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"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.
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 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 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.
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.
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.
The influence of an ac current of arbitrary amplitude and frequency on the mixed-state dc-voltage-ac-drive tiltingratchet response of a superconducting film with uniaxial cosine pinning potential at finite temperature is theoretically investigated. The results are obtained in the single-vortex approximation, within the frame of an exact solution of the Langevin equation for non-interacting vortices. Both experimentally achievable, the dc ratchet response and absorbed ac power are predicted to demonstrate a pronounced filter-like behavior at microwave frequencies. Based on our findings, we propose a cut-off filter and discuss its operating curves as functions of the driving parameters, i.e, ac amplitude, frequency, and dc bias. The predicted results can be examined, e.g, on superconducting films with a washboard pinning potential landscape.
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.
Dual- or multi-target ligands have gained increased attention in the past years due to several advantages, including more simple pharmacokinetic and phamarcodynamic properties compared to a combined application of several drugs. Furthermore multi-target ligands often possess improved efficacy. We present a new approach for the discovery of dual-target ligands using aligned pharmacophore models combined with a shape-based scoring. Starting with two sets of known active compounds for each target, a number of different pharmacophore models is generated and subjected to pairwise graph-based alignment using the Kabsch-Algorithm. Since a compound may be able to bind to different targets in different conformations, the algorithm aligns pairs of pharmacophore models sharing the same features which are not necessarily at the exactly same spatial distance. Using the aligned models, a pharmacophore search on a multi-conformation-database is performed to find compounds matching both models. The potentially “dual” ligands are scored by a shape-based comparison with the known active molecules using ShaEP.
Using this approach, we performed a prospective fragment-based virtual screening for dual 5-LO/sEH inhibitors. Both enzymes play an important role in the arachidonic acid cascade and are involved in inflammatory processes, pain, cardiovascular diseases and allergic reactions. Beside several new selective inhibitors we were able to find a compound inhibiting both enzymes in low micromolar concentrations. The results indicate that the idea of aligned pharmacophore models can be successfully employed for the discovery of dual-target ligands.
Vor Kurzem hat das koreanische Höchstgericht den lebensverkürzenden Behandlungsabbruch durch die Entnahme des Beatmungsgeräts als zulässig befunden. Dafür sollen zwei Voraussetzungen erfüllt sein; 1) der Eintritt des irreversiblen Todesprozesses, 2) der ernstliche mutmaßliche Wille des Patienten. Dabei sind auch die folgenden abweichenden Meinungen vertreten. Sie gehen davon aus, dass im betreffenden Fall der nahe Todesvorgang noch nicht eingetreten ist. Darüber hinaus darf die Selbstbestimmung des Patienten nur in der negativen Weise vollzogen und keinesfalls in positiver Weise, denn dies würde den Selbstmord bedeuten. Außerdem ist der mutmaßliche Wille der Patientin von ihrem hypothetischen zu unterscheiden. Allerdings könnte der Behandlungsabbruch unabhängig vom Willen des Patienten ohne Rekurs auf die Selbstbestimmung des Patienten genehmigt werden, wenn auf die immanenten Schranken des ärztlichen Auftrags abgestellt werden. In der Sterbehilfe steht die Unverfügbarkeit des Lebens im Gegensatz zu der Selbstbestimmung des Patienten. Dabei zeigt sich aber, dass der Schutz des Lebens angesichts der Tötung im Krieg oder in der Notwehrlage nur ein relativer ist. Genauso lässt sich das Recht des Patienten nicht als das auf das eigene Leben, sondern lediglich als das auf den natürlichen Tod verstehen. Im vorliegenden Fall kommt es in rechtlicher Hinsicht auf sog. Passive Sterbehilfe an. Wenn hier der in Kürze bevorstehende Todeseintritt und die mutmaßliche Einwilligung der Patienten nicht abzulehnen ist, soll der Behandlungsabbruch rechtfertigt werden. Allerdings darf der einseitige Behandlungsabbruch nicht bewilligt werden und zwar vor allem deshalb, weil das Selbstbestimmungsrecht des Patienten vernachlässigt werden kann.
Diffusion of e-learning as an innovation and economic aspects of e-learning support structures
(2012)
Meanwhile, many universities and educational institutions have implemented an e-learning center or some similar, often smaller institutional units in order to support the usage of new media in teaching and learning processes [1]. This paper addresses questions around the installation of such e-learning support structures at different levels of an institution and also looks at the diffusion of e-learning as an innovation in educational institutions.
