Archiv fr Rechts- und Sozialphilosophie
Abstracs (Vol. 86 / 2000 bis
90 / 2004)
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Anne van Aaken / Horst Hegmann (Berlin
/ Witten-Herdecke) Konsens als Grundnorm? Chancen und Grenzen der
Ordnungskonomik in der normativen Theorie des Rechts (Vol. 88, S. 28): Constitutional economists depict
a legal order as the result of a complex exchange contract. A system of laws
is considered to be legitimate if and only if all citizens can agree on its
usefulness for their own lives. Thus, they combine the question of legitimacy
with the question of effectiveness of law by using an incentive-compatibility
approach for legal design. An observer knowing all citizens preferences thus
could deduce improvements in their legal framework without engaging in
discussions about appropriate value judgements. But even constitutional
economists ignore the real preferences of citizens. Instead, they assume
certain preferences and they agree on such assumptions because as members of
one research programme they share a common implicit stock of knowledge. In
order to get a wider audience, they are forced either to base legal advice on
communitarian or conventionalist assumptions or to restrict the range of
allowed preferences according to the requirements of discourse ethics for
example. In both cases, however, the applicability of constitutional
economics within a normative theory of law entails a departure from normative
individualism. This should be made explicit and so allow for a discussion
with other normative theories of law. |
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Marietta Auer (Mnchen) Willkr
rechtlicher Entscheidungsverfahren? Die Auswirkungen von Arrows "General
Possibility Theorem" auf Wahl-Abstimmungsverfahren des geltenden Rechts (Vol. 88, S. 1): Arrows General Possibility
Theorem, which crucially limits the possibilities of rational public choice,
has revolutionized welfare economics since its initial proof by Nobel
laureate Kenneth Arrow. Although this theorem also has great impact on many
kinds of voting procedures in law, it is, however, rarely applied by legal
scholars. This essay is offered as a step towards a deeper legal
understanding of the logical problems discovered by Arrow. It uses examples
from German law to explore the relevance of Arrows Theorem for voting and
election procedures in all fields of law such as constitutional law, civil
procedure, corporate and insolvency law. It concludes that decision
procedures in law may lead to accidental results due to Arrows Theorem
without violating the constitutional principle of equal treatment. However,
such accidental results must be restricted to an absolute minimum. |
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Randy E. Barnett: Constitutional Legitimacy without Consent:
do the Laws of a Nation State ever Bind in Conscience? (Vol. 90, Seite 197): Having previously shown that the
consent of the governed is a fiction, Professor Barnett contends that
constitutional legitimacy can nevertheless exist due to the character of the
lawmaking processes a constitution establishes. For its laws to bind in
conscience, a legal system not justified by consent must provide procedural
assurances that its commands are just. A law is just if its restrictions on a
citizens freedom were necessary
to protect the rights of others, and proper insofar as they did not
violate the preexisting rights of the persons on whom they were imposed. The
requirement of necessity supplies the element of obligation |
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Kurt Bayertz (Mnster) Drei Argumente
fr die Freiheit der Wissenschaft. Philosophische berlegungen im Hinblick
auf Art. 5 Abs. 3 GG (Vol. 86, S.
303): The principle of scientific freedom usually is taken for granted; few
attempts have been made to justify it systematically. The present paper
discusses three classic arguments, which are used to justify this
principle. It will become clear (a) that each argument refers to a different
understanding of science and, therefore, justifies a different type of
science; (b) that each of them involves presuppositions which do not always
match the social reality of scientific research; the profound changes science
has undergone since its inception are not sufficiently taken into account. |
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Paolo Becchi: Vergeltung und
Prvention. Italienische Aufklrung und deutscher Idealismus (Kant - Hegel)
im Vergleich (Vol. 88, S. 549):
Prevention and retribution are usually considered as two general approaches
which contrast with one another. Those who support the retributive approach
accuse the supporters of the other approach of justifying unjust punishments
in the name of social usefulness; on the contrary, those who are in favour of
the preventive approach accuse their opponents of being linked with an old
fashioned conception; this conception would root in a way of thinking Right,
which confuses it with Morals. Both this criticisms have some basis; anyway,
it is surely possible to find positive features in both approaches. In this paper
we try to underline advantages and drawbacks of both ideas by taking two
authors into consideration: Kant as a paradigm of a retributive conception,
even as a late final achievement, and Filangieri as a paradigm of a
preventive conception. We will also try to highlight the position of Hegel,
still often quoted together with Kant for his retributionism, in his attempt
at building a synthesis of the two approaches. Hegel in fact offers the first
example of a theory of punishment that overcomes the limits and one-sidedness
of the two other theories in a wider vision of the problems involved. It
isnt sure that this synthesis solves the problem of justifying the right to
punishment, but it should at least allow a limitation of punishing
interventions, even in the sense hoped for by Alessandro Baratta, to whom
this contribution is dedicated. |
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Raphael Beer, Mnster: Subjektphilosophie und
Demokratiebegrndung (Vol. 90, S. 516) One of the fabulous tasks of political philosophy is
the rational justification of democracy. For that end in this article
classical strategies of political philosophy and furthermore main assumptions
of the philosophy of subject will be discussed. The aim is a theoretical
extension of the theory of democracy. Regarding that, firstly political
theory could be optimised, if more points of view will be taken into
consideration. Secondly, the results of neurophysical research provoke a new
understanding of subject, that should be recognized by political philosophy.
The main idea is that logically the subject has to be conceptualized before
empirical reality. Subsequently, on the basis of that understanding a
possibility will be demonstrated to justify democracy as a legitimate form of
state. |
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Jrg Benedict, Rostock: Kodifikation
der Einzelfallgerechtigkeit? – oder von Geist und (Re-)Form der Zeit
(Vol. 89, S. 216): One of the
areas in which philosophical questions become practically relevant concerns
the relationship between form and substance. In the pursuit of the sorcerers
stone called "justice" legal scholarship today primarily tends to
focus on substantive issues: Did the judge get the substantively right result
in a particular case or not? Concerns about form on the other hand, designing
sufficiently precise workable rules, are thought to be secondary. Those who
invoke such concerns are prone to charges of historically backward
anti-progressive formalism. Of course there are good reasons against
formalism. But only form without substance is formalism. Substance without
form on the other hand is arbitrariness. Any substance gets its own form and no one can
"catch clouds in a basket" – nor can the judge. If not
provided with clear guidance in the form of a reasonably clear, conceptually
carefully crafted rule that determines what the law is, a judge is frequently
left with no choice but make up the law as he goes along on a case by case
basis. Perhaps sometimes he finds the sorcerers stone in a particular case
– perhaps he doesnt. The problem is further accentuated by the fact that
under a regime emphasising the achievement of justice in the individual case
the law no longer provides guidance to actors ex ante in determining their respective substantive rights
and duties. Without form there is no predictability, there is only an
"anything goes". It was once widely believed that it is the main
task of jurisprudence to give the substance of law an appropriate form. The
purpose of legal scholarship was to work and to struggle with the body of law
like a sculptor struggling to perfect the form for the sake of transforming
the substance. But for contemporary German jurisprudence that time has long
gone by. Just over a century ago the treasure of Roman Law was infused by the
spirit of Kantian legal philosophy to receive a new systematic shape in the
famous German Civil Code. Today, after the "Great Reform" of
Contract Law, the heart of the civil law edifice, there is a proliferation of
substance but there is no judicially manageable form anymore. And this is not
only the German "death of contract", this is the "death of
codification" as it is traditionally understood. Does it all matter?
Whether it does or not, it is in keeping with the Zeitgeist: Lets reform
without form! |
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Thomas Berns (Bruxelles) Exposition du
politique au mal ou absorption du mal par le politique. Machiavel et la
philosophie (Vol. 87, S. 363) |
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Susanne Braun: Bioethische Aspekte des
Klonierens von Tieren (Vo. 89, S.
339): Animal cloning, intensively discussed since the birth of
"Dolly", is morally acceptable because there are no convincing
arguments in favour of a prohibition. Actually, we are not in the position to
judge clearly the different cloning procedures and aims using the
normative-ethical approaches. In this essay several bioethical arguments are
presented trying to achieve an unambiguous statement about the admission of
animal cloning. |
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Samantha Brennan (Ontario, Canada)
Realtional Selves and Thresholds for Rights (Vol. 88, S. 74): If absolute rights follow from a conception of
persons as entirely separate from each other, and no rights at all follow
form a conception of persons entirely embedded in their communities, then
what follows for rights from the feminist conception of the self as a
relational entity? This paper examines the connections between the idea that
persons are best understood in relational terms and the idea that rights are
overridable. |
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Hubertus Busche (Bonn) Von der
Bedrfnisbegrenzungsmoral zur Bedrfniskultivierungsmoral - Alte Ethik und
neue konomie bei Bernard Mandeville
(Vol. 87, S. 338): The causal thesis of Mandevilles controversial
"Fable of the Bees" is relatively clear: It is even the
"private vices" which produce under certain frame conditions
"public benefits" in the form of prosperity effects. Nevertheless regarded
as unclear is Mandevilles own position and his interest in the antagonism
between the economical growth and the bloom of virtue. The interpretations
extend from an antimoral economism to an anticapitalistic conservatism of
virtue. The following expositions reopen again the question for the
"fabula docet" of the "Fable of the Bees", reading it
(according to Mandevilles own hint) as a didactic text spreading out a net
of arguments opening the premisses, from which the reader by himself have to
draw the right conclusion: Because on the one hand virtue is to define from
its utility for the public welfare, and because on the other hand the
ascetic-christian economy virtues adapted to the agrarian static
supply-of-needs-economy forfeit such utility for the public welfare in the
developing dynamic capitalistic economy, certain mental attitudes relating to
economy cannot be further regarded as virtues or vices. Therefore morals have
to be liberalized, so that they restrict no longer the economical activities. |
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Norbert Campagna (Serrouvile) Leviathan
and ist Judges (Vol. 86, S. 499):
The role of judges in Leviathan is a neglected aspect of Hobbess political
philosophy. In this contribution, I want to show that judges play an
important role in Leviathan. This role devolves on them because Hobbes thinks
that the nature of law consists in its interpretation and that the task of
interpretation belongs to judges. Judges have to interpret the commands of
the sovereign in such a way that they are conformable to the intention of the
sovereign. This intention is not the empirical intention of the empirical
sovereign, but the ideal intention, which is equity. Though judges should
strive for an authentic interpretation of the law, i.e. for an interpretation
conformable to equity, authenticity is not a necessary condition for the
authoritativeness of an interpretation. But it will be seen that the
interpretation is only binding on the parties pleading and not on judges. |
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Norbert Campagna (Serrouville) Michel
Villey, Die Zugestndnisse eines anti-modernen Rechtsphilosophen an die
Moderne (Vol. 87, S. 16): The late
Michel Villey was one of the most prominent French legal philosophers of the
20th century. In his works, he condemns the subjectivistic turn in modern
legal philosophy. Against the theory of subjective rights, which is the
background of the human rights doctrine, Villey argues for a return to
objective right as he finds it embodied in Roman Law and in Thomism. In this
contribution I want first to expose Villeys criticism of modern legal philosophy.
This being done, I will delineate the contours of Villeys alternative to
modernity. In the third part I will show that though he condemns modernity,
Villey nevertheless makes substantial concessions to it. In the conclusion I
suggest that these concessions could perhaps be explained by Villeys
distinction between an esoteric and an exoteric legal philosophy. |
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Norbert Campagna, Serrouville: Das
Begnadigungsrecht: Vom Recht zu begnadigen zum Recht auf Begnadigung (Vol.
89, S. 171): The right to pardon has
usually been considered as an outstanding right possessed by the sovereign
and allowing him to mitigate punishment inflicted by a court according to
existing law. Yet even those authors who favour the possession of such a
right by the sovereign are well aware that it can be misused. It is mostly
the right of the victim of a crime not to see the perpetrator of the crime go
unpunished that is to be protected against possible misuses of the right to
pardon by the sovereign. With Benjamin Constant, however, the whole
discussion shifts from the sovereigns right to pardon to the condemneds
right to be pardonned whenever he has been unjustly sanctionned. In this way,
the right to pardon becomes a means materializing a higher form of justice.
After a historical survey, I will consider three contemporary approaches and
point to the link between theories of pardon and theories of punishment. My
concluding remark will be that the right to pardon should include strictly
retributivist elements, but that it should not exclusively obey a strictly
retributivist logic. |
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Norbert Campagna, Serrouville: Amnestie: Wenn das
Vergessen zur Amnesties have been a current phenomenon in the last
twenty years. The aim of this paper is to distinguish between several forms
of them and to discuss their legitimacy. My overall thesis will be that an
amnesty is legitimate if and only if it serves the purposes of justice, the
latter being understood not only as backward-, but also as forward-looking.
It will also be shown that while a juridical amnesty may be necessary for the
restauration of justice, this does not mean that all the other forms of
amnesty are also necessary. |
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Miro Cerar: (Ir)rationality of the Constitution (Vol. 90, Seite 163): The nature of constitutional
substance is to a large degree optional. Therefore in the process of adopting
and interpreting a constitution it is necessary to ensure that it expresses
appropriately the relationship between the law on the one hand and politics
and other values and normative spheres (morals, customs, etc) on the other.
An examination of the relationship between rationality and irrationality in
the law helps to illuminate the properties of the relationship between the
law and politics, and at the same time makes clear that the law is actually
an integral (ir)rational phenomenon. Given the great emphasis placed nowadays
on a rational approach to the law we also need, in a specific manner, to
better comprehend and take greater account of its numerous irrational aspects
(such as legal feeling), and achieve the maximum level of (ir)rational
harmony with respect to these aspects. In the law, as it appears in its
authentic rational (dualistic) reflection, it is important, and particularly
so at the constitutional level, to ensure an appropriate balance between the determined (static, objectivized) and determinable (dynamic, optional) aspects. We
must be aware of the relativity of the human world and of the law, while at the same time
not permitting legal relativism or any destructive skepticism. This means, among other
things, that the constitution is neither merely pre |
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Ralf Christensen / Hans Kudlich
(Heidelberg / Mnchen) Die Auslegungslehre als implizite Sprachtheorie der
Juristen (Vol. 88, S. 230): For
some decades now Germany has been host to an interdisciplinary collaboration
between the fields of linguistics and jurisprudence. In the year 2001 the
platform for this is the annual meeting convened by the Institute for German
Language. The results relate principally to the fields of legal theory and
judicial methodology.- More specifically, an implicit language theory is
becoming evident within jurisprudence, which is above all ensconced in the
interpretative canon. In accordance with this, language is normative and can
decide semantic struggles in the stead of the judge. This theory is an
abbreviated form of the problem of normativity in language. Normativity is
not a natural product of language that can be quarried like some mineral.
