists have argued that either as a general matter or as a matter specific to judicial practice and the legal context, judges are, with some degree of necessity, incapacitated from acquiring certain kinds of concepts. Such concepts include those possessed by the members of culturally different minority groups. Drawing on contemporary trends in analytic and naturalistic philosophy of mind, this paper explores the extent to which a judge might be incapacitated from acquiring new concepts over the course of a legal hearing and identifies those factors which condition the success or failure of that process.
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.
In this paper I demonstrate the utility of a Values in Design (VID) perspective for the assessment, the design and development of e-democracy tools. In the first part, I give some background information on Values in Design and Value-Sensitive Design and their relevance in the context of e-democracy. In part 2, I analyze three different e-democracy tools from a VID-perspective. The paper ends with some conclusions concerning the merits of VID for e-democracy as well as some considerations concerning the dual tasks of philosophers in assessing and promoting value-sensitive technology design.
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.
In the debate on how the new information and communication technologies impact on democratic politics the role played by the digital architecture seems to be surprisingly underrated. In particular, while a lot of attention has been paid to the possibilities that new technologies open up to democratic theory, few works have attempted to look at how democracy may help in shaping technologies. By adopting as a starting point the approach known as ‘code as law’, the paper aims at two objectives: to re-affirm the importance of discussing normative principles to guide the process of code writing in order to reinvigorate the debate; to claim the importance of input reasons when deciding which principles should be chosen. After having remarked that code is relevant for establishing democratic norms, the paper briefly tackles with the main attempts by European scholars to deal with this issue. Then, a couple of practical examples of how code impacts on democratic rights are sketched out. In the last section of the paper a shift from an output-based approach to the legitimacy of code to an input-based is openly advocated: an inquiry into the legitimacy of code should focus on its production.
This paper aims to assess the arguments that claim representative democracy may be enhanced or replaced by an updated electronic version. Focusing on the dimension of elections and electioneering as the core mechanism of representative democracy I will discuss: (1) the proximity argument used to claim the necessity of filling the gap between decision-makers and stakeholders; (2) the transparency argument, which claims to remove obstacles to the publicity of power; (3) the bottom-up argument, which calls for a new form of legitimacy that goes beyond classical mediation of parties or unions; (4) the public sphere argument, referred to the problem of hierarchical relation between voters and their representatives; (5) the disintermediation argument, used to describe the (supposed) new form of democracy following the massive use of ICTs. The first way of conceptualizing e-democracy as different from mainstream 20th century representative democracy regimes is to imagine it as a new form direct democracy: this conception is often underlying contemporary studies of e-voting. To avoid some of the ingenuousness of this conception of e-democracy, we should take a step back and consider a broader range of issues than mere gerrymandering around the electoral moment. Therefore I shall problematize the abovementioned approach by analyzing a wider range of problems connected to election and electioneering in their relation with ICTs.
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 this article, I examine how open borders can serve the idea of global distributive justice by asking how or how not the existing practices of immigration to rich countries may contribute to global economic redistribution. There are two observations. First, migration is not the redistributive option that anyone has an equal access. In order to make use of migration as a means of global redistribution, rich countries need to provide a chance to migrate to those who cannot afford movement by themselves. Second, as long as brain-drain problems happen, what the perspective of global distributive justice requires is the compensation for some educational cost of raising professionals or some control of their movement. Immigration admissions largely focusing on getting highly skilled professionals may not serve the idea of global redistribution.
The revolution will be tweeted : how the internet can stimulate the public exercise of freedoms
(2012)
This article discusses how new technologies of communication, especially the Internet and, more specifically, social network services, can interfere in social interactions and in political relations. The main objective is to problematize the concept of public liberty and verify how the new technologies can promote the reoccupation of public spaces and the recovery of public life, in opposition to the tendency to valorize the private sphere, observed in the second half of the twentieth century. The theoretical benchmark adopted for the investigation is Hannah Arendt's theory about the exercise of fundamental political capacities in order to establish a public space of freedom, as presented in “On Revolution”. The “Praia da Estação” (“Station Beach”) case is chosen to test the hypothesis. In 2010 in the Brazilian city of Belo Horizonte, different individuals articulated a movement through blogs, Twitter and facebook, in order to protest against the Mayor’s act that banned the assembling of cultural events in one of the main public places of the city, the “Praça da Estação” (Station Square). By applying Arendt's concepts to the selected case, it is possible to demonstrate that the Internet can assume an important role against governmental arbitrariness and abuse of power, as it can stimulate the public exercise of fundamental freedoms, such as freedom of assembly and manifestation.
The role of experts grows in the present and that is, in part, justifiable: as complexity rises, the ones who deliberate feel the need of the help of those who have know-how in specific fields. The question that must be asked revolves around the type of expectations developed in modern societies regarding what experts can do. Though specialization is not a peculiarity of our time (the process can be observed since human beings became sedentary); it has presently gained specific characteristics. Two aspects of modern life are particularly significant on that matter: (i.) the fact that the economic system is based on excitation of new needs (and no longer on the demand for satisfaction of needs); (ii.) the growing pursuit for total administration of conflicts. These factors are constitutive of what Gadamer sees as a great threat to our civilization: the excessive emphasis given in our time to the human ability to adapt. A specific ability is demanded from individuals: the capability of making an apparatus functions properly. Less resistance and more adaptability is requested, and because of that, autonomous thought - that is, not determined by the function it has in a system – is devalued. The threat we currently face is that the abilities of a good technocrat become the only qualities demanded from those who are responsible for practical decisions (especially in politics and law). Teleological reason, that guides the activity of specialists (and requires know-how in a specific area and consists in choosing means to reach a previously established goal), should not substitute practical reason, as the former requires adaptability to experience (not to a plan that was previously established) and is grounded on solidarity. In order to discuss the limits of the activity of specialists, the paper looks back to phrónesis and the way ancient Greeks set boundaries - this exercise should help raising new questions revolving the matter.