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.
Einleitung: Lokoregionäre Rezidivtumore der Kopf-Hals-Region können häufig nicht mehr kurativ operativ oder radiotherapeutisch behandelt werden, so dass neue Therapiekonzepte erforderlich sind. Es konnte gezeigt werden, dass statische Magnetfelder (SMF) Tumorwachstum und -angiogenese signifikant beeinflussen und zu einem intratumoralen Ödem führen. Das Ziel der vorliegenden Studie war die Evaluation des Effektes von SMF auf die Permeabilität von Tumorblutgefäßen und die therapeutische Nutzbarkeit in Kombination mit einer konventionellen Chemotherapie.
Methoden: Zellen eines syngenen amelanotischen Melanoms wurden in transparente Rückenhautkammern bei Goldhamstern implantiert. Unter SMF-Exposition von 587 mT wurde fluoreszenzmikroskopisch die Extravasation von rhodaminmarkiertem Albumin zur Errechnung der Gefäßpermeabilität gemessen und intratumorale Leukozyten-Endothelzell-Interaktionen quantifiziert. Für die anschließende Therapiestudie wurden die antitumoralen Effekte einer Kombinationstherapie von Paclitaxel und SMF-Exposition verglichen mit drei Kontrollgruppen (Glucose, Paclitaxel allein, SMF allein; je n=6).
Ergebnisse: SMF führen zu einer signifikanten Erhöhung der Tumorblutgefäßpermeabilität bei unveränderten Leukozyten-Endothelzell-Interaktionen. Die Kombinationstherapie von SMF und Paclitaxel ist – bezogen auf Tumorwachstum und Angiogenese – Monotherapien überlegen.
Schlussfolgerung: Eine SMF-induzierte Steigerung der Gefäßpermeabilität kann die Blut-Tumor-Schranke beeinflussen und somit die Effektivität einer Chemotherapie mit kleinmolekularen Substanzen wie Paclitaxel deutlich steigern. Bei Verwendung von Kopfspulen erscheint eine derartige adjuvante Kombinationstherapie für lokoregionäre Karzinomrezidive der Kopf-Hals-Region besonders geeignet.
The aim of this contribution is to introduce and outline a third theory of rights. Concentrating on claim-rights, it proposes to approach this aim via the concept of a directed duty. This approach is justified by the widely shared presupposition that an entity has a right if and only if a duty is owed to this entity. Unlike some prominent other proposals, this contribution does not contrast directed duties with undirected ones. It contrasts two ways a duty can be related to an entity. On the one hand, a duty can be owed to an entity. In this case it is directed to this entity. On the other hand, a duty can concern an entity. There is no reason to presuppose that they exclude each other, on the contrary. Theories of rights have to reconstruct the difference between these two ways a duty can be related to an entity. After having introduced the starting point for a theory of rights in that way, the two classic theories of rights will be rejected, the will theory and the interest theory. The main focus lies on the shortcomings of the different versions of the interest theory. This criticism helps to formulate the conditions a convincing theory of rights has to meet. In the last part, the status theory of rights will be outlined.
The diagram-based method to prove correctness of program transformations consists of computing
complete set of (forking and commuting) diagrams, acting on sequences of standard reductions
and program transformations. In many cases, the only missing step for proving correctness of a
program transformation is to show the termination of the rearrangement of the sequences. Therefore
we encode complete sets of diagrams as term rewriting systems and use an automated tool
to show termination, which provides a further step in the automation of the inductive step in
correctness proofs.
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.
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 the intersection between law, science and technology lies the debate on the overcoming of the boundaries of the biological structure of the human being and its implications on the idea of human rights, on the concept of person and on the conception of equality – being the latter a fundamental tenet of a democracy.
Posthumanism assumes a biological inadequacy of the human body regarding the quantity, complexity and quality of information which it can muster. The same occurs with the needs of accuracy, speed or strength demanded by the contemporary environment. Under such perspective, the body is considered to be an inefficient structure, with a short lifespan, easy to break and hard to fix.
The body, always seen as the locus for the definition of human, emerges as the object of a commodification process that seeks to exonerate men from their burden - by declination towards a virtual existence, totally free and rational - or to enhance them with bionic devices or drugs.
This issue has already been the subject of attention by many scholars like Savulescu, Rodotà, Broston, Fukuyama and even Habermas.