Language is a market phenomenon. Legitimacy cannot be acquired there for
nothing; it has to be paid for with arguments. Jurists know this in practice
when reaching decisions. But it has yet to make itself felt in the theory. |
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Christian Dahlmann: The Trinity in Kelsens Basic
Norm unravelled (Vol. 90, Seite 147): Hans Kelsens Pure
Theory of Law
contains self-contradictions with regard to the basic norm. Kelsen deals with
several separable philosophical problems, and the basic norm refers to
different things in different contexts. In relation to the formal origin of
legal normativity the presupposition of the basic norm refers to a purely
formal presupposition of a norm that says that the law ought to be obeyed and
upheld. In relation to the will behind the law it refers to a presupposition
of an imaginary will. And in relation to internal legal validity the basic
norm refers to the rule of recognition of a certain legal order. Kelsen wrongly
presents these descriptions as faces on the same coin. |
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Jens-Peter Damas, Bonn: Ist die
Rechtswissenschaft eine "Wissenschaft"? Fallibilismus als
Erkenntnistheorie der Rechtswissenschaft (Vol. 89, S. 186): The article addresses the question of whether jurisprudence
is really a science from a cognitive theory standpoint. It will be
demonstrated that fallibilism is relevant not only to natural science, but
also pertinent as the epistemology of legal science. The role of
jurisprudence is to close legal loopholes on the basis of laws and unwritten
principles as the axiomatic starting point or dogma. Fallibilisms critics
(Feyerabend and Kuhn) are then presented, while Anderssons work is applied
to validate it as a rational methodology, criticism of which is thus not
justified. From a psychological perspective, however, it is correct to
reproach fallibilism, since humans and scientists fail to be rational.
Finally, case studies from the literature are presented to explain such
jurisprudential irrationalism. |
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Alberto Mario Damiani (Buenos Aires)
Die Widerlegung des metaphysischen und politischen Skeptizismus: Vico
gegeber Descartes und Grotius
(Vol. 88, S. 207): Ren Descartes and Hugo Grotius tried to refute the
skepticism with the help of rationalist arguments. Giambattista Vico
criticizes this approach. The purpose of my paper is to reconstruct on the
one hand Vicos strategy against the rationalist anti-skeptic arguments and
on the other against the skepticism. I distinguish three logical moments in
Vicos strategy: 1) he proves that the rationalist arguments do not refute
the skepticism, 2) he concedes the validity of the skeptic reasons against
the rationalistic arguments, 3) starting from these reasons he refutes the
skepticism. |
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Claus Dierksmeier (Jena) Schellings
knstlerische Hermeneutik und die richterliche Rechtsfindung (Vol. 86, S. 221): The article examines the
question: How do we and how should we judge at court? This is not only a
matter of pychological or sociological investigation but of philosophical
analysis, too. Judging is a process of transcendental interest, since it
lets us see a unity behind the respective synthesis our judgements are
constructing. Hence philosophical thought – investigating this unity
– might improve jurisdictional practise that is based on this unity as
an unknown but necessary condition.- By the means of Schellings philosophy
of art we analyze some combinative forms of the general and the particular
within our intellectual judgements. Explaining how they can work to make any
of our judgements appropriate shows how they should work to make our
jurisdictional judgements just. As a result we can see the popular theory is
wrong that understands the law as a general and formal rule and the case only
as some particular material to be subsumed. Instead we need a deeper
understanding of either the case and the law – and, as well, the judge. |
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Frank Dietrich: Von der
weltanschaulichen zur kulturellen Neutralitt des Staates? berlegungen zum
Sprachenrecht ( Vol. 90, S. 1):
Originally, in the 17th century, the claim for state neutrality aimed at an
impartial treatment of competing religious communities. In many modern
societies there seems to be more dispute about cultural goods, e.g. official
language(s), than about matters of faith. Thus the question arises whether
the concept of state neutrality can be adapted to conflicts between cultural
groups. In the article two forms of neutrality — passive and active
— are distinguished and examined with regard to the highly controversial
issue of language rights. It is argued that the state can treat different
linguistic groups neutral in an active way only. Since, however, active
neutrality is less likely to settle conflicts than passive neutrality, the
chances of overcoming language quarrels have to be assessed as low. |
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Claus Dierksmeier: ber den
gegenwrtigen Stand der Wirtschaftsphilosophie (Vol. 89, S. 551) The article explores contemporary
contributions to the philosophy of economics. Initially it gives an overview
of some new theoretical approaches to economics, especially the ones of
postmodern cultural theory and of Systemtheorie. It demonstrates then how
recent economic theory increasingly reflects upon the social context wherein
economic corporations operate; for example, the notion of internalizing
external effects is dealt with by modern economic theory in a wide range of
ethically challenging topics. The article tries accordingly to conceive of
possible consequences of the new self-awareness of economic systems for
contemporary business ethics. The pressing question to what degree the
economic agents can be held liable for their pratices leads to the quest for
criteria that allow us to discern accurately the differences among
individual, corporate and state action in terms of social responsibility.
Thence it is argued that only a self-reflective notion of freedom can fulfill
this function and should therefore be adopted as the fundamental principle of
modern philosophy of economics. |
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Ralf Dreier (Gttingen) Niklas Luhmanns
Rechtsbegriff (Vol. 88, S. 305):
The article discusses Luhmanns concept of law. Topics: (1) the concept of
law in the "Sociology of Law" (1972), (2) the shift of paradigms in
"Social Systems" (1984), (3) the concept of law in "Societys
Law" (1993), (4) relations between law and justice in Luhmanns theory,
(5) the significance of Luhmanns sociological concept of law for legal
reasoning and jurisprudence. Theses: In Luhmanns later publications two
versions of the concept of law are to be found: a structural version which
defines law as a structure of the legal system, and a communcative version
which defines law as a medium of communication. The first of these represents
the continuity of his theory. Although Luhmann in "Societys Law"
stresses the communicative version, the structural version (as defined by the
function of law) is more basic. From the legal point of view Luhmanns later
concept of law is found beyond the distinction between positivist and
non-positivist conceptions. It is a concept of law oriented towards
jurisdiction, not towards legislation |
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Neil Duxbury (Manchester) Law and
Prediction inn Realist Jurisprudence
(Vol. 87, S. 402): This article examines the notions of predictivism to be
found within American realist jurisprudence and within the jurisprudence of
Alf Ross. It attempts to demonstrate (i) that the American realist version of
predictivism is somewhat more intricate than is commonly assumed, and (ii)
that this version entails an unrealistic view of how law functions. Although
neither conception of predictivism is without faults, it is argued, that
which is developed by Ross is philosophically more ambitious; for whereas the
American realists relate the idea of predictivism to legal efficacy, Ross
uses the idea in an attempt to explain what gives law its validity. |
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Felix Ekardt, Bremen: Die Beachtlichkeit von
Zukunftsbelangen – auf der Basis einer vernderten
liberal-rationalistischen Gerechtigkeitsbegrndung (Vol. 90, S. 550) The paper gives a new liberal theory of justice and a
philosophical justification for intergenerational justice (respectively the
principle of sustainability). From a normative point of view the author
critizises various approaches as sceptizism and contextualism. Instead he
argues for a modern liberalism that overcomes inconsistencies in Rawls,
Habermas and Alexy in the following ways: the liberal idea of impartiality is
broadened by introducing a time variable and the concept of freedom is
modified – without referring to collectivist ideas (as Hans Jonas does). |
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Mara Elsegui (Zaragoza) Ein Votum fr
den Interkulturalismus gegen den Mulitkulturalismus (Vol. 87, S. 168): The article discusses the
different proposals of Charles Taylor, Jrgen Habermas and Will Kymlicka
about cultural identity and the possibility of legal protection of collective
rights. Throughout the concepts of assimiliationism, multiculturalism and
interculturalism, Elsegui agrees with Taylors idea to introduce the need
for a special protection of the cultural rights of different groups. However,
she thinks that Taylors approach does not solve the legal matter about what
kind of rights and groups deserve special legal protection and which ones are
the limits. Elsegui shares some of Habermas criticisms of Taylor, but she
thinks that the idea of the patriotism of constitution is not very useful to
solve legal questions about cultural rights. Finally, Will Kymlickas
thinking at least gives some conceptual framwork, that can be more useful to
solve legal practical questions. If the concept of collective rights is not
acceptable from a legal point of view, Elsegui supports that we need to
create a new one, in order to accommodate the right of culture, because
although these right belong to the individual, several individuals from the
same culture require from the State a special legal protection. A new legal
development of the article number 27 of the UNO International Covenant on
Political and Civil Rights of 1966 is needed. We have to take into account
the idea of rights differentiated according to a group, allowing the
differentiated citizenship and external protections but forbidden internal
restrictions. In summary, an intercultural perspective demands freedom within
the minority group and equality among the minority and majority groups. |
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Armin Englnder (Oberursel): Die neuen
Vertragstheorien im Licht der Kontraktualismuskritik von David Hume.
Normativismus oder Sozialtechnologie? (Vol. 86, S. 2): The most convincing critique of the classic theory
of the social contract is found in David Humes essay "Of the Original
Contract". Modern contractualism claims to be able to refute this
critique. This short treatise examines, whether this claim is justified. On
the one hand the supporters of an implicit contract argue that a social order
can be justified not only by an explicit agreement, but also by a tacit
consent and co-operative behaviour. The supporters of a hypothetical contract
on the other hand comprehend the social contract as an only hypothetical
construct of ideas which serves as a normative standard for judging real
existing rules and principles. Both conceptions are not conclusive.
Concerning the concept of an implicit contract the author points out that
tacit consent and co-operative behaviour represent only a partial approval
but no general justification of a social order as a whole. Against the
concepts of a hypothetical contract the author shows that these theories
either fail to provide a justificatory framework for the contract as a
normative standard which itself is well-founded, or make the construct of a
contract superfluous. Humes critique therefore remains valid. |
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Armin Englnder, Moralische Richtigkeit
als Bedingung der Rechtsgeltung? Eine erkenntnistheoretische Kritik (Vol. 90, S. 86): Legal moralism claims that we
can attain knowledge on the moral correctness or falsity of our laws. Thus,
it affirms moral cognitivism. This short treatise criticizes the central
assumptions of moral cognitivism from the view of a realistic epistemology.
It shows that moral knowledge in the cognitivistic sense can be gained
neither by empirical observation nor by pure reasoning. Finally, moral
cognitivism has to refer to a mysterious moral intuitionism, but can not
substantiate it by any reasons or arguments. |
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Andreas Fischer-Lescano (Frankfurt a.M.)
Globalverfassung, Verfassung der Weltgesellschaft (Vol. 88, S. 349): In transnational law the
dominant legal sources shift from their politically institutionalised centres
in the nation state to the periphery of the legal system, to the borders and
structural couplings of law and other function systems. The new law is fitted
with validity by imploring legal myths, by scandalising. The different
systems of the legal pluralistic world produce normative expectations
sequentially which in the functional areas line up to system-specific
rationalities. And if transnational legal norms are formed in the structural
couplings of the functional systems with the worlds legal system, also on
the global level an institution must exist which performs as a structural coupling
between the political and judicial systems: a (Global) Constitution. In a
different way, however, than in drafts of the world constitution as a
"constitution of a global minimal state" or the world constitution
as a "constitution of a world federation" such an adequate
functional analysis limits itself to observe which functions the actual legal
programs and structures obtain (as art. 38 of the Statutes of the ICJ, the
fundamental human rights falling under the principles of ius cogens and erga omnes, the prohibition of the use of force and
intervention), without deriving legitimization claims from the existence of a
functional Global Constitution. |
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Horst Folkers (Freiburg i. Br.)
Menschenwrde. Hintergrnde und Grenzen eines Begriffs (Vol. 87, S. 328): The concept of human dignity is
prominent in Germany because the first article of the Basic Law begins with
the sentence: The dignity of man is inviolable. A Kantian tradition underlies
this. Kant himself, however, speaks only of a dignity of reason. Human beings
partake of this dignity to the extent that they have the capacity of willing
through the exercise of reason. By nature every human being has such a power
of reason. Today the dignity of man – which inheres in his unique and
individual existence – must be viewed as inviolable, i.e., as
indestructable, regardless of ones actions or thoughts. |
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Andreas Funke, Kln: berlegungen zu
Gustav Radbruchs "Verleugnungsformel". Ein Beitrag zur Lehre vom
Rechtsbegriff (Vol. 89, S.1): Law
could not be otherwise defined than as an order whose very meaning it is to
serve justice, Gustav Radbruch stated in the second part ("disavowal
formula") of his Radbruchs Formula. Conventionally, this statement is interpreted in such a way, that a
negative proof of something like an intent to pervert justice forms a
necessary element of the concept of law. Even Radbruch himself took this
understanding as a basis in the article from which the Formula is taken. The
paper shows that the systematic context of the statement, consisting in the
Neo-Kantian philosophy of law, conflicts with this interpretation. Within the
scope of an epistomology of law the statement merely refers to a
transcendental-philosophical presupposition of juridical cognition.
Comparable to Kelsens basic-norm-argument Radbruch does not make an assertion
about what law is, but rather how law is recognized as law. |
|
Joachim Goebel (Kln/Regensburg) Das
System privatrechtlicher Wertung und die demokratische Genese des Rechts (Vol. 89, S. 372): This article links the
interpretation of the law with Kants idea of the republic and thereupon with
a procedural theory of justice belonging to the modern democratic
constitutional state. Judicially this link is reflected in the continuous
attempt to form a coherent system of valuation in accordance with the law.
