Universitätspublikationen
Refine
Year of publication
Document Type
- Article (337)
- Review (222)
- Working Paper (183)
- Conference Proceeding (116)
- Part of Periodical (61)
- Book (46)
- Contribution to a Periodical (39)
- Doctoral Thesis (28)
- Part of a Book (15)
- Report (5)
Language
- German (737)
- English (287)
- Italian (11)
- French (5)
- Portuguese (5)
- Multiple languages (4)
- Spanish (3)
- mis (1)
Has Fulltext
- yes (1053) (remove)
Is part of the Bibliography
- no (1053)
Keywords
- Coronavirus (12)
- Urheberrecht (11)
- Democracy (9)
- human rights (8)
- Bundesverfassungsgericht (7)
- Digital Services Act (7)
- Law (7)
- law (7)
- Internet (6)
- Konfliktlösung (6)
Institute
- Rechtswissenschaft (1053) (remove)
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.
A discussion regarding the complex relationship that exists between the concepts of efficiency and justice goes a long way back and raises several relevant arguments. One of them, and it must be rejected in advance, is that justice is in the realm of public law, while efficiency in that of private law. Is it unacceptable that the balance between public and private law leads to the belief of a divided legal system; one system, one set of laws, one legal system. Legislators and judges are responsible for determining a balance and no theory can postulate that the balance will always be found with a simple cut between public and private law to distinguish when the criterion should be justice or when it should be efficiency. It is reductionist to confine the discussion to single goals of efficiency and justice, when human dignity and human rights should also be considered when one is discussing law. Moreover, a discussion limited to only the concepts of justice and efficiency, relies on a belief that the terms are mutually exclusive. Posner has said that the economic analysis of law has limits and philosophy of law plays an extremely important role in this discourse, which must be interdisciplinary. There can be no goal other than the realization of human rights and there can be no justice if not shared by all of mankind.
The very idea of the European Convention on Human Rights is to bring the laws of contracting states into line with fundamental human rights principles. Where the Convention is not explicit, the Court should never rule restrictively so as to reduce the scope of a general right. In the case of homeschooling, the Convention sets forth the general principle that “the state shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.” It must not, therefore, allow a contracting state to eliminate a means of achieving this desired by parents—unless the state can show that the means in question is ineffective.
In his new book, R. Dworkin advocates the unity of values thesis. He wants to circumscribe morality as a proper epistemological domain which is methodologically different from scientific inquiry. The epistemological independence of morality is supposed to be a consequence of the irreducible fact/value dichotomy. This paper sustains that unity of values thesis is methodologically correct; all moral reasoning must be a constructive interpretation of its meaning. However, that author fails to recognize that not every axiological interpretation implies moral consequences. From H. Putnam’s pragmatic realism, this paper intends to demonstrate that much of scientific inquiry relies on values interpretation, and that this kind of reasoning is morally neutral. Finally, it should be clear that epistemological choices in legal positivism – e.g. the decision on which aspects of social interaction are theoretically relevant – should not disturb the soundness of its argument nor should it be read as if it had moral implications. This paper concludes that positivist theories cannot be ruled out. Since the choice between descriptive and interpretative models requires a circular justification, legal theory is itself an activity governed by epistemic values interpretation. Likewise natural sciences, it can only be understood from an internal perspective. Accordingly, inclusive positivism holds the advantage of being more consilient than interpretivism, which is arguably parochial.
I will discuss issues which can be seen as taken strictly from the science fiction literature. Nonetheless, I would like to demonstrate that those issues not so far from now will have a big influence on the ethical discourse and also the law and social philosophy. The first part aims at clarifying concept of “cyborg” and “cyborgization”. I will consider only meanings coined for scientific or philosophical purposes. I will also indicate two experiments, which bring to life “the first cyborg” – term in which the head-scientist of these experiments used to describe his effects. In the second part I will show ideas of transhumanists in the context of technological achievements mentioned earlier. I will concentrate on the human enhancement idea, underling majority of transhumanist’s branches. I will try to demonstrate that it is realistic concept. In the third part I will shift my attention to some of consequences which flow from “cyborgisation” and human enhancements mentioned in prior parts. I will present two rights seen by transhumanist’s philosophers as able to become human rights in the near future. In these frames I will consider the “morphological freedom” and the “cognitive liberty”. At the end, in the fourth part I will summarize my considerations about the influence of semi-fictitious technologies. I will try to bring on an unambiguous conclusion that aforesaid issues could in the nearest future become very substantial for every area of the theory and policy of law.
