How can legal norms be morally evaluated? In this paper we discuss and defend consequentialism about legal norms. According to this doctrine, the legitimacy of legal norms depends entirely on the consequences of the norms’ validity. Consequentialism about legal norms shares the advantages of both act- and rule-consequentialism while avoiding the respective disadvantages. In particular, consequentialism about legal norms has prima-facie plausibility like act-consequentialism and for similar reasons: it qualifies as a version of collective act-consequentialism. At the same time, the (...) implications of consequentialism about legal norms cohere with common-sense morality because, like rule-consequentialism, consequentialism about legal norms takes into account the motivational limits of human agents. (shrink)

Klaus Günther’s discourse theory of law links the concept of criminal responsibility with the legitimacy of democratic law. Because attributions of criminal responsibility are always aimed at a person, they contain an implicit conception of the person. In a democracy under the rule of law, Günther argues, this conception of a person must be understood, as a “deliberative person”, a free and autonomous person capable of being both the addressee and the author of legal norms. The “deliberative person” is the (...) conceptual core of criminal responsibility, yet Günther develops it using a concept of “communicative accountability” modeled on the concept of criminal responsibility that it is designed to explicate. My aim is to bring this circular grounding of criminal responsibility into view and argue that Günther’s discourse theory of law is based on a legalized picture of discourse. (shrink)

Legal positivism understands natural law as performing classifying connections between morality and law as tests of legal validity: if a norm with some pretence to legality contradicts a moral good, it cannot be called a legal norm. The new natural law school, however, claims that natural law develops qualifying connections between morality and law: tests of legal validity are performed by non-moral criteria such as due enactment or efficacy, and morality determines not what the law is, but rather which law (...) is legally binding and which is legally defective. This article will demonstrate that Aquinas's endorsement of the lexeme lex iniusta non est lex cannot be interpreted in any of these senses. Rather, Aquinas's strong version of natural law indicates clearly that it can indeed be a classifying criterion of positive law, and that it cannot be the only and exclusive criterion of legal validity. (shrink)

This article discusses the authority problem involved in revolutions and the institution of legal order from a phenomenological perspective. Paradoxically, every new claim to power, every revolutionary beginning, should present itself as coherent with what has already been established as authoritative by law. This authority problem is due to the two-fold challenge revolutions pose: the new order has to both constitute a break with the old order and retain a relationship with it. In order to meet this two-fold challenge, I (...) will draw on the work of Hannah Arendt and Maurice Merleau-Ponty and develop a concept of the institution of legal order that can embrace transgression and response as two sides of the same coin and can shed new light on the authority problem involved in revolutions. (shrink)

The aim of this study is to characterize the weak discussion about the Human Rights in Franco's time, not in general, but by testing Vallet de Goytisolo's works. This author is deeply influenced by the lectures of M. Villey, Parisinian philosopher well-known by his denial of Human Rights. A comparative study of these authors will be done focusing on two – faced aspects : the strength and fragility of their doctrines.Both authors are defined as supporters of the Methodical Realism, although (...) their arguments and sources are very similar, their purposes and conclusions are different. Juan Vallet does not reject the Human Rights, but he prefers the denomination of ethical-legal principles, that is, moral categories that must guide the legislative and judicial praxis. The root of these ethical-legal principles is the ethical-natural principles extracted at natural order, and the duty of all authority is to adequate his rules to the nature of things, exactly as in Saint Thomas.In Vallet's works, the theoretical reason for this rejection is that the notion of fundamental right is scientifically unsatisfactory to understand the complexity of the social reality. The practical reason defends that the Civil right should not be confused with the power or faculty of the individual, errors of nominalism, but the origin of these powers is to be found in the context of a particular legal relationship.However, in the end, this catalogue of rights will be not feasible for the citizen, since these rights are at the mercy of the legislator or the judge. They are liable to obey these principles, only morally. (shrink)

