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A Privacy Impact Assessment (PIA) is a systematic risk assessment tool, enabling organizations to maintain compliance with data protection regulations, to manage privacy risks and to provide public benefits through the success of privacy-by-design efforts. An actual practical implementation of a PIA framework has been realized in the context of RFID applications encompassing detailed steps for the PIA process; a first successful review has been completed. The PIA also allows to introduce a pro-active mitigation of privacy risks through technical and organizational controls. The better the precautionary measures realize the relevant privacy objectives, the less likely will occur with the PIA process afterwards. The recent proposal for a far-reaching revision of the EU Data Protection Directive envisages to state a specific requirement to implement a PIA process. Indeed, since risks for privacy and non-disclosure of personal data are different in not identical circumstances, the protection measures should also be different, i.e. technology should assist in trying to achieve the (at least) second-best solution for the implementation of the data protection regime by a PIA. Insofar, privacy rules can be individualized and matched with the concrete needs in the given environment.
Axiomatic method and the law
(2012)
This paper seeks to analyse the debate on equality between women and men found in the claims against the subjects related to Education for Citizenship. These claims were resolved in the Spanish Supreme Court and High Courts of the Autonomous Communities. In this debate, there is a strong rejection of antidiscrimination law assumptions, namely that the different roles and social roles of women and men have a cultural and social base and it is unnatural, as evidenced by the concept of gender. But many appellants and judgments defend the difference between women and men as if it was informed and legitimated on human nature. Hence gender is considered an ideology, that is, a category of analysis by means of which the reality of true human nature can be concealed or distorted. But these arguments are opposed to recent legal reforms since they are questioning its normative value, by prioritizing certain moral principles against these laws. We are talking about the Organic Law for Effective Equality between Women and Men, the Law on Integrated Protection Measures against Gender Violence and the Law on Education. However their arguments are not fully justified.
The normative position of the judiciary under the traditional conception of democracy as self-legislation by the people is too weak to protect in an effective way the rights of suspects in the global War on Terror. Drawing on arguments elaborated by Hans Kelsen and Karl Popper, we shall attempt to devise in this paper an alternative democracy conception that could serve as a much more solid foundation for the judicial branch of government in a democratic state. Through this jurisprudential strategy, we hope to be able to maintain the balance of normative power among the Trias Politica, which, in turn, may contribute to the preservation of the legal rights of every person during the struggle against terrorists.
This paper intends to discuss some contemporary issues on human rights and democracy related to the concept of justice. Is the set of individual rights that is assumed by western democracies really universal? If so, how are they supposed to be interpreted? On the other side if I take into account the “other” and pluralism in a serious way how to conciliate different concepts of justice? Taking Jacques Derrida’s approach of justice as its standpoint this paper aims to stress the difficulty to achieve a unique concept of justice as well as to think justice in the sphere of international law and the problem of ensuring human rights in the international order. Western democracies has becoming more and more multiethnic and multicultural and the set of rights that is at the center of the legal order has to be interpreted in a dialogical sense, one that assumes difference and plurality as its starting point. The plurality of conceptions of the good and the impossibility of establishing a unique concept of justice demands the re-creation of a democratic sphere where the dissent and the conflict could be experienced and, at the same time, the legal order needs to ensure individual and group rights against majority’s dictatorship. The main goal of this paper is to re-think the interpretation of law in a multicultural scenario in which it is not possible to have only one criteria of justice and difference and pluralism are envisaged are values themselves.
The bare life and (the) modern law : a journey to some key concepts or conceptions of Agamben
(2012)
This text is imitating a journey which tries to explore what is completely unknown. It starts Homo Sacer and traces some key concepts namely der Muselmann, bare life, state of exception, sovereignty and nihilism in law. Doing so, it hopes to reach a general picture of biopolitics or biopower according to Agamben. So, first part of this text generally tries to clarify some fundamental concepts or conceptions in order to use them for its aim. The second part suggests an alternative reading of Agamben, centered around his concept of der Muselmann which is the ultimate figure defined by Primo Levi and Agamben chooses the term because of its resemblance to or representation of Homo Sacer. Der Muselmann was a derogatory term in its origin and very meaning has still been unclear today. So, the second part tries to clarify the meaning of der Muselmann (and unbaptized babies) from a different outlook, not from outside but inside of the referred concept. It tries to show a Muslim’s image of a non Muslim world in order to reveal what are the very meanings of sovereignty, law and biopolitics. So at the end of the journey, this text hopes to reach a different picture of modern life and a modern law.