The development of this system must accommodate the diverse linguistic forms
of life, pluralities of discourse and fragmentations in society. The system
of valuation is underpinned by the discursive practice of the democratic
constitutional state, in which the civil process must be embedded. Lastly
this system contributes to the process of enabling the citizen to see himself
as the author of law and within the framework of the legal dialogue of the
civil action to participate in its genesis. This provides the project with an
element which enables the validity and justification of law as well as the
legal system to be based not on mere legislative authority alone. |
|
Andreas Gromann (Hamburg)
Voraussetzungen des demokratischen Rechtsstaats. Variationen ber eine
Denkfigur Carl Schmitts (Vol. 88,
S. 419): In a well known and frequently quoted dictum, Ernst-Wolfgang
Bckenfrde claimed that the modern constitutional state is based on
presuppositions that it itself cannot guarantee. Beginning with an exposition
of the substantive meaning of this claim, the present paper discusses the
idea basic to it, namely that of inalienable presuppositions of the
constitutional state, tracing it back to the thought of Carl Schmitt. The discussion
of Schmitts thought draws attention to discourses counter to Schmitts in
the work of Jacques Derrida and Claude Lefort. The paper looks into the
question as to how law — and with the law the political realm,
democracy — can be conceived within the horizon of indeterminacy. |
|
Stefan Grotefeld (Zrich) Wie wird
Moral ins Recht gesetzt? (Vol. 89,
S. 299): Starting from the observation that legislation is increasingly
confronted with moral issues, the author discusses the question of how
morality should be implemented in law. Following van der Burg & Brom he
argues that the process of legislation on moral issues should be structured
as a process of interaction between legislature and society and that it
should be designed in a way which faciliatates an ongoing debate and
reflection on such issues. Subsequently, he challenges the thesis that the
moral legitimacy of law requires the exclusion of comprehensive moral
convictions from such debates. Finally, he sketches some conclusions
concerning the role of ethicists in ethics committes and shows how these
committes should be made up. |
|
Sven Ove Hansson (Stockholm) Equity,
Equality, and Egalitarianism (Vol.
87, S. 529): Distributional policies can be characterized by means of a
value-theoretical analysis of both the distribuendum (object of
distribution), and the comparandum (object of comparison). Value-theoretical
tools are used to specify the differences between egalitarian and
non-egalitarian equity, between different versions of egalitarianism, and
between political and legal discourse on equality. Both egalitarians and
non-egalitarians advocate equal distributions, but they differ in their
choices of distribuenda to be equally distributed. |
|
Helmut Heit, Hannover: Europische
Identittspolitik in der EU-Verfassungsprambel.
Zur ursprungsmythischen Begrndung eines universalistischen europischen
Selbstverstndnisses (Vol. 90, S. 461) The article argues that the preamble of the European
constitution aims to construct a European identity via the presentation of a
genealogical myth, which combines the idea of universal prevalence of certain
values with the claim that these values were and are still European. Such a
construction of a European identity must lead to inconsistencies. This can be
shown mainly at three aspects: 1. The quotation of Thukydides as a motto. 2.
The deletion of important aspects of the European history, namely of
Christianity and of wars and disruptions. 3. The idea of an especially
intimate relation between Europe and the history of civilization. The
conclusion of the article is, that the preambles euro-centric worldview is
hardly convincing, its capability to promote a shared European identity is
marginal and its implicit concept of international cultural relations is not
as seminal as it could be. |
|
Martin Hensche (Berlin) Auslegung und
rechtsfortbildende Explikation des Gesetzes (Vol. 87, S. 373): For a long time now german law students discuss
about the question whether the interpretation of statutes should clarify
either their reasonable meaning ("objective theory") or the
intentions of the legislator ("subjective theory"). Adherents of
the objective theory argue that it is impossible to know the "will"
of the legislator ("will argument"). In what follows first I
distinguish some versions of this argument. An interesting one says that for
general epistemological reasons it is impossible to know the intentions of
the persons, who wrote the statute. This thesis will be discussed and
refused. Therefore the subjective theory is not wrong for this reason. On the
other hand the objective theory is right in so far as the interpretation of
statutes with reason does not confine itself to the description of what the
legislative persons meant. Hence I propose to distinguish the interpretation of statutes which tries to reveal the intentions
of their authors from the explication of their reasonable meaning which is to be considered as a further
development of law. If these two aspects of the explanation of statutes are
both called "interpretation of statutes" this term has two quite
different meanings. |
|
Christian Hiebaum (Graz) Zur
Unvermeidlichkeit von Zielsetzungen im juristischen Diskurs - Ein Argument
gegen Dworkin (Vol. 88, S. 86):
Dworkin makes a strict distinction between principles on the one hand and
policies on the other hand; arguments of policy, he holds, should be excluded
from legal discourse. I want to show that – although pragmatism as it
is described by Dworkin is not an available option for lawyers –
Dworkins own account of legal justification implies a concept of community
which is based not only on principles but also on arguments of policies.
Especially Dworkins concept of "equality of resources" seems to be
based on considerations of policy. This concept does not explain or justify,
but rather presupposes a preference for the market as a mechanism of
distribution. Finally, I will deal with a notorious problem of tort law which
cannot be solved adequately without explicit considerations of policy. |
|
Tatjana Hrnle (Mnchen) Menschenwrde
und Lebensschutz (Vol. 89, S.
318): The article discusses under which circumstances killing a human being
violates the victims right to dignity (the most important individual right
in the German Constitution, Art. 1 I GG). Recently, this provision is cited frequently to argue against
research using embryos in early stages of their development. After examining
traditional concepts of "human dignity", the author follows an
approach based on contractual ideas: "human dignity" is not an
ontological quality, but a matter of mutual agreement how people should be
treated. As far as killing is in question, the traditional Kantian formula
"not to be treated as a mere object" is not very helpful to
discriminate between deaths violating human dignity and those which do not
(for example, killing someone in selfdefense). Instead, the mutual promise
should be read as: do not sacrifice human life for utilitarian reasons. This
agreement about behaviour required by the notion of "human dignity"
does, however, not extend to unborn human life, but only to the born members
of the community. The "right to human dignity"-argument thus should
not be used with respect to embryos. |
|
Josef Hoffmann: Ernst Tugendhats
Theorie der Gerechtigkeit und die Begrndung eines Rechts auf ein Existenzminimum (Vol. 88, S. 495): Ernst Tugendhats moral theory
departs from the empirical interests and needs of the members of a
(non-traditionalist) moral community. The members of this community
reciprocally impose or grant themselves moral obligations and rights and
sanction the keeping of the moral rules with common emotions. The rules have
to be justified equally to all persons. The equal distribution, also of
rights and obligations, is the only just distribution as far as no contrary
reasons exist which would have to be given with respect to everybody. The
moral community is principally open to all humans. Consequently human rights
are mutually conferred as moral rights. They justify the exercise of state
power. In such a way not only negative liberty rights are justified but also
rights to protection and welfare which grant everybody an autonomous sphere
of development and well-being. To these positive rights belongs a right to a
certain subsistence level. The subsistence level ought to be sufficient so
that a person is able to look after her/his own rights and in this sense to
live in conditions fit for human beings. |
|
Thomas Sren Hoffmann (Bonn) Kant und
das Naturrechtsdenken (Vol. 87, S.
449): Kants philosophy of law is characterized by a clear break with the
traditional ways of thinking natural law. Nevertheless specific functions of
the idea of natural law such as unification and systematization of the
concept of law by grounding it on an a priori origin, correction of
historical contingency and arbitrariness in legislation in respect of a
supreme rational norm, enabling questions about "right law" to be
put by opening a "productive distance" to positive law etc., are
obviously preserved in Kants critical approach to the concept of law. It is
shown that the starting-point of philosophy of law according to Kant can only
be transcendental freedom as the primary "nature" of the legal
subject, that the "nature" of law itself consists in its
sense-autonomy in mediating the intellectual and the empirical world by
realizing freedom in the latter, and that "natural law" therefore
is nothing else than the concept of law conceived according to its
transcendental and self-realizing aspects. The study is based on systematical
interpretations of Kants critique of G. Hufeland, of his concept of an
unavoidable "antinomy of law", and of the normally overlooked
Kantian "table of categories of law" from the preliminary studies
to the Doctrine of Law. |
|
Hans-Rudolf Horn (Wiesbaden)
Dimensionen der Demokratiefhigkeit. Politik und rhetorische Rechtstheorie (Vol. 86/3): Policy in the democracy is a topic
both of political sciences and constitutional theory, which not only have the
same object, the development of the modern state, but also the same common
historical basic assumptions respresented by the ideas of thinkers as Hobbes,
Locke, Rousseau and Tocqueville which keep being discussed thoroughly in
recent publications, like in Hella Mandts book "Politik in der
Demokratie". What she describes in an impressive manner as the attitude
of "Antipolitik" as well in history as in the presence, has to do
with "Antirhetorik", which comes to the rejection of the
instruments of common sense. It seems that the rediscovered classical theory
of argumentation (topica) of Aristotle, which is the fundament of the
rhetorical legal theory, esteemed especially as appropiate for the
Anglo-Saxon Common Law, also may be useful for a political theory, based on
discussion, common sense and responsible government. |
|
Detlef Horster: Gibt es richtige moralische
Entscheidungen? (Vol. 90, Seite 226): We search an
answer to the following moral questions: Is abortion allowed or not? or Is
it allowed to use embryos for research or not? We want to find one clear
answer to our questions. Can we hope to find one? With reference to an answer
we know some different moral theories. A cognitive philosopher does not see a
difference between facts and values. He says that moral values are facts and
that there is a right answer to every moral question. In different theories
moral facts are established in intuition, in moral feeling or in common
sense. A non-cognitive philosopher denies this position. David McNaughton
said that cognitivism and non-cognitivism are our two best moral theories.
Both positions with some greater differentiations will be explained. |
|
Joachim Hruschka: Die wrde des
Menschen bei Kant (Vol. 88, S.
463): This article examines Kants philosophical foundation for human dignity
in his Metaphysics of Morals,
and ultimately argues that utilitarianism
reduces Kants concept of human dignity to "nonsense on stilts"
— to borrow Benthams terminology. The article begins with a passage in
the Doctrine of Virtue where
the "human being in the system of nature" is contrasted to the
"human being as a person." This distinction is the same as the
distinction between the homo phaenomenon (the human being as an appearance in
the physical world) and the homo noumenon (the human being as an intellectual
being). As a homo noumenon a human being is endowed with freedom through his
awareness of an unconditional ought. In addition he has a conscience and
moral sentiment, which are the subjective conditions for morally correct
behavior and necessary components of his freedom. They establish the
character of a human being as a person, from which human dignity —
value beyond any price — follows. Whereas Kant makes a convincing case
that a person is endowed with dignity, utilitarianism reduces the human being
to an animal being whose rights can be bartered and sold through balancing
costs and benefits. |
|
Mitsuyoshi Ikeda: Freiheit,
Determinismus und Verantwortung beim jungen G. Simmel (Vol. 90, Seite 237): This article tries to reconstruct and examine
the concept of freedom in Simmels early writings up to 1903. After considering
his relativization of the hypostatized concept of the free will and his
critical rethinking of the conventional images of will and action, we
direct our special attention to his argument that it is theoretical possible
to find the ethical concept of freedom which is able to legitimize the
imputation of responsibility on neither determinism nor indeterminism, on
neither imcompativilism nor compatibilism. His proposal is to reverse the
relation between freedom and responsibility and to interpret pragmatically or
teleologically both of them as a kind of indication of the efficiency of
social reactions. And further, it interests us that Simmel finds out that it
is in the practical dimension of
the interactions of the individuals for which the implicit knowledge of a
subtle proportion between predictability and unpredictability of the actions
of others is an absolute necessary, and so real precondition that we can
really speak of the freedom. |
|
Byron Kaldis (Athen) Moral Conflict and
the Idea of Order: On the Relationship between Ethics and Political
Philosophy (Vol. 88, S. 419): The
general theme of this paper is the connection between ethics and politics.
The discussion aims at renewing the debate over the status of such a relation
and the direction of the dependence between the two relata. As a contribution
to this, the particular thesis put forward and defended is a certain
historical and conceptual relationship between ethics and two distinct types
or paradigms of political philosophy. It is argued that the possibility to
discern such a dual relationship is afforded to us once it is viewed as the
combined effect of an analysis of the problem of moral conflict and the idea
of order. The crucial question is whether, and in what specific senses,
political-cum-legal philosophy considered as providing theories of social
order should assume the role of completing ethics otherwise left incomplete
by the inherent conflict of values. |
|
Andrs Karcsony (Budapest) Prozedurale
Rationalitt und die Mglichkeit der Gesellschaftskritik (Vol. 87, S. 97): One of the pivotal questions of
Habermas postmetaphysical analysis on the modern society is the
characterization of the procedural rationality. The procedural rationality,
as also emphasized by Habermas, is a formal rationality, which means that it
is neutral regarding its content. Consequently arises the following question:
how to reconcile this point of view supporting neutrality and the tradition
of the critical theory (School of Frankfurt) opposing the pathology of
modernity? According to the author it is just this "drescriptive theory
versus normative theory" that makes Habermas basic work concerning
philosophy of law (Faktizitt und Geltung, 1992) exciting. But the inspiring
strength of this tension is weakened by the fact that it remains in the
shadow of the "neutrality thesis" and thus the socio-cultural basic
conditions of the procedural rationality, i.e. all those things that can be
considered to be the normative infrastructure of a society, are less reflected. |
|
Lucian Kern: Ist das
liberale Paradox ein Gefangenen-Dilemma? (Vol. 90, Seite
309): Considering the Liberal Paradox, the thesis by Bernholz and Breyer is
discussed, which says that the Liberal Paradox (LP) is isomorphic to the
Prisoners Dilemma (PD). It is shown that the LP cannot be equivalent to
the GD on substantial grounds, since the PD implies a problem of social
cooperation in cases where non-cooperation is the players dominant
strategy, whereas the LP describes a problem of social conformity in cases
where non-conformity is the players dominant strategy. In addition, the role
played by the Liberal Paradox in the context of the German philosophical
debate on consequentialism is emphasized. Despite several attempts,
consequentialists have not provided a consequentialist solution to the LP
– and hence consequentialism fails because of its contradictoriness
with regard to the Paradox. |
|
Wolfgang Kersting (Kiel) Global Human
Rights, Peace and Cultural Difference. Huntinton and the Political Philosophy
of International Relations (Vol.