Alexander’s theory of the civil sphere can be placed in the context of development of sociology of law. However, Alexander draws not so much on sociological theories but rather on the approaches of philosophy of law, particularly the ideas of Fuller, Dworkin and Habermas. The civil sphere is presented by Alexander as the embodiment of Dworkin’s principal integrity. Locating law within civil morality Alexander reveals the similarity of his viewpoint to Dworkin’s position. Drawing on Fuller’s works Alexander singles out the procedural foundations of the democratic order. At the same time for Alexander the source of morality of law is not the legal system itself but a certain level of civil solidarity. Like Habermas, Alexander emphasizes the culturally embedded character of the legal norms. Alexander shares Habermas’s understanding of law as a regulative mechanism affecting all spheres of social life. However, Habermas is more sensitive to the danger of colonization of law by the imperatives of the economic and political subsystems. Alexander’s approach can be contrasted with Luhmann’s sociological theory of law. Alexander concentrates on interrelation and mutual penetration of the civil sphere and law while Luhmann regards law as an autonomous system following its own logic. While Alexander claims that his theory is rooted both in sociology and philosophy of law in fact his approach is closer to normative philosophy.
Doctrines developed by the EFTA Court have placed considerable demands on national courts in the EFTA States. The Court now considers the EEA Agreement to form an “international treaty sui generis which contains a distinct legal order of its own.” It would thus seem that EEA law has transformed into an independent legal order, and subsequently has a claim to validity which emulates the self-legitimising presentation of the EU legal order. This, however, is not an empirically verifiable fact, but a particular understanding which arises when one adopts the viewpoint of the EFTA Court. EEA law takes place in a different realm when interpreted and applied in the national order: this realm is essentially a construction of the constitutional order. Case law shows that the Icelandic Supreme Court is far from accepting all EEA judge-made principles. This study will describe a context of legal pluralism by reference to the Icelandic legal system and its relationship with the EEA legal order. To illustrate the discussion, the most important case law relative to the interaction between Icelandic laws and EEA law will be considered in the light of legal pluralism - particularly the principles of contrapunctual law designed by Miguel Maduro. The paper argues that the Supreme Court’s internal domestic approach to the application of EEA law will inevitably become a source of fragmentation unless it takes place within an institutional framework of judicial tolerance and judicial dialogue.
The demarcation of authority between parents and the State regarding education of children has become an increasingly complex issue over the past three decades. During the same period the number of parents around the world choosing educational alternatives such as homeschooling has grown exponentially, causing significant legislative and jurisprudential shifts in the United States as well as other Western nations. If the State is responsible for education or has a significant interest therein, then it must have broad authority by which to prescribe the method, mechanism, and acceptable outcomes of education; it must also be able to review and enforce these desired outcomes. If parents, on the other hand, are responsible, then it is the State’s duty to defer to parents absent a compelling reason to interfere. A survey of the philosophical foundations from ancient to modern times demonstrates the tension between the State and parents in the realm of education; however, modern human rights norms contained in post-1945 international human rights documents provide explicit grounds on which the State must defer to parental choice in education.
H. L. A. Hart thought that a theory of law can be purely descriptive and called his theory a “descriptive sociology”. One of his great contributions to modern legal theory is his emphasis on the internal aspect of social rules. According to him, a theory of law can be built on the basis of the description of the participants’ view without sharing with it. This descriptivism is totally rejected by Dworkin, who propagates a theory that denies a sharp separation between a legal theory and its implications for adjudication. For Dworkin, a legal theory is only possible as a theory with “the internal, participants’ point of view”. Dworkin’s position implies a radicalization of legal theory that will transform the statement of an external point of view to that of an internal one. For Dworkin, the descriptivism bases on the sociological concept of law, which is an “imprecise criterial concept” and is “not sufficiently precise to yield philosophically interesting essential features.”Hart’s position is vulnerable because it takes an impure form of descriptivism that still draws a categorical distinction between fact and norm. This theoretical impurity results from the ambiguity of interpreting the internal aspect of rules. A strategy to rescue the Hart’s project is to radicalize his descriptivism with Luhmann's systems theory. Adapting the systems theoretical distinction between internal and external observation of law with all its implications for the explanation of the legal system and legal communications, Hart’s descriptivism finally attains its pure form, which is not only a distinctive paradigm of legal theory, but also possesses the potentialities to clarify its relationship to the legal theory based on the internal aspect of law.
Technologies carry politics since they embed values. It is therefore surprising that mainstream political and legal theory have taken the issue so lightly. Compared to what has been going on over the past few decades in the other branches of practical thought, namely ethics, economics and the law, political theory lags behind. Yet the current emphasis on Internet politics that polarizes the apologists holding the web to overcome the one-to-many architecture of opinion-building in traditional representative democracy, and the critics that warn cyber-optimism entails authoritarian technocracy has acted as a wake up call. This paper sets the problem – “What is it about ICTs, as opposed to previous technical devices, that impact on politics and determine uncertainty about democratic matters?” – into the broad context of practical philosophy, by offering a conceptual map of clusters of micro-problems and concrete examples relating to “e-democracy”. The point is to highlight when and why the hyphen of e-democracy has a conjunctive or a disjunctive function, in respect to stocktaking from past experiences and settled democratic theories. My claim is that there is considerable scope to analyse how and why online politics fails or succeeds. The field needs both further empirical and theoretical work.
Race has been a term avoided in the Swedish debates, while at the same time, protections with respect to unlawful discrimination on the basis of race or ethnic origins have not been vigilantly upheld by the courts. This paper looks at the treatment of race by the Swedish legislature, as well as the treatment by the courts, specifically the Labour Court, with respect to claims of unlawful discrimination in employment on the basis of ethnic origins, against the background of Critical Race Theory. The disparities between the intent of the legislature and the outcome of the cases brought to the Swedish courts can be in least in part explained through the lens of Critical Race Theory, particularly with respect to the liberal approach taken by the courts when applying the law.
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.
This article considers the Brazilian Legal System and the requirements of an act performed by public administration. To do so, it presents six main chapters. The first one considers Brazilian Constitution as it regards State form, legal and judicial systems. The second chapter presents the public administration stated in the Constitution. The requirements of a public administration act are presented in the third chapter. The improbity law, which determines how public administration acts should be performed, is presented on the fourth chapter. How one of the main judicial courts of Brazil has understood this law is the topic of the fifth chapter. The sixth chapter presents a proposal of how could be Phronesis used to solve misunderstandings about improbity in the Brazilian Legal System.