The famous Montesquieu's catachresis wherein judges should be no more than the “mouth that pronounces the words of the law” is actually facing a crisis. I.e. Law has lost its unifying principle, its centre wherein its practices could search for foundation and legitimacy. Therefore, as a decentered reality, I believe Law should get a poststructuralist approach, appropriate for a decentered structure. That is why the aim of my research is to link Law to the poststructuralist theoretical reference of the theory (...) of discourse, as developed in the works of Ernesto Laclau and Chantal Mouffe. Anyway, as Laclau and Mouffe's theoretical works are concentrated on the ontological level, I need to link their ontological reflections and Law manifestations on ontic level, the level of judicial practices. For that, I will use the support of the jurisprudence of Ronald Dworkin. However, as dworkinian theory is situated in a very different philosophical background, when compared to Laclau and Mouffe's theory of discourse, it will be necessary to rearrange some features of his jurisprudence to make it fits on a different comprehension of Law and its integrity. Especially considering integrity as hegemonic integrity, understanding the principles of justice as promises of justice and substituting judge Hercules for a new mythological character that, instead of searching one right answer in a seamless web, is herself who seams that web: Judge Penelope. (shrink)

Political representatives with excessive authority and a lack of deliberation and co-legislation with their electors, provoke protests that desire to have influence over the State. Traditional mass media and the Web 1.0 created distance among them because they reduced the electorate to fewer recipients. But the new media from the Web 2.0 pretend to improve old limitations. Likewise, the first supposed we had a democracy and so we searched for information online, on the other hand, the new gives information and (...) demands democracy. The idea exposed on this article is how the new Web 2.0 seeks to exceed the limits of traditional participation and to dissolve, more than surpassing, citizen's frontiers of political activity on the Web. (shrink)

In his Theory of Constitutional Rights, Robert Alexy assumes that any case of conflicting principles can be solved by rational means through the concept of balancing. The foundation of this concept are the principles of balancing defined by Alexy. He illustrates the process of balancing with the aid of a formula, the so-called weight formula. Using a specifically developed scale, the individual results of the balancing process are converted into figures which will then be inserted into the formula. The numeric (...) value resulting herefrom reflects the overall result of the balancing process. Thomas Riehm critically examines this method and reaches the conclusion that not only the scale formation is non-transparent but that in addition, this method violates the principles of commutativity and linearity and mathematises the process of balancing. The goal of this paper is to analyse the individual steps of the scale formation as well as the function of the scale and to check for contradictions with regard to the mathematical rules mentioned above. In this connection, Riehm's critical findings could not be con firmed. (shrink)

The paper approaches the question whether teachers should be allowed to wear headscarves by analysing the concept of liberal neutrality. After showing problems with current conceptions of neutrality, it suggests understanding neutrality as a two-fold concept: a) there are matters the state has no business getting involved in if it wants to respect its citizens as free, b) citizens ought to be treated as equals despite their different world views. This two-fold understanding explains why there are neutrality based reasons for (...) and against allowing teachers to wear headscarves in school. The author argues that in view of the ideals of freedom, equality and respect underlying liberal neutrality the reasons for allowing headscarves prevail. (shrink)

The debate on climate change needs normative visions and principles to provide orientation and to line up normative requirements. This may enable to provide a comprehensive view on energy and climate topics. This contribution, while dealing with justice, gives a perspective from ethics respectively from a interpretation of national constitutions, the EU Charter of fundamental rights and the European convention on human rights in the light of sustainability. It takes us to human rights as the basic norm of any liberal (...) democratic constitution, but criticizes the academic international law debate which seems to be focused on the idea of even absolute, i.e. not subject to any balancing, environmental fundamental rights. Overall, it turns out that an interpretation of fundamental rights which is more multipolar and considers the conditions for freedom more heavily – as well as the freedom of future generations and of people in other parts of the world – develops a greater commitment to climate protection. Regarding the theory of balancing, for the purpose of a clear balance of powers the usual principle of proportionality also proves specifiable. (shrink)

The starting point of my analysis is the complexity of contemporary society. Complexity here refers more in particular to social complexity: the type of complexity that emerges from the relationships between human beings and the myriad of options and possibilities that exist in our society. A systems theoretical account of complexity elicits that this 'social abundance' necessitates selections. One way of enabling selections, and hence the reduction of complexity, is the formulation of norms. The central thesis of this account follows (...) from this observation: social complexity is a source of normativity, in the sense that social complexity generates – among others – normativity. Dealing with social complexity requires selections and a considerable range of selections, at their turn, require norms. From a somewhat different angle, we could say that social complexity entails both freedom of choice and force of choice. It is this combination of freedom and force that confronts our society with a profound problem. It translates, so to speak, social complexity into uncertainty: how to deal with all these options and possibilities, how to shape our interactions? An important aspect of the problem is the abundance of colliding heteronymous norms and a simultaneous lack of ethical norms that do not compromise our individual autonomy. The analysis of this ethical state of affairs draws upon the work of Zygmunt Bauman. The paper tentatively seeks to outline the social theoretical requirements of an ethic that takes issue with the uncertainty of choice. (shrink)