87, S. 193) : In 1989, the age of power political realism ended. The
conditions were set to replace the prevailing Hobbesian model of peace by
deterrence with the considerably more challenging Kantian model of peace by
right. But if Huntingtons paradigm of fighting civilizations is right we
would have to forget Kant and to remember Hobbes. Rationality, distrust,
striving for power accumulation and all the other instruments from the
realists tool box of political prudence are very well suited to facilitate
political self-assertion in an age of violently clashing cultures. But this
helplessness is not well-grounded. Considering that from the very beginning
liberalism is a theory of religious and ethical pluralism and
well-experienced in dealing with problems of multiculturalism, it is at least
possible to argue for a weak liberal universalism which provides normative
foundations for a global order of peacefully living together. Of course,
conceptual and moral modesty is crucial. If the human rights doctrine wants
to defend its universal claim in the face of cultural diversity, and this
always means: in face of culturally different interpretations of a good, true
and perfect human life, it has to restrict itself to the conditions of esse, the pre-cultural and sheer natural conditions of
human being and human coexistence. However, the formulation of the conditions
of bene esse, however, which enable human flourishing, let
persons thrive and furnish human living with sense and significance, has to
be left to culture and its authorities and belief systems which buttress
cultural sense constitution both theologically and metaphysically. The
traditional natural rights theory knew that both have to go together and that
the esse-enabling duties
necessarily enjoy priority. No cultural conception of thriving life and
existential significance can be accepted which contradicts the fundamental
imperatives and conditions of pure human existence and coexistence. |
|
Matthias Klatt, Semantic Normativity
and the Objectivity of Legal Argumentation (Vol. 90, S. 51): With regard to its importance, Jrgen Habermas
compared Robert Brandoms Making It Explicit with A Theory of Justice.This
paper investigates the significance of Brandoms philosophy of meaning to
legal interpretation. The focus of attention is whether the meaning of a norm
can constrain legal interpretation.--- The questions of the determinacy and
the objectivity of law are at issue. Both debates are dealt with by arguments
from the philosophy of meaning. Because of the open texture of law and
because of the vagueness of language, which is one of the burdens of
judgement, judges have discretion in the application of law. The topic here
is, whether and to what extent the meaning of the norm can serve to reduce
this discretion. Both the legitimacy and the objectivity of judicial
decisions depend on this. |
|
Wislaw Lang: The Personal Dimension of
the Legal System (Vol. 88, S.
519): The object of this paper is the analysis of the personal dimension of
the legal system. This dimension constitutes the subjects which the norms
belonging to a legal system concern. Speaking about binding law or law in
force we have in mind the legal norms creating duties, rights or
responsabilities of the beings defined as legal subjects. Legal subject is
the notion intrinsic to the very idea of law and legal order. In the legal
codes and legal doctrine two types of legal subjecthood has been developed,
namely the passive and the active legal subjecthood. The subjects endowed
with active legal subjecthood are legal agents. No legal system can operate
in practice without legal agents. The personal dimension of the legal system
is defined by rules or principles contained in the legal system. These are
the primary and secondary rules of legal systems. Primary rules indicate
legal subjects by using such terms as "everybody", "man",
"Citizen", "debtor", "creditor",
"plaintiff", "defendant". The secondary rules define the
territorial scope of municipal law and jurisdiction. Only the people living
on the territory of the state are subject (with some exceptions) to law and
jurisdiction of this state. So these rules limit the scope of the personal
dimension of the legal system. The territorial dimension of the legal system
forms its personal dimension of the second order. The human person as the
legal subject is the key constituent of every legal system. In legal
documents and legal doctrine it is called physical person or person before
law. The position of this constituent might be different in various legal
systems depending upon the types and the structure of the legal order. With
regard to the personal dimension I have distinguished several structural
models and types of legal systems. I focus my analysis on the personal
dimension of contemporary legal systems linked with the souvereign states
under the authority of law and on the personal dimension of public
international law (linked with the international community). I find that in
these types of legal orders the personal dimension of the legal system and
the status of the human person (as legal subject) have a growing impact upon
the structure and composition of the legal order. That seems to be a new
phenomenon requring a careful and comprehensive consideration. |
|
Katja Langenbucher (Mnchen/Marburg)
Das Dezisionismusargument in der deutschen und in der US-amerikanischen
Rechtstheorie (Vol. 88, S. 398):
The thesis of legal indeterminacy is one of the challenges every legal
theorist has to respond to. This article deals with one form of this thesis:
The argument that legal decision making is inherently discretionary and that
discretion is no more than an act of pure willful power (Dezisionismusargument). As to the recurrent use of this argument, the
article shows a surprising similarity between the German legal theorist Carl
Schmitt and the American Legal Realists as well as the Critical Legal Studies
Movement. The article then distinguishes two versions of the argument: a
strong and a weak version. The strong version, arguing that every legal
decision is necessarily an arbitrary exercise of power, is found to be
flawed. The weak version, arguing that every legal decision allows for
elements of pure willfulness, is found to be convincing. It is noted,
however, that even if no legal system can exclude elements of willfulness,
they are still not an inherently necessary component of a legal decision. |
|
Massimo La Torre (Catanzaro) Toleranz
als nicht-relatives Rechtsausbungsprinzip. Eine "diskursive"
Annherung (Vol. 86, S. 351): The
objective of the article is to object two usual arguments made with reference
to the notion of toleration: a first which opposes legal rights to a merely
moral concept of toleration which would thus be overcome and rendered more or
less irrelevant through law; a second by which a firm ground is believed to
be offered to toleration through a relativist metaethics or a general
skeptical stance on values. The main point is to show how much toleration is
still of purpose within or after the law and how much it also in need of
justification, which of course could not be offered by any antinormativist or
anti-justificatory strategy. To this purpose the distinction between a
discourse of justification and a discourse of application of norms is taken
into account. |
|
Burkhard Liebsch: Sinn fr
Ungerechtigkeit und Perspektiven institutionalisierter Gerechtigkeit im
"globalen" Horizont (Vol.
89, S. 497): This essay describes the sense for injustice as a necessary
prerequisite for any attempt to clarify the sense of justice. The author
maintains that the intimate interrelatedness between the sense of injustice
on the one hand and conceptions of justice on the other hand is also relevant
in a "global" perspective. Search for justice in a global
perspective is and should be inspired by a vivid sense for global injustice
which, however, also threatens the concrete realization and
institutionalization of justice by excessive demands. The longing for
"global" justice can not, however, dispense with these demands,
because the sense of justice must be the answer to a – potentially
world-wide – sense for injustice, whatever its legitimate claims may
be. |
|
Hans Lindahl, Tilburg (The Netherlands): Inside and
Outside the EUs Area of Freedom, Security and Justice: Reflexive Identity
and the Unity of Legal Space (Vol. 90,
S. 478) It is essential, Hans Kelsen asserts provocatively,
that one state also have one territory, that the territory of a state form a
unity. What, then, determines the territorial unity a legal community necessarily
claims for itself? And why is this claim to territorial unity irreducibly
problematic? These questions are particularly pressing, both theoretically
and practically, with respect to the European Unions Area of Freedom,
Security and Justice, set to be consolidated in the novel Constitution for
Europe. Rejecting any attempt to make sense of legal space in terms of
geography, this Paper argues that the spatial unity of the European Union
emerges in the reflexive process by which this legal community stakes out a
territory as its own. Probing the notion of an own legal space, this Paper
points to, and offers examples of, a strong form of exteriority that is
inside what the EU calls its own territory: another Europe is –
literally – elsewhere. This strong form of exteriority arises in the
very same representational process by which the EU constitutes itself as a
unitary Area of Freedom, Security and Justice. In effect, an analysis of key
legal texts reveals that Europe is the place the Union claims to be
originally its own, yet also the place to which it has no direct access.
Finally, these considerations are brought to bear on Article 64 (1) of the EC
Treaty, which holds Member States responsible for maintaining law and order
and safeguarding internal security. |
|
Juliano S. A. Maranhao (Sao Paulo) Von
Wrights Sceptic Turn on the Logic of Norms and the Problem of Gaps in
Normative Systems (Vol. 88, S.
216): The paper discusses von Wrights late approach to deontic logic and
criticises its treatment of gaps, arguing that a standard of completeness
related to the presence (absence) of gaps in legal orders should be
postulated in the rational judgement of norm giving activity. |
|
Reinhard Mehring (Berlin) Max Weber und
die deutsche politische Philosophie
(Vol. 87, S. 31): Die Erwartung ist heute verbreitet, da eine Rekonstruktion
der politischen Philosophie an Max Weber anknpfen kann. Die Studie zeigt
zunchst, wie Weber die Grundfrage politischer Philosophie nach den
Mglichkeiten und Bedingungen gemeinschaftlich "guten" Lebens
philosophisch stellte und sozialwissenschaftlich zu beantworten suchte. Sie
errtert mit Karl Jaspers und Martin Heidegger dann zwei sehr verschiedene
Antworten auf Weber als zwei Wege deutscher politischer Philosophie im 20.
Jahrhundert. Anders als Heideggers kollektivistische Antwort scheint nur
Jaspers individualistischer Ansatz gangbar, weil nur er das Individuum als
das entscheidende moralisch-politische Subjekt der Politik adquat anerkennt
und berechtigt. Max Weber seems for many scholars to provide a viable basis
for the reconstruction of political philosopy. My paper points out Webers
philosophical framework in positioning the fundamental question of political
philosophy regarding the theoretical possibility of and the practical
conditions for a common "good" life as well as his answers through
the use of social science. I read Karl Jaspers and Martin Heideggers
political philosophy as two very different reactions to Webers crucial work,
providing themselves two main-streans of German political philosophy in the
20th century. Rejecting Heideggers collectivism this paper favours Jaspers
individualist approach, since he regards the individual moral-political
subject as fundamental analytical unit and the adequate starting point for
contemporary political philosophy. |
|
Lutz Meinken (Hamburg)
Staatslegitimation durch Autorisierung (Vol. 86, S. 455): The concept of authorization is central to Hobbes
political theory as he presents it in Leviathan: It forms the core of the covenant by which
sovereignity is created. In addition it marks a historical change in theory;
neither in De Cive nor in Elements
of Law Hobbes makes use of the
concept. The paper analyzes the concept of authorization in terms of Hohfelds
theory of rights. It argues that (1) authorization has to be analyzed as a
transfer of powers, not as a transfer of liberties (rights in Hobbes
terms); (2) the theory thus avoids the serious problems of the earlier
versions in De Cive and Elements
of Law; (3) analyzing the concept
of authorization in this way does not necessarily lead to liberal
consequences inconsistent with Hobbes political thinking. |
|
Jean-Christophe Merle (Tbingen) Mill
ber die Nation und die heutige Debatte ber die Globalisierung (Vol. 88, S. 178): Many political philosophers
today invoke John Stuart Mill to support their view that free democratic
countries necessarily presuppose a common language, because a common language
is allegedly the conditio sine qua non for any common public opinion or public
debate. In opposition to this view, this article emphasizes that Mills
definition of a nation is not substantial, but purely political. According to
Mill, a free and liberal state can be multinational. The vicious circle
denounced by the opponents of globalization, according to which common
institutions on the one hand and a common public opinion, debate, and a
shared solidarity on the other hand, presuppose one another, is contradicted
by Mills analysis that views states, nations, shared solidarity, a common
public opinion and a common public debate as emerging from necessity, i.e.
from problems that are faced together and that must be solved together. The
continentalization and globalization of political institutions appear as but
variations on nation building by continuing it on grander scale. |
|
Thomas Mertens, Nijmegen : Hegel and
the End of Europe (Vol. 89, S.
38): The issue of Europes identity often arises in discussions on the nature
and future of the European Union. This paper presents Hegels conception of
Europe and in the mirror of this philosophy, it is suggested, Europes early
19th century understanding of its place in the world. When discussing Hegel,
particular attention will be given to the final section of the Philosophy
of Right, the often, but unjustly,
neglected concluding paragraphs concerning "World History". Having
outlined the structure of the rational state earlier in his work Hegel, in
this section, emphasises the significance of this states development. In
order to understand this fully, I consider it necessary to examine the way
Hegel contrasts Europe and the other continents, in his Lectures on the
Philosophy of History. I will pay
particular attention to the chapter on the "Geographical Basis of World
History." The result is a rather clear image of Europes superiority.
Since Europe derives its identity here by emphasising its superiority over
other continents and non-Europeans, Hegels idea of Europe as the absolute
West can no longer be upheld. |
|
Claudio Michelon (Porto Alegre) The
Jutification of Authority and the Insulation of Formal Reasons (Vol. 88, S. 51): The article is a partial defense
of a non-exclusionary conception of legal and, more generally, formal
reasoning. In this article, the author is concerned in showing that the most
relevant attempt to insulate formal from substantive reasons fails, to wit:
Razs justification for legal rules being regarded as exclusionary reasons.
The first section, however, tries to do justice to Razs account of
exclusionary reasons, by providing a conceptual frame form which Razs
justification for an insulation between legal and general moral reasons is
thought to be particularly strong. The difference between reasons for
action and reasons for deciding, which is introduced there, provides just
this conceptual frame. In the second section Razs argument is said to fail
on his own terms to justify insulation, although his normal justification
thesis might be said not to be false. Indeed the author claims it is a
tautology, from which no conclusion about legal reasons being exclusionary
reasons follow. Finally the author advances a substantive conception of
formal reasons, which explains formal reasons special status without
implying insulation between formal and substantive reasons. |
|
Martino Mona:
Rechtsphilosophische Analyse der Entgeltlichkeit und Vertragsfreiheit in der
Nierenspende – Verwerflicher Organhandel oder legitimes
Anreizinstrument? (Vol. 90, Seite 355): The lack of
available human organs for transplantation causes much suffering and death of
patients waiting for a badly needed transplant. Instead of giving urgent
consideraton to any option that may make up for this shortfall, lawmakers
usually fail to lead a reasoned debate concerning alternative strategies especially
when it comes to financial incentives and a market in organs. This is largely
due to the fact that the real issues are obscured and the arguments are
distored by a feeling of revulsion against the selling and buying of organs.