This paper aims to present the similarities and differences between Posner's defense of Law and Economics (LAE) and Holmes' pragmatism. The investigation is centered in the arguments of economic consequences of judicial decisions. Law and Economics tend to emphasize these arguments as a determinant characterization of legal pragmatism. These arguments involve some dilemmas: Is it possible to eliminate a rule, or reinterpret it according to the effect of its application in practical life? May these economic consequences serve as argument for a replacement of traditional interpretation? To what extent can we rule out the law with arguments of consequence? Despite the influence, LAE has some important differences with respect Holmes' legal pragmatism. Posner's LAE involves the economic principle of wealth maximization and its relations with utilitarianism and economic liberalism. Consequentialism in Holmes, by contrast, is based on a teleological interpretation of existing rules. It is important that the judge does not decide based on a specific economic theory. Also, legal pragmatism does not advocate abandoning the tenets of positivism that form the basis for the rule of law. Holmes defends a judicial restraint. Accordingly, the argument of consequence must have previous limits in precedents and statutes. However, both legal pragmatism and LAE are connected by the idea that the adaptation of the law to a reasonable end can not be absent from the canons of interpretation and adjudication.
This paper traces the development of National Socialist cultural and legal policy towards the arts. It examines the role of censure in this development starting with Hitler's first attempts at power in the Weimar republic. It then looks more closely into aspects of the development of new policies in and after 1933 and their implementation in institutions of the totalitarian state. As the paper shows, policies were carried out within a legal framework that included parliament and constitutional law but they were often also accompanied by aggressive political actions. Racial and nationalistic ideologies were at the heart of the National Socialist discourse about culture. This discourse quickly established modernity as its principal enemy and saw modernist culture (in the broad sense of the word), and especially art criticism, as being under Jewish domination. True German Kultur was set against this; Hitler himself promoted German art both through exhibitions and through policies which included the removal of un-German art and the exclusion of writers and artists who did not conform the cultural ideal. As Jewish artists and intellectuals in modernist culture posed the greatest threat to the establishment of a new German culture, Nazi policies towards the arts embarked on a process of censure, exclusion and annihilation. The purpose of these policies was nothing less than the elimination of all modernist (Jewish and ‘degenerate’) culture and any memory of it.
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.
Abstract of the German original article “Rechtssubjekte und Teilrechtssubjekte des elektronischen Geschäftsverkehrs“, to be published in S. Beck (ed.): Jenseits von Mensch und Maschine: Moralische und rechtliche Aspekte des Umgangs mit Robotern, Künstlicher Intelligenz und Cyborgs. Baden-Baden: Nomos, 2012.
Jurisprudence under the perspective of the new media and its effect on the communication of law
(2012)
Despite the law knowledge presumption, Jurisprudence has not always considered the effects introduced by the communication of law in the transition from the print to the electric revolution, using here concepts and ideas of McLuhan´s theory.
The use of Internet by Brazilian Courts (on line transmission of trials, the digital process, transformation of courts in source of news on what concerns their decisions) is an interesting example of how the new medium interferes in the substance of the message of law, since the movement of the messages must be considered to understand the epistemological domain of law. New elements are introduced by the new media and interact with the old meanings, concepts and processes of law and of the old media and can themselves bring new conflicts that are relevant to the comprehension of the complete and real dynamics of Law.
The process of finding evidence of what truthfully happened in a conflictive situation interests jurists and journalists but in different ways. When the work of journalists and judges are concerned the paradox is at stake. Both categories must tell a story about a conflict must listen to all involved, must inform what happened to the general public. Although both categories must use the freedom must use the freedom of speech their point of view about something with objectivity, their timing is different as well as the process and the effect of fulfilling their task. That question that should be made is what happen to law when it becomes the subject matter to the news in the world of full information? In what measurement journalists also pass judgements and how this affects the formal processes of law? The effort to answer these questions and the ones related to them is important to understand some of the problems that must be approached in order to establish the ways of law and of the mass media technological society.
A Privacy Impact Assessment (PIA) is a systematic risk assessment tool, enabling organizations to maintain compliance with data protection regulations, to manage privacy risks and to provide public benefits through the success of privacy-by-design efforts. An actual practical implementation of a PIA framework has been realized in the context of RFID applications encompassing detailed steps for the PIA process; a first successful review has been completed. The PIA also allows to introduce a pro-active mitigation of privacy risks through technical and organizational controls. The better the precautionary measures realize the relevant privacy objectives, the less likely will occur with the PIA process afterwards. The recent proposal for a far-reaching revision of the EU Data Protection Directive envisages to state a specific requirement to implement a PIA process. Indeed, since risks for privacy and non-disclosure of personal data are different in not identical circumstances, the protection measures should also be different, i.e. technology should assist in trying to achieve the (at least) second-best solution for the implementation of the data protection regime by a PIA. Insofar, privacy rules can be individualized and matched with the concrete needs in the given environment.
Axiomatic method and the law
(2012)
This paper seeks to analyse the debate on equality between women and men found in the claims against the subjects related to Education for Citizenship. These claims were resolved in the Spanish Supreme Court and High Courts of the Autonomous Communities. In this debate, there is a strong rejection of antidiscrimination law assumptions, namely that the different roles and social roles of women and men have a cultural and social base and it is unnatural, as evidenced by the concept of gender. But many appellants and judgments defend the difference between women and men as if it was informed and legitimated on human nature. Hence gender is considered an ideology, that is, a category of analysis by means of which the reality of true human nature can be concealed or distorted. But these arguments are opposed to recent legal reforms since they are questioning its normative value, by prioritizing certain moral principles against these laws. We are talking about the Organic Law for Effective Equality between Women and Men, the Law on Integrated Protection Measures against Gender Violence and the Law on Education. However their arguments are not fully justified.
The normative position of the judiciary under the traditional conception of democracy as self-legislation by the people is too weak to protect in an effective way the rights of suspects in the global War on Terror. Drawing on arguments elaborated by Hans Kelsen and Karl Popper, we shall attempt to devise in this paper an alternative democracy conception that could serve as a much more solid foundation for the judicial branch of government in a democratic state. Through this jurisprudential strategy, we hope to be able to maintain the balance of normative power among the Trias Politica, which, in turn, may contribute to the preservation of the legal rights of every person during the struggle against terrorists.
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.