This article attempts to translate philosophical notions into biological terms in order to transform dualistic thinking into monistic thinking. What if ethics finds its cause in physical, molecular processes? In Ruling Passions Simon Blackburn acknowledges the biological fact that we are social animals and that we need to coordinate our efforts. Therein lies an opportunity for a fruitful discussion about the biological foundation of ethics. Although Blackburn thinks there cannot be a grand unifying theory or a single driving force that (...) underlies ethics, the spreading of our genes may well be the key. As cooperation is the means by which humans have been successfully spreading their genes, ethics in some sense can be regarded as a biological or even a physical force. Recognition of ethics as such a force can help overcome false dichotomies in contemporary ethics and law. Four natural laws of global ethics and law can be formulated on the basis of factual biological mechanisms – natural laws that have remarkable equivalents in religion and contemporary law. (shrink)

The interdependence between compliance with norms and economic behavior can be highlighted by the effects of corporate governance codes. Their underlying comply or explain mechanism is first compared with the economic theory of corporate law. Diverging empirical studies on the effect of capital market pressure on compliance with codes leave room for different compliance mechanisms, which can be compared with the discussion on corporate social responsibility and its underlying business cases. The emerging common ground between economic motivation and social interests (...) shows limits of the traditional rational actor model which can be further explored on the basis of fairness norms. Similar parallels and overlaps between market-driven self-interest and intrinsic motivation can be shown at the example of incentive effects of executive compensation. Its regulation in the German Stock Corporation Act is lacking any empirical foundation which is also true for the yet empirically unexplored compliance patterns in corporate governance. (shrink)

The thesis of the article is that processes of structural political change can be adequately understood only on the basis of a multi-dimensional concept of political legitimacy. It is argued that the most prominent account of the idea, namely Max Weber's typology of legitimate authority, is misleading because of both its incompleteness and its incoherence. Drawing on David Beetham, we instead propose to analytically differentiate between three universal, genetically linked dimensions of legitimacy: a basically pragmatic one, a theoretically re flexive, (...) and a performatively expressive dimension. By means of this scheme it becomes possible to capture fundamental, regularly violent processes of legitimation, as well as historically different forms of legitimacy. Empirically, the usefulness of our proposal shall be shown by sketching, on the one hand, the formation of “early states”, and the emergence of modern revolutions on the other. (shrink)

Those who invoke the notion of moral responsibility in ethical discourse seem to be faced with a dilemma. Apparently, they either have to violate the “control principle” which says that nobody can be held responsible for what is beyond one's control. Or they have to concede that in many cases there is a “responsibility void” which means that nobody is responsible. The first option seems unjustifiable. The second renders the concept of moral responsibility useless. This dilemma may be taken to (...) suggest that thinking about moral issues in terms of responsibility is an unproductive way of doing ethics. In our paper we offer a solution which, we hope, can rehabilitate responsibility as a moral concept. It combines order ethics (which is a kind of ethics that primarily focuses on the institutional structure of society) with a recently developed account of group agency. (shrink)

The paper tries to contribute to the discussion of the following problem: Nearly every government acts as if it has a natural right to collect taxes – if necessary by force. How legitimate is such an act of expropriation? To find an acceptable solution, three different theories of property are discussed – eventually favouring the Kantian approach. Subsequently, possible vindications of taxation are presented: control of conduct, financing public institutions, reduction of social differences. All three justifications turn out to be (...) de ficient. What remains is John St. Mill's almost forgotten theory; he sees taxes as a sacrifice and, on this account, pleads for a proportional taxation. (shrink)