The first objective of this paper focusing on transplantation of kidneys from
living donors is to clarify the structure of the debate. Underlying motives
are discerned and adequate weight is given to moral indignation and the
feeling of repugnance. The most widely used arguments against financial
incentives for the donation of kidneys – such as hight risk, danger of
slippery slope and exploitation – are then examined and refuted. These
fallacious arguments are inadequate attempts to justify the initial revulsion
against kidney commerce. Indignation and feelings of revulsion not supported
by conclusive arguments cannot justify the prohibition of financial
incentives. |
|
Toru Mori (Tsukuba) Die staatliche
Willensbildung in der differenzierten Gesellschaft (Vol. 86, S. 185) : Hermann Hellers and Jrgen
Habermas theories of democracy seem to have difficulties in explaining the
relationship between the independence of representatives from the people and
popular sovereignty. However, it may be that their theories show the true
difficulty of the problem of how to establish a democratic government in our
pluralistic society. Heller embraced the concept of volont gnrale in light
of the fragmentation of German society in the Weimar era. Habermas concept
of "communicative power" is more realistic for todays society.
Habermas also describes the mechanism of how the public opinion influences
the legislative process in the parliament which is lacking in Hellers
theory. However, the structuralistic link between inside and outside of the
parliament Habermas supports could weaken the normative power of public
opinion which Heller emphasizes. In democratic legislation, the discussions
in the public sphere must always influence those of politicians. The
proposals to reform the system of representative democracy should also be
evaluated from the viewpoint of how much they can strengthen the influence of
communicative power arising from liberal discourse. |
|
Toru Mori: Plurality in "Acting in
Concert" (Vol. 89, S. 538):
This article tries to identify the contemporary meaning of Hannah Arendts
theory of political power, which is criticized by Jrgen Habermas as too
old-fashoned and is almost ignored by the postmodern interpretation which
pays attention to her agonistic character. First, Arendt does not presuppose
the modern sovereign state because we should not forget that it was born only
by suppressing the revolutionary trial to constitute the republics from the
bottom. Secondly, Arendt is conscious that the equality and fairness of the
political discourse could be kept only artificially, by law which defends it
from social and economic influences. These viewpoints give us the possibility
to revise the Habermasian "realism," although we should be careful
not to ignore the modern inevitable conditions which make it impossible to
realize her ideal completely. Thirdly, the agonistic action of citizens is,
in her theory, consistent with the power-making of associated people. This is
her important contribution to the theory of democracy which both Habermas and
his critics do not recognize properly. |
|
Elio Morselli (Perugia) Vergeltung
– eine tiefenpsychologische Kategorie der Strafe?: Der vorliegende Beitrag gibt einen Vortrag wieder,
den Miguel Reale am 6. November 1995 im "Salo Nobre" der
Rechtsfakultt von So Paulo zur Erffnung der Jahrestagung der
Deutsch-Brasilianischen Juristenvereinigung gehalten hat. Die Nachschrift,
bersetzung und deutsche Bearbeitung des in freier Rede gehaltenen Vortrags
besorgte Wolf Paul, Professor fr Rechtstheorie, Rechtsmethodologie und
Rechtsvergleichung an der Johann Wolfgang Goethe-Universitt in Frankfurt am
Main. |
|
Andreas Mosbacher: Kants prventive Straftheorie (Vol. 90, Seite 210): After a short clarification
of the concept of punishment and an outline of the problems, I will show that
Kants idea of retribution as the exclusive justification of punishment
originates from a moral-theological position and can only have legitimacy in
such discussions. Subsequently, I will show that Kant gives no convincing
arguments for an absolute theory of punishment but provides good grounds for
why justification based on deterrence alone cannot be sufficient. The
resulting dilemma of the justification of punishment and several of the
solution attempts form the starting point for the reconstruction of Kants
liberal theory of punishment. It will be shown that punishment as state
coercion is given a teleological justification by Kant on account of its
purpose of deterring crime. In any case arising questions of justice
establish the absolute in his theory of punishment. |
|
Marcelo Nevel (Flensburg) Gerechtigkeit
und Differenz in einer komplexen Weltgesellschaft (Vol. 88, S. 323): The article deals with
"Justice and Difference in a Complex World Society". The author
develops the idea that (the universality of) justice affirms itself as long
as it is sensitive to differences: justice as complex equality is achievable
only if it considers the diversity of values, interests and expectations of
individuals and groups, as well as the heterogeneity of discourses and
spheres of communication. First the author discusses the concept of justice
as a normative model of equal/unequal treatment. Based on this concept of
justice as equality, he seeks to demonstrate how the universalism inherent to
it is reconciled with the diversity of values, interests and expectations
found in contemporary global society. Next, he approaches justice as complex
equality, considering its variation according to the play of language
(discourse) or the sphere of communications (system) to which the
equal/unequal treatment refers. He then focuses on the democratic
constitutional state as a procedural model for the realisation of justice in
todays world society. Finally, the article considers the negative impact of
two factors on the democratic constitutional state: ethnic intolerance and
religious fundamentalism, on the one hand, and the expansion of the economy,
on the other, discussing critically global institutional alternatives to it. |
|
Julian Nida-Rmelin, Mnchen: Warum Entscheidungen
notwendig frei sind (Vol. 90, S. 498) What entity is a decision? Three things seem to be
essential: – a decision marks the end of deliberation
( 1) – before the decision is taken, its
content is not determined ( 2) – a decision taken is realized by actions
( 3). This provokes two questions: What is the relevance of
knowledge ( 4) and of causality ( 5) for the freedom of decision? With
this article I try to show by conceptual and philosophical means that and why
decisions are necessarily free. |
|
Soraya Nour:
Weltffentlichkeit als vlkerrechtliche Kategorie: normative Konstruktion und
Widersprche (Vol. 90, Seite 391): Most normative
theories see the legitimacy of international law as grounded in universal
values accepted by a global public sphere. This reconstructs the theoretical
discussion on this concept in the pacifist movement, in so-called utopian
idealism, in realist criticism and, finally, in contemporary normativism.
Furthermore, it analyses more closely how the idea of a global public sphere
is related to Immanuel Kants principle of publicity. Jrgen Habermas, in
particular, presents his concept of a global public sphere, as well as an
European one, with reference to Kant.
The results demonstrate the limits of normative thought on this
subject and provide a theoretical framework for a methodological approach to
international law which focuses on conflicts and contradictions in the
international sphere. |
|
Konrad Obermann (Berlin) Rawlssche
Gerechtigkeitstheorie und die Rationierung medizinischer Leistungen –
kann ein theoretisches Konzept in der Praxis angewandt werden? (Vol. 86, S. 412): Increasing pressure on health
care resources leads to intensified discussions about the rationing of
medical care. Such rationing cannot be avoided and contributions from
medicine, economics and (political) philosophy are needed in order to develop
a sensible and acceptable approach. How can the dilemma of justified claims
competing for scarce resources be faced? How can a philosophical and moral
theory be transformed into an applicable distribution algorithm? This article
deals with John Rawls theory of justice and its extension to health care by
Norman Daniels. Their notions of "fair equality of opportunity" and
"prudential life planning" are based on the idea of a social
contract. These concepts are scrutinised with respect to their applicability
in clinical practice. Their use for allocating organs in transplantation
medicine and defining the limits of therapy for chronic-progressive diseases are
discussed in depth. It is concluded that moral theories alone are not
sufficient to determine the amount of care that society should grant its
members. Some form of discussion and public participation is needed to
quantify and substantiate an individuals health care claims towards public
funds. Rationing is a political task that requires fair procedures as well as
theoretical concepts for decisions on moral dilemmas. |
|
Daniel Oliver-Lalana (Zaragoza) Die
kommunikative Bedingtheit des Rechts
(Vol. 87, S. 542): This article aims at demonstrating that legal publicity
(in form of promulgation or publication) is required by the very concept of
law, which implies that an unpublished norm cannot be defined as law. On the
conceptual (analytical and normative) level, this requirement stems from a
twofold criterion based on legality (Legalitt) and correctness or justifiability (Begrndbarkeit). According to the first, every secret norm has to
be specifically recognized by an authorizing-norm which belongs to the valid
legal system. Plainly speaking: non-authorized secrets may not be conceived
as law. But as an analytical criterion, it is not strong enough to range
legal systems which may be intuitively perceived as being quite different
from each other. This lead us to strengthen this criterion by means of a weak
normative criterion. We may sum it up as follows: for secret norms to be
defined as law, it should be possible to ground them. Furthermore, secret
norms can be grounded only if a rational participant in the legal system can justify their authorizing
norm. Under these conditions, extremely unjust law cannot be justified.
Therefore, in the last analysis, a secret norm which has not been legally
authorized and whose authorization is not capable to be rationally justified,
because of covering extremely unjust law, cannot be conceived as law. |
|
Andrs Ollero (Madrid) "Rawls
politischer Liberalismus", Moral und Recht (Vol. 88, S. 269): The author discusses John
Rawls ideas on "public reason" to establish an analysis of the
problems that arise in the relations between private and public ethics. He
considers that the requirements of public reason, included in political
justice, are law, independent of the degree of "positivation"
obtained. His point of departhe separation of law and morality (in different
"comprehensive" versions) and he concludes that only a judgment
founded on morals can contribute to a demarcation between the two. Religious
elements that shape his moral opinion bring about peculiar problems, which
require a revision confessional or laicist approaches. |
|
Robert Chr. Van Ooyen
(Lbeck/Duisburg), Staatliche, Quasi-staatliche und nichtstaatliche
Verfolgung? Hegels und Hobbes Begriff des Politischen in den
Asyl-Entscheidungen des Bundesverfassungsgerichts (Vo.. 89, S. 387): The German federal
constitutional court as ever defines the constitutional right of asylum for
political refugees only in the case of political persecution by the authority
of the state. That means not only an — unrealistic — interpretation
against the wording of Art. 16a Grundgesetz. It is above all a typical point
of view in the tradition of German constitutional theory, which has been
formed by the political theory of Hegel and Hobbes. Their divinization of the
sovereign political power as a form of "politische Theologie" is
therefore still to be found even in the liberal constitutional theory —
starting from Georg Jellineks "Staatslehre" in the beginning of
the 20th century until the constitutional courts recent judgements. This etatism
is an antipluralistic understanding of society. It lets the problem of
political power disappear by declaring it as "private". As long as
this theoretical concept continues, there will be neither political asylum
for refugees who are "only" persecuted by warlords in civil wars
nor for women who are politically suppressed because of their sex. |
|
Raimund Ottow (Berlin) Die Lehre von
den Korporationen in der Rechtsphilosophie Hegels und ihre Fortschreibung
durch Eduard Gans als Beitrag zur Frage der Zivilgesellschaft (Vol. 87, S. 468): Starting from the assumption,
that Hegels legal philosophy is based on the need to articulate modern civil
society as the realm of particularity on one hand, and the state as the
concrete form of moral generality (allgemeine Sittlichkeit) on the other,
the essay analyses how Hegel achieves this goal by the corporations. Here
corporations embrace particularity from below, and generality from above,
and function as integrating links between civil society and the state. There
are, however, certain ambiguities the way Hegel handles this issue; these
problems have been pointed out in particular by Hegels successor Eduard
Gans, who created a more modern concept of corporatism. |
|
Marian Pavcnik (Ljubljana) Bewhrung
von Recht in gesellschaftlichen Umbrchen (Vol. 86, S. 553): With the fall of the Berlin Wall questions about
law and the nature thereof have been raised again. A legal positivist is
productive under the condition that he exposes positive law as it really is.
A natural law lawyer is productive under the condition that his construction
is based on a firm historical tradition. For him the world we live in is a
world of basic (human) rights, of principles, of a state under the rule of
law and of democratic institutions. A supporter of the synthetic view of law
is productive under the condition that he widens legal horizons so as to
encompass all elements giving meaning to the lawyers action in each specific
case. A participants (e.g. a judges) approach inevitably differs from an
observers one. It is in the nature of his work that he can be neither solely
a legal positivist nor only a natural law lawyer. If he wants to make
decisions, his approach is inevitably an integral (synthetic) one
encompassing life cases, formal legal sources and a firm system of values. No
legal system exists that could not be abused or that would a priori safeguard the lawyer from abuse. The only
alternative, however, is not to accept this situation but to be constantly
aware of the danger and to be adequately prepared. Legal correctness (Germ. Richtigkeit) is a primary and necessary element of law. The
argument of unlawfulness (Germ. Unrecht) is not just a moral argument, but also a legal one if the content of
positive law is extremely intolerable. The argument of legal security
requires that one has to react legally in cases of unlawful law |
|
Georg Pavlakos (Edinburgh) ber
"die Interpretation" in der Reinen Rechtslehre (Vol. 87, S. 554): One of the most problematic
assumptions in Kelsens analysis of norms is the claim that there is no way
to know whether a norm is right or wrong, but only whether it is valid or
not. This essay tracks down the origins of this assumption to the Weberian
ideal for a value-free social science, while it attempts to draw some
parallels to the more developed positions of another philosophical tradition
that is interested in establishing value-free knowledge (the so-called Critical
Rationalism). To the extent that
the comparison is meaningful, it sheds light upon Kelsens endeavour to
present legal norms as the objects of cognition of the legal science in a
manner that follows the example of exact science. The main ramifications of
this effort are discussed in the example of the Grundnorm and the theory of legal interpretation, both
integral parts of Kelsens theory. The essay concludes by offering a rough
sketch of the arguments that support an evaluative account of legal norms. |
|
Josef Pechtl (Aschaffenburg) "Die
wahre Verantwortung eines Missetters kann nicht mit Bestimmtheit
festgestellt werden". Vor gut vierzig Jahren erschienen: Albert Camus
Betrachtungen zur Todesstrafe
(Vol. 86, S. 251): Over 40 years ago, the Nobel Prize Winner Albert Camus
published "Rflexions Sur La Guillotine". With a view to the USA you
have to state that Camus fight against death penalty is still a topical
problem. The following essay intends to contribute to the dialogue between
lawyers and ethicists. The essay is based on Camus work. It wants to make
clear that the attitude of advocating death penalty and advocating an
enlightened law system is incompatible. On the contrary: At the end of the
century capital punishment is a threat to the democratic open society.