Therefore, the aim of this paper is to seek, by criticism and revision of the positions on the foreseen problems of this process, an adequate theoretical approach on issues like the concept of person and its connection with the idea of human rights in order to promote the fundamental statement that all men are equal without disregard to the values of diversity and personal identity.
Until three years ago, ICT Technologies represented a main “subordinate clause” within the “grammar” of Participatory Budgeting (PB), the tool made famous by the experience of Porto Alegre and today expanded to more than 1400 cities across the planet. In fact, PB – born to enhance deliberation and exchanges among citizens and local institutions – has long looked at ICTS as a sort of “pollution factor” which could be useful to foster transparency and to support the spreading of information but could also lead to a lowering in quality of public discussion, turning its “instantaneity” into “immediatism,” and its “time-saving accessibility” into “reductionism” and laziness in facing the complexity of public decision-making through citizens’ participation. At the same time, ICTs often regarded Participatory Budgeting as a tool that was too-complex and too-charged with ideology to cooperate with. But in the last three years, the barriers which prevented ICTs and Participatory Budgeting to establish a constructive dialogue started to shrink thanks to several experiences which demonstrated that technologies can help overcome some “cognitive injustices” if not just used as a means to “make simpler” the organization of participatory processes and to bring “larger numbers” of intervenients to the process. In fact, ICTs could be valorized as a space adding “diversity” to the processes and increasing outreach capacity. Paradoxically, the experiences helping to overcome the mutual skepticism between ICTs and PB did not come from the centre of the Global North, but were implemented in peripheral or semiperipheral countries (Democratic Republic of Congo, Brazil, Dominican Republic and Portugal in Europe), sometimes in cities where the “digital divide” is still high (at least in terms of Internet connections) and a significant part of the population lives in informal settlements and/or areas with low indicators of “connection.” Somehow, these experiences were able to demystify the “scary monolithicism” of ICTs, showing that some instruments (like mobile phones, and especially the use of SMS text messaging) could grant a higher degree of connectivity, diffusion and accountability, while other dimensions (which could risk jeopardizing social inclusion) could be minimized through creativity. The paper tries to depict a possible panorama of collaboration for the near future, starting from descriptions of some of the above mentioned “turning-point” experiences – both in the Global North as well as in the Global South.
The main purpose of my article is to discuss what GMOs are, the controversies about this specific issue and the related regulations that are put forward by the authorities. GMOs are genetically altered organisms which have been widely produced and breeded in certain parts of the world. According to some experts, this special practice of agriculture emerged in order to put an end to famine and prevent food scarcity. As growing GMOs seems to be more convenient than the traditional farming, it is more eligible to produce food in large scale which will be a fine solution for food scarcity. However, there are some oppositions to the GMOs. It is strongly believed that the real causes of famine is not related to production, it is a problem of distribution of food. Moreover, patenting the seeds leads to an unstoppable control and dominance over food by the private enterprises. Therefore, the opponents state that the aims of these companies are solely financial gain and monopolisation in food production. Patenting the seeds is another arguable issue. It poses a great threat for the organic farmers since GMO seeds can contaminate the others through natural ways. This is not the only danger that organic farmers face with; thay can also be sued by the GMO producers for this unintended exposure to GMO seeds. Not only the diminishing of the variety of species but also the possible adverse effects of GMOs on human health create a debate between the two groups. These are not the only topics that are open to discussion. In addition to these, labelling the products creates a huge problem among the poorly educated consumers as they have not been clearly regulated in some countries. Hence, this subject having such a close connection to human health cannot be ignored by the law. In fact, a number of countries have enacted legislation in order to regulate this sensitive field. Turkey, having been dependent on the import of the agricultural goods for a period of time, has to join these countries with a recent legislation. All these contemporary issues for Turkey will be highlighted in my article.
In this paper, an analysis of Robert Frost’s poem Mending Wall is presented as a hermeneutical key to investigate and criticize two examples of the oblivion of the reasonable distinction and the reasonable relationship between ethics and law proposed by a new Brazilian private law movement called Escola do Direito Civil-Constitucional (The Private-Constitutional School of Thought). Those examples of unreasonable relationship between ethics and law are: 1) the right to be loved and 2) the right to get a private education without paying for it.