Abstract/Keywords: Theory of communicative action, ontology of the sentence, systems, subsystems, role, function, crime of breach of duty, compensation, general and special prevention, rule of law, breach of communicative rationality, institutional rivalry and competition for organization, lord of the fact, the duty of guarantor, facticity and validity, counterfactual assertion, public use of reason, prosecution, transcendental ego, self, idealism, voyage, cognitive subject, object of knowledge, hermeneutics of criminal conduct and public servant
Free riders play fair
(2012)
After the demise of the social contract theory, the argument from fair play, which employs the principle of fair play, has been widely acknowledged as one of the most promising ways of justifying political obligation. First, I articulate the most promising version of the principle of fair play. Then, I show that free riders play fair, that is, that their moral fault lies not in unfairness but in the violation of a rule by appealing to the example of three-in-a-boat. Finally, I conclude that even the most promising version is false because those who have accepted benefits from a social cooperative scheme do not owe an obligation of fair play.
In assessing the aftermath of the fraudulent presidential election of 2009 in Iran, one question has received less critical analysis than other complexities of this event: What can explain the remarkable non-violent character of the Green Movement in Iran? I propose that the answer, inter alia, lies with the following three learning experiences: 1) The experience of loss brought about by the Iran/Iraq war; 2) the experience of relative opening during Khatami’s presidency; and 3) the experience of modernization of faith in the work of the post-Islamist thinkers that aimed to make political Islam compatible with democracy. Together, these learning processes fostered a new mode of thinking that is civil and non-violent in character.
What is it that makes the subject of bioethics autonomous? The problem that this research tries to clarify is What is it that makes the subject of bioethics autonomous? This question is answered from an applied ethics, bioethics. This article will show a new methodological approach to study the subject of bioethics.
The principal objetives of this research that is presented here, are related to the relationship between: 1) Autonomy and information; 2) Autonomy and responsability; 3) Autonomy and freedom; and 4) Autonomy and social ties or social links.
The rule of law is unique establishment that had taken place in historical context, as politico-legal edifice of capitalist society. To the extent that any legal system was established in historical context, its form and functioning are cannot be channelled by reflections or professional commitments of lawyers and legal philosophers. The rule of law emerged in certain conditions that we say “classical liberalism”, of power allocation where we diversify political power and legal power in the milieu of political society, enunciated as republic or commonwealth. Contrary to earlier forms of legal order, capitalism was unique that its super structure was articulated according to the pivotal role of legal machinery. There was an actual equilibrium between legal and political domains that they moderately matched with public and private dichotomy. After monopoly capitalism, social setting of liberalism was dramatically incurred some major modifications which were firstly dislocation of liberal individual, incited by monopoly capital and secondly, political achievement of the working classes obtained political equality, as drastic consequence of mass society. Hence, the rule of law altered as depoliticsation of democratised mass society, instead of modus vivendi of liberal individuals, which demarcated the rule of law according to welfare society or sozialrechtsstaat. The neo-liberal globalisation after 1980’s, republican model of political society faded away that it has been transformed by transnational capital where markets, hierarchies, regionalism and communal settings crosscut inner equilibrium between politics and law. Finally, the newborn articulation of power structure undermined necessary basement of the rule of law.