– The essay argues that capital punishment is inadmissible from the point
of view of jurisdiction as well as ethics. It reveals the implicitly
ideological preferences of the advocats of death penalty in order to focus
the reasoning on the social and political implication for the future. |
|
Ulrich Penski: Der Zweck
des Rechts ist das Recht (Vol. 90, Seite 406): Law and legal
norms are seen with reference to purposes. The relation between law as well
as legal norms and purposes cannot be understood as a mere
means-pupose-relation. The obligatory character of law rather requires that
this connection be accepted in a deontological sense. The purposes are
subject-matter of law and legal norms and are put, by them, in a relation to
each other with reference to a fundamental and necessary purpose. This
fundamental purpose is the concept of law in the sense of consistency of
freedom of all participants of law. Legal teleology is finally deontology. |
|
Maria Chiara Pievatolo (Pisa): Lie or
Utopia? The Problem of the Subjet in two Contemporary Liberal Theories (Vol. 86, S. 70): The problem of the good and the
problem of justice are a core question of moral, political and legal
philosophy. But whose good are we speaking about? And whose right are we
dealing with? The aim of this work is to show that it could be useful to read
some moral and legal questions from the point of view of the identification
of the moral subject. This problem can be viewed either as a theoretical
question or as a practical one. The former opinion implies that metaphysics
establishes who is the moral subject and ethics must take it for granted: but
what should we do if an outsider claims to be recognised as a moral subject?
The latter opinion implies that ethics should be simply an open net of rules,
whose subject is whoever can be a free and responsible agent: but who are we
to apply these rules to? Indeed, the former opinion grants us a strong
definition of moral subject; on the contrary the latter one gives us only a
weak definition of it. However, a weak definition is open to new claims and
criticisms, because it implies the awareness that a fixed definition of the
moral subject can never be taken for granted. On the contrary, a strong
metaphysical definition implies an exclusive and unchanging worldview and
grants us no concept to understand and handle novelty. |
|
Ralf Poscher, Berlin: Wahrheit und
Recht. Die Wahrheitsfragen des Rechts im Lichte deflationrer
Wahrheitstheorie (Vol. 89, S. 200): In
law there is great uncertainty about the concept of truth. Can legal
propositions be true? Can statements about the law be true? What does
uncertainty over the concept of truth in law mean for the relation of truth
and law? These uncertainties about truth even affect the scientific
self-conscientiousness of legal scholarship. Can law be a science, if its
relation to truth is uncertain? The two classical approaches in jurisprudence
are based on the one side on the correspondence theory of truth and on the
other side on different variations on epistemic conceptions of truth. Both
approaches lead to theoretical difficulties, which make them problematic
bases for an answer to the questions of truth and law. An approach which has
so far not been evaluated in the domain of law can be found in the
deflationary theory of truth, which is the most discussed development in the
general philosophical debate on truth. This approach avoids the problems of
the traditional approaches to truth. The deflationary theory of truth enables
us to rephrase the questions of traditional approaches to the relation of
truth and law as more specific questions about richer concepts, which enable
more precise and differentiating answers. As a result, the deflationary
approach to truth and law allows an unpretentious use of the notion of truth
in law. |
|
Birger P. Priddat (Witten)
Nonkonformitt und ffentlichkeit (Vog.
86, S. 518): Mills theory of liberty and his theory of utilitarism are two
sides of the same medal. Primarily Mills theory of liberty is a theory of an
excentric civil man, needing tolerance in the public domain, to create the
public opinion. The core of his theory of liberty is a theory of public
communications, combined with a theory of non-conformism, based on strong
virtues. Dandies, men of virtues, and the experts of public communications
are able to handel the radical theory of social evaluation of utility: the
utilitarism. Utilitaristic thinking was the very modern moral philosophy of
his time, criticizing conventions and traditions by asking for social
utilities. Mills utilitarism is not completed without his theory of liberty.
And without utilitarism the theory of liberty is only a theory of private
liberties. Both are integrated by the theory of public communications. |
|
Wiltrud Christine Radau und Bernhard
Losch (Wuppertal) Biomedizinische Humanexperimente mit Einwilligungsunfhigen (Vol. 86, S. 423): The two-years "Doctors
Trial" (1946 – 1947) of Nazi doctors was finished for more than 50
years and the afterwards established Nrnberger Kodex of medical research is
still of great importance. But on the occasion of the European Convention on
Human Rights and Biomedicine from April 1997 a new intensive discussion about
the permissibility and limits of medical research on human beings has
started. The main intention of medical science is an improvement of
diagnostic and therapeutic techniques. For that reason human beings are
inevitable objects in the field of medical research. Therefore particularly
ethical and legal problems are resulting. |
|
Miguel Reale (So Paulo) Deutsches
Rechtsdenken an der Rechtsfakultt von So Paulo (Vol. 87, S. 245): Der vorliegende Beitrag gibt
einen Vortrag wieder, den Miguel Reale am 6. November 1995 im "Salo
Nobre" der Rechtsfakultt von So Paulo zur Erffnung der Jahrestagung
der Deutsch-Brasilianischen Juristenvereinigung gehalten hat. Die
Nachschrift, bersetzung und deutsche Bearbeitung des in freier Rede
gehaltenen Vortrags besorgte Wolf Paul, Professor fr Rechtstheorie,
Rechtsmethodologie und Rechtsvergleichung an der Johann Wolfgang
Goethe-Universitt in Frankfurt am Main. |
|
Joachim Renzikowski ( Halle) Normentheorie
als Brcke zwischen Strafrechtsdogmatik und Allgemeiner Rechtslehre (Vol. 87, S. 110): In German criminal law science
the term "Normentheorie" (theory of norms) is associated with Karl
Binding. Binding founded his system of criminal law on the differentiation
between primary rules of conduct, adressed to citizens, and secundary rules
of sanctions, adressed to court of law. Andreas Hoyer follows with his
seminal book about "Strafrechtsdogmatik nach Armin Kaufmann. Lebendiges
und Totes in Armin Kaufmanns Normentheorie" this tradition of legal
philosophy. Simultaneously he breaks with the conventional dualistic concept
of norms accepting only rules of sanctions. Moreover his concept of
"alethic norms" banishes the terms "duty" and
"right" from jurisprudence. Therefore he explaines crime along the
lines of purchase order ("robbery costs five years") and uses it as
a basis for a new system of criminal law. The main objection against Hoyer is
the difficulty of drawing a distinction between taxation and punishment.
Hoyer also neglects the function of law to provide orientation independent
from sanctions. He ignores that the penal law code is an accessory law code:
Penal laws threaten those who break the rules of the community with
punishment – and therefore presuppose these rules and do not create
them. Finally looking at the victim of a crime shows that he/she would hardly
agree with a contract disadvantaging him/her. |
|
Martin Rhonheimer (Rom/Zrich) Autoritas
non veritas facit legem:
Thomas Hobbes, Carl Schmitt und die Idee des Verfassungsstaates (Vol. 86, S. 484): In the first place, Hobbes
sentence "Autoritas non veritas facit legem" expresses the rather
trivial idea that positive law is juridically valid not by its content, but
rather on the grounds of the public authority standing behind it. The
sentence, however, also contains a political-pragmatic theory of truth which
asserts that what is established by public authority in the form of positive
law is the only form of politically relevant "truth". So, it is to
be given precedence over opinions and truth-claims on moral, religious,
juridical and political issues held by jurists, clerks, university teachers,
politicians, etc. Inducing such "private" truths against what
public authority decrees, is, according to Hobbes, politically disruptive and
therefore a menace for social peace and political stability. Thus, the famous
sentence reveals itself as a genuine expression of Hobbes theory of
sovereignty, which is a predominantly juridical theory, that tries –
paradoxically, so it seems – to found juridical positivism on a theory
of natural right. Simultaneously however, the sentence reveals the intrinsic
problems and inconsistencies of this political theory. It was precisely Carl
Schmitt, misreading Hobbes by neglecting his theory of rights and of natural
law, who reinterpreted Hobbes sentence in the way of pure, normatively
unfettered political decisionism. But Schmitt, although being unfaithful to
the historical Hobbes, develops a possible reinterpretation of his theory of
sovereignty and law in the context of 20th century social and political
realities. So, Schmitts reinterpretation may also have a therapeutic value
in the sense of being helpful for detecting the inner problems of the
Hobbesian approach. Finally, and most importantly, a closer examination of
Hobbes sentence in the light of English common law jurists, against whom it
was originally addressed as a criticism, shows that Hobbes profoundly
misunderstood the idea of English common law as a public institution. It was
precisely this latter tradition to formulate a proper and successful
alternative to Hobbesian thinking: the idea of the constitutional state. |
|
Jorge Luis Rodriguez (Buenos Aires):
Axiological Gaps and Normative Relevance (Vol. 86, S. 151): Logical and axiological problems are usually
confused in the analysis of legal systems and the traditional discussion
about their completeness or incompleteness is one of the main topics where
this confusion is revealed. The logical question of incompleteness should be
clearly distinguished from axiological inadequacies in the promulgation of
norms. This view was stressed by 1971 Alchourrn and Bulygins definitions of
normative and axiological gap. The main purpose of this paper is to refine
the notion of axiological gap by taking into account some ambiguities
generated by the different senses in which normative relevance can be
understood. Two descriptive notions of normative irrelevance will be
presented in analogy with the positive and negative descriptive concepts of
permission. Both distinctions rely on a similar basis and have the same
consequences in relation with the ideals of consistency and completeness.
Furthermore, the different notions of normative irrelevance here suggested
will be used to reject an objection against a logical and non-axiological
conception of normative gaps, and to link axiological gaps with the problem
of defeasibility of norms. |
|
Michael Roumeliotis (Athens) On the One
Right Answer (Vol. 87, S. 72): The
idea that there is a right answer for every question of law can be derived
from a standard conception of the legal dispute and its judge. There are also
powerful moral arguments for it, and the notorious judge Hercules can be used
in order to accommodate the actuality of the occasional doubts and
disagreements. Whereas the objections of legal positivism in either the
Kelsenian or the Hartian tradition can be explained away as tied up, in both
cases, to certain assumptions regarding the study of the law, that we need
not make. However, the contrast between the judge and the administrator is
not in this respect as straightforward as one might have been used to expect.
Judge Hercules can easily be transplanted in administration, and though no
strong moral arguments can here be advanced, an axiomatic argument for the
existence of one right answer can be mutatis mutandis made in the context of administration as well. We
are made to look into the fact that every answer can be analysed into
alternative methods of implementation and so to ask what makes an answer
different from another one. A look at the possibility of conflicting in
concreto values and goals affords
us a glimpse at a meaningful contrast between justice and administration.
Finally, the idea of the open texture presents a difficult problem that is
not entirely insurmountable. |
|
Yumi Saito (Yokohama, Marburg) Die
sozialwissenschaftliche Tragweite der modernen Bewusstseinsphilosophie:
Habermas, Henrich und Kant (Vol..
87, S. 481): Since Habermas, as is generally known, threw doubt on modern Bewusstseinsphilosophie, which reached its peak in Kant, in regard to its
capacity to solve social-scientific problems, he suggested a paradigm-shift
from the paradigm of modern Bewusstseinsphilosophie to that of post-modern communication acts. But can
self-consciousness be really deduced from speech interaction, as Habermas
insists? When we take the problem posed by Henrich seriously and seek the
starting point of a new social theory with sufficient problem-solving ability
in self-consciousness as the absolute point of a person, the problem is
essentially at the fore again, if and how this social theory is possible in
the architectonic of Bewusstseinsphilosophie. Although Habermas took a negative position on
this problem on the basis of his understanding of modern Bewusstseinsphilosophie and its social theory, it seems that his
understanding of the modern Bewusstseinsphilosophie as such would be worth discussing, in so far as we
consider his interpretation of Kants legal philosophy in Faktizitt und
Geltung. |
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Yumi Saito (Yokohama, Marburg); Reine
Rechtslehre. – Oder:
Rechtswissenschaft als Normwissenschaft. Zum Geltungsproblem der Rechtsstze
im Rechtspositivismus Hans Kelsens
(Vol. 89, S. 87): Hans Kelsens Pure Theory of Law is an attempt to establish jurisprudence as a
legal and normative science. He intended to circumscribe the proper territory
of positive law. Its border should not be trespassed neither by the doctrines
of the natural right, by theories of justice, by morals and metaphysics, nor
by social psychological methods intended by natural science. In the first
edition of the Pure Theory of Law, Kelsen takes the main clue from Kants epistemology of the natural
science as interpreted by Hans Vaihinger. He understands "the legal ought"
(das rechtliche Sollen) as the
category of the relative a priori and
formulates thus a kind of the pseudo-parallelism between sentences of natural
science and sentences of jurisprudence. In this way, he argues that legal
sentences possess objective validity. |
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Jos J. Jimnez Snchez: A Limited Democracy (Vol. 90, Seite 181): Our democracy is fundamentally
established on two very different limitations, since some guarantee while
others restrict. The former are those that permit the building and ensure the
conditions of democracy. The latter attack democracy itself. Notable among
these are those whose aim is to restrict the suffrage, that receive very
different replies, such as those that call in question the very
presuppositions of a liberal democracy. Hence the need it has to correct
those restrictions. This opens the way to politics, to the exercise of a
public autonomy that does not have to contradict the principles that make it
possible. |
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William E. Scheuermann (Minneapolis
USA) Motorized Legislation? Statutes in an Age of Speed (Vol. 88, S. 379): In a 1950 volume, Die Lage
der europischen Rechtswissenschaft,
Carl Schmitt provocatively argued that the tempo of contemporary legislative
politics is undergoing a dramatic acceleration that poses a fundamental
challenge to traditional western legal ideals. Schmitts reflections on the
acceleration of contemporary lawmaking have not only been confirmed by a
substantial body of U.S. legal scholarship, but recent legal scholars in the
U.S. have also endorsed ideas strikingly akin to Schmitts proposed answer to
the pathologies of high-speed "motorized" legislation. However, the
lacunae of Schmitts proposal to overhaul statutory lawmaking help highlight
the weaknesses of recent U.S. calls for a common law-centered response to
legislative acceleration. |
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Heinz-Gerd Schmitz (Kln): created
equal. Lockes negatives Argument zur Begrndung der Menschenrechte (Vol. 86, S. 29): The paper tries to justify human
rights using an argument which Locke presents in his Second Treatise on
Government. It opens with some definitions: The term right means: Person P
has a claim for X upon person Q. X designates the commission (positive right)
or the omission (negative right) of any kind of action. Rights are human
rights if P marks any human being. In this case, Q indicates all actors P
might encounter. Human rights are political rights, if Q is supposed to name
any kind of organized society; otherwise, they are pre-political rights.