In this article the author, in the context of the fiftieth anniversary of H.L.A. Hart’s “The Concept of Law”, reconsiders the moderate indeterminacy of law thesis, which derives from the open texture of language. For that purpose, he intends: first, to analyze Hart’s moderate indeterminacy thesis, i.e. determinacy in “easy cases” and indeterminacy in “hard cases”, which resembles Aristotle’s "doctrine of the mean"; second, to criticize his moderate indeterminacy thesis as failing to embody the virtues of a center in between the vices of the extremes, by insisting that the exercise of discretion required constitutes an “interstitial” legislation; and, third, to reorganize an argument for a truly “mean” position, which requires a form of weak interpretative discretion, instead of a strong legislative discretion.
After the absurd terrorism and violence of the totalitarianism and bureaucratic administrative and legal systems of the 20th century it does not give any meaning to rationalize harm as meaningful evil that even though it is evil may have some importance for the development of the world towards the good. Rather, evil is incomprehensible and as radical and banal evil it challenges human rationality. This is indeed the case when we are faced with instrumental and rationalized administrative and political evil. Therefore, we must analyse the banality of evil in politics and in administration in order to understand the concept of evil. Moreover, as proposed by Hannah Arendt, we need to fight this evil with political thinking and social philosophy. The only way to deal with harm and wrongdoing is to return a concept of responsibility that is closely linked to reflective thinking. In this paper, we will on the basis of a discussion of the banality of evil explore this in relation to Hannah Arendt’s analysis of the administration of evil, as expressed by the personality of Adolf Eichmann. Finally, we will place this concept of administrative evil in Hannah Arendt’s general political philosophy.
In his works, Hans Kelsen elaborates several objections to the so-called “doctrine of natural law”, especially in his essay The Natural-Law Doctrine Before the Tribunal of Science. Kelsen argues that natural law theorists, searching for an absolute criterion for justice, try to deduce from nature the rules of human behavior. Robert P. George, in the essay Kelsen and Aquinas on the ‘Natural Law Doctrine’ examines his criticism and concludes that what Kelsen understands as the Natural-law doctrine does not include the natural law theory elaborated by Thomas Aquinas. In this paper, we will try to corroborate George’s theses and try to show how Aquinas’ natural law theory can be vindicated against Kelsens criticisms.
Die Auffassung des Rechts in Hegels Rechtsphilosophie weicht bekanntlich von dem ab, was üblicherweise unter „Recht“ verstanden wird. Schon deshalb sind Hegels Grundlinien der Philosophie des Rechts nicht einfach neben andere Werke zur Rechtstheorie zu stellen. Aber Hegels Bestimmung des Rechts ergänzt nicht nur das Recht äußerlich, sondern lässt es auf etwas gründen, das über es selbst deutlich hinausweist: auf jener Normativität, die er als Sittlichkeit bezeichnet. So ist Hegels Rechtsphilosophie nur als eine Sozialphilosophie der Sittlichkeit zu verstehen. Sie kann als die philosophische Selbstreflexion einer Gesellschaft verstanden werden, die sich selbst primär als durch das Recht bestimmt versteht, aber auf eine andere Form von Normativität bezogen ist.
In order to understand the impact of new technologies on the law through the science of law, it is essential to observe how Law researches are done. This paper pursues the following models of legal science: analytical (theory of formal rule); hermeneutics (interpretation theory) and empirical (decision theory) to appraise methodological procedures used in monograph researches in some Brazilian Law courses. This study was to detect which model of law science was used in the development of Law researches. The study was conducted, through Juris Doctors’ interviews. All of these respondents have written a monograph, which is a requirement to complete a Law course in Brazil. The main conclusions of this study were the following: 1) most of the monographs produced do not specify the methodology used for developing the work; 2) when the papers indicate the methodology used, the analytical model was prevalent. In these cases, the science of law appears as a systematization of rules for obtaining possible decisions. 3) Hermeneutic and empirical models were also used, but on a smaller scale. These researches revealed the inaccuracy of the methodological tools used to apprehend the reality. However, these strategies are significant to define the objects of study of law in the contemporary time. Answering the question about how Law researches are done in some Brazilian Law schools, this paper discusses the construction of classical models of science of law, which were taken as the theoretical framework of this work before the hypercomplex current problems.