The bare life and (the) modern law : a journey to some key concepts or conceptions of Agamben
(2012)
This text is imitating a journey which tries to explore what is completely unknown. It starts Homo Sacer and traces some key concepts namely der Muselmann, bare life, state of exception, sovereignty and nihilism in law. Doing so, it hopes to reach a general picture of biopolitics or biopower according to Agamben. So, first part of this text generally tries to clarify some fundamental concepts or conceptions in order to use them for its aim. The second part suggests an alternative reading of Agamben, centered around his concept of der Muselmann which is the ultimate figure defined by Primo Levi and Agamben chooses the term because of its resemblance to or representation of Homo Sacer. Der Muselmann was a derogatory term in its origin and very meaning has still been unclear today. So, the second part tries to clarify the meaning of der Muselmann (and unbaptized babies) from a different outlook, not from outside but inside of the referred concept. It tries to show a Muslim’s image of a non Muslim world in order to reveal what are the very meanings of sovereignty, law and biopolitics. So at the end of the journey, this text hopes to reach a different picture of modern life and a modern law.
Abstract/Keywords: Theory of communicative action, ontology of the sentence, systems, subsystems, role, function, crime of breach of duty, compensation, general and special prevention, rule of law, breach of communicative rationality, institutional rivalry and competition for organization, lord of the fact, the duty of guarantor, facticity and validity, counterfactual assertion, public use of reason, prosecution, transcendental ego, self, idealism, voyage, cognitive subject, object of knowledge, hermeneutics of criminal conduct and public servant
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.
In assessing the aftermath of the fraudulent presidential election of 2009 in Iran, one question has received less critical analysis than other complexities of this event: What can explain the remarkable non-violent character of the Green Movement in Iran? I propose that the answer, inter alia, lies with the following three learning experiences: 1) The experience of loss brought about by the Iran/Iraq war; 2) the experience of relative opening during Khatami’s presidency; and 3) the experience of modernization of faith in the work of the post-Islamist thinkers that aimed to make political Islam compatible with democracy. Together, these learning processes fostered a new mode of thinking that is civil and non-violent in character.
What is it that makes the subject of bioethics autonomous? The problem that this research tries to clarify is What is it that makes the subject of bioethics autonomous? This question is answered from an applied ethics, bioethics. This article will show a new methodological approach to study the subject of bioethics.
The principal objetives of this research that is presented here, are related to the relationship between: 1) Autonomy and information; 2) Autonomy and responsability; 3) Autonomy and freedom; and 4) Autonomy and social ties or social links.
The rule of law is unique establishment that had taken place in historical context, as politico-legal edifice of capitalist society. To the extent that any legal system was established in historical context, its form and functioning are cannot be channelled by reflections or professional commitments of lawyers and legal philosophers. The rule of law emerged in certain conditions that we say “classical liberalism”, of power allocation where we diversify political power and legal power in the milieu of political society, enunciated as republic or commonwealth. Contrary to earlier forms of legal order, capitalism was unique that its super structure was articulated according to the pivotal role of legal machinery. There was an actual equilibrium between legal and political domains that they moderately matched with public and private dichotomy. After monopoly capitalism, social setting of liberalism was dramatically incurred some major modifications which were firstly dislocation of liberal individual, incited by monopoly capital and secondly, political achievement of the working classes obtained political equality, as drastic consequence of mass society. Hence, the rule of law altered as depoliticsation of democratised mass society, instead of modus vivendi of liberal individuals, which demarcated the rule of law according to welfare society or sozialrechtsstaat. The neo-liberal globalisation after 1980’s, republican model of political society faded away that it has been transformed by transnational capital where markets, hierarchies, regionalism and communal settings crosscut inner equilibrium between politics and law. Finally, the newborn articulation of power structure undermined necessary basement of the rule of law.
This paper expands on the concept of legal machine which was presented first at IRIS 2011 in Salzburg. The research subjects are (1) the creation of institutional facts by machines, and (2)
multimodal communication of legal content to humans. Simple examples are traffic lights and vending machines. Complicated examples are computer-based information systems in organisations, form proceedings workflows, and machines which replace officials in organisations. The actions performed by machines have legal importance and draw legal consequences. Machines similarly as humans can be imposed status-functions of legal actors. The analogy of machines with humans is in the focus of this paper. Legal content can be communicated by machines and can be perceived by all of our senses. The content can be expressed in multimodal languages: textual, visual, acoustic, gestures, aircraft manoeuvres, etc. The concept of encapsulatation of human into machine is proposed. Herein humanintended actions are communicated through the machine’s output channel. Encapsulations can be compared with deities and mythical creatures that can send gods’ messages to people through the human mouth. This paper also aims to identify law production patterns by machines.
In this article I advance an account of human rights as individual claims that can be justified within the conceptual framework of social contract theories. The contractarian approach at issue here aims, initially, at a justification of morality at large, and then at the specific domain of morality which contains human rights concepts. The contractarian approach to human rights has to deal with the problem of universality, i.e. how can human rights be ‘universal’? I deal with this problem by examining the relationship between moral dispositions and what I call ‘diffuse legal structure’.
Communist regimes in general and especially the one in Albania destroyed almost every aspect of political, social, cultural and economic life, including the notion of pluralism and intellectual elite of the country. In Albania, the transition into democracy in 90’ was done through extrication which means that the authoritarian government was weakened, but not as thoroughly as in a transition by defeat. As a consequence, the former Communist elite was able to negotiate crucial features of the transition and was very quickly transformed into the new pluralist political class. This position enabled the communist elite to be rehabilitated and together with the new emerged communist elite to remain a strong influential actor in new emerged democracy and de facto to run in continuance the country. The purpose of the new emerged communist elite to maintain control was favored inter alia by the absence of a new strong intellectual elite and was done merely by sharing the power among its members divided into different political parties and also by using the ‘pluralist’ law as a tool for social control over new emerging intellectual elites. The use of law as a tool for social control by the political class has severely damaged people's understanding and expectations on the law, its relations with the state as well as international community. Indeed, such experience of the use of law by the political class for its own narrow interests, has made people lose confidence in law and state as well as has severely weakened the law enforcement in the country. To conclude, the overall purpose of this paper would be the analysis of law in general and its understandings and development in a post-communist society such as Albania from different points of view.