Finally, human rights are either justified as natural laws or in the
positivists manner, that is, by indicating desirable consequences. Locke
produces a negative argument to justify natural equality as a pre-political
negative human right. He shows, that there is no criterion to qualify people
in such a way that one individual or a group of individuals has a justifiable
claim for governing all the others. Therefore, reason compels us to grant
everyone a right to her/ his particular liberty. |
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Heinz-Gerd Schmitz (Kln) Kants Lehre
vom hostis iniustus und Carl Schmitts Kritik dieser Konzeption (Vol. 89, S. 399): Discussing international law
Kant condemns any war waged to punish another state, because sovereign
nations exist in a state of nature, i.e. without a common judge.
Nevertheless, he introduces the concept of an unjust enemy (hostis
iniustus). The term indicates a
country whose public declarations show the intention to perpetuate the state
of nature. Carl Schmitt — in his book Der Nomos der Erde — accuses Kant not only of inconsistency. He
also argues that Kants concept of an unjust enemy challenges the jus
publicum Europaeum which, from the
16th century until World War One, has humanized warfare by rejecting the
traditional idea of an unjust war. The paper attempts to show that Kants
philosophy of international relations does not develop inconsistent
approaches to war and hostility. Schmitts remonstrance follows as a
consequence form his political theory, which declares militancy to be the conditio
sine qua non of any political entity. Kant, on the contrary,
postulates a congress of independent states, which, step by step, has to
transform the original international state of nature into peaceful
interaction. Therefore, he takes into account an opponent whose activities
could destroy the desired development. |
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Waldemar Schreckenberger (Speyer)
Rhetorik und Demokratie (Vol. 86.
S. 367): Starting point is the common criticism of political and legal
argumentation. The essay recommends a cultured rhetoric as a critical and
analytical program of science and a theory of practical argumentation. It
supports the rhetoric tradition based on Aristotle. He has indicated the
basis for a practical theory of argumentation, but also the problematic
nature of the ratio between theory and practice, between science and
opinion. The essay shows that the severe contrast between theoretical and
cultured practical argumentation is not tenable as far as the contingency of
scientific findings is concerned; it also states that the modern development
of logic – limited to syntax – inadmissibly restricts the use of
logic with regard to practical argumentation. The medium of all argumentation
relevant to society is the public. It contributes the context for forms of
knowledge and common social images which are indispensable for practical
argumentation. It is an essential task for the cultured rhetoric to mediate
between the various language-levels and -areas of the general public,
scientific language, language of politics and everyday language. Finally
suggestions are made for an understandable simplification of the legal
language. |
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Rudolf Schler: Halbteilung und
moralisches Gesetz. Zu einem Beschlu des Bundesverfassungsgerichts (Vol. 88, S. 531): The German Supreme Court
(Bundesverfassungsgericht = BVerfG) decided in 1995 that capital income taxes
may not exceed roughly half of the capital income. This hotly debated
decision was justified by an interpretation of the German word
"zugleich" in Art. 14 GG, which indicates limits to the private use
of property. Many observers had problems with the linguistic arguments of the
BverfG. Nevertheless, moral philosophy can help to establish the justness of
the BverfG decision by other means. This article will use the idea of moral
self-legislation to support a fifty-percent-limit to taxation. Its basis is a
state-of-nature thought experiment under uncertainty. Moral self-legislation
becomes a coordination problem under this premise, which can be solved with
techniques from the modern theory of strategic interaction (game theory). |
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Christian Schwaabe, Mnchen: Moderne
Zugnge zur praktischen Philosophie des Aristoteles. Politisch, metaphysisch
– oder "rhetorisch"?
(Vol. 89, S. 17): This article asks how the political philosophy of Aristotle
should or could be read in modern times, that means especially with regard to
modern pluralistic democracies, where the Aristotelian idea of a shared summum
bonum seems not to be valid
anymore. The modern departure from classical philosophy is due not only to
social changes but to the fact that the justifiable epistemological
foundations of political theory are highly contested. To ask for the
actuality of Aristotelian thought therefore implicates to answer at least two
questions: To what extent this practical philosophy really depends on
metaphysical premises which might be disputatious in a post-metaphysical
time? And: What is its lasting importance for just and humane politics
anyway? – provided that political philosophy should not be reduced to a
positivist science. |
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Elke Schwinger (Mnchen) Nchstenliebe,
Forsorglichkeit und Solidaritt. Zur Frage der moralischen
Handlungsorientierung in der entstehenden Weltgesellschaft (Vol. 87, S. 153): Soziale Solidaritt als das
unverzichtbare Andere der beanspruchten Geltung der Menschenrechte ist im
Rahmen des Globalisierungsprozesses nicht selbstverstndlich vorauszusetzen.
Der Blick auf unsere eigene Gesellschaft zeigt uns nicht nur die
Notwendigkeit des Zusammenspiels von Nchstenliebe, Frsorglichkeit und
Solidaritt, sondern auch die Brchigkeit dieser moralischen
Handlungsorientierungen, die im wachsenden Individualisierungsproze der
modernen Gesellschaften vornehmlich auf Selbstverantwortung angewiesen sind. |
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Thomas-Michael Seibert (Frankfurt a.M.)
"Urteile sind unverstndlich": ber die Notwendigkeit einer
Rechtstheorie (Vol. 87, S. 1):
"Decisions cannot be understood." This is a common lament, which
has different perspectives. I shall (1) reconstruct them, until I (2) deal
with the first deciding and indispensible part of a decision, the verdict.
The verdict always causes incomprehension, because it does not answer
questions about truth, veracity and liability. There is an abyss between
verdict and adjudication, which cannot be bridged easily. A small judicial
lecture on decisions (3) shows, how each judgement conceals that it does not
decide anything, but creates something. According to the current state of
judicial experience this observation (4) has lead to theories of legal
discourse. I present three complementary concepts of judicial discourse and its
alternatives to deal with the uncomprehensibility of legal language, namely
the theory of consensus (Rawls, Habermas), the diffrend (Lyotard), and the need of deconstruction (Derrida,
Critical Legal Theory). All three concepts have one common feature: The
starting point is always, that decisions cannot be understood, and this
effect can be expected. |
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Jan-R. Sieckmann (Bamberg) Die
"Radbruchsche Formel" und die Mauerschtzen (Vol. 87, S. 496): The question whether the
killing of people who tried to cross the border installations of the former
German Democratic Republic is punishable has again shown the relevance of
Radbruchs formula. Although this question has in practice been settled by
the courts, problems of legal philosophy and constitutional law remain open.
Main issues in this respect are the distinction between descriptive and
normative conceptions of law and that of whether the border guards brolke the
Law by killing the refugees and whether they can be punished for that. On the
basis of these considerations, the application of Radbruchs formula is
justified, whereas the culpability of the soldiers is in doubt. |
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Jan-R. Sieckmann, Autonome Abwgung (Vol. 90, S. 66): Weighing and balancing is a
central issue of legal, moral and political decision-making. When
incompatible requirements collide, the decision which one of them shall
prevail must be taken on the basis of a weighing and balancing of these
requirements. The main thesis of this essay is that the structure of the
weighing and balancing of normative arguments characterizes autonomous
decision-making and, hence, can be qualified as the logic of autonomy. This
structure is analysed in more detail, in order to answer the question of
whether autonomous decisions can claim to be objectively justified. |
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Anton Simons: The Full and Empty
Formula of Solovyovs Legal Philosophy (Vol. 88, S. 481): The legal philosophy of the Russian thinker
Vladimir Sergeevich Solovyov (1853—1900) is based on the assumption
that humankind is engaged in a process of divinisation. His essay Law and
Morality is an applied ethics that
deals with problems in the administration of justice, and sharply criticizes
the legitimacy of capital punishment. In this contribution, however,
Solovyovs legal philosophy is not studied in continuity with his moral
convictions, but from the perspective of a formula that ultimately resists
definition. It is suggested that this formula causes a number of
instabilities often neglected in Solovyovs philosophy. After a modest
biographical sketch, the author goes over to an analysis of some pedagogical
motives in Solovyovs legal philosophy, that come to the fore when it is
compared to Kants metaphysics of morals. Next, a comparison to Foucaults
political economic idea of the panopticon reveals a difference in
Solovyovs concept of law, that oscillates between the order of the absolute
and the order of relativity. Finally, this difference is related to
Solovyovs theological reflections of Divine Wisdom in feminine disguise,
that is sometimes referred to as Sophia. Rather than offering an idea of
moral perfection, Solovyovs implied sophiology pushes the difference
between a formal concept of law and its embodiments in the administration of
justice towards the edge. |
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Ulrich Sollte: Vlkerrecht und
Weltgesellschaft aus systemtheoretischer Sicht (Vol. 89, S. 519): In view of the fact that many of
Niklas Luhmanns publications deal with the legal system and the system of
world society, it is astonishing that we hardly find any statement of Luhmann
about the role of (public) international law in world society. The object of
the article is to show the potentiality of an analysis of international law
from the point of view of the sociological systems theory. For this purpose,
the paper examines the social function of international law which is seen in
a stabilization of expectations of internationally relevant behaviour. It
shows that the problem of enforcement has no impact on the function and legal
character of international law. It rather suggests to describe the sometimes
little practical importance of the differentiation legal/illegal in
international relations by applying the differentiation exclusion/inclusion.
Finally, the article examines the structural coupling of international law
and politics and demonstrates that politics have to accept that legal
decisions are taken irrespectively of political influence if they want to
make use of the law for their own display. |
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Karl-Peter Sommermann, Speyer:
Ethisierung des ffentlichen Diskurses und Verstaatlichung der Ethik (Vol. 89, S. 75): The increase of practical
discourses on ethics indicates a significant shift towards the steering and
managing of public tasks and institutions by ethics rather than by law or
hierarchical mechanisms. Both the development of ethics codes for specific
fields of action, such as public administration or scientific research, as
well as the institutionalisation of societal ethics-discourses by state
organs in connection with the fulfilment of public tasks give evidence of this
new tendency. The consequences are ambivalent: On the one hand, ethics-codes
may help to give orientation to actors in a pluralist system of values and
norms, on the other hand, as such codes are to a large extent mere technical
codes of conduct, they contribute to a trivialization of ethics. As far as
the organization and institutionalisation of ethics-discourses by public
power is concerned, they can improve the weighing of arguments when preparing
complex value-based legislative or executive decisions, but may also have
adverse effects both on the free and open process of forming the public
opinion and on the actual independence of Parliament. |
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Leonor Moral Soriano (Edinburgh) A
Progressive Foundation of Precedents
(Vol. 86/3): This article aims to rationalize the use of precedents in legal
argumentation. For this purpose, a normative model of justification and the
use of precedents will be elaborated. The foundation of the normative model
which will be defended is progressive since it is made up of three correlated
arguments: the argument ab exemplo, the argument of authority and the
principle of justice. These arguments explain why precedents are relevant in
legal argumentation and legal justification, which precedents judges should
refer to, and how to use precedents in legal argumentation and legal
justification. The final outcome is a model of relative binding precedents
which combines both following and abandoning precedents. |
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Daniel Stengel, Intellectual Property
in Philosophy (Vol. 90, S. 2): The
article deals with the concept of intellectual property and its basis in
different philosophical theories. First, the author gives a short historical
overview of the development of intellectual property, locating its roots
already in pre-historical society. It is followed by an examination of
todays features of intellectual property, in contrast to regular property.
In the second part, the article analyses the theories of Locke, Kant, Hegel,
Servan and Foucault to explain intellectual property, followed by a
discussion which of their theories features are reflected by todays
intellectual property law. |
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Jozsef Szabadfalvi, Miskolc:
Revaluation of the Hungarian Legal Philosophical Tradition (Vol. 89, S. 159): In order to provide an analysis of Hungarian legal
philosophical traditions, lawyers, philosophers, sociologists have from
different points of view examined the philosophers of law and their works in
the past two decades. A number of essays and also monographs have been
written to present objectively the legal scientists that belong at the
forefront of the philosophy of law. This paper is to examine this exciting
process. |
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Panos Terz (Santiago de Cali) Die
Vlkerrechtsphilosophie, Versuch einer Grundlegung in den Hauptzgen. Pro
scientia ethica iuris inter gentes
(Vol. 86, S. 168): Together with the theory, the sociology, the dogmatics,
the history of public international law (= international law) and the history
of the science of international law as well as with the methodology of
international law the philosophy of international law belongs to the pillars
of the science of international law. The philosophy of international law has
to take into account the knowledge of the other pillars of the science of
international law, otherwise there will be a confusion of morality and
ideality. The philosophy of international law has a theory, a methodology and
a history of its own. The values (e.g. Commune bonum humanitatis, justice
etc.) and the moral norms as an expression of consensus opinionis moralis
belong to the main categories of this science. As for obligatio moralis of
the moral norms the principle pacta servanda sunt does not apply but the
general principle bona fides does. Violation of moral norms entails moral
sanctions. |
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Ulrich Thiele (Heidelberg): Volkssouvernitt
– Menschenrechte – Gewaltenteilung im Denken von Sieyes (Vol. 86, S. 48): The political writings of the
Abb Sieyes deal especially with the problem of how the idea of human rights
and the democratic principle of sovereignty of the people can be realized in
one and the same constitution. Sieyes is convinced that the true guarantee of
natural rights depends not so much on a special declaration of these rights
but on the constitution in an organizational sense; therefore the system of
separated powers seems to be the crucial point in every constitution. In his
early writings Sieyes propagates a strictly ,vertical model for the
separation of powers that doesnt divide sovereignty but reserves it for the
legislature whereas the executing powers are strictly subordinated to her
command. In 1795, reacting to the Grande Terreur, Sieyes advocates a new
model of separated powers in order to counteract anarchy as well as
despotism. This "Systme naturel" is a very special one because it
mixes the powers without abolishing their functional diversification
including legislative supremacy. Sieyes idea of a "Jury
constitutionnaire" might also be of current interest because of the
complex funktion of this institution; on one hand that Jury has the same authority
as the constitutional courts of our times, on the other amendments to or
revisions of constitutional laws shall result from a combination of
scientific, political and plebiscitarian discourses. |
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Veit Thomas (Mnster) Wrde als
absoluter und relationaler Begriff
(Vol. 87, S. 299): The dignity and the value of man are vulnerable in the
vertical relation between state and individual as well as on the horizontal
level of interpersonal practice. Constitutional rights and human rights
conventions do not in substance sufficiently guarantee, protect and legally
establish the concept of absolute dignity and mans unique value. Only the
ahistoric concept of dignity is designed as absolute: Human beings have an
ideal, absolute and equal value. But in axiological and socio-economical
dimensions relations generate
the substance of dignity: A human beings grade of value and dignity is defined by relationally constituted socio-cultural significances, power
and social positions. A relational concept of dignity is necessary to
transfer the ahistoric idea and function of dignity into social and economic
practice. A relational concept of dignity can be derived in a consequent way
from the idea and the substance of the already established concept of
dignity. |
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Christian Tilitzki: Der Rechtsphilosoph
Carl august Emge. Vom Schler Hermann Cohens zum Stellvertreter Hans Franks (Vol. 89, S. 459): If we consider that Carl August
Emge was the only holder of a chair of philosophy of law in the Third Reich
and being Hans Franks representative at the Akademie fr Deutsches Recht who
has given lectures at Jena University since 1924 and just started to teach in
Berlin in 1934, he was entitled to a leading position among the theorists of
law in the first part of the 20th century. --- In fact, all his articles on
philosophy of law, that had been strongly influenced by Hermann Cohens
neokantianism, had surprisingly little effect on the discourse before 1945,
and his numerous later works had almost no impact on the philosophy of law in
Germany. --- In spite of all this, Emges intellectual biography imparts
important information of ideological determinism of philosophy of law. Emge
had declared war on juridical relativism; considering this to be a symptom of
a general weltanschauungs-crisis. --- He focused his writings on the loss
of religious and moral values since the end of the 19th century. In reaction
to which Emge presented a new concept: the regulatory principle
("regulatives Prinzip"), justified by a highly formalistic
religious philosophy. With the help of this totalitarian concept he
approaches the political ideas of the National Socialist Workers Party.