Freedom of thought is a fundamental human right, enshrined in many human rights treaties. It might very well be the only human right without any practical application. The paper reconstructs scope and meaning of this forgotten right and proposes four principles for its interpretation. In the age of neuroscientific insights and interventions into mind and brain that afford to alter thoughts, the time for the law to de fine freedom of thought in a way that lives up to its theoretical (...) significance has come. (shrink)

This article means to show how Aristotelian second scholasticism on the one hand, and Hermann Heller on the other, converge to assert the supremacy of political power, the politicity of positive law, the independence of the political community and its role as a primary subject of international law. These coincidences between the founders of modern international law and the great theoretician of the State become evident not in their respective philosophical premises, but, above all, in their conclusions on the properties (...) they attribute to the political community. Furthermore, as it is also stated in this article, the principles put forward by Vitoria, Suárez and Heller have not lost their deontic value and constitute objective legitimacy bases on which contemporary political processes may be judged. (shrink)

The task to reshape governments in the countries confronted with the Arab Spring prompts the question whether there are necessary conditions to realize a stable society that simultaneously seeks to eliminate the elements that have led to the uprisings. Acknowledging some constitutional rights seems indispensable in such a process. I argue that such a state of affairs is indeed the case, at least now that the 'old' justifications to differentiate between people do not suffice anymore. That is not to say (...) that the countries involved will have identical laws in each respect, but merely that a common basis has to be realized, manifested in political and legal equality, so this given does not derogate from the fact that each country's specific legislation needs to be shaped in the light of its own history. Such a basis has no 'moral' character, but is a necessary condition to prevent sedition. (shrink)

In this paper, I suggest reading the Second Essay of Nietzsche's Genealogy of Morals as a perfectionist critique of Roman law. Roman Law, I argue, relies on the fabrication of a specific subjectivity that structurally undermines the conditions of a good life and thus prevents us from fully exhausting our ethical-aesthetical potential. Citing an important source for Nietzsche's legal thought, legal scholar Albrecht Hermann Post, I reconstruct how Nietzsche conceptualizes the disentanglement of the individual from the 'natural' community, namely as (...) the fabrication of a subjugated-subjugating legal personality in particular through the Roman civil law. This process fundamentally affects the human psycho-somatic structure in a paradoxical way, both as bad conscience and as sovereign triumphalism. However, while Nietzsche formulates an important critique of one of our dominant forms of social integration, his proposed way of overcoming it remains unconvincing, because it is just as hostile to life as is the law. (shrink)

This essay is meant to draw the principle outlines of the development of a specific modern issue of penalty. Deriving from an erosion of Augustine's dominating paradigm of retribution as a balance of two equivalent “evils” the legitimation of modern punishment was not sought in ef ficient deterrence only – as utilitarian philosophers suggested. More deeply, a modern justification of punishment was developed within the political philosophy of Kant, Fichte and Hegel by successively unfolding its close relation to the concept (...) of freedom. This does not only stress the criminal's own responsibility but also relies on the condition of a developed rule of law. As a result punishment was not only meant to restore sovereignty, often based on a social contract, but also the fundamental relation of mutual recognition between individuals.Adhering to a substantial understanding of the modern state under the rule of law this concept of penal law draws a marked distinction between “punishment” and “war” and also sets a clear limit to tendencies of expanding criminality beyond the rule of law. Regarding its philosophical impact it predominantly must be put forward against all measures which negate or extinguish the criminal's personality as a whole, such as torture, death penalty or life imprisonment. (shrink)

This text focuses on the grounding of the legal and political structure of the modern state and starts from the Hobbesian conception of power as absolute and unlimited power. For their part, Spinoza and Bentham argue, against Hobbes, for the need to set certain limits to power, although they each based it on radically different grounds. Spinoza's political ontology makes it easy to carry out to the end what was permitted by a factual conception of power, which opens up the (...) possibility of thinking about power in a different way, namely, normatively. The difference between the utilitarian approach and that of Spinoza is his special conception of natural law, which leads him to maintain that it can only be defended where men have rights in common, that is, where there is civil order, making the preservation of our being the justification and limit of the institutionalization of the civil order. Bentham, however, remains true to his empiricist conception and a prisoner of its shortcomings, so that he cannot conceive of the limit of power except as self-limitation. The reason is that he does not have a sufficiently consistent concept of natural rights. Bentham's conception of them as “nonsense upon stilts” makes it impossible. (shrink)