• Ancilla Iuris

Publisher:
Ancilla Iuris
Publication date:
2011-07-20
ISBN:
1661–8610

Description:

Ancilla Iuris offers a professional and state-of-the-art publication platform to advance European contributions on constellations of law and society. Following a interdisciplinary approach, we bring together law with its neighboring disciplines such as Political Sciences, Economics, Sociology, Linguistics, Philosophy, History, Art, Psychology etc.

Latest documents

  • Systems Theory and the International Rule of Law

    Systems theorists have been criticized for failing to provide an adequate account of the features of the international legal system. This criticism of systems theory parallels a similar critique of international law advanced by positivists working in the Anglo- Saxon legal tradition. Systems theory’s critics have attempted to use Hart’s argument against international as an argument against systems theoretic account of international law. The factors which influenced Hart’s critique of international law are well-known: it is open-textured, structurally decentralized, and lacks a single clear rule of recognition. In this paper, I attempt to answer some of these criticisms. I argue that the positivist critique of systems theory mischaracterizes the nature and structure of international law. To make this argument I first develop a broadly Luhmannian account of international law and the international rule of law and argue for an autopoietic account of international law-making. Second, I suggest that systems theory does a better job of answering positivist criticisms of international law than similar versions. I conclude by arguing that systems theory does a better job of identifying and explaining the unique features of international law and the international the rule of law.

  • Digital Personhood? The Status of Autonomous Software Agents in Private Law

    Autonomous software agents are mathematically formalized information flows. Already today in the economy and in society, they are attributed social identity and ability to act under certain conditions. Due to social action attribution, they have become non-human members of society. They pose three new risks: (1) the autonomy risk, which has its origin in stand-alone "decisions" taken by the software agents, (2) the association risk, which is due to the close cooperation between people and software agents, and (3) the network risk that occurs when computer systems operate in close integration with other computer systems. These risks pose a challenge for private law: to define a new legal status for autonomous digital information systems - however not simply as complete legal personification of software agents, human-computer associations or multi-agent systems respectively. Rather, in response to each of the three risks, a legal status should be granted to each of the algorithmic types that is carefully calibrated to their specific role. Three new forms of digital legal status are presented for autonomous software agents here: (1) an actor with limited legal subjectivity, (2) a member of a human-machine association, (3) an element of a risk pool. (1) For autonomy, an adequate response would be to attribute limited legal personhood to software agents. (1) Their autonomous choices should be legally binding, and these should, if found to be illegal, trigger liability consequences. Software agents thereby are given a limited legal subjectivity, namely as representatives who may enter into contracts for others. At the same time, they are to be recognized as legally capable persons in cases of contractual and non-contractual liability so that the machine misbehavior itself - and not just the behavior of the underlying company - represents a breach of duty for which the company must stand. (2) A possible answer to the association risk would be their legal status as a member of a humanmachine association. The association itself would be recognized de lege ferenda as the legal object of attribution for actions, rights and obligations. (3) Finally, the answer to the network risk would be that law itself would need to construct risk pools for the delimitation of these interrelationships. The risk pool would define the legal status of the algorithms as part of a comprehensive digital information flow, with the liability of the pool resulting only in the case of unlawful conduct of the pool.

  • Fundamentals of Administrative Law: Research Questions and Research Contexts

    Many research questions arise with regard to the basic principles of administrative law. They touch upon, for instance, control and direction of administrative action, its methodology or the history of administrative law. Research into these issues would be especially important because administrative jurisprudence is still dominated by the image of a one-sided deductive application of the law, an image that is overly simplistic. But it is difficult to design research into these areas, above all because they would have to, at least partially, proceed empirically. The research methodology that such empiric study would call for, however, is barely established within administrative law studies and even legal studies more generally. The way out of this impasse offered by interdisciplinary cooperation itself encounters practical difficulties. Furthermore, administrative law research lacks a stable institutional home. Future research in this area thus will probably be tend to be piecemeal at best.

  • Editorial
  • On the Methods for Comparative Law Research in Legal Studies

    This article served as the prelude to an interdisciplinary workshop for scholars of Judaism, Islam and Catholic cannon law entitled "Legal scholarly responses in comparison". It gives a short overview of the methods for comparative law research and aims to encourage awareness of the objectives of comparative law and the choice of methods.

  • Form and Function of Rabbinic Responsa - Comparative Law Perspectives
  • Responsa in Canon Law: On the Legal Character of a Particular Form of Proclamation
  • Informational Power and Informationism

    Societal developments such as the digitization of our lifeworld present a challenge for law, as can be seen by the new Swiss Intelligence Service Act of September 2017. In view of these events, one might ask if the common theories and analyses remain useful. In this paper, building on Michel Foucault’s works, a new type of power called "informational power" shall be carved out and presented in detail by looking into the new Swiss Intelligence Service Act as well as private sector practices of surveillance and data utilization.

  • Should we be worrying about a Brexit from the European Convention of Human Rights now, too?

    The Brexit from the EU is now a political fact with all its consequences. Far less media attention has been paid to British criticism of the European Convention of Human Rights, which may face a similar fate unless its Court is changed into an advisory institution. Should we be worrying about a Brexit from the Convention too? This paper analyses the British debate on European human rights in light of developments within the European Court’s caselaw. In the author’s view, the British government is somewhat overstating the problems.

  • Editorial

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