Adolf Hitlers totalitarism was considered by Emge the right means to
overcome politically the intensive crisis of values. But Emges regulatory
principle was based on universals like god and reason, which were
incompatible with the NS.-particularistic concept of race. Therefore Emge
played in the Third Reich a double game as a official and a critic. |
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Ronald Tinnevelt (Leuven) Decency,
Human Tights and Sovereignty. Humanitarian Intervention in the Law of Peoples (Vol. 88, S. 247): Over the past few decades we
have witnessed an increasing number of armed conflicts in the world. In
regard to the field of political and legal philosophy they have caused a
considerable change. They have revived a great interest in the problem of
international justice in general and the ethics of war and peace in
particular. Because the majority of these conflicts were not so much being
waged between different states but mainly within the boundaries of states
themselves, the question of the legitimacy of humanitarian intervention seems
one of the more pressing problems. Are we ever justified to intervene in the
domestic affairs of other states in case of massive human rights violations?
In this essay we have addressed this question on the basis of an account of
the concept of humanitarian intervention that John Rawls tries to develop in
his "The Law of Peoples" (1999). According to Rawls the protection
of basic human rights is sufficient to exclude justified and forceful
intervention. Against Rawls it will be argued that the fulfillment of basic
human rights is a necessary but not a sufficient condition for
non-intervention. Only decently ordered societies can claim a right to
sovereignty. |
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Jan Torpman: Legal
positivism as the outcome of a paradox resolution: linear and circular models
of explanation (Vol. 90, Seite 340): Many definitions
of positive law share a common feature that cripples them. Positive law as
the will of the people or a sovereign, as a form of legal study performed by
legal science, as a theory of the judicial process where rules determine
decisions of judges, the separation of law and morals, or as the
unconditioned obligation to obey law regardless of what its content, are not
strictly evolutionary models of legal positivism. In this article a radical
interpretation of legal positivism is developed. It shows how legal
positivism can be explained as the continuous progress of an evolutionary
process where paradoxes in the definition of basic legal concepts are
constructed and resolved. The evolution of legal persons in German law is
followed during 200 years. It is shown how legal positivism can be
interpreted as the successive replacement of linear forms of legal
explanation with circular forms. |
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Daniel Tsygankov (St. Petersburg)
Beruf, Verbannung, Schicksal: Iwan Iljin und Deutschland (Vol. 87, S. 44) |
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Tapani Turkka (Tampere) On the
Formation of A Strange Doctrine: A Study of Lockes Second Treatise (Vol. 88, S. 193): In this article a specific
metamorphosis is under study. According to Locke every man in the state
of nature has the right to execute the law of nature. In studies on Lockes
political thought, however, this right has come to be seen as something else,
i.e. as Lockes "strange doctrine of punishment" in the state of
nature. Here I have asked how indeed does this metamorphosis take place, and
precisely as Locke anticipated it would, in the reception of his book.
Answers to these questions I have sought in the perspective of what I see as
the dual nature of the Second Treatise, this particularly in respect of its
overall intent. As a result it is argued that the said metamorphosis bespeaks
a particular choice on the part of the readers concerning the very identity
of the Second Treatise. The notion of Lockes "strange doctrine of
punishment" in the state of nature is an interpretation consistent with
it. |
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J. F. C. van Velsen (Zoetermeer):
Relativity, Universality and Peaceful Coexistence (Vol. 86, S. 88): This paper tries to solve the
apparent contradiction between relativism and universalism by constructing a
theory of human well-being and peaceful coexistence. It assumes that all
judgments are subjective. It is shown that Pareto improvement of well-being
is equivalent to recognition of the subjectivity-principle together with the
right to be safeguarded from the consequences of the activities of others. It
follows that relativism and universalism do not exclude but complement each
other. When the conditions are violated the reduction of well-being is
minimised if a reciprocity principle is respected. Implications for human
rights, collective decision-making, cultures, states and hierarchical
organisations are explored. |
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Ulrich Vosgerau (Freiburg i. Br.)
Normalitt und Willensfreiheit als rechtsnotwendige Fiktionen:
rechtstheoretische Aspekte in Albert Camus LEtranger (Vol. 86, S. 232): Albert Camus legendary novel
The Stranger depicts that the maintenance of customs and social conventions
is necessary in order to preserve the minimum homogeneity any legal community
needs. Abiding by the positive laws, too, is mainly a convention. The more
the individual is used to refraining himself, the more liberty a state can
grant. A hypothetical, total lack of moral and societal consideration in the
individuals inner life (as Camus indicates in Mersault) would demand a
"total state" to maintain a "rule of law". Furthermore,
Camus shows that our idea of a "free will" originating with our
everyday introspection proves intrinsic to legal ideas such as personal
autonomy, personal guilt or the freedom to the pursuit of happiness. But it
is not a "fact" in the scientific sense, but merely a fiction
necessary to the existence of both the state and the law. The state needs
this fiction in order to work as a system of legal attribution; it is legally
unobjectionable; it seems to erode the very roots of any legitimate legal
order, but in fact turns out to be a false problem. |
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Gordana Vukadinovic (Novi Sad)
Jean-Jacques Rousseau et le droit naturel (Vol. 86, S. 207): In this article the author concludes that the idea
of natural law, the right to freedom and equality is not only present in
Rousseaus work, but it is also one of its fundamental characteristics.
Without it neither the natural human being nor the natural state can be
understood; so without it the criterion of Rousseaus criticism of the
existing society disappears, and so do the outlines of this vision on a
future society. Rousseau sees the values of freedom and equality as a
strictly political category. Freedom is mans opportunity to regulate the
conditions of his political life. Rousseau views equality as equality in the
rights and obligations of citizens, equality before the political body,
before the sovereign and as uniformity in material conditions of life. In
these terms the conclusion is the presumption of freedom according to
Rousseaus equality, but it doesnt follow that freedom is in the function of
equality. |
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Lothar R. Waas (Bissendorf) Der
"gezhmte" Leviathan des Thomas Hobbes. Oder ist der Theoretiker
des Absolutismus eigentlich als ein Vordenker der liberalen Demokratie zu
verstehen (Vol. 88, S. 151): For
350 years Hobbes Leviathan
(first published in 1651) has still been seen as the main work of political
absolutism. The anniversary should be a good chance for both, looking back to
the history of that understanding as well as looking for a new interpretation
seeing Hobbes as a philosopher founded liberal democracy in principle. Doing
the latter I wish to continue the debate between Norbert Campagna and
Wolfgang Kersting took place in this Journal in 1998. Campagnas thesis of an
amazing similarity between Hobbes state and the modern constitutional state
will be defended in my essay by three arguments especially from a logical
point of view: 1. The Hobbesian doctrine of human nature does not allow to
deduce the necessity of absolutism without inconsistency. 2. To avoid the
so-called "paradox of sovereignty" the Hobbesian theory of
sovereignty must imply liberal forms of political organization. 3. Democratic
participation, separation of powers, rule of law and protection of human
rights are provable elements of the Hobbesian state. Therefore, neither
Kerstings rejection of Campagnas thesis is convincing nor the history of
understanding Hobbes being a theoretician of the absolute state more than a
history of popular biases. |
|
Ian Ward (Newcastle) Shakespeare and
the Moral Lar (Vol. 86, S. 263):
The article seeks to use one of Shakespeares most influential plays, Hamlet,
as a text with which to address a number of issues in both sixteenth and
seventeenth, and contemporary, legal and moral theory. The first part of the
article examines a number of modern liberal theories of the relation between
the moral self and the political community, concentrating in particular on
those of Kant, Rawls and Dworkin. The second part of the article then
proceeds to investigate the intellectual roots of modern liberalism within
reformation theology and the pervasive anxiety with regard to the problem of
conscience. The clear implication of protestant theology, that the individual
conscience could directly address the moral law without mediation of church
institutions was of immediately revolutionary implication for established
theories of monarchical authority. The third part of the article then
investigates Shakespeares treatment of these themes in Hamlet, suggesting
that the anxieties of the eponymous hero expressed a Calvinist belief that
conscience defined the limits of the moral law. The final part of the article
then concludes by suggesting that these anxieties chime with a number of
contemporary theories of the liberal community as an essentially narrative
and imagined construction. |
|
Ian Ward (Newcastle) The Abode of Moral
Truth: William Godwins Enquiry concerning Political Justice (Vol. 89, S. 349): Writing a generation after its
publication in 1793, William Hazlitt wrote that No work in our time gave
such a blow to the philosophic mind of the country than William Godwins
vast three volume Enquiry Concerning Political Justice. Truth, moral truth, it was supposed, Hazlitt
continued, had here taken up its abode. Godwins ideas were the oracles of
thought, whilst the reputation of its author blazed as a sun in the
firmament of reputation; no one was more talked of, more looked up to, more
sought after, and wherever liberty, truth and justice was the them, his name
was not far off. For a short while, Godwin was, indeed, the pre-eminent legal
and political theorist of radical Jacobin England. Yet, today, his reputation
has rather waned. This is unfortunate, for Godwins Enquiry remains one of the most compelling defences of
radical liberty to emerge from the frenetic intellectual atmosphere of the
late Enlightenment. The purpose of this article it to revisit Godwin and his Enquiry. |
|
S. O. Welding: Die begrifliche Struktur
moralischer Normen (Vol. 89, S.
562): Apparantly we have to distinguish two types of rules, i.e. non-moral
and moral laws. The first type of rules are contractual laws, which are
introduced in our own interest with respect to acceptable consequences. Laws
construed by implicative consequentialism are only binding if they are
observed. If, however, they are frequently broken, they cease to be binding.
The second type of rules are conceptually binding independently of the fact
whether or how far they are fulfilled. It is not possible to introduce or to
abolish moral laws and, consequently, to justify them merely by their consequences.
Their binding force is rather recognised by moral rights or demands we are
ready to award to human beings and animals as well, which are likewise
vulnerable. Thus they are established by replicative consequentialism. |
|
Franz Josef Wetz (Schwbisch Gmnd) Die
Wrde des Menschen - Ein Phantom?
(Vol. 87, S. 311): Human dignity is seen as the highest right in present-day
society. International politics always refer to it without, however, defining
it more closely. The two most important cultural-historical sources of human
dignity are Christianity and the rational philosophy of modern times. Viewed
judicially, human dignity plays a significant role for the first time in the
20th century. Today, the concept of human dignity is included in many
constitutions all over the world. The way it has been brought into the German
constitution in the years between 1948 and 1949 will be reconstructed in this
article. In general, dignity is understood as an intrinsic value of
humankind. However, there are serious doubts whether or not dignity even
exists. But nevertheless, the idea of dignity remains meaningful as an ethic
goal. Even today human dignity – at least in theory – stands for
a life of self-respect without suffering, for a life in mutual recognition,
political freedom, material security and social justice rather than an
intrinsic, metaphysical characteristic. |
|
Alexandre Zabalza (Bordeaux) La Terre,
le Monde et le regard du droit. (The World, the Earth and the impact of the
Law) (Vol. 87, S. 212): Our glance
over the World conditions the impact of the law, just like the law gives
shape to the space that serves as world. There still remains a certainty from
this odd dialectic; the impact of the law and the world meet at a pause that
breaks off the inconsistency of the partition of time: the layout of things
then, and only then, a component of the world. So how can we view the world
in the core of this association, without venturing to add up an extra active
principle to the already growing confusion? How does the earth partake of the
world, of the law and of their convergent powers? Here lies the problematics
of a Promethean world that, in search for its future, disregards any thoughts
about the earth, about what it stands for, about what it used to be and what
it should be, as if the earth had become nothing but a mere passive
principle, an organic or physical area, deprived of its qualities and thus,
devoid of meaning. |
|
Reinhold Zippelius (Erlangen): Expedit
esse deos (Vol. 86, S. 109): This
essay deals with the political functions of religions which serve us to
arrange the variety of our experiences and of our social problems and
regulations within a perspicuous view of life. As ideologies they legitimize
and motivate political actions, they are good for social control and they
stabilize society. On the other hand, religion often is a destabilizing
factor, when the religious system is rivalling with the political power or
with other ideologies. To investigate where the religious "pictures in
our brains" come from, especially to show the anthropomorphisms in these
pictures, is a good way to moderate the ideological conflicts and a good way
to tolerance and to an open society. |
|
Reinhold Zippelius (Erlangen) Das Recht
- ein Instrument rationaler Steuerung (Vol. 87, S. 516): Law is an attempt to make life in a society
calculable. But life withstands all efforts to bind it completely in a
rational system. So we can indeed have "rationally structured but not
rationally determined legal systems" (MacCormick). This has to be
demonstrated step by step in the following essay (part I). – Such legal
systems are instruments to put the variety of life in a working order: on the
one side by shaping the political and and social life, on the other side by
giving free play for development (part II). |