Democratic rule of law has been struggling with the occurring problem of pluralism of values. It is therefore still faced with the dilemma of ordering the relationship of law and ethics, namely with the question whether in the issue of legal solutions the priority is granted to ethics or to law. In the case of dominance of the positivist paradigm, it is all the more important because the ethical issue is marginalized in it. It turns out that the same authority, deciding on similar issues, at the junction of two areas: ethics and law, can make mutually contradictory decisions: once giving priority to ethics, whereas - at different times - to positive law. On a closer analysis, this contradiction proves illusory because under the guise of protection of a positive paradigm, the hidden fact is that the axiological decision underlies the resolution concerning law. This decision protects the values that have priority in the scale of preferential value of decision-making body. The example considered in the article concerns the interface between ethical and legal norms against selected rulings of the Constitutional Court. The doubts that arise in this context may be in future avoided or perhaps, if necessary, resolved by adopting a two-aspect model of legal norm. This model in its vertical approach has an evaluative element. This allows to deem the seemingly contradictory decision in similar cases as justified one. It also shows that in practice the rightness of the resolution takes precedence both over ethics as well as over law.
The concept of biopolitics has its origin on the Michel Foucault works developped since 1975 to 1979. In this period, the author introduced the foundations for a new approach about the modern government, based in both crescent enpowerment on individuals and the control of populations. The theme has attracted the attentions of some critical political studies, with many practical uses. However, I believe there is not enough consolidation about biopolitics as a concept and a comprehensive theory of the new political mechanisms. This uncertainness is more evident when the very role of Law is questioned in a biopolitical model, due to the archaic nature that Foucault gives to it. So the aim of the paper is to identify the theorical comprehension of biopolitics in a contemporary author as Giorgio Agamben to demonstrate his oppositions and proximities from the original idea of Michel Foucault. I propose that Agamben has the same difficulties of Foucault to deal with legal theory and Law inside biopolitics. Nevertheless, after a critical review on the works of this two authors, my conclusion is that a settlement of the concepts of Law and biopolitics depends of the surpassing of the Foucaldian version of Law as sovereignity, a clear delimitation of a common core between the authors and their differences and the research and affirmation of the concept of Law in Agamben, more well-refined than Foucault's one.
E-democracy as the frame of networked public discourse : information, consensus and complexity
(2012)
The quest for democracy and the political reflection about its future are to be understood nowadays in the horizon of the networked information revolution. Hence, it seems difficult to speak of democracy without speaking of e-democracy, the key issue of which is the re-configuration of models of information production and concentration of attention, which are to be investigated both from a political and an epistemological standpoint. In this perspective, our paper aims at analyzing the multi-agent dimension of networked public discourse, by envisaging two competing models of structuring this discourse (those of dialogue and of claim) and by suggesting to endorse the epistemic idea of complementarity as a guidance principle for elaborating a form of partnership between traditional and electronic media.
Judicial review reflects the level of commitment between constitutionalism and democracy in contemporary States. Yet democracy as the sovereign government of the people implies a tension with constitutionalism as the rule of law. That is, people ruling themselves or the government by the people – majority government - is limited by the law of law making, the constitution. In Brazil, the improvement of judicial review is nowadays related to increase the number of decisions given by the Brazilian Supreme Court or rather to the capability of this latter in deciding a large number of constitutional lawsuits no matter the form and content of its arguments. For, the Court is nowadays driven by numbers and to accomplish its goals in terms of numbers (of decisions) it applies to technological solutions such as the digitalization of legal proceedings. It means that as many decision as Supreme Court issues -with the help of technology- the better it is. Relating the numbers of decisions issued by the Court to the improvement of Brazilian judicial review or Brazilian constitutionalism and democracy is a great mistake and a false statement as far as it does not face the main problem of the system, which is the lack of reasons of Supreme Court’s decision. The point is that, in this case, technology is just a tool –among others- in order to render legal proceedings faster yet not a qualitative sign of Supreme Court’s decisions.
The main Question of this paper is: how can we tackle the global warming in accordance with the economical growth especially in emerging countries?
K. W. Kapp, “The Social Costs of Private Enterprise” (1950), defines the social costs as direct or indirect damages which are not compensated by the producer, but added to the third parties. An example might be the disaster of the BP plant in April 2010, in which the polluter can hardly cover all the damages so as to make the seawater clean, to regenerate the harmed natural lives and to recover the jobs and the everyday life of the residents on site.
The Club of Rome, “The Limits to Growth” (1972), makes us aware of the five conditions which set the limits to growth: population, industrialization, pollution, consumption of food and natural resources, which tendentiously increase in a exponential progression. The GDP growth 10% a year means that it will be 2.59 times as large in ten years, whereas technology could resolve problematic concerning five elements at highest in arithmetical progression.
Remarkable would be that the modern industrial civilization has brought social damages in form of global warming. Developed nations have not payed for it yet. All the people in the world should have right to economical growth at any rate, which would however be limited by those five conditions. Conclusion: the developed nations should give up the consumption lifestyle for the sake of equal right of every citizen in the world to reasonable standard of living.
The development of laboratory animal science and animal care of legislation and the consummation
(2012)
Laboratory animal science is the use of non-human animals in experiments to obtain new knowledge and new technologies in biomedical research and testing. In order to develop science and technology, the human carried out a large number of animal experiments, these experiments greatly expanded the vision of related research field, and make a great contribution to human beings. Meanwhile, animal experiments also bring us a certain extent of negative effects. Countries around the world have adopted legislative measures to regulate behavior of animal experiments, but in the process of legislation and enforcement are not wholly satisfactory. On the basis of present situation of laboratory animal science and existing problems, with the comparison of animal welfare act between Europe and China, the author puts forward the ideas of perfecting experimental animals’ laws and its enforcement proposals.
Biopower, governmentality, and capitalism through the lenses of freedom: a conceptual enquiry
(2012)
In this paper I propose a framework to understand the transition in Foucault’s work from the disciplinary model to the governmentality model. Foucault’s work on power emerges within the general context of an expression of capitalist rationality and the nature of freedom and power within it. I argue that, thus understood, Foucault’s transition to the governmentality model can be seen simultaneously as a deepening recognition of what capitalism is and how it works, but also the recognition of the changing historical nature of the actually existing capitalisms and their specifically situated historical needs. I then argue that the disciplinary model should be understood as a contingent response to the demands of early capitalism, and argue that with the maturation of the capitalist enterprise many of those responses no longer are necessary. New realities require new responses; although this does not necessarily result in the abandonment of the earlier disciplinary model, it does require their reconfiguration according to the changed situation and the new imperatives following from it.