This paper expands on the concept of legal machine which was presented first at IRIS 2011 in Salzburg. The research subjects are (1) the creation of institutional facts by machines, and (2)
multimodal communication of legal content to humans. Simple examples are traffic lights and vending machines. Complicated examples are computer-based information systems in organisations, form proceedings workflows, and machines which replace officials in organisations. The actions performed by machines have legal importance and draw legal consequences. Machines similarly as humans can be imposed status-functions of legal actors. The analogy of machines with humans is in the focus of this paper. Legal content can be communicated by machines and can be perceived by all of our senses. The content can be expressed in multimodal languages: textual, visual, acoustic, gestures, aircraft manoeuvres, etc. The concept of encapsulatation of human into machine is proposed. Herein humanintended actions are communicated through the machine’s output channel. Encapsulations can be compared with deities and mythical creatures that can send gods’ messages to people through the human mouth. This paper also aims to identify law production patterns by machines.
In this article I advance an account of human rights as individual claims that can be justified within the conceptual framework of social contract theories. The contractarian approach at issue here aims, initially, at a justification of morality at large, and then at the specific domain of morality which contains human rights concepts. The contractarian approach to human rights has to deal with the problem of universality, i.e. how can human rights be ‘universal’? I deal with this problem by examining the relationship between moral dispositions and what I call ‘diffuse legal structure’.
Communist regimes in general and especially the one in Albania destroyed almost every aspect of political, social, cultural and economic life, including the notion of pluralism and intellectual elite of the country. In Albania, the transition into democracy in 90’ was done through extrication which means that the authoritarian government was weakened, but not as thoroughly as in a transition by defeat. As a consequence, the former Communist elite was able to negotiate crucial features of the transition and was very quickly transformed into the new pluralist political class. This position enabled the communist elite to be rehabilitated and together with the new emerged communist elite to remain a strong influential actor in new emerged democracy and de facto to run in continuance the country. The purpose of the new emerged communist elite to maintain control was favored inter alia by the absence of a new strong intellectual elite and was done merely by sharing the power among its members divided into different political parties and also by using the ‘pluralist’ law as a tool for social control over new emerging intellectual elites. The use of law as a tool for social control by the political class has severely damaged people's understanding and expectations on the law, its relations with the state as well as international community. Indeed, such experience of the use of law by the political class for its own narrow interests, has made people lose confidence in law and state as well as has severely weakened the law enforcement in the country. To conclude, the overall purpose of this paper would be the analysis of law in general and its understandings and development in a post-communist society such as Albania from different points of view.
Die brasilianische Verfassung hat ein System detaillierter materieller und prozessualer Rechte etabliert und damit die richterliche Kontrolle hoheitlicher Akte in fast allen politisch relevanten Bereichen ermöglicht. Auf dem Gebiet der ökologischen und sozialen Rechte, wo eine intensive Positivierung individueller und kollektiver Ansprüche stattgefunden hat, ist die wachsende Judizialisierung der staatlichen Programme nicht als übertriebene Einmischung der Gerichte in politische Fragen anzusehen, sondern fördert die Ausbildung des gesellschaftlichen Bewusstseins. Die Gesetzestexte enthalten kaum konkrete materielle Anforderungen oder Richtlinien zur Gewichtung von Gütern und Werten, sondern setzen lediglich Verbote fest oder regeln die föderativen Zuständigkeiten bzw. das Verwaltungsverfahren. Deswegen kann die Genehmigung umweltgefährdender Aktivitäten kaum auf der Grundlage dogmatisch abgeklärter Rechtsbegriffe erfolgen. Die fachliche Qualifikation vieler Verwaltungsbeamter und Richter entspricht noch nicht den Herausforderungen einer korrekten Gesetzesauslegung. Die akademische Diskussion konzentriert sich derweilen auf Themen wie die philosophische Hermeneutik, Semiotik oder Systemtheorie und unterschätzt dabei die Wichtigkeit des juristischen Methodenkanons, weswegen es ihr nicht gelingt, den Praktikern gangbare Direktiven zur Herstellung richtiger und gut begründeter Entscheidungen anzubieten. Nötig ist daher eine mehr pragmatisch orientierte Debatte über den angemessenen Gebrauch der traditionellen und modernen Methoden und Techniken der Rechtsfindung, um die dogmatische Basis des Umweltrechts in Brasilien zu stärken und es an das Modell eines Umweltstaats heranzuführen.