Human rights and climate policy – toward a new concept of freedom, protection rights, and balancing
(2012)
Neither the scope of “protection obligations” which are based on fundamental rights nor the theory of constitutional balancing nor the issue of “absolute” minimum standards (fundamental rights nuclei, “Grundrechtskerne”), which have to be preserved in the balancing of fundamental rights, can be considered satisfactorily resolved–in spite of intensive, long-standing debates. On closer analysis, the common case law definitions turn out to be not always consistent. This is generally true and with respect to environmental fundamental rights at the national, European, and international level. Regarding the theory of balancing, for the purpose of a clear balance of powers the usual principle of proportionality also proves specifiable. This allows a new analysis, whether fundamental rights have absolute cores. This question is does not only apply to human dignity and the German Aviation Security Act, but even if environmental policy accepts death, e.g. regarding climate change. Overall, it turns out that an interpretation of fundamental rights which is more multipolar and considers the conditions for freedom more heavily–as well as the freedom of future generations and of people in other parts of the world–develops a greater commitment to climate protection.
This paper intends to discuss some contemporary issues on human rights and democracy related to the concept of justice. Is the set of individual rights that is assumed by western democracies really universal? If so, how are they supposed to be interpreted? On the other side if I take into account the “other” and pluralism in a serious way how to conciliate different concepts of justice? Taking Jacques Derrida’s approach of justice as its standpoint this paper aims to stress the difficulty to achieve a unique concept of justice as well as to think justice in the sphere of international law and the problem of ensuring human rights in the international order. Western democracies has becoming more and more multiethnic and multicultural and the set of rights that is at the center of the legal order has to be interpreted in a dialogical sense, one that assumes difference and plurality as its starting point. The plurality of conceptions of the good and the impossibility of establishing a unique concept of justice demands the re-creation of a democratic sphere where the dissent and the conflict could be experienced and, at the same time, the legal order needs to ensure individual and group rights against majority’s dictatorship. The main goal of this paper is to re-think the interpretation of law in a multicultural scenario in which it is not possible to have only one criteria of justice and difference and pluralism are envisaged are values themselves.
Human rights and the law: the unbreachable gap between the ethics of justice and the efficacy of law
(2012)
This paper explores the structure of justice as the condition of ethical, inter-subjective responsibility. Taking a Levinasian perspective, this is a responsibility borne by the individual subject in a pre-foundational, proto-social proximity with the other human subject, which takes precedence over the interests of the self. From this specific post-humanist perspective, human rights are not the restrictive rights of individual self-will, as expressed in our contemporary legal human rights discourse. Rights do not amount to the prioritisation of the so-called politico-legal equality of the individual citizen-subject animated by the universality of the dignity of autonomous, reasoned intentionality. Rather, rights enlivened by proximity invert this discourse and signify, first and foremost, rights for the other, with the ethical burden of responsibility towards the other.
The aim of this paper is to explore the case of the Spanish ‘indignants’ movement of May 2011 as an example of the structural changes occurring in the public sphere after the emergence of a new type of social movement characterized by the widespread use of the ICTs. First I focus on the ideological dimension of discourse of the ‘indignants’ movement, so as to reconstruct the protesters’ self-image. They thought that ICTs were playing a prominent role in a wider trend towards a regeneration of democracy, but they were rather misguided because they lack an accurate description of what really happened. In the second part of this paper I will challenge some features of my case study, emphasizing three basic elements of a democratic public sphere. I aim to call into question the idea that a ‘truly’ democratic public may be hosted by the emergent communicative environment.
We study the implications on compact star properties of a soft nuclear equation of state determined from kaon production at subthreshold energies in heavy-ion collisions. On one hand, we apply these results to study radii and moments of inertia of light neutron stars. Heavy-ion data provides constraints on nuclear matter at densities relevant for those stars and, in particular, to the density dependence of the symmetry energy of nuclear matter. On the other hand, we derive a limit for the highest allowed neutron star mass of three solar masses. For that purpouse, we use the information on the nucleon potential obtained from the analysis of the heavy-ion data combined with causality on the nuclear equation of state.
Brazil has one of the worst distributions of income in the world. The wealth of the richest 1% of the population is equal to that of the poorest 50%. Brazil has a greater concentration of wealth than ninety-five percent of the countries on which data is available. In the legal field, tax justice is based on the constitutional principle of the “ability to pay”, according to which taxes should be paid based on the economic capacity of the taxpayer. This principle first appeared in the Brazilian legal order in the 1946 Constitution, was excluded from the texts of 1967/69, and reappeared in § 1 of article 145 of the 1988 Constitution. The aim of this paper is to examine two possible grounds for the ability to pay principle (equal sacrifices and proportional sacrifices) to show how, in Brazil, the interpretations that seek to assign a positive content to the principle are limited to the horizons of a particular form of State associated with the theory of equal sacrifice. This theory for its turn is consistent with a theory of justice, under which no expense or charge levied by the government can alter the distribution of welfare produced by the market. As the application of the ability to pay principle is done within the limits of that horizon, as a consequence, this principle does not play an important role in the issue of reduction of inequality in Brazil.