The author will deal with the relationship between law and technology from the viewpoint of technology security standard. One of the relationships can be found in that law has been providing a security level of technology. They have been saying that law would often follow technology. Law is too slow to adapt the changing technology through the advancement of technology. Above all, information technology has an electronic rapidity and a legislation technology has a paper one. There might be a big estrangement between law and technology. However, law must provide a security standard of technology. The standard must be based on a relative security level. The relative level would premise on the ordinary, lawful and ethical use of technology. Most technology has been opened to the public without any technology impact assessment. Technology would have some defect, which the producers have overlooked. As a result, the users might often meet with the accidents caused on the defects.
Then law should provide a technology security standard to exclude the defects from the users’ viewpoint as secure as possible. The security standard must be reflected on the architecture standard of technology. The architecture standard may be a yardstick whether the creators can evade the responsibility for the accidents.
The standard would also premise on the ordinary, lawful and ethical use of technology. The ordinary use means that the users should use normally technology within the extent of the architecture standard. The ethical use means that the users should use technology being conscious of the defects in order to avoid accidents.
The relative security level may be the sum of the architecture standard and the ethical use of technology.
Civil Society became an important theme in the recent discussion of political or social theory. Civil Society is playing a substantial role for the legislation process. We can find it especially in the activities of international NGO. It gives a new aspect of the relationship between state and society, and legal philosophically speaking, of validity of law. Activities of Civil Society are socially recognized and their support systems are gradually institutionalized also domestic in Japan. But Japanese NPO has its own weak point, which arises from the political structure of our society.
Scientific and technical achievements can cause deep changes in spheres of morals and law. I am going to discuss some philosophical conclusions which follow from two significant ideas of contemporary civilization. First of them is a thesis about indistinguishability of natural from artificial, and the second one is an opportunity of creation of artificial human.
The first thesis is a consequence of the principle of relativity of physical reality to conditions and a way of observation, on which both interpretations of quantum theory and Einstein’s theories of relativity are based. I show that the given principle deprives us of objective criteria to distinguish natural from artificial, freedom from necessity, freedom from violence.
Today power of technique is directed not only on the external world, but also on a person. Due to information technology, and biotechnology an opportunity of creation of artificial and controlled individual increases. So human loses many features of a person and transforms to a part of a collective super individual subject. In modern time a search of the transcendental basis of law and power leads to impersonal human and recognition of super individuality.
Traditional belief about natural rights will disappear. There is necessity of revision of such concept as right of freedom. Liberal belief about freedom as a condition of human existence is changing. Prospects of technical development make justified R. Dworkin's reflections about superiority of right of equality in comparison with right of freedom.
The requalification of Habermas’ discussions on political philosophy and legal theory after the publication of Zwischen Naturalismus und Religion (2005), and his most recent texts and debates on religion and the public sphere, suggest a revision of the Habermasian theory of rationalization as it was firstly presented in Theorie des Kommunikativen Handelns (1982), especially on what concerns the processes of dessacralization and the linguistification of religious authority. In search of contributing to this revision, this paper intends to focus on the problem of a supposedly “lost” aesthetic-expressive understanding of religious authority in Habermas’s theory of rationalization, which may have contributed to a theory of law in Faktizität und Geltung (1992) that does not give satisfactory account to the aesthetical-expressive character of the modern understanding of legal authority. A better understanding of this special character, however, may contribute not only to the avoidance of fundamentalisms and new attempts of “aesthetization of politics”, but also to a rational strengthening of the solidarity of the citizens of democratic constitutional states.
This paper aims to discuss in which sense public hearings in supreme courts of democratic rules of law can be seen as proceduralization of popular sovereignty policies. These policies constitute expressions of a normative claim for a wider “publicization of law” by democratic states’ institutional powers and organs; a claim that becomes evident when one undertakes an intersubjective interpretation of law. This theoretical argument will be presented in the first section of the paper through a new articulation of Jürgen Habermas’ discursive theory of law and his most recent studies on the concept of political public sphere. The theoretical section gives normative and procedural criteria for the second section of the paper, which consists on a critical analysis of the procedures and practical cases of public hearings held at the Brazilian Supreme Court, constituting the first scientific study to date on the Court’s use of this legal instrument.
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.
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.
Although their applications have not yet extended widely due to their incipient state, nano-technologies and nano-medicines may be presumed to be at the origin of the next great technological revolution, foreseeably contributing to a new stage with respect to evolutions in mankind’s progress. Their possibilities are truly immense in enormously varied spheres, but the risks and uncertainties they engender are enormous too. Because access and use of the unceasingly increasing mega-quantity of information they generate will place further strain on the protection of personal life, privacy, the exercise of freedom, as well as the safeguarding of other fundamental principles and rights.