Democratic rule of law has been struggling with the occurring problem of pluralism of values. It is therefore still faced with the dilemma of ordering the relationship of law and ethics, namely with the question whether in the issue of legal solutions the priority is granted to ethics or to law. In the case of dominance of the positivist paradigm, it is all the more important because the ethical issue is marginalized in it. It turns out that the same authority, deciding on similar issues, at the junction of two areas: ethics and law, can make mutually contradictory decisions: once giving priority to ethics, whereas - at different times - to positive law. On a closer analysis, this contradiction proves illusory because under the guise of protection of a positive paradigm, the hidden fact is that the axiological decision underlies the resolution concerning law. This decision protects the values that have priority in the scale of preferential value of decision-making body. The example considered in the article concerns the interface between ethical and legal norms against selected rulings of the Constitutional Court. The doubts that arise in this context may be in future avoided or perhaps, if necessary, resolved by adopting a two-aspect model of legal norm. This model in its vertical approach has an evaluative element. This allows to deem the seemingly contradictory decision in similar cases as justified one. It also shows that in practice the rightness of the resolution takes precedence both over ethics as well as over law.
The concept of biopolitics has its origin on the Michel Foucault works developped since 1975 to 1979. In this period, the author introduced the foundations for a new approach about the modern government, based in both crescent enpowerment on individuals and the control of populations. The theme has attracted the attentions of some critical political studies, with many practical uses. However, I believe there is not enough consolidation about biopolitics as a concept and a comprehensive theory of the new political mechanisms. This uncertainness is more evident when the very role of Law is questioned in a biopolitical model, due to the archaic nature that Foucault gives to it. So the aim of the paper is to identify the theorical comprehension of biopolitics in a contemporary author as Giorgio Agamben to demonstrate his oppositions and proximities from the original idea of Michel Foucault. I propose that Agamben has the same difficulties of Foucault to deal with legal theory and Law inside biopolitics. Nevertheless, after a critical review on the works of this two authors, my conclusion is that a settlement of the concepts of Law and biopolitics depends of the surpassing of the Foucaldian version of Law as sovereignity, a clear delimitation of a common core between the authors and their differences and the research and affirmation of the concept of Law in Agamben, more well-refined than Foucault's one.
E-democracy as the frame of networked public discourse : information, consensus and complexity
(2012)
The quest for democracy and the political reflection about its future are to be understood nowadays in the horizon of the networked information revolution. Hence, it seems difficult to speak of democracy without speaking of e-democracy, the key issue of which is the re-configuration of models of information production and concentration of attention, which are to be investigated both from a political and an epistemological standpoint. In this perspective, our paper aims at analyzing the multi-agent dimension of networked public discourse, by envisaging two competing models of structuring this discourse (those of dialogue and of claim) and by suggesting to endorse the epistemic idea of complementarity as a guidance principle for elaborating a form of partnership between traditional and electronic media.
Judicial review reflects the level of commitment between constitutionalism and democracy in contemporary States. Yet democracy as the sovereign government of the people implies a tension with constitutionalism as the rule of law. That is, people ruling themselves or the government by the people – majority government - is limited by the law of law making, the constitution. In Brazil, the improvement of judicial review is nowadays related to increase the number of decisions given by the Brazilian Supreme Court or rather to the capability of this latter in deciding a large number of constitutional lawsuits no matter the form and content of its arguments. For, the Court is nowadays driven by numbers and to accomplish its goals in terms of numbers (of decisions) it applies to technological solutions such as the digitalization of legal proceedings. It means that as many decision as Supreme Court issues -with the help of technology- the better it is. Relating the numbers of decisions issued by the Court to the improvement of Brazilian judicial review or Brazilian constitutionalism and democracy is a great mistake and a false statement as far as it does not face the main problem of the system, which is the lack of reasons of Supreme Court’s decision. The point is that, in this case, technology is just a tool –among others- in order to render legal proceedings faster yet not a qualitative sign of Supreme Court’s decisions.