340 Recht
Refine
Year of publication
Document Type
- Article (224)
- Working Paper (163)
- Conference Proceeding (104)
- Review (39)
- Part of a Book (15)
- Book (12)
- Doctoral Thesis (12)
- Report (10)
- Part of Periodical (9)
- Preprint (3)
Language
- English (593) (remove)
Has Fulltext
- yes (593) (remove)
Is part of the Bibliography
- no (593)
Keywords
- global justice (16)
- Deutschland (14)
- European Union (11)
- climate change (11)
- human rights (11)
- Democracy (10)
- Internet (8)
- justice (8)
- Corporate Governance (7)
- Law (7)
Institute
- Rechtswissenschaft (367)
- Gesellschaftswissenschaften (131)
- Wirtschaftswissenschaften (61)
- Sustainable Architecture for Finance in Europe (SAFE) (56)
- House of Finance (HoF) (49)
- Foundation of Law and Finance (46)
- Center for Financial Studies (CFS) (43)
- Exzellenzcluster Die Herausbildung normativer Ordnungen (41)
- Institute for Law and Finance (ILF) (12)
- LOEWE-Schwerpunkt Außergerichtliche und gerichtliche Konfliktlösung (10)
However far we are from either in practice, basic global and intergenerational justice, including climate change mitigation, are taken to be theoretically compatible. If population grows as predicted, this could cease to be the case. This paper asks whether that tragic legacy can now be averted without hard or even tragic choices on population policy. Current generations must navigate between: a high-stakes gamble on undeveloped technology; violating human rights; demanding unbearable sacrifices of the already badly off; institutional unfairness across adults; institutional unfairness across children; failing to protect children’s basic interests; and threatening the autonomy of the family. We are not yet forced to choose between bequeathing a tragic choice and making one, by adopting basically unjust measures. However, even the remaining options present a morally hard choice. The fact we face it is yet another damning indictment on the combined actions and collective failures of the global elite.
Climate justice
(2015)
Legal pluralism calls into question the monopoly of the modern state when it comes to the production and the enforcement of norms. It rests on the assumption that juridical normativity and state organization can be dissociated. From an early modern historian’s perspective, such an assumption makes perfect sense, the plural nature of the legal order being the natural state of affairs in imperial spaces across the globe in the sixteenth and seventeenth centuries. This article will provide a case study of the collaborative nature of the interaction between spiritual and temporal legal orders in Spain and its overseas territories as conceived by Tomás de Mercado (ca. 1520–1575), a major theologian from the School of Salamanca. His treatise on trade and contracts (1571) contained an extended discussion of the government’s attempt to regulate the grain market by imposing a maximum price. It will be argued that Mercado’s view on the bindingness of economic regulations in conscience allowed for the internalization of the regulatory power of the nascent state. He called upon confessors to be strict enforcers of state law, considering them as fathers of the republic as much as fathers of faith. This is illustrative of the "collaborative form of legal pluralism" typical of the osmotic relationship between Church and State in the early modern Spanish empire. It contributed to the moral justification of state jurisdictions, while at the same time, guaranteeing a privileged role for theologians and religious leaders in running the affairs of the state.
The EU Collective Redress Recommendation has invited Member States to introduce collective redress mechanisms by 26 July 2015. The well-known reservations claim potentially abusive litigation and potential settlement of not well-founded claims resulting from controversial funding of cases by means of contingency fees and from ‘opt-out’ class action procedures. The paper posits that there may also be some fear that the European Commission may try to pursue the enforcement of its regulatory agenda in this way at the expense of individual claimants’ interests. Therefore a comparative analysis is carried out to see to what extent concerns about individual rights as opposed to regulatory goals are reflected in the different newly revised systems in place across Europe. As an iterim result the Dutch settlement procedure for mass damage claims, the English Group Litigation Order and the German test case procedure turn out to be relatively well-suited to deal with mass damage claims. At the same time, none of them can quite reach an optimal balance between individual rights and regulatory goals and therefore each of them is subject to criticism. That is why the further question is raised in how far these procedures could complement each other, thus contributing to the enforcement of individual rights without overregulating markets in Europe.
The four tomes included in La herencia de Cristóbal Colón. Estudio y colección documental de los mal llamados pleitos colombinos (1492–1541) are a scholarly contribution intended to settle the decades-long debate around the lawsuits that were (erroneously) designated in the historiography as the pleitos colombinos (Columbian lawsuits). The archival discoveries made by Consuelo Varela, Bibiano Torres, Antonio López Gutiérrez, Isabel Velázquez Soriano and Anunciada Colón de Carvajal (researcher and descendant, as it turns out, of Christopher Columbus) have led to a substantial revision of some preliminary and tentative arguments outlined earlier in partial editions of these documents. That is, the claim put forward by professors José Manuel Pérez-Prendes and Anunciada Colón de Carvajal in the voluminous introductory study contained in the first volume of the four-volume set, which, including the documentary collection, comprises more than 3,500 pages. ...
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
"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.
The paper was submitted to the conference on company law reform at the University of Cambridge, July 4th, 2002. Since the introduction of corporation laws in the individual German states during the first half of the 19th century, Germany has repeatedly amended and reformed its company law. Such reforms and amendments were prompted in part by stock exchange fraud and the collapse of large corporations, but also by a routine adjustment of law to changing commercial and societal conditions. During the last ten years, a series of significant changes to German company law led one commentator to speak from a "company law in permanent reform". Two years ago, the German Federal Chancellor established a Regierungskommission Corporate Governance ("Government Commission on Corporate Governance") and instructed it to examine the German Corporate Governance system and German company law as a whole, and formulate recommendations for reform.
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.
This paper studies the interactions between corporate law and VC exits by acquisitions, an increasingly common source of VC-related litigation. We find that transactions by VC funds under liquidity pressure are characterized by (i) a substantially lower sale price; (ii) a greater probability of industry outsiders as acquirers; (iii) a positive abnormal return for acquirers. These features indicate the existence of fire sales, which satisfy VCs' liquidation preferences but hurt common shareholders, leaving board members with conflicting fiduciary duties and litigation risks. Exploiting an important court ruling that establishes the board’s fiduciary duties to common shareholders as a priority, we find that after the ruling maturing VCs become less likely to exit by fire sales and they distribute cash to their investors less timely. However, VCs experience more difficult fundraising ex-ante, highlighting the potential cost of a common-favoring regime. Overall the evidence has important implications for optimal fiduciary duty design in VC-backed start-ups.
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.
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.
