- Ancilla Iuris
- Publication date:
- Nbr. 2020, January 2020
- Nbr. 2019, January 2019
- Nbr. 2018, January 2018
- Nbr. 2017, January 2017
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- Nbr. 2013, January 2013
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- Nbr. 2006, January 2006
- 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
In a first step (“premises”), the article tries to illuminate how the Catholic Church and Canon law see themselves, in particular: e.g. the Church as a divine-human reality; the difference between theological truth and law, and the unavoidable need for flexibility in the application of the law, so that Canon law may best reach its goal: the salus animarum. The second part of the article explains the individual means or instruments for handling the law in a flexible manner, both on the part of the authority (e.g. dispensation, tolerantia) and on the part of the addressees of legal norms (e.g. epikeia, impossibilium nulla est obligatio). The question of the flexibility of a certain legal system comprises two aspects: on the one hand, the question of the changeability and adaptability of the legal system as a whole as a rather fundamental question, on the other hand, the question of rigidity or flexibility in the application of law in individual cases as a methodological problem. In religiously shaped and determined legal systems both aspects become a problem—because the law is anchored in an inviolable religious foundation. The following considerations are primarily focused on the second aspect, but attempt to take into account the flexibility of the universal legal order of the Catholic Church, too. Obviously both aspects of the problem depend decisively on the self-understanding of the legal community, in this case the Catholic Church, and the task and function of the law of this community founded therein. At the same time, however, the concept of law and the relationship between legal certainty (formal justice) and individual justice (material justice) are at the center of the discussion. Therefore, in a first step some elementary circumstances with regard to the character and function of canon law are to be pointed out.
- 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.
- Ethics and Human Rights - Ethik und Menschenrechte
Human rights protect essential elements and spheres of human existence that enable humans to survive and exist as humans. In this context, human rights can be viewed as having four dimensions: In addition to the legal, the political, and the historic dimension, human rights also have a moral...
- 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...
- A Man's House is His Castle': An Economic and Comparative Approach to Compensation and Gain Sharing in Public and Private Takings
Takings compensation in North America and Europe has generally been related to "market value" in its various conceptions. The U.S., however, has experienced a wave of compensation increases on the state level lately, in particular when homes are taken ("subjective value") and...
- Equity or Dworkin's Egalitarianism
- 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...
- 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...
- 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...
- Empirical Linguistics in Law
- On Parting