This work intends to analysis the philosophy of history and to discuss the consequences of this death to the Critical Theory. The concept of reason and the devices of democracy and human rights are discussed in a revision of the historical debate about the end of history operates the life in the interior of the modern society, especially about the intellectual condition at the information society.
Making use of United Nations (U.N.) materials and documents, Anja Matwijkiw and Bronik Matwijkiw argue that the organization – in 2004 – converted to a stakeholder jurisprudence for human rights. However, references to “stakeholders” may both be made in the context of narrow stakeholder theory and broad stakeholder theory. Since the U.N. does not specify its commitment by naming the theory it credits for its conversion, the authors of the article embark on a comparative analysis, so as to be able to try the two frameworks for fit. The hypothesis is that it is the philosophy and methodology of broad stakeholder theory that best matches the norms and strategies of the U.N. While this is the case, certain challenges nevertheless present themselves. As a consequence of these, the U.N. has to – as a minimum – take things under renewed consideration.
The improvement of accident prevention technology in many fields of social life has spurred new challenges to the doctrinal tools of fault and strict based civil liability in the law of torts. Amid these challenges lies the identification of the proper scope of the respective criteria of liability in a changing factual environment, their suitability as doctrinal tools, as well as their actual application to concrete cases given the amount of information which would be needed to render adequate judgments. Precedents and old laws should be assessed with caution, taking into account the tacit cost-benefit analysis embedded in them, for they may or may not serve the interests of welfare maximization in an environment with constantly renewed accident prevention technology.
As is well known, the 2nd Spanish Republic (1931-1936) was toppled by a military uprising which, after a cruel Civil War, set up an autocratic regime led by General Franco which lasted until his natural death in 1975. According to the contemporary theory of the legal system, a legal order exists on the sole condition that it is efficient in general terms and this was the case for both the Republic and the Dictatorship. In turn, the validity of the legal norms of all legal orders is based on its respective rules of recognition. Thus, neither the existence of the legal order nor the validity of its respective legal norms depends on moral considerations. In this paper, we call this affirmation into question on the base of the fact that the compensatory methods adopted from the Transition to Democracy show an evident concern to repair the damage of taking away a person’s basic rights (life, health, freedom, expression, association etc) although the Spanish Constitution, with its catalogue of fundamental rights was not in force at that time. But these measures would not have much sense if, as Raz says, there was no shared content which is common to all legal systems. Like Nino, we claim that one must discriminate between a democratic legal order and an autocratic one to establish the level of validity of its respective legal norms. Thus it can be assigned a presumption of justice to democratic norms. Finally, we state that the criteria to weigh up the justice or injustice of legal norms, as that of legal orders, takes root in the level of respect they show towards human rights.
Introduction: aims and points of departure. 1. The problem of the knowledge of law: whether previous general rules may support a casuistic decision. 2. The problem of legal ethics: whether there are autonomous rights, which do not depend on positive law. 3. The ways of modern dogmatics to deal with these problems. 4. The question remains the same.
From chaos to chaos theory, from the primordial perception of the world as disorderly to the scientific research of disorder a long distance has been covered. This path implies openness of mind and scientific boldness which connect mythological perceptions of the world with philosophical and scientific interpretations of phenomena throughout the world in a quite distinctive way resting on the creation of a model and application of computing. Owing to this, for the first time instead of asking What awaits us in the future? we can ask What can be done in the future? and get a reliable scientific answer to the question.
In reconsideration of the composition and operation of European law, it is the description of its underlying mentality that may cast best light on the query whether European law is the extension of domestic laws or a sui generis product. As to its action, European law is destructive upon the survival of traditions of legal positivism, for it recalls post modern clichés rather. Like a solar system with planets, it is two-centred from the beginning, commissioning both implementation and judicial check to member states. As part of global post modernism, a) European law stems from artificial reality construction freed from particular historical experience and, indeed, anything given hic et nunc. By its operation, b) it dynamises large structures and sets in motion that what is chaos itself. It is owing to reconstructive human intent solely that any outcome can at all be seen as fitting to some ideal of order, albeit neither operation nor daily management strives for implementing any systemicity. This is the way in which the European law becomes adequate reflection of the underlying (macro) economic basis, which it is to serve as superstructure. Accordingly, c) the entire construct is operated (as integrated into one well-working unit) within the framework of an artificially animated dynamism. With its “order out of chaos” philosophy it assures member states’ standing involvement and competition, achieving a flexibly self-adapting (and unprecedentedly high degree of) conformity.
There is an increasing interest in incorporating significant citizen participation into the law-making process by developing the use of the internet in the public sphere. However, no well-accepted e-participation model has prevailed. This article points out that, to be successful, we need critical reflection of legal theory and we also need further institutional construction based on the theoretical reflection.
Contemporary dominant legal theories demonstrate too strong an internal legal point of view to empower the informal, social normative development on the internet. Regardless of whether we see the law as a body of rules or principles, the social aspect is always part of people’s background and attracts little attention. In this article, it is advocated that the procedural legal paradigm advanced by Jürgen Habermas represents an important breakthrough in this regard.
Further, Habermas’s co-originality thesis reveals a neglected internal relationship between public autonomy and private autonomy. I believe the co-originality theory provides the essential basis on which a connecting infrastructure between the legal and the social could be developed. In terms of the development of the internet to include the public sphere, co-originality can also help us direct the emphasis on the formation of public opinion away from the national legislative level towards the local level; that is, the network of governance.1
This article is divided into two sections. The focus of Part One is to reconstruct the co-originality thesis (section 2, 3). This paper uses the application of discourse in the adjudication theory of Habermas as an example. It argues that Habermas would be more coherent, in terms of his insistence on real communication in his discourse theory, if he allowed his judges to initiate improved interaction with the society. This change is essential if the internal connection between public autonomy and private autonomy in the sense of court adjudication is to be truly enabled.
In order to demonstrate such improved co-original relationships, the empowering character of the state-made law is instrumental in initiating the mobilization of legal intermediaries, both individual and institutional. A mutually enhanced relationship is thus formed; between the formal, official organization and its governance counterpart aided by its associated ‘local’ public sphere. Referring to Susan Sturm, the Harris v Forklift Systems Inc. (1930) decision of the Supreme Court of the United States in the field of sexual harassment is used as an example.
Using only one institutional example to illustrate how the co-originality thesis can be improved is not sufficient to rebuild the thesis but this is as much as can be achieved in this article.
In Part Two, the paper examines, still at the institutional level, how Sturm develops an overlooked sense of impartiality, especially in the derivation of social norms; i.e. multi-partiality instead of neutral detachment (section 4). These two ideas should be combined as the criterion for impartiality to evaluate the legitimacy of the joint decision-making processes of both the formal official organization and ‘local’ public sphere.
Sturm’s emphasis on the deployment of intermediaries, both institutional and individual, can also enlighten the discourse theory. Intermediaries are essential for connecting the disassociated social networks, especially when a breakdown of communication occurs due to a lack of data, information, knowledge, or disparity of value orientation, all of which can affect social networks. If intermediaries are used, further communication will not be blocked as a result of the lack of critical data, information, knowledge or misunderstandings due to disparity of value orientation or other causes.
The institutional impact of the newly constructed co-originality thesis is also discussed in Part Two. Landwehr’s work on institutional design and assessment for deliberative interaction is first discussed. This article concludes with an indication of how the ‘local’ public sphere, through e-rulemaking or online dispute resolution, for example, can be constructed in light of the discussion of this article.
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.
When judges are authorised to invalidate legal acts for being unconstitutional, the competence of the legislator is directly concerned. The question raises, if thus judges do not usurp legislative power. In the traditional doctrine of the separation of powers the parliament is the first power, based on its direct democratic legitimacy. Yet cancelling legal acts completely or partially does evoke more irritations in the public that could be expected. The people seem to have more confidence to the assumed impartiality of the judges than to the results of the parliamentary work which seems to be dominated by the struggles of the parties. The necessity of judicial review mainly is based on the consideration that individual rights even in an authentic democratic system may be violated by a legal act of the parliament. In this case constitutional courts have the very task to defend individual rights, principles of liberty and authentic equality. Therefore it is justified to speak of the “jurisdiction of liberty”, as the Italian constitutional expert Cappelletti has said. But also without such legitimacy in many countries the Courts intervene in the field of the legislator. The courts themselves discuss the limits of judicial interventions, emphasising themselves, that they have to respect the legislative decisions principally, but do not abide always by their own proclaimed principles. In Spanish recent publications it is spoken of the principle “in dubio pro legislatore”, (in case of doubt in favour the legislator), reminding of “in dubio pro reo”, in order to treat the legislative power not worse than the defendant in a criminal process..
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.
Finding the peripheries : sovereignty and colonialism in nineteenth-century international law
(1999)
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).
This study examines the legal environment of netting agreements covering financial contracts. It concludes that an international instrument should be developed capable of improving the effectiveness of netting agreements in mitigating systemic risk. To this end, two different aspects of the enforceability of netting agreements are considered: (i) the general enforceability of netting, and (ii) the possibility of precluding the operation of netting a mechanism by way of a regulatory moratorium for considerations of systemic stability. The first part of the study presents the use of netting and the various forms it may take before going on to explain the benefits and drawbacks of enforceable netting agreements. Benefits for individual firms consist in lower counterparty risk and more favourable capital requirements. Benefits for the financial market as a whole flow from greater financial market stability since the contagion of systemically relevant institutions by the default or insolvency of another institution is limited, thus helping to avoid systemic effects. Additionally, the use of netting arrangements can improve overall market liquidity. A potential drawback of enforceability of netting, in certain situations, is that the operation of a netting mechanism could actually work against the purpose of systemic stability where the transfer of parts of the business of an insolvent financial institution to a solvent bridge entity would enhance or maintain value to a greater extent than the operation of a netting agreement would. Regulatory authorities are considering under which conditions a moratorium to halt the netting mechanism until the situation is solved could avoid this threat to systemic stability. The second part of the study examines whether there is the potential to support the purpose of enhanced systemic stability by way of international harmonisation of private and insolvency law. As regards the issue of general enforceability, the global picture of netting legislation is heterogeneous. Given the great practical relevance of the matter, an international instrument could be very useful. As to the issue of private law consequences of regulatory moratoria, the absence of a harmonised framework appears to lead to actual cross-border inconsistency and legal uncertainty as regards financial contracts that are governed by a foreign law. Taking these to aspects into account, this paper recommends that work on developing an international instrument be undertaken. The final part of the study suggests a set of preliminary guidelines for the development of suchan instrument. In the light of the findings of the previous sections, a mixed, two-step approach is recommended. First, a non-binding instrument could be developed, serving as a benchmark and reservoir of legal solutions in respect of the relevant issues. Secondly, isolated aspects relating to both the general enforceability of netting and the accommodation of a regulatory moratorium in foreign private and insolvency law could be dealt with in an international Convention, in particular where cross-border situations involving netting require uniformity of applicable legal rules.
Lessons from the crisis
(2009)
A lot happened even before the perceived beginning of this crisis in 2007, so although the events are recent, I will give an overview from a US perspective of the period from 2001 to date, in our search for the lessons to be learned. Much of it is probably familiar, but worth revisiting. I will break this necessarily simplified account into 3 stages: first, a look at the key factors that led to the increasing riskiness of US home mortgages; second, how those risks were transmitted as securities from US housing lenders to institutional investors around the globe; and third, how those risks led to huge losses and created a credit crunch that moved the impact from the financial economy to the real economy and produced a severe recession. Then we will have a factual foundation for deriving the lessons that ought to be taken away from this very expensive experience.
It has become popular for journalists who are trying to sell newspapers, and politicians who are trying to solicit votes, to refer to this financial crisis as the worst since the Great Depression or WWII. I don’t know whether it is the worst or not so will leave that question to the historians and economists of the future once the storm has past. But it is indeed a “storm” as described by Vince Cable, Member of Parliament in his UK bestselling book entitled “The Storm – The World Economic Crisis and What it Means”. He describes this “storm” as a very destructive one displacing jobs, businesses, banks and whole economies from Iceland to the United Kingdom to the United States. I propose to offer a short chronology and summary of the causes of the current economic crisis. Then I will review several of the regulatory responses to the crisis focusing on the Turner Report, the de Larosière Group and certain US Treasury statements. I will offer my critiques of these proposals and then make some predictions of what the financial services industry may look like in the future.
This review describes how the constraints of limited water resources and an arid and semi-arid environment were overcome by a leadership capable of defining future needs and identifying and implementing appropriate solutions. Advanced technologies proved indispensable in this process. Yet, in recent years, the continuously increasing demand for water, mainly for domestic use, has created a chronic situation in which all available water from natural sources is being used up. The only solution to ensuring a dependable supply of water for both domestic and agricultural use requires that several steps be taken concurrently to implement regulations and measures for saving water and to construct immediately large-scale plants for desalination of seawater and reclamation of urban effluents.
After the pioneering German “Aktiengesetz” of 1965 and the Brazilian “Lei das Sociedades Anónimas” of 1976, Portugal has become the third country in the world to enact a specific regulation on groups of companies. The Code of Commercial Companies (“Código das Sociedades Comerciais”, abbreviately hereinafter CSC), enacted in 1986, contains a unitary set of rules regulating the relationships between companies, in general, and the groups of companies, in particular (arts. 481° to 508°-E CSC). With this set of rules, the Portuguese legislator has dealt with one of the major topics of modern Company Law. While this branch of law is traditionally conceived as the law of the individual company, modern economic reality is characterized by the massive emergence of large-scale enterprise networks, where parts of a whole business are allocated and insulated in several legally independent companies submitted to an unified economic direction. As Tom HADDEN put it: “Company lawyers still write and talk as if the single independent company, with its shareholders, directors and employees, was the norm. In reality, the individual company ceased to be the most significant form of organization in the 1920s and 1930s. The commercial world is now dominated both nationally and internationally by complex groups of companies”. This trend, which is now observable in any of the largest economies in the world, holds also true for small markets such as Portugal. Although Portuguese economy is still dominated by small and medium-sized enterprises, the organizational structure of the group has always been extremely common. During the 70s, it was estimated that the seven largest groups of companies owned about 50% of the equity capital of all domestic enterprises and were alone responsible for 3/4 of the internal national product. Such a trend has continued and even highlighted in the next decades, surviving to different political and economic scenarios: during the 80s, due to the process of state nationalization of these groups, an enormous public group with more than one thousand controlled companies has been created (“IPE - Instituto de Participações do Estado”); and during the 90s until today, thanks to the reprivatisation movement and the opening of our national market, we assisted to the re-emergence of some large private groups, composed of several hundred subsidiaries each, some of which are listed in foreign stock exchange markets (e.g., in the banking sector, “BCP – Banco Comercial Português”, in the industrial area, “SONAE”, and in the media and communication area, “Portugal-Telecom”).
Reform of the securities class action is once again the subject of national debate. The impetus for this debate is the reports of three different groups – The Committee on Capital Market Regulation, The Commission on the Regulation of U.S. Capital Markets In the 21st Century, and McKinsey & Company. Each of the reports focuses on a single theme: how the contemporary regulatory culture places U.S. capital markets at a competitive disadvantage to foreign markets. While multiple regulatory forces are targeted by each report’s call for reform, each of the reports singles out securities class actions as one of the prime villains that place U.S. capital markets at a competitive disadvantage. The reports’ recommendations range from insignificant changes to drastic curtailments of private class actions. Surprisingly, these current-day cries echo calls for reform heeded by Congress in the not too distant past. Major reform of the securities class action occurred with the Private Securities Litigation Reform Act of 1995.5 Among the PSLRA’s contributions is the introduction of procedures by which the court chooses from among competing petitioners a lead plaintiff for the class. The statute commands that the petitioner with the largest financial loss suffered as a consequence of the defendant’s alleged misrepresentation is presumed to be the most adequate plaintiff. Thus, the lead plaintiff provision supplants the traditional “first to file” rule for selecting the suit’s plaintiff with a mechanism that seeks to harness to the plaintiff’s economic self interest to the suits’ prosecution. Also, by eliminating the race to be the first to file, the lead plaintiff provision seeks to avoid “hair trigger” filings by overly eager plaintiffs’ counsel which Congress believed too frequently gave rise to incomplete and insubstantially pled causes of action. The PSLRA also introduced for securities class actions a heightened pleading requirement8 as well as a bar to the plaintiff obtaining any discovery prior to the district court disposing of the defendants’ motions to dismiss. By introducing the requirement that allegations involving fraud must be plead not only with particularity, but also that the pled facts must establish a “strong inference” of fraud, the PSLRA cast aside, albeit only for securities actions, the much lower notice pleading requirement that has been a fixture of American civil procedure for decades. Substantive changes to the law were also introduced by the PSLRA. With few exceptions, joint and several liability was replaced by proportionate liability so that a particular defendant’s liability is capped by that defendant’s relative degree of fault. Similarly, contribution rights among co-violators are also based on proportionate fault of each defendant. Three years after the PSLRA, Congress returned to the topic again by enacting the Securities Litigation Uniform Standards Act;13 this provision was prompted by aggressive efforts of plaintiff lawyers to bypass the limitations, most notably the bar to discovery and higher pleading requirement, of the PSLRA by bringing suit in state court. Post-SLUSA, securities fraud class actions are exclusively the domain of the federal court. In this paper, we examine the impact of the PSLRA and more particularly the impact the type of lead plaintiff on the size of settlements in securities fraud class actions. We thus provide insight into whether the type of plaintiff that heads the class action impacts the overall outcome of the case. Furthermore, we explore possible indicia that may explain why some suits settle for extremely small sums – small relative to the “provable losses” suffered by the class, small relative to the asset size of the defendantcompany, and small relative to other settlements in our sample. This evidence bears heavily on the debate over “strike suits.” Part I of this paper sets forth the contemporary debate surrounding the need for further reforms of securities class actions. In this section, we set forth the insights advanced in three prominent reports focused on the competitiveness of U.S. capital markets. In Part II we first provide descriptive statistics of our extensive data set, and thenuse multivariate regression analysis to explore the underlying relationships. In Part III, we closely examine small settlements for clues to whether they reflect evidence of strike suits. We conclude in Part IV with a set of policy recommendations based on our analysis of the data. Our goals in this paper are more modest than the Committee Report, the Chamber Report and the McKinsey Report, each of which called for wide-ranging reforms: we focus on how the PSLRA changed securities fraud settlements so as to determine whether the reforms it introduced accomplished at least some of the Act’s important goals. If the PSLRA was successful, and we think it was, then one must be somewhat skeptical of the need for further cutbacks in private securities class action so soon after the Act was passed.