The main issue that I take up in this article is the relation between balancing and argumentation. My thesis takes the form of a mathematical formula, the Weight Formula. In recent work, Giovanni B. Ratti has set out a radical critique of my thesis, and Manuel Atienza has offered a systematic critique, maintaining that my Theory of Legal Argumentation and my Theory of Constitutional Rights are to a certain degree incompatible. My reply is that the Weight Formula represents a form (...) of argument that is not only compatible with rational argumentation but, indeed, is required by it. The unity of my theory is thereby established. (shrink)

Recent developments in the field of artificial intelligence (AI) present profound challenges for law. These challenges stem from law’s anthropocentrism, which is often left unspoken. This essay examines both the epistemic and normative dimensions of anthropocentrism within German Law, with a focus on Private Law. It defends the proposition that law’s anthropocentrism does not inherently oppose the idea of granting AI some form of legal capacity. Rather, so the essay argues, it is essentially a question of regulatory prudence to determine (...) the conditions and criteria under which the law should grant a legal status, legal capacity, or partial legal capacity to AI entities. Nonetheless, it is crucial to acknowledge that the core principles of private law as well as questions of liability for fault and negligence are rooted in human agency and cannot be directly applied to AI. It will be argued that the legal discourse on the recognition of AI is to be understood as a fundamentally political discourse. The political dimension of that discourse will be analyzed through the lens of the political theories of Hannah Arendt and Jaques Rancière, among others. (shrink)

The process of applying the law tends to oscillate between two modes: the subsumption under “clear” rules on the one hand and the interpretative concretisation of vague and abstract blanket clauses on the other. Legal arguments therefore refer both to the semantic content of rules and to legal self-evidence. Consequently the application of law can effectively be influenced not only through new legislation, but also through the introduction of new inter-preters bringing with them a different set of preconceptions, and thus (...) differing interpretations of the law. The traditional balance between these two models of control is endangered in mul-ticultural societies since these societies are characterised by conflicting concepts of justice. An automated application of law, aspired to by many legal scholars, could dispense legal practice from such conflicting prejudices. The price for that gain, however, would likely be a loss of the rule of law in the general understanding. (shrink)

This article presents a reading of Carl Schmitt’s Concept of the Political, in recourse to lesser known works of his such as Dictatorship and On the Three Types of Juristic Thought and in light of a hypothesis developed while examining his comment to Concept, going back to the German re-edition of the latter in 1963. There, Schmitt offers an interpretative scheme he has himself named “Hobbes-Crystal”, encapsulating not only a suggestion of how to decipher Hobbes, but also Schmitt’s own approach (...) to politics as Political Theology. As I argue below, the relevant comment also hints at Schmitt’s opposing stance to Natural Law as a legal paradigm and philosophical tradition. I show how this is supported by the Concept’s main text and other works mentioned above, proceeding to claim the former functions on a double-level: Schmitt‘s nominalist inquiry in the concept, circular in itself (although favourably supported by a sup-posedly mere description of what is “the case”) sits on premises which not only have not been articulated openly, but also contradict the nominalist proceeding. Bringing both insights to-gether and fleshing them out by close reading, I show that Schmitt’s nominalism presupposes his adversary stance towards Natural Law. Examining the arguments for this position of his and endorsing Oliver Marchart’s work in history of political theory, I read the nominalist façade of the Concept as a case of postfundamentalist criticism of Natural Law, which Schmitt’s Hobbes studies were formative to. (shrink)

This essay undertakes an examination that combines a reconstruction of Hegel’s system of needs with a critical analysis of that system. The reconstruction begins by unraveling the philosophical framework Hegel uses in his Philosophy of Right. It presents the evolution of abstract right and morality towards an ethical life and explains why a civil society becomes nec-essary. Furthermore, it explores the interconnectedness of individuals in the system of needs and how freedom may actualize in civil society based on Hegel’s work. (...) Following the recon-struction and the moments of reason in a free-market society, the paper takes a critical point of view upon the system presented by Hegel. It predominantly follows the critique of Marx and demonstrates how, in a free-market society, the freedom provided is only a formal one. In the second part of the critique, the scope of the paper opens up to further points of criticism against a system of needs, especially how sustainability and global inequality may develop on a international scale without any limitations in a globalized market. The essay ties back said points of criticism into Hegel’s philosophy and presents where they were already indicated in Hegel’s philosophy and how they stay relevant all the way up until modern times. In conclusion the paper shows that the exploration of Hegel’s system of needs remains a compelling discourse, regarding freedom and social equality. (shrink)

This article focuses on the question of whether the task of the security authorities to protect public safety can justify unlawful encroachments on fundamental rights committed by them. First, the concept of security is analysed and criticised. This is followed by an analysis of the normative compatibility of the concept of security with the legal system. In particular, the legal principles and the concepts of possibility, probability and risk as standards of assessment for the justification of encroachments on fundamental rights (...) by security authorities as well as predictive policing as measures for determining the concepts are discussed. It is shown that the task of the security authorities to protect public safety cannot justify unlawful encroachments on fundamental rights in any way. (shrink)

This article is about the post-history of Hobbes’s name for the state and thus about the history of the name ‘Leviathan’ insofar as this name has remained the catchword for the (modern) state to this day (from the late 17th century to the beginning of the 21st century), but above all for that of absolutist-despotic proportions. This story, told here for the first time, is particularly interesting because it ultimately reveals a continuity in the understanding of Hob-bes that suggests that (...) this post-history not only has something to do with Hobbes’s Leviathan itself, but at least as much with its pre-history - with the name ‘Leviathan’, which Hobbes gave the state in reference to the biblical monster of the same name. (shrink)

This paper explores the theoretical basis of the third party’s duty of justice as to grave human rights violations, presenting role obligations as the best complement to the literature. It begins with discussions on agents of justice in duty-based theories, notably O’Neill’s account on global justice, and rights-based theories, which are both included in the institution-centred perspective. I claim that these studies have failed to consider an individual duty bearer’s motive, autonomous reasoning and integrity in relation to justice, all of (...) which constitute serious lacunae for the effective accomplishment of responsibility. To supplement, I introduce the distinction between responsibility and commitment, and acknowledge that combining the two is the desirable condition for recognising the duty of justice. Finally, I argue that the role obligations undertaken through personal acceptance of an institution-based role or a commitment-based role related to human rights norms adequately explain third parties’ duty to protect others from serious harm. (shrink)

In contrast to the widespread assumption that the state has the monopoly on violence and on the legal use of force, this essay draws attention to forms of violence which cannot be sublated in any political form of life that lays claim to the legitimate use of violence and force. The author asserts that any way of legitimization of violence is suspect of concealing reverse sides of new forms of violence that possibly escape political attention. This insight refers back to (...) the “political paradox” as it was described in Paul Ricoeur’s political philosophy. (shrink)