Legal practitioners and legal scientists need to have knowledge of the general rules that apply in the legal system. This involves both knowledge of the legislation and knowledge of the decisions by judges that function as general rules of law. Law students preparing themselves for the legal profession need to acquire these kinds of knowledge. A student has to have knowledge about where to look for decisions, understand the structure of decisions and learn to determine what makes a decision relevant to the body of applicable rules in the legal system. Legal education primarily aims at acquiring insight in the legal sources, their history and background. This basic knowledge is of great importance; legal problem solving is hardly possible without an understanding of the legal knowledge. To illustrate the use of this knowledge in practice, teachers work through decisions as examples. However, it is difficult, if not impossible, to learn by explanation or by imitation alone. A more effective way to obtain expertise is by actually performing the task, i.e. students should do the exercises, while the teacher provides feedback on their solutions. For effective learning, also the solution process should be monitored and provided with feedback. Furthermore it is desirable for students to be able to ask for help at any time during the process. They should also be able to practice over and over again. An ideal situation would have a teacher available for every student, monitoring the student while practicing and providing support where and whenever necessary. However, this being not practically feasible, the second best option is to offer the student electronic support.
CASE (Case Analysis and Structuring Environment) is an environment where a law student can practice with finding decisions, with structuring its text and with analysing the decision in order to be able to determine in what way it adds to the body of applicable rules in the legal system.
CASE is developed using a principled and structured design approach. A short description of this approach is followed by an analysis of the learning task, the difficulties law students experience and the remedies proposed on the basis of both the task analysis and the stated difficulties. This is followed by a description of architecture, functionality, platform and implementation of CASE and a description of a session with CASE and future work.
In 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.
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.
Der vorliegende Beitrag leitete das Programm des Workshops „Schlichten und Richten – Differenzierung und Hybridisierung” (Frankfurt/Main, 9./10. Februar 2012) ein. Mit diesem Workshop begann das Arbeitsprogramm des LOEWE–Schwerpunkts „Außergerichtliche und gerichtliche Konfliktlösung“, der am 1. Januar 2012 seine Tätigkeit aufgenommen hatte (siehe hierzu www.konfliktloesung.eu; eine leicht veränderte Fassung des Beitrags in englischer Sprache wird in Kürze abrufbar sein unter: http://www.ssrn.com/link/Max-Planck-Legal-History-RES.html ). Der Ausgangspunkt des Workshops ist eine deutsche Debattentradition, die die Alternativität von gerichtlichen und nichtgerichtlichen, kontradiktorischen oder konsensualen sowie mehr formalisierten und mehr informalisierten Konfliktlösungsformen unter dem Schlagwort „Schlichten oder Richten“ (auch „Schlichten statt Richten“ oder „Schlichten oder Richten“) thematisierte.
Der Beitrag problematisiert zunächst die bisherige mangelnde rechtshistorische Aufmerksamkeit, die Alternativen zur gerichtlichen Konfliktlösung zugewandt wurde. Er weist daraufhin, dass auch die heutige Diskussion über gelungenes Konfliktlösungsmanagement oft explizit oder implizit von – zuweilen nicht ausreichend reflektierten – historischen Vorannahmen geprägt ist und – damit verbunden – von Vorstellungen über rechtskulturelle Fremdheit und Nähe.
Im zweiten und dritten Abschnitt skizziert der Beitrag kurz den historischen Gang der deutschen Diskussion über „Schlichten und Richten“ seit dem Aufkommen auch rechtswissenschaftlich anerkannter Schlichtungsinstitutionen zu Beginn des 20. Jahrhunderts. Er versucht, deren wechselnde zeitgenössische Kontexte sichtbar zu machen und zeigt, wie sich in diesen Diskussionen (zuweilen utopisch scheinende) rechtspolitische Verheißungen ansiedeln konnten, welch fruchtbaren Boden diese Diskussionen aber auch für neue Kategorienbildungen und multidisziplinäre Zugänge bot.
Im vierten Abschnitt wird versucht, Verknüpfungen mit der gegenwärtigen ADR-Diskussionen herzustellen, während im fünften Abschnitt in analytischer Absicht Konfigurationen des Wortpaars „Schlichten“ und „Richten“ vorgestellt werden: „Schlichten“ und „Richten“ als Alternative, als Abhängigkeitsverhältnis und als Abfolge. Der fünfte Abschnitt schließlich fragt nach Funktionselementen und den Funktionsbedingungen von Schlichten und Richten, d.h.: Welche Leitrationalitäten, Partizipationsmechanismen, Legitimationsnarrative und Reflexionsformen lassen sich jeweils der einen oder anderen Form der Konfliktlösung zuordnen.
All diese Überlegungen sind eher tentativer Art und vermitteln nur erste umrisshafte Vorstellungen. Sie dienen in erster Linie dem Diskussionsanstoß und sollen erste Schneisen in dieses komplexe Forschungsfeld schlagen. Die Vortragsform ist beibehalten und der Fußnotenapparat ist auf das nötige Minimum reduziert.