25th IVR World Congress: Law, Science and Technology Frankfurt am Main 15–20 August 2011 ; Paper Series
25th IVR World Congress Law and technology
Frankfurt am Main
15–20 August 2011
Paper Series
Filtern
Dokumenttyp
Sprache
- Englisch (103) (entfernen)
Volltext vorhanden
- ja (103)
Gehört zur Bibliographie
- nein (103)
Schlagworte
- Democracy (8)
- Law (6)
- human rights (6)
- law (6)
- democracy (5)
- Internet (4)
- Human Rights (3)
- educational freedom (3)
- homeschooling (3)
- jurisprudence (3)
Institut
- Rechtswissenschaft (99)
- Physik (1)
025
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’.
003
Technologies carry politics since they embed values. It is therefore surprising that mainstream political and legal theory have taken the issue so lightly. Compared to what has been going on over the past few decades in the other branches of practical thought, namely ethics, economics and the law, political theory lags behind. Yet the current emphasis on Internet politics that polarizes the apologists holding the web to overcome the one-to-many architecture of opinion-building in traditional representative democracy, and the critics that warn cyber-optimism entails authoritarian technocracy has acted as a wake up call. This paper sets the problem – “What is it about ICTs, as opposed to previous technical devices, that impact on politics and determine uncertainty about democratic matters?” – into the broad context of practical philosophy, by offering a conceptual map of clusters of micro-problems and concrete examples relating to “e-democracy”. The point is to highlight when and why the hyphen of e-democracy has a conjunctive or a disjunctive function, in respect to stocktaking from past experiences and settled democratic theories. My claim is that there is considerable scope to analyse how and why online politics fails or succeeds. The field needs both further empirical and theoretical work.
054
Doctrines developed by the EFTA Court have placed considerable demands on national courts in the EFTA States. The Court now considers the EEA Agreement to form an “international treaty sui generis which contains a distinct legal order of its own.” It would thus seem that EEA law has transformed into an independent legal order, and subsequently has a claim to validity which emulates the self-legitimising presentation of the EU legal order. This, however, is not an empirically verifiable fact, but a particular understanding which arises when one adopts the viewpoint of the EFTA Court. EEA law takes place in a different realm when interpreted and applied in the national order: this realm is essentially a construction of the constitutional order. Case law shows that the Icelandic Supreme Court is far from accepting all EEA judge-made principles. This study will describe a context of legal pluralism by reference to the Icelandic legal system and its relationship with the EEA legal order. To illustrate the discussion, the most important case law relative to the interaction between Icelandic laws and EEA law will be considered in the light of legal pluralism - particularly the principles of contrapunctual law designed by Miguel Maduro. The paper argues that the Supreme Court’s internal domestic approach to the application of EEA law will inevitably become a source of fragmentation unless it takes place within an institutional framework of judicial tolerance and judicial dialogue.
084
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.
027
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.
035
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.
057
The revolution will be tweeted : how the internet can stimulate the public exercise of freedoms
(2012)
This article discusses how new technologies of communication, especially the Internet and, more specifically, social network services, can interfere in social interactions and in political relations. The main objective is to problematize the concept of public liberty and verify how the new technologies can promote the reoccupation of public spaces and the recovery of public life, in opposition to the tendency to valorize the private sphere, observed in the second half of the twentieth century. The theoretical benchmark adopted for the investigation is Hannah Arendt's theory about the exercise of fundamental political capacities in order to establish a public space of freedom, as presented in “On Revolution”. The “Praia da Estação” (“Station Beach”) case is chosen to test the hypothesis. In 2010 in the Brazilian city of Belo Horizonte, different individuals articulated a movement through blogs, Twitter and facebook, in order to protest against the Mayor’s act that banned the assembling of cultural events in one of the main public places of the city, the “Praça da Estação” (Station Square). By applying Arendt's concepts to the selected case, it is possible to demonstrate that the Internet can assume an important role against governmental arbitrariness and abuse of power, as it can stimulate the public exercise of fundamental freedoms, such as freedom of assembly and manifestation.
028
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.
082
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.
009
In reconsideration of the composition and operation of European law, it is the description of its underlying mentality that may cast best light on the query whether European law is the extension of domestic laws or a sui generis product. As to its action, European law is destructive upon the survival of traditions of legal positivism, for it recalls post modern clichés rather. Like a solar system with planets, it is two-centred from the beginning, commissioning both implementation and judicial check to member states. As part of global post modernism, a) European law stems from artificial reality construction freed from particular historical experience and, indeed, anything given hic et nunc. By its operation, b) it dynamises large structures and sets in motion that what is chaos itself. It is owing to reconstructive human intent solely that any outcome can at all be seen as fitting to some ideal of order, albeit neither operation nor daily management strives for implementing any systemicity. This is the way in which the European law becomes adequate reflection of the underlying (macro) economic basis, which it is to serve as superstructure. Accordingly, c) the entire construct is operated (as integrated into one well-working unit) within the framework of an artificially animated dynamism. With its “order out of chaos” philosophy it assures member states’ standing involvement and competition, achieving a flexibly self-adapting (and unprecedentedly high degree of) conformity.