The recovery plan of the Commission entitled "Next Generation EU" proposes a compromise that goes beyond the ominous lowest common denominator. With a package of EUR 750bn in total, comprising EUR 250bn in loans and the rest in grants, the Commission paves the way for both forward-looking public finance and constitutional innovation. The proposals are masterpieces of high-tech legal engineering. Again, European constitutional law evolves through crisis. Yet, again, it stands to reason how far the proposed instruments will shift the European Union towards enhancing solidarity and democracy.
Search costs for lenders when evaluating potential borrowers are driven by the quality of the underwriting model and by access to data. Both have undergone radical change over the last years, due to the advent of big data and machine learning. For some, this holds the promise of inclusion and better access to finance. Invisible prime applicants perform better under AI than under traditional metrics. Broader data and more refined models help to detect them without triggering prohibitive costs. However, not all applicants profit to the same extent. Historic training data shape algorithms, biases distort results, and data as well as model quality are not always assured. Against this background, an intense debate over algorithmic discrimination has developed. This paper takes a first step towards developing principles of fair lending in the age of AI. It submits that there are fundamental difficulties in fitting algorithmic discrimination into the traditional regime of anti-discrimination laws. Received doctrine with its focus on causation is in many cases ill-equipped to deal with algorithmic decision-making under both, disparate treatment, and disparate impact doctrine. The paper concludes with a suggestion to reorient the discussion and with the attempt to outline contours of fair lending law in the age of AI.
Virtual currencies have gained popularity as part of the digital transformation of the financial system. In particular stablecoins are becoming increasingly popular with consumers. The tokens, which are pegged to a value and - according to their name - promise price stability, pose significant risks from which consumers need to be protected. This article focuses first on consumerspecific risks (B.) and German consumer protection law and in particular on the applicability of a right of withdrawal from the acquisition of stablecoins (C.). Subsequently, the EU legislator’s effort to minimize price stability as well as transparency and exchangeability risks, the Markets in Crypto-assets Regulation (2023/1114), is examined in terms of its consumer protection instruments (D.).
This paper critically engages the legal and political framework for responding to democracy and rule of law backsliding in the EU. I develop a new and original critique of Article 7 TEU based on it being democratically illegitimate and normatively incoherent qua itself in conflict with EU fundamental values. Other more incremental and scaleable responses are desirable, and the paper moves on to assess the legitimacy of economic sanctions such as tying access to EU funds to performance on democratic and rule of law indicators or imposing fines on backsliding states. I hold such sanctions to be a priori legitimate, and argue that in some cases economic sanctions are even normatively required, given that EU material support of backsliding member states can amount to material complicity in their backsliding. However, an economic conditionality mechanism would need to be designed to minimize unjust and counterproductive effects. One way to pursue this could be to complement sanctions against the backsliding government with investment for prodemocratic actors in that state.
The treatise "Contra malos divites et usurarios" (Cracovie, 1512) was the first of the renowned Polish anti-usurious texts which was not written by a university professor but by an official of the royal administration. Stanisław Zaborowski focuses, especially, on the problem of land of the royal domain given by kings to great landlords as a pledge, with harm to res publica. He applies the late medieval conciliarist notions to the issue of royal power. Nevertheless, the text diverges from the medieval thought. Zaborowski’ discourse does not focus on demonstrating the rightness of the anti-usurious principles but rather on convincing the readers to follow them in life. The argumentation is ‘addressed’ more to the will than to the reason; it focuses on the vice of avarice, more than on the Seventh Commandment; the author emphasizes the virtue of charity, more than on the virtue of justice. Anti-usurious Zaborowski’s thought made a part of his political vision. His discussed treatise is closely related with his more renowned Tractatus de natura iurium et bonorum regis. In Contra malos divites et usurarios, the problems of public debt and forced loan are of crucial importance. At present Marcin Bukała is preparing the critical edition of the treatise.
"In this paper, I analyse the conduct of business rules included in the Directive on Markets in Financial Instruments (MiFID) which has replaced the Investment Services Directive (ISD). These rules, in addition to being part of the regulation of investment intermediaries, operate as contractual standards in the relationships between intermediaries and their clients. While the need to harmonise similar rules is generally acknowledged, in the present paper I ask whether the Lamfalussy regulatory architecture, which governs securities lawmaking in the EU, has in some way improved regulation in this area. In section II, I examine the general aspects of the Lamfalussy process. In section III, I critically analyse the MiFID s provisions on conduct of business obligations, best execution of transactions and client order handling, taking into account the new regime of trade internalisation by investment intermediaries and the ensuing competition between these intermediaries and market operators. In sectionIV, I draw some general conclusions on the re-regulation made under the Lamfalussy regulatory structure and its limits. In this section, I make a few preliminary comments on the relevance of conduct of business rules to contract law, the ISD rules of conduct and the role of harmonisation."
Deutsche Fassung: Vertragswelten: Das Recht in der Fragmentierung von private governance regimes. Rechtshistorisches Journal 17, 1998, 234-265. Italienische Fassung: Mondi contrattuali. Discourse rights nel diritto privato. In: Gunther Teubner, Diritto policontesturale: Prospettive giuridiche della pluralizzazione dei mondi sociali. La città del sole, Neapel 1999, 113-142. Portugiesische Fassung: Mundos contratuais: o direito na fragmentacao de regimes de private governance. In: Gunther Teubner, Direito, Sistema, Policontexturalidade, Editora Unimep, Piracicaba Sao Paolo, Brasil 2005, 269-298.
According to the prevailing view, the purpose of digital copyright is to balance conflicting interests in exclusivity on the one hand and in access to information on the other. This article offers an alternative reading of the conflicts surrounding copyright in the digital era. It argues that two cultures of communication coexist on the internet, each of which has a different relationship to copyright. Whereas copyright institutionalizes and supports a culture of exclusivity, it is at best neutral towards a culture of free and open access. The article shows that, depending on the future regulation of copyright and the internet in general, the dynamic coexistence of these cultures may well be replaced by an overwhelming dominance of the culture of exclusivity.
Through digitalization, the social importance of copyright law has grown considerably. Moreover, the culture of exclusivity established by copyright law conflicts fundamentally with the culture of access prevalent on the internet. An example for this is the dispute over the EU’s latest copyright directive. Does it ring in the end of the internet as we know it, or does it »only« see to fair remuneration for those working in the creative economy?
The article describes the legal structure of the Daimler-Chrysler merger. It asks why this specific structure rather than another cheaper way was chosen. This leads to the more general question of the pros and cons of mandatory corporate law as a regulatory device. The article advocates an "optional" approach: The legislator should offer various menus or sets of binding rules among which the parties may choose. (JEL: ...)