Die exakte Positionierung von Intraokularlinsen in den Kapselsack ist von entscheidender Bedeutung für das postoperative visuelle Ergebnis nach Kataraktoperation oder refraktivem Linsenaustausch. Schon leichte Dezentrierungen können optische Aberrationen hervorrufen welche das Sehen der Patienten negativ beeinflussen. Besonders kommt dieses Phänomen bei sog. Premium Intraokularlinsen mit speziellen Optiken (asphärisch, torisch oder multifokal, sowie Kombinationen dieser) zum Tragen. Diese Optiken können Ihre gewünschte Wirkung nur bei exakter Positionierung entfalten. Eine postoperative Feinpositionierung ist nicht möglich, was die Ansprüche an den Operateur bei Implantation der Linsen erhöht. Minimalinvasive microinzisionelle Operationstechniken bieten heute gute Möglichkeiten, die Implantate exakt zu positionieren. Neben den Dezentrierungen können Intraokularlinsen auch dislozieren, beispielweise durch intra- oder postoperative Kapselrupturen, Linsenverziehungen oder auch Rotation der Implantate. Hier ist ein weiterer chirurgischer Eingriff von Nöten. Der Vortrag stellt dementsprechend verschiedene Videos und praktische Hinweise zur Handhabung postoperativer Linsendislokationen vor.
Alexander’s theory of the civil sphere can be placed in the context of development of sociology of law. However, Alexander draws not so much on sociological theories but rather on the approaches of philosophy of law, particularly the ideas of Fuller, Dworkin and Habermas. The civil sphere is presented by Alexander as the embodiment of Dworkin’s principal integrity. Locating law within civil morality Alexander reveals the similarity of his viewpoint to Dworkin’s position. Drawing on Fuller’s works Alexander singles out the procedural foundations of the democratic order. At the same time for Alexander the source of morality of law is not the legal system itself but a certain level of civil solidarity. Like Habermas, Alexander emphasizes the culturally embedded character of the legal norms. Alexander shares Habermas’s understanding of law as a regulative mechanism affecting all spheres of social life. However, Habermas is more sensitive to the danger of colonization of law by the imperatives of the economic and political subsystems. Alexander’s approach can be contrasted with Luhmann’s sociological theory of law. Alexander concentrates on interrelation and mutual penetration of the civil sphere and law while Luhmann regards law as an autonomous system following its own logic. While Alexander claims that his theory is rooted both in sociology and philosophy of law in fact his approach is closer to normative philosophy.
John Gray is the thinker who has reconstructed the main tenets of ethical pluralism inherent in the work of its initiator - Isaiah Berlin - and pointed to its consequences for political philosophy. In particular he singled out three levels of conflict in ethics identifiable in Berlin’s writings: among the ultimate values belonging to the same morality or code of conduct, among whole ways or styles of life and within goods or values which are themselves internally complex and inherently pluralistic.
It is the third, internal kind of conflict that proves to be the richest in implications.Because it undermines a whole constellation of contemporary liberal doctrines informed by the Kantian-Lockean tradition that conform to the legal paradigm. From the pluralist perspective such monumental theories (e.g. those of Rawls or Dworkin) are no longer sustainable due to the recognition that no ultimate value is immune to the phenomenon of incommensurability. Thus, irresolvable conflicts may also break out within the given regulative value.
Confronting ethical pluralism with general reflection on law has mostly negative consequences. Nevertheless, the incommensurability thesis sheds considerable light on certain legal disputes. This claim will be illustrated by interpreting from the pluralist perspective the controversy over the verdict by the European Tribunal of Human Rights of 3 November 2010 concerning hanging crosses in classrooms.
