Jura, teori og metode. Retsfilosofi

This book seeks to explore the potential and actual value of parliamentary debates as a source of legislative justification. Drawing on a sample of recent Spanish legislation, the papers collected here analyse (critically) the rationale of several laws or legislative measures as it can be reconstructed from the respective parliamentary discussions. All issues covered have given rise to intense political, legal and social controversy: they range from the combat against gender violence, the legal status of bullfighting, the protection of crime victims and the so-called ¿push-backs¿ at the border, to the regulation of euthanasia, the minimum living income, underage girls¿ access to abortion, and joint child custody. The volume is organised into two main parts. The first group of case studies adopt a legisprudential perspective and examine parliamentary deliberations in the light of the theory and methodology of legislative justification; the contributions in the second part followapproaches that fall outside ¿ but are largely compatible with ¿legisprudence, and deal with aspects such as the rhetorical strategies employed by MPs when debating bills, and the role of elected legislators as constitutional interpreters.

This book concerns how China's legal institutions promoted its economic growth and demonstrates that the law has played different roles at various stages of China's economic transformation, a signal of legal paradigm shifts in reaction to the changing political and economic pursuits.By decomposing the role of law in the process, the author argues that while the Chinese economy was transforming from a planned economy to a market-oriented one, the law also made its adjustment as a response¿the Chinese legal system was evolving from the one consisting of primarily substantive laws to the one filled with high-level formal laws by the end of the last century. The above observation of legal formalization is further consolidated by introducing the particularities of China's legal education in those years¿a topic rarely dealt with yet of significance to comprehensively understand the Chinese legal system in practice. Overall, the present book argues against the modernization theory and determinism that would anticipate a similar developmental path globally and shows that the relationship between law and economic development is contingent. Therefrom, this study weighs in the law and development debate and breaks a perception of static law in the economy by rejecting the conventional perception of established legal institutions as a precondition of modernity.Hence, this book could appeal to legal scholars and sociologists interested in reevaluating western theories of free economy and its relationships to the law. In addition, scholars interested in research methodology would find the perspective of paradigm shifts in interpreting China's transformations a helpful analytical framework in research. Moreover, policymakers and legislators concerned about the characteristics of law for economic results would also find the book useful.

This book covers how Liberal institutions ¿ constitutional democracy, economic markets, liberal courts, free trade, international human rights ¿ around the world are under assault by the political right and we are witnessing the emergence of post-liberal institutions. These post-liberal institutions are founded on the core conviction that the actions of liberal institutions including the United States Supreme Court are patently unjust. This volume makes the case against post-liberal courts and justice by reconnecting to the principles of moral equality and dignified freedom for all. The intention is to show how there is great untapped potential in the work of Ronald Dworkin¿s work to demonstrate that it can help progressive liberals think through the great issues of the day and respond to the contemporary criticisms of the political right. The core themes are concretely illustrated by focusing on some of the most controversial recent post-liberal decisions of the Supreme Court, ranging from election funding to abortion to race-sensitive affirmative action, to economic inequality in an age of increasingly unequal opportunities.

In this thought-provoking book, yoüll find timeless questions explored through a fresh lens. First delving into the profound significance of Socrates¿ dialogical method and the inescapable nature of conflict, it ponders the rational capacities of humanity in terms of establishing harmonious communities. But this isn¿t merely a philosophical debate; it¿s a pragmatic exploration of real-world challenges.No longer limiting itself to abstract theories, the book then seeks to navigate the practical terrain of science and politics. Drawing inspiration from Aristotle, renowned for his investigations into the intricate connections between theory, technology, ethics, and politics, it tackles the essential question: How can we reconcile divergent views?At the book¿s core lies Aristotle¿s revolutionary concept of dialogue, which portrays truth as a delicate equilibrium between opposing forces, transcending the rigid boundaries of true and false. Join this captivating journey as the author reveals the hidden paths to meaningful coexistence in a world filled with conflicting perspectives.

Ferdinand von Schirach war lange Strafverteidiger, bevor er mit dem Erzählband Verbrechen einen sensationellen Debüterfolg feierte. Seither hat er ein umfangreiches und vielfältiges literarisches Werk veröffentlicht. Mit über 10 Millionen verkauften Büchern und Übersetzungen in über 40 Ländern gehört Schirach zu den meistgelesenen deutschen Gegenwartsautoren. Wie erklärt sich dieser Erfolg? Was zeichnet seine Texte aus, ästhetisch, diskursiv und politisch? Die im vorliegenden Band versammelten Beiträge untersuchen Schirachs Werk aus literatur-, kultur- und rechtswissenschaftlicher Perspektive: seine Poetik, seine Medien und vor allem seine Verbindung von Literatur und Recht.

The book describes in a retrospective way how dignity and human rights evolved. In doing so, the book is divided in three parts: human rights from present to early modern age, human dignity from present to Early modern age and dignity and human rights from present to future.The book has been written in a way that might me appealing to graduate students, postgraduate students, researchers and even laymen who are interested in the making of dignity and human rights in the Western.

In the book, the author presented the results of several years of empirical studies conducted in Polish common courts. On the basis of an analysis of 250 observed and recorded trials, conducted as part of various court proceