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A discussion regarding the complex relationship that exists between the concepts of efficiency and justice goes a long way back and raises several relevant arguments. One of them, and it must be rejected in advance, is that justice is in the realm of public law, while efficiency in that of private law. Is it unacceptable that the balance between public and private law leads to the belief of a divided legal system; one system, one set of laws, one legal system. Legislators and judges are responsible for determining a balance and no theory can postulate that the balance will always be found with a simple cut between public and private law to distinguish when the criterion should be justice or when it should be efficiency. It is reductionist to confine the discussion to single goals of efficiency and justice, when human dignity and human rights should also be considered when one is discussing law. Moreover, a discussion limited to only the concepts of justice and efficiency, relies on a belief that the terms are mutually exclusive. Posner has said that the economic analysis of law has limits and philosophy of law plays an extremely important role in this discourse, which must be interdisciplinary. There can be no goal other than the realization of human rights and there can be no justice if not shared by all of mankind.
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.