When judges are authorised to invalidate legal acts for being unconstitutional, the competence of the legislator is directly concerned. The question raises, if thus judges do not usurp legislative power. In the traditional doctrine of the separation of powers the parliament is the first power, based on its direct democratic legitimacy. Yet cancelling legal acts completely or partially does evoke more irritations in the public that could be expected. The people seem to have more confidence to the assumed impartiality of the judges than to the results of the parliamentary work which seems to be dominated by the struggles of the parties. The necessity of judicial review mainly is based on the consideration that individual rights even in an authentic democratic system may be violated by a legal act of the parliament. In this case constitutional courts have the very task to defend individual rights, principles of liberty and authentic equality. Therefore it is justified to speak of the “jurisdiction of liberty”, as the Italian constitutional expert Cappelletti has said. But also without such legitimacy in many countries the Courts intervene in the field of the legislator. The courts themselves discuss the limits of judicial interventions, emphasising themselves, that they have to respect the legislative decisions principally, but do not abide always by their own proclaimed principles. In Spanish recent publications it is spoken of the principle “in dubio pro legislatore”, (in case of doubt in favour the legislator), reminding of “in dubio pro reo”, in order to treat the legislative power not worse than the defendant in a criminal process..
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.
Jurisprudence under the perspective of the new media and its effect on the communication of law
(2012)
Despite the law knowledge presumption, Jurisprudence has not always considered the effects introduced by the communication of law in the transition from the print to the electric revolution, using here concepts and ideas of McLuhan´s theory.
The use of Internet by Brazilian Courts (on line transmission of trials, the digital process, transformation of courts in source of news on what concerns their decisions) is an interesting example of how the new medium interferes in the substance of the message of law, since the movement of the messages must be considered to understand the epistemological domain of law. New elements are introduced by the new media and interact with the old meanings, concepts and processes of law and of the old media and can themselves bring new conflicts that are relevant to the comprehension of the complete and real dynamics of Law.
The process of finding evidence of what truthfully happened in a conflictive situation interests jurists and journalists but in different ways. When the work of journalists and judges are concerned the paradox is at stake. Both categories must tell a story about a conflict must listen to all involved, must inform what happened to the general public. Although both categories must use the freedom must use the freedom of speech their point of view about something with objectivity, their timing is different as well as the process and the effect of fulfilling their task. That question that should be made is what happen to law when it becomes the subject matter to the news in the world of full information? In what measurement journalists also pass judgements and how this affects the formal processes of law? The effort to answer these questions and the ones related to them is important to understand some of the problems that must be approached in order to establish the ways of law and of the mass media technological society.
It is a fact that mediation and other alternative dispute resolution means are becoming increasingly popular. Actually, governments are encouraging people to use them instead of going to Court, as they are quicker, cheaper and more informal than trials, and can be implemented using internet. The author focus on the analysis of the structure and purposes of mediation, in particular. The paper aims to discuss and understand what kind of justice, if any, is offered by alternative dispute resolution.
Fragestellung: Beurteilung der Korrektur des Astigmatismus mit der multifokalen torischen Intraokularlinsen (IOL) ReSTOR Toric (Alcon, Ft. Worth, USA) bei Kataraktoperation.
Methodik: Die Multicenterstudie umfasste Kataraktepatienten mit präoperativem Astigmatismus von ≥0,75 bis ≤2,5 dpt. die Patienten wurden einer bilateralen Implantation einer torischen multifokalen IOL zur Korrektur der Hornhautverkrümmung unterzogen. Die OP erfolgte ohne relaxierende limbale Inzisionen durch eine clear-cornea Inzision <3,0 mm. Prä- und postoperativ wurden für diese Subanalyse Autokeratometrie sowie subjektiver Astigmatismus von 39 Augen von 40 Patienten im Alter von 59,8±7,0 Jahren analysiert.
Ergebnisse: Präoperativ betrug der mittlere keratometrische Astigmatismus 1,43±0,57 dpt. Die mittlere Inzisionsgröße betrug 2,59±0,41 mm. 1 Monat postoperativ betrug der mittlere keratometrische Astigmatismus 1,51±0,95 dpt (25 Augen). Der Unterschied im keratometrischen Astigmatismus zwischen präoperativ und 1-Monat-postop betrug 0,57±0,96 dpt. Der präoperative subjektive Astigmatismus wurde signifikant von 0,32±0,33 dpt (25 Augen) auf 0,99±0,70 dpt reduziert. (39 Augen, p <0,0001).
Schlussfolgerung: Die Implantation der multifokale torischen IOL zeigt vorhersehbare postoperative Ergebnisse bei der Korrektur des Astigmatismus nach kataraktoperation.