Recent empirical work shows that a better legal environment leads to lower expected rates of return in an international cross-section of countries. This paper investigates whether differences in firm-specific corporate governance also help to explain expected returns in a cross-section of firms within a single jurisdiction. Constructing a corporate governance rating (CGR) for German firms, we document a positive relationship between the CGR and firm value. In addition, there is strong evidence that expected returns are negatively correlated with the CGR, if dividend yields and price-earnings ratios are used as proxies for the cost of capital. Most results are robust for endogeneity, with causation running from corporate governance practices to firm fundamentals. Finally, an investment strategy that bought high-CGR firms and shorted low-CGR firms would have earned abnormal returns of around 12 percent on an annual basis during the sample period. We rationalize the empirical evidence with lower agency costs and/or the removal of certain governance malfunctions for the high-CGR firms.
The following descriptive overview of the German corporate governance system and the current debate is structured as follows. Part II will give some information on the empirical background. Part III will describe the formal legal setting as well as actual practices in some key areas. Part IV will then deal with some issues of the current debate.
Corporate governance is the set of rules, be they legal or self-regulatory, practices and processes pursuant to which an insurance undertaking is administrated. Good corporate governance is not only key to establishing oneself and succeeding in a competitive environment but also to safeguarding the interests of all stakeholders in an insurance undertaking. It is insofar not surprising that mandatory requirements on the administration of insurance undertakings have become rather prolific in recent years, in an attempt by regulators to protect especially policyholders against perceived risks hailing from improperly governed insurance undertakings. In Germany this has been regarded by many undertakings as an overly paternalistic approach of the legislator, especially considering that the German insurance sector has experienced for decades if not centuries a remarkably low number of insolvencies and that German insurers were neither the trigger nor the (especially) endangered actors in the financial crisis commencing in 2007. Notwithstanding the true core of this criticism, that the insurance industry was taken to a certain degree hostage by the shortcomings within the banking sector, the reform of German Insurance Supervisory Law via implementation of the Solvency II-System has brought many advances in the sense of better governance of insurance undertakings and has also brought to light many deficiencies that the administration of some insurance undertakings may have suffered from in the past, which are now more properly addressed.
The corporate governance systems in Europe differ markedly. Economists tend to use stylized models and distinguish between the Anglo-American, the German and the Latinist model.1 In this view, for instance, the Austrian, Dutch, German, and Swiss systems are said to be variations of one model. For lawyers the picture is of course, much more detailed as particular rules may vary even where common principles prevail. Many comparative studies on these differences have been undertaken meanwhile.2 I do not want to add another study but to treat a different question. Are there as a consequence of growing internationalization, globalization of markets and technological change, also tendencies of convergence of our corporate governance systems? My answer will be in two parts. As corporate governance systems are traditionally mainly shaped by legislation, the first part will analyze the influence of the economic and technological change on the rule-setting process itself. How does this process react to the fundamental environmental change? That includes a short analysis of the solution of centralized harmonizing of company law within the EU as well as the question of whether EU-wide competition between national corporate law legislators can be observed or be expected in the future. The second part will then turn to the national level. It deals with actual tendencies of convergence or, more correctly, of approach by the German corporate governance system to the Anglo-American one.
Large companies are increasingly on trial. Over the last decade, many of the world’s biggest firms have been embroiled in legal disputes over corruption charges, financial fraud, environmental damage, taxation issues or sanction violations, ending in convictions or settlements of record-breaking fines, well above the billion-dollar mark. For critics of globalization, this turn towards corporate accountability is a welcome sea-change showing that multinational companies are no longer above the law. For legal experts, the trend is noteworthy because of the extraterritorial dimensions of law enforcement, as companies are increasingly held accountable for activities independent of their nationality or the place of the activities. Indeed, the global trend required understanding the evolution of corporate criminal law enforcement in the United States in particular, where authorities have skillfully expanded its effective jurisdiction beyond its territory. This paper traces the evolution of corporate prosecutions in the United States. Analyzing federal prosecution data, it then shows that foreign firms are more likely to pay a fine, which is on average 6,6 times larger.
Rezension zu:
Frank Vogl, Waging War on Corruption (Lanham: Rowman & Littlefield Publishers, 2012).
Shaazka Beyerle, Curtailing Corruption, People Power for Accountability and Justice (Boulder: Lynne Rienner Publishers, 2014)
The Polish government is stepping up its repression. The freedom of political speech is a main target. A national judge has not just the right but an outright duty to refer a case to the CJEU whenever the common value basis is in danger. Thus, a Polish judge faced with a case concerning the silencing of critics, must refer the matter to the CJEU and request an interpretation of Article 2 TEU in light of the rights at stake.
This paper considers ways in which rulers can respond to, generate, or exploit fear of COVID-19 infection for various ends, and in particular distinguishes between ‘fear-invoking’ and ‘fear-minimising’ strategies. It examines historical precedent for executive overreach in crises and then moves on to look in more detail at some specific areas where fear is being mobilised or generated: in ways that lead to the suspension of civil liberties; that foster discrimination against minorities; and that boost the personality cult of leaders and limit criticism or competition. Finally, in the Appendix, we present empirical work, based on the results of an original survey in Brazil, that provides support for the conjectures in the previous sections. While it is too early to tell what the longer-term outcomes of the changes we note will be, our purpose here is simply to identify some warning signs that threaten the key institutions and values of democracy.
The COVID-19 pandemic has both highlighted and exacerbated global health inequities, leading for calls for responses to COVID to promote social justice and ensure that no one is left behind. One key lesson to be learnt from the pandemic is the critical importance of decolonizing global health and global health research so that African countries are better placed to address pandemic challenges in contextually relevant ways. This paper argues that to be successful, programmes of decolonization in complex global health landscapes require a complex three-dimensional approach. Drawing on the broader discourse of political decolonization that has been going on in the African context for over a century, we present a model for unpacking the complex task of decolonization. Our approach suggests a three-dimensional approach which encompasses hegemomic; epistemic; and commitmental elements.
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.
