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• Vom 'Naturstudium' zur Systemtheorie
• De justitio. Giorgio Agamben and the Suspension of Law in the Modern Era
• Von 'Wirtschaftsverfassung I, II' zum 'selbstgerechten Rechtsverfassungsrecht
• From 'Economic Constitution I, II' to the 'Self-justifying Law of Constitutional Law': On the criticality of Rudolf Wiethölter's Critical Systems Theory
• 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.

• Legal Orientalism and its European Heritage: An Essay on Teemu Ruskola's Legal Orientalism

  The debate about legal Orientalism has gained traction in Western as well as in Chinese legal scholarship. The benchmark of this field of study is currently Teemu Ruskola’s Legal Orientalism. While Ruskola’s book focuses on the United States, China and modern law, the following article recommends reinterpreting his argument from a European perspective. Thus, the article first reflects on whether a European perspective is appropriate and explains how it applies to the following argument (I). It goes on to argue that Legal Orientalism provides a deconstructive argument, hinting thereby at what remains to be thought about the Orientalist legal discourse. It is notably the notion of “Oriental legalism” that points to something beyond legal Orientalism (II). The article therefore then comments on this concept and explores some further avenues for how to rethink legal Orientalism from a more European perspective. The main suggestion is that we should refine Ruskola’s conceptual analysis of legal Orientalism as well as his presentation of the “Western” starting point (III).

• Flexibilization Instruments in Catholic Canon Law
• Flexibility in Religious Law

  All measures and judicial decisions of the Church are aimed at the salvation of mankind. This soteriological orientation requires in concrete cases the possibility of a pastoral exception, called oikonomia in the Orthodox Church. The suspension or mitigation of absolute canonical orders in Church life regularly comes into force both in the narrow sense of confession and in the large framework of synodal processes of autocephalous churches with the sole model of not transgressing the limits imposed by Church doctrine.

• Oikonomia and its limits in Orthodox Canon Law

  Muslim scholars were anxious to dynamize existing law and to evaluate new cases that were not addressed in the authoritative sources, in conformity with the law. From the 2nd and 8th centuries onwards, in particular, methods of finding and furthering the law were developed which, depending on different epistemological attitudes, were discussed in a way that made the law very flexible and even conserved it. The present article refers to three legal mechanisms as examples: The narrow interpretation of the text, which tends to inhibit flexibility; 2. the emphasis on the overarching aims of Sharia law, which allows for flexibility but (strongly) controls it; and 3. an unknown alternative approach by Ibn Rushd (Averroes), who divides law into natural and positive law and applies it to Islamic law accordingly. This last approach is seen in the present article as a possibility to gain an Islamic-theological and legal-philosophically founded alternative method for the discussions on the role of contemporary Islamic law.

• Three Models to Resolve the Tension Between Tradition and Innovation in Islamic Law

  This article builds on the four presentations given at the Heidelberg workshop on “Methodological Approaches to Flexibility in Religious Laws” on 11 May 2017. It tries to show similarities and differences between Jewish and Islamic law as well as between Orthodox and Catholic canon law. Contrary to widespread opinion that religious law is unchangeable, it first deals with the various flexibilization mechanisms in the four legal traditions and asks for their reasons. It examines whether these mechanisms fulfill a different function when there is an active lawmaker and codified law in a legal order. Are they merely about the interpretation of existing norms or also about developing them further? Are these instruments only in the hands of the religious authorities or also available to the ordinary faithful? Flexibility exists in secular law, too, but in religious law it has the special feature of being theologically justified.

Featured documents

• 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...

• 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...

• Ethics and Human Rights - Ethik und Menschenrechte
• 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’...

• Empirical Linguistics in Law
• On Parting
• Paradoxophilia
• A Man's House is His Castle': An Economic and Comparative Approach to Compensation and Gain Sharing in Public and Private Takings
• The Sign as Form and the Form of the Law Sign - Das Zeichen als Form und die Form des Rechtszeichens

  Luhmann’s concept of the „sign as form“ is discussed in the broader context of Peirce and Serres’ concepts of formation, with an inheritance in the foreground. The assertion is: bifurcation as a result amputates the fundamental operation of form-building by excluding the operator. The operator is...

• Three Models to Resolve the Tension Between Tradition and Innovation in Islamic Law

  This article builds on the four presentations given at the Heidelberg workshop on “Methodological Approaches to Flexibility in Religious Laws” on 11 May 2017. It tries to show similarities and differences between Jewish and Islamic law as well as between Orthodox and Catholic canon law. Contrary to ...