This paper examines a practice that is nearly imperceptible to historians because the bulk of evidence for it is to be found in the interstices of the beaten paths of legal and social history and because it mixes economic and religious matters in a strikingly unfamiliar manner. From the thirteenth to the sixteenth century, excommunication for debt offered ordinary people an economical, efficacious enforcement mechanism for small-scale, daily, unwritten credit. At the same time, the practice offered holders of ecclesiastical jurisdiction an important opportunity to round out their incomes, particularly in the difficult fifteenth century. This transitional practice reveals a level of credit below that of the letters of change, annuities secured on real property, or written obligations beloved of economic historians and historians of banking. Studying the practice casts light on the transition from the face-to-face, local economies of the high Middle Ages to the regional economies of the early modern period, on how the Reformation shaped early modern regimes of credit, and on how the disappearance of ecclesiastical civil justice facilitated the emergence of early modern juridically sovereign territories.
Criminal law exceptionalism, or so I suggest, has turned into an ideology in German and Continental criminal law theory. It rests on interrelated claims about the (ideal or real) extraordinary qualities and properties of the criminal law and has led to exceptional doctrines in constitutional criminal law and criminal law theory. It prima facie paradoxically perpetuates and conserves the criminal law, and all too often leads to ideological thoughtlessness, which may blind us to the dark sides of criminal laws in action.
Expressivist theories of punishment, according to which a penal sanction articulates or expresses a certain meaning to the offender, to the victim and to society, become more and more prominent among the traditional theories of punishment as retribution or deterrence. What these theories have in common is the idea that the conveyance of the meaning is in need of a communicative action, and that the penal sanction is such a communicative act. This article argues that pure communicative theories of punishment face great difficulties in generating any justification for hard treatment. One challenge is that certain types of sanctions – in particularly, hard treatment – restrict the communicative opportunities of the incarcerated individual; which generates a paradox, in that it turns punishment into a communicative action of non-communication. Beyond that, moreover, all practices of hard treatment potentially become unnecessary, if expressing the moral message of censure constitutes a kind of action in itself, and as such, itself a treatment of the offender, embedded in a communicative relationship between offender, victim and society; such that we may be able to think of the history of punishment as a development where hard treatment becomes more and more unnecessary for the conveyance of the message.
Since the XIX century, a pleiad of philosophers and historians support the idea that Greek philosophy, usually reported to have started with the presocratics, lays its basis in a previous moment: the Greek myths – systematized by Homer and Hesiod – and the Greek arts, in particular the lyric and tragedy literature. According to this, it is important to retrieve philosophical elements even before the pre-Socratics to understand the genesis of specific concepts in Philosophy of Law. Besides, assuming that the Western’s core values are inherited from Ancient Greece, it is essential to recuperate the basis of our own justice idea, through the Greek myths and tragedy literature. As a case study, this paper aims on the comparison of two key-works, each one representing a phase of the Greek tragedy: The Orestea, by Aeschylus, and Orestes, by Euripides. Both contain the same story, telling how the Greeks understood the necessity of solving their conflicts not by blood revenge, but through a political way, and also the political drama. Although, in Aeschylus’s one, men still leashed by their fate, while the gods play a major role, in order to punish human pride (hybris). In a different way, on Euripides’s work men face their own loneliness, in a world fulfilled with gods, each one demanding divergent actions. That represents a necessary moment to the flourishing freedom and human subjectivity, and, once the exterior divinity is unable to resolve human problems, men will need to discover their interior divinity: that is how the Philosophy emerges.
Critical Issues in Nigerian Property Law, a collection of writings in honour of Professor Jelili Adebisi Omotola, SAN, a former Vice Chancellor of the University of Lagos, who died on the 29th of March 2006, has ten chapters that closely examine not only the current state of Property Law in Nigeria, but also recent developments and other challenges that have surfaced since the infamous Land Use Act of 1999. The book is clearly a useful contribution to a growing body of knowledge on property law and practice in Nigeria.
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.
We identify strong cross-border institutions as a driver for the globalization of in-novation. Using 67 million patents from over 100 patent offices, we introduce novel measures of innovation diffusion and collaboration. Exploiting staggered bilateral in-vestment treaties as shocks to cross-border property rights and contract enforcement, we show that signatory countries increase technology adoption and sourcing from each other. They also increase R&D collaborations. These interactions result in techno-logical convergence. The effects are particularly strong for process innovation, and for countries that are technological laggards or have weak domestic institutions. Increased inter-firm rather than intra-firm foreign investment is the key channel.
Bitcoin stands like no other cryptocurrency for the profound transformation of financial markets in the digital economy. While the last few months saw the free trade in goods struggle against trends towards protectionism, cryptocurrencies seemed to tear down one border after the other – physical, geographic, and legal ones alike. A libertarian’s wet dream. Blockchain presents itself as a fortress against state intervention, for whatever purpose. Finally, a technological, market-based solution would put an end to the problem of monetary policy, payment transactions, and make whole chunks of government regulation superfluous. ...
In this chapter, I examine the relationship between customary international law and general principles of law. Both are distinct sources of public international law (Art. 38(1)(b) and (c) of the Statue of the International Court of Justice). In a first step, I analyze the different meanings of principles as a “source” of international law. Second, I consider different approaches to principles as a norm type in legal theory. Third, I discuss attempts in international legal doctrine to facilitate conceptual issues by either unifying general principles as a source with the source of customary international law or by equating general principles as a source and as a norm type. Finally, I propose that the delimitation between customary international law and general principles of law as sources of international law should follow the distinction between situations dominated by factual reciprocity (which justify customary norms) and situations where such factual reciprocity is absent (which justify general principles). The jurisgenerative processes leading to the emergence of general principles of international law are processes of changing identities and argumentative self-entrapment.
As the lowest in the caste hierarchy, Dalits in Indian society have historically suffered caste-based social exclusion from economic, civil, cultural, and political rights. Women from this community suffer from not only discrimination based on their gender but also caste identity and consequent economic deprivation. Dalit women constituted about 16.60 percent of India’s female population in 2011. Dalit women’s problems encompass not only gender and economic deprivation but also discrimination associated with religion, caste, and untouchability, which in turn results in the denial of their social, economic, cultural, and political rights. They become vulnerable to sexual violence and exploitation due to their gender and caste. Dalit women also become victims of abhorrent social and religious practices such as devadasi/jogini (temple prostitution), resulting in sexual exploitation in the name of religion. The additional discrimination faced by Dalit women on account of their gender and caste is clearly reflected in the differential achievements in human development indicators for this group. In all the indicators of human development, for example, literacy and longevity, Dalit women score worse than Dalit men and non-Dalit women. Thus, the problems of Dalit women are distinct and unique in many ways, and they suffer from the ‘triple burden’ of gender bias, caste discrimination, and economic deprivation. To gain insights into the economic and social status of Dalit women, our paper will delve more closely into their lives and encapsulate the economic and social situations of Dalit women in India. The analyses of human poverty and caste and gender discrimination are based on official data sets as well as a number of primary studies in the labor market and on reproductive health.
Dt. Fassung: Der Umgang mit Rechtsparadoxien: Derrida, Luhmann, Wiethölter. In: Christian Joerges und Gunther Teubner (Hg.) Rechtsverfassungsrecht: Recht-Fertigungen zwischen Sozialtheorie und Privatrechtsdogmatik. Nomos, Baden-Baden 2003, 249-272.
"Nothing is more soothing to the nerves than a detailed discussion of homage and lordship …" If William de Briwerr, fictional English knight and narrator in Alfred Duggan’s historical novel Lord Geoffrey’s Fancy, is right, then a conference held in April 2011 will have set the participants at ease. Following the call of the Konstanzer Arbeitskreis für mittelalterliche Geschichte and the conference organiser, Karl-Heinz Spieß, they had gathered to discuss the "Formation and dissemination of feudalism in the Empire and in Italy during the 12th and 13th century". The conference proceedings have now been published, and I suppose William de Briwerr would have approved of the intensity of discussion contained therein. ...
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.
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.
This article outlines a new approach to answering the foundational question in democratic theory of how the boundaries of democratic political units should be delineated. Whereas democratic theorists have mostly focused on identifying the appropriate population-group – or demos – for democratic decisionmaking, it is argued here that we should also take account of considerations relating to the appropriate scope of a democratic unit’s institutionalized governance capabilities – or public power. These matter because democratically legitimate governance is produced not only through the decision-making agency of a demos, but also through the institutionally distinct sources of political agency that shape the governance capabilities of public power. To develop this argument, the article traces a new theoretical account of the normative and institutional sources of collective agency, political legitimacy, and democratic boundaries, and illustrates it through a democratic reconstruction of the classical body politic metaphor. It further shows how this theoretical account lends strong prescriptive support to pluralist institutional boundaries within democratic global governance.
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.
For reasons of curiosity, we perused the two recent Oxford handbooks on legal history looking for discussions of digital methods in legal history. One of the fundamental decisions to be made when organizing such a handbook is defining which methodological approaches deserve an article of their own and which ones are to be understood rather as cross-cutting themes to be discussed in the context of many articles dedicated to other things. In the case of digital methods in legal history, this decision seems to have been a tough one – at one point, you can find a curious reference to a "chapter on 'Legal History and Digital Humanities'" (OHBLH 354), but in the final publication there is no such text.
However, discussing digital methods in the context of other subjects has, in our opinion, the disadvantage that more systematic, methodological arguments cannot really be developed. Put more concretely, the most "substantial" contributions regarding digital methods are, for whatever reason, those on "The Intellectual History of Law" by Assaf Likhovski, on "Taking the Long View" by Paul D. Halliday, on "Quantitative Legal History" by Daniel Klerman, and on "Indian Law" by Mitra Sharafi, all of which are in the Oxford Handbook on Legal History. (Equally surprising, there is no mention of digital methods at all in Angela Fernandez’s "Legal History as The History of Legal Texts".) However, even these articles do not really "discuss" digital methods, rather they merely refer to them (and to some projects) as contributions of sorts to their respective fields of interest.
Thus, if you are looking for digital methods in those handbooks, you can hardly find more than some namedropping passages where things like "digital mapping […], network analysis […], text analysis" (OHBLH 845f.) are mentioned, together with references to example projects where they have been employed but without any explanation as to:
–why these methods are mentioned and not others,
–what they are doing, to which end and under what circumstances,
–what, possibly transformative, impact these methods have on the (respective sub-) field of legal history, and
–what a scholar considering to apply these methods should be aware of.
While the space for this is limited, the present Forum contribution tries to mitigate the scarcity of such discussions by presenting and discussing a few textual analyses that make use – for demonstration purposes – of digital methods. Some other methods of analysis, network analysis, and geo-mapping (among others), cannot be covered here, but we provide a link to an online bibliography where you can find them applied to legal history or a related domain, and discussed critically. A general discussion of digital perspectives beyond concrete methods of analysis concludes this contribution.
This paper analyses disclosure duties in insurance contract law in Germany on the basis of questions developed in preparation of the World Congress of the International Insurance Law Association (AIDA) 2018. As risk factors are within the policyholder’s sphere of knowledge, the insurer naturally depends on gaining such knowledge from its policyholder in order to calculate and evaluate premium and risk. Legal approaches as to how the insurer may obtain relevant information and the legal consequences differ in national insurance contract laws around the globe. Taking part in this legal comparison, the paper describes the key elements of such a mechanism from a German perspective and comprises both duties of the policyholder and duties of the insurer.
As for the policyholder, these issues are differences between a duty to (spontaneously) disclose and a duty not to misrepresent as a reaction to questions of the insurer, the prerequisites and remedies of such duty, the subjective standard of the disclosure duty and a duty to notify material changes during the contract term. On the other hand, the paper also addresses an insurer’s duty to investigate, a duty to ascertain the policyholder’s understanding of the policy and a duty to inform during the contract term or after the occurrence of an insured event. In doing so, the paper offers a comprehensive and critical overview on the transfer of knowledge in the insurance (pre-)contractual relationship.
Traditionally, in deciding whether some strategy or action in war is proportionate and necessary and thus permissible both international law and just war theory focus exclusively on civilian deaths and the destruction of civilian infrastructure. I argue in this paper that any argument that can explain why we should care about collateral killing and damage to infrastructure can also explain why collateral displacement matters. I argue that displacement is a foreseeable near-proximate cause of lethal harm to civilians and is relevant for proportionality and necessity calculi. Accepting my argument has significant consequences for what we are permitted to do in war and for what obligations we have towards refugees that result from our actions in war.
Increasing the diversity of policy committees has taken center stage worldwide, but whether and why diverse committees are more effective is still unclear. In a randomized control trial that varies the salience of female and minority representation on the Federal Reserve’s monetary policy committee, the FOMC, we test whether diversity affects how Fed information influences consumers’ subjective beliefs. Women and Black respondents form unemployment expectations more in line with FOMC forecasts and trust the Fed more after this intervention. Women are also more likely to acquire Fed-related information when associated with a female official. White men, who are overrepresented on the FOMC, do not react negatively. Heterogeneous taste for diversity can explain these patterns better than homophily. Our results suggest more diverse policy committees are better able to reach underrepresented groups without inducing negative reactions by others, thereby enhancing the effectiveness of policy communication and public trust in the institution.
In this article I consider Thomas Pogge’s thesis that affluent countries are violating the human rights of the global poor by contributing support to the current global institutional order. My claim is that affluent countries are not violating the human rights of the global poor in the ways suggested by Pogge. I start by defining a set of conditions that ought to obtain in order to say that a human rights violation has taken place. Then I consider two possible interpretations of Pogge’s thesis and argue that none of them fulfills the conditions required to speak of a human rights violation. On my view, as long as domestic states have the capacity to fulfill the human rights of their own people, poverty constitutes a domestic human rights violation even if the international institutional order somehow contributes to creating this state of affairs. Finally, I examine what transnational duties human rights entail and claim that affluent countries must contribute to the creation of an international order providing domestic states accurate background conditions for the promotion of human rights at the domestic level.
Do required minimum distribution 401(k) rules matter, and for whom? Insights from a lifecylce model
(2021)
Tax-qualified vehicles helped U.S. private-sector workers accumulate $25Tr in retirement assets. An often-overlooked important institutional feature shaping decumulations from these retirement plans is the “Required Minimum Distribution” (RMD) regulation, requiring retirees to withdraw a minimum fraction from their retirement accounts or pay excise taxes on withdrawal shortfalls. Our calibrated lifecycle model measures the impact of RMD rules on financial behavior of heterogeneous households during their worklives and retirement. We show that proposed reforms to delay or eliminate the RMD rules should have little effects on consumption profiles but more impact on withdrawals and tax payments for households with bequest motives.
This paper investigates the potential implications of say on pay on management remuneration in Germany. We try to shed light on some key aspects by presenting quantitative data that allows us to gauge the pertinent effects of the German natural experiment that originates with the 2009 amendments to the Stock Corporation Act of 1965. In order to do this, we deploy a hand-collected data set for Germany's major firms (i.e. DAX 30), for the years 2006-2012. Rather than focusing exclusively on CEO remuneration we collected data for all members of the management board for the whole period under investigation. We observe that the compensation packages of management board members of Germany's DAX30-firms are quite closely linked to key performance measures. In addition, we find that salaries increase with the size of the company and that ownership concentration has no significant effect on compensation. Also, our findings suggest that the two-tier system seems to matter a lot when it comes to compensation. However, it would be misleading to state that we see no significant impact of the introduction of the German say on pay-regime. Our findings suggest that supervisory boards anticipate shareholder-behavior.
The relationship between past and present has been the subject of controversial debates in historical research time and again. In 2013, to give a prominent example, Philip Alston in a review essay discussed the issue of "Does the past matter?" with regard to a debate on the origins of human rights. The debate was dedicated to the controversial question of "[h]ow far back can we trace the genealogy of today’s international human rights system". In this review, I would like to rephrase this question to ask instead to what degree the present matters for historical writing. Other than in the work of Alston, this is not meant as a question on the contingency and path-dependence of history, but rather as a reflection on how historians describe and evaluate the past and what role knowledge of the present may have in this context. ...
Rezension zu: Fabian Schuppert, Freedom, Recognition and Non-Domination: A Republican Theory of (Global) Justice (Dordrecht: Springer, 2014).
The conquista of the Americas confronted Spanish jurists educated in the legal concepts of the European medieval tradition with a different reality, pushing them to develop modern legal concepts on the basis of the European ius commune tradition. Traditionally, the School of Salamanca, theologians and jurists centred around the Dominican Francisco de Vitoria are credited with this intellectual renovation of moral and legal thought. However, the role earlier authors played in the process is still insufficiently researched. The Castilian crown jurist Juan López de Palacios Rubios is one of the most interesting authors of the early phase in the conquest of the Americas. His treatise about the Spanish dominion in the Americas is a central text that shows how at the beginning of the 16th century the knowledge and the experiences of the European past were applied to the American present and, in the process, were shaped into modern ideas.
The illiberal turn in Europe has many facets. Of particular concern are Member States in which ruling majorities uproot the independence of the judiciary. For reasons well described in the Verfassungsblog, the current focus is on Poland. Since the Polish development is emblematic for a broader trend, more is at stake than the rule of law in that Member State alone (as if that were not enough). If the Polish emblematic development is not resisted, illiberal democracies might start co-defining the European constitutional order, in particular, its rule of law-value in Article 2 TEU. Accordingly, the conventional liberal self-understanding of Europe could easily erode, with tremendous implications.
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.
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.
Extant research shows that CEO characteristics affect earnings management. This paper studies how investors infer a specific characteristic of CEOs, namely moral commitment to honesty, from earnings management and how this perception – in conjunction with their own social and moral preferences – shapes their investment choices. We conduct two laboratory experiments simulating investment choices. Our results show that participants perceive a CEO to be more committed to honesty when they infer that the CEO engaged less in earnings management. For investment decisions, a one standard deviation increase in a CEO's perceived commitment to honesty compared to another CEO reduces the relevance of differences in the CEOs’ claimed future returns by 40%. This effect is most prominent among investors with a proself value orientation. To prosocial investors, their own honesty values and those attributed to the CEO matter directly, while returns play a secondary role. Overall, perceived CEO honesty matters to different investors for distinct reasons.
The long-standing battle between economic nationalism and globalism has again taken center stage in geopolitics. This article applies this dichotomy to the law and policy of international intellectual property (IP). Most commentators see IP as a prime example of globalization. The article challenges this view on several levels. In a nutshell, it claims that economic nationalist concerns about domestic industries and economic development lie at the heart of the global IP system. To support this argument, the article summarizes and categorizes IP policies adopted by selected European countries, the European Union, and the U.S. Section I presents three types of inbound IP policies that aim to foster local economic development and innovation. Section II adds three versions of outbound IP policies that, in contrast, target foreign countries and markets. Concluding section III traces a dialectic virtuous circle of economic nationalist motives leading to global legal structures and identifies the function and legal structure of IP as the reason for the resilience and even dominance of economic nationalist motives in international IP politics. IP concerns exclusive private rights that are territorially limited creatures of (supra-)national statutes. These legal structures make up the economic nationalist DNA of IP.
The democratic boundary problem raises the question of who has democratic participation rights in a given polity and why. One possible solution to this problem is the all-affected principle (AAP), according to which a polity ought to enfranchise all persons whose interests are affected by the polity’s decisions in a morally significant way. While AAP offers a plausible principle of democratic enfranchisement, its supporters have so far not paid sufficient attention to economic participation rights. I argue that if one commits oneself to AAP, one must also commit oneself to the view that political participation rights are not necessarily the only, and not necessarily the best, way to protect morally weighty interests. I also argue that economic participation rights raise important worries about democratic accountability, which is why their exercise must be constrained by a number of moral duties.
S.a. Deutsche Fassung: Ökonomie der Gabe - Positivität der Gerechtigkeit: Gegenseitige Heimsuchungen von System und différance. In: Albrecht Koschorke und Cornelia Vismann (Hg.) System - Macht - Kultur: Probleme der Systemtheorie. Akademie, Berlin 1999, 199-212. Auch auf unserem Server vorhanden. * Italienische Fassung: Economia del dono, positività della giustizia: la reciproca paranoia di Jacques Derrida e Niklas Luhmann. Sociologia e politiche sociali 6, 2003, 113-130. Portugiesische Fassung: Economia da dádiva ? posividade da rustica; ?assombracao?? mutua entre sistema e différance. In: Gunther Teubner, Direito, Sistema, Policontexturalidade, Editora Unimep, Piracicaba Sao Paolo, Brasil 2005, 55-78.
The venture capital market and firms whose creation and early stages were financed by venture capital are among the crown jewels of the American economy. Beyond representing an important engine of macroeconomic growth and job creation, these firms have been a major force in commercializing cutting edge science, whether through their impact on existing industries as with the radical changes in pharmaceuticals catalyzed by venture-backed firms commercialization of biotechnology, or by the their role in developing entirely new industries as with the emergence of the internet and world wide web. The venture capital market thus provides a unique link between finance and innovation, providing start-up and early stage firms - organizational forms particularly well suited to innovation - with capital market access that is tailored to the special task of financing these high risk, high return activities.
This paper explores how University as social entity has great potential to confront epistemic injustices by expanding epistemic capabilities. To do this, we primarily follow the contributions of scholars such as Miranda Fricker and José Medina. The epistemic capabilities and epistemic injustice nexus will be explored via two empirical cases: the first one is an experience developed in Lagos (Nigeria) using participatory video; the second is a service learning pedagogical strategy for final year undergraduate students conducted at Universidad de Ibagué (in Colombia). The Lagos experience shows how participatory action-research methodologies could promote epistemic capabilities and functioning, making it possible for the participants to generate interpretive materials to speak of their own realities. However, this experience is too limited to address testimonial and hermeneutical injustice. The Colombian experience is a remarkable experience that is building epistemic capabilities among students and other local participants. However, there is a hermeneutical and structural injustice that tends to give more value to disciplinary and codified knowledge at the expense of experiential and tacit knowledge.
Ethical issues of justice and human rights are central to countries emerging from conflict. Yet involving women in transitional justice processes rarely is articulated in ethical terms. To make a case for an ethical commitment to improving women’s participation in these processes, the paper begins by exploring why transitional justice strategies should bother with gender. Women and men often experience conflict and injustices differently which may require different responses to redress harms suffered. Timor-Leste is used as a case study. The paper explores whether hybrid traditional and formal justice systems can address women’s justice claims in principle and specifically, when applied to Timor-Leste. The paper maintains that customary justice practices can be combined with conventional ones, but only when both practices adhere to international human rights conventions, which rarely happens where patriarchal practices are entrenched. The conclusion addresses what might be done to create gender-responsive justice systems given that they are crucial in building environments that are conducive to sustainable peace and security.
Dworkin`s political theory is characterized by the interpretative integrity of morality, law, and politics, the so-called “hedgehog’s approach”. The interpretative integrity approach functions on multiple levels. Firstly, philosophical foundations of his theory of justice are linked to his conception of just liberal society and state. Secondly, from the perspective of political morality, interpretative concepts of law and morality are internally connected, in addition to interpretative concepts of equality, liberty, and democracy. Thirdly, from the perspective of philosophical foundations, individual ethics, personal morality and political morality are mutually connected. The aforementioned ethical and moral foundations are also related – in a wider sense of philosophical foundations - with his gnoseological conception regarding value concepts in law, politics and morality, and with his episthemological conception regarding an objective truth in the field of values, in a sense that the value concepts are interpretative and can be objectively true when articulated in accordance with methodological rules and standards of a »reflexive equilibrium« and an interpretative integrity, and in accordance with the so-called internal scepticism in the context of value pluralism.
The term “ethics” in a “narrower” sense refers to individual ethics, the study of how to live well, while the “ethics” in a “broader” sense refers to personal morality, the study of how we must treat other people. The term “morality” however, is used primarily to denote a political morality, the issue of how a sovereign power should treat its citizens.
Philosophical foundations of Dworkin`s political theory of justice, his conception of two cardinal values of humanity, his concievement of individual ethics, personal morality and political morality will be in the focus of consideration.
The Brazilian Constitution of 1988 declares Brazil as a Democratic State of Law. This formally democratic legal status has been facing difficulties when it comes to its material implementation. Brazilian legal procedures are still greatly influenced by the catholic heritage from Portugal in the times of colonization, translated in the present times into a strong moral set of dogmas that still reflects upon the legal production and interpretation in the country. Recently in Brazil, a debate brought to the Supremo Tribunal Federal, the Brazilian Federal Supreme Court, has evidenced the struggle between Ethics and Morality in the country’s legal scenario. The focus of the discussion was the possibility of abortion of anencephalic fetuses (in Brazil, abortion in considered a crime against life). In order to properly ground its decision, the Court invited scientists, doctors, members of feminist movements and representatives of certain religions to a public dialogue, in which both scientific-technical and purely moral-religious arguments were presented. Although these procedures encouraged and promoted a democratic and pluralistic legal debate, it seems like the crucial point of the discussion were not taken into account: the scientific character of Law. This is the object of the present manuscript: in order to ensure an intersubjective construction and application of Law, this must be perceived as an Applied Social Science and judges, lawyers, legislators and all other legal actors must proceed in a scientific way. To illustrate the theme, the specific case of abortion of anencephalic fetuses will be mentioned through the text.
Defenders of current restrictions on EU immigrants’ access to welfare rights in host member states often invoke a principle of reciprocity among member states to justify these policies. The argument is that membership of a system of social cooperation triggers duties of reciprocity characteristic of welfare rights. Newly arriving EU immigrants who look for work do not meet the relevant criteria of membership, the argument goes, because they have not yet contributed enough to qualify as members on the grounds of reciprocity. Therefore, current restrictions on their access to welfare rights are justified. In this article, I challenge this argument by showing how restrictions on EU immigrants’ access to welfare rights are inconsistent with duties of international reciprocity. There are different variations of this challenge, but my focus here will be on one that uses a veil of ignorance device to support this claim. What matters from a perspective concerned with international reciprocity, I will argue, is what kind of welfare policy EU member states would choose were they not to know whether those receiving EU migrants were net contributors or net beneficiaries to the relevant scheme of international cooperation made possible by the four freedoms, and freedom of movement in particular. I argue that framing the requirement of reciprocity in this way provides a more comprehensive understanding of what should count as an ‘unreasonable burden’ on the welfare systems of host member states. The paper also examines alternative accounts of ‘unreasonable burdens’. It shows when and how the current institutional structure of the EU could take steps to deal with such burdens by preventing member states from gaming a comprehensive system of welfare rights protections across member states and by recognising the achievements of those member states that best serve them.
Populists in the EU often call for restrictions on EU immigrants’ access to welfare rights. These calls are often demagogic and parochial. This paper aims to show what exactly is both distinct and problematic with these populist calls from a normative point of view while not necessarily reducible to demagogy and parochialism. The overall aim of the paper is not to argue that all populists call for such restrictions nor to claim that all calls for such restrictions are populist. The purpose of the paper is rather humble. It only aims to show that populist calls for restrictions on EU immigrants’ access to welfare rights are characterised by two normatively problematic arguments that target two different subsets of the citizenry: what I dub for the purpose of this paper the moralists and the immoralists. It is the way populists address these two subsets of the citizenry, as well as the fact that they could simultaneously appeal to the concerns of both groups, that makes populist approaches to welfare rights both conceptually distinct to other approaches as well as potentially politically appealing to a more diverse population of voters.
In this study prepared for the ECON Committee of the European Parliament, Gellings, Jungbluth and Langenbucher present a graphic overview on core legislation in the area of economic and financial services in Europe. The mapping overview can serve as background for further deliberations. The study covers legislation in force, proposals and other relevant provisions in fourteen policy areas, i.e. banking, securities markets and investment firms, market infrastructure, insurance and occupational pensions, payment services, consumer protection in financial services, the European System of Financial Supervision, European Monetary Union, Euro bills and Coins and statistics, competition, taxation, commerce and company law, accounting and auditing.
This article examines whether restrictions on access to welfare rights for EU immigrants are justifiable on grounds of reciprocity. Recently political theorists have supported some robust restrictions on the basis of fairness. They argue that if EU immigrants do not immediately contribute sufficiently to the provision of basic collective goods in the host state, restrictions on their access to the welfare state are justified. I argue that these accounts of the principle of reciprocity rely on an ambiguous conception of contribution that cannot deliver the restrictions it advocates. Several strategies open to those advocating reciprocity-based restrictions are considered and found wanting. This article defends that verdict from a number of objections.
This paper will sketch out some of the developments in European company law as seen from the current moment, which might be referred to as post- 2003 Action Plan, and from my purely personal viewpoint. I will thus restrict myself to presenting the current and expected legislative projects of the EU, with particular focus on the plans and activities of the Commission, and for the moment bracket out both a number of important and interesting decisions of the European Court of Justice and the debates among European legal scholars.
On 15 December 2020, the European Commission submitted a proposal for a regulation on a single market for digital services (Digital Services Act, DSA) and amending Directive 2000/31/EC. The legislative project seeks to establish a robust and durable governance structure for the effective supervision of providers of intermediary services. To this end, the DSA sets out numerous due diligence obligations of intermediaries concerning any type of illegal information, including copyright-infringing content. Empirically, copyright law accounts for most content removal from online platforms, by an order of magnitude. Thus, copyright enforcement online is a major issue in the context of the DSA, and the DSA will be of utmost importance for the future of online copyright in the EU. Against this background, the European Copyright Society takes this opportunity to share its view on the relationship between the copyright acquis and the DSA, as well as further selected aspects of the DSA from a copyright perspective.
For centuries, it may have seemed as if standards of normative thinking now valid across the globe had first been instituted in Europe. These normative orders form the foundations of our verdicts that define and distinguish right and wrong, good and bad or even beautiful and ugly. But in order to better understand the global presence of such normative orders that evolved from within the European horizon, the history and implications of European expansion in the early modern era cannot be swept under the rug. ...
Deutsche Fassung: Expertise als soziale Institution: Die Internalisierung Dritter in den Vertrag. In: Gert Brüggemeier (Hg.) Liber Amicorum Eike Schmidt. Müller, Heidelberg, 2005, 303-334.
Disagreement among philosophers over the proper justification for political institutions is far from a new phenomenon. Thus, it should not come as a surprise that there is substantial room for dissent on this matter within democratic theory. As is well known, instrumentalism and proceduralism represent the two primary viewpoints that democrats can adopt to vindicate democratic legitimacy. While the former notoriously derives the value of democracy from its outcomes, the latter claims that a democratic decision-making process is inherently valuable. This article has two aims. First, it introduces three variables with which we can thoroughly categorise the aforementioned approaches. Second, it argues that the more promising version of proceduralism is extrinsic, rather than intrinsic, and that extrinsically procedural accounts can appeal to other values in the justification of democracy without translating into instrumentalism. This article is organised as follows. I present what I consider to be the ‘implicit view’ in the justification of democracy. Then, I analyse each of the three variables in a different section. Finally, I raise an objection against procedural views grounded in relational equality, which cannot account for the idea that democracy is a necessary condition for political legitimacy.
Facts about global justice
(2014)
The concept of solidarity has been receiving growing attention from scholars in a wide range of disciplines. While this trend coincides with widespread unsuccessful attempts to achieve solidarity in the real world, the failure of solidarity as such remains a relatively unexplored topic. In the case of the so-called European Union (EU) refugee crisis, the fact that EU member states failed to fulfil their commitment to solidarity is now regarded as established wisdom. But as we try to come to terms with failing solidarity in the EU we are faced with a number of important questions: are all instances of failing solidarity equally morally reprehensible? Are some motivations for resorting to unsolidaristic measures more valid than others? What claims have an effective countervailing force against the commitment to act in solidarity?
Fair Trade is under fire. Some critics argue, for instance, that there is no obligation to purchase Fair Trade certified products and that doing so may even be counter-productive. Others worry that well-justified conceptions of what makes trade fair can conflict. Yet others suggest that the common arguments for Fair Trade cannot justify purchasing Fair Trade certified goods, in particular. This paper starts by sketching one common argument for Fair Trade and defends it against this last line of criticism. In particular, it argues that we should purchase Fair Trade certified goods because doing so benefits the poor even though there are other ways to alleviate poverty. It then considers how other common arguments for Fair Trade fare in light of similar criticism and concludes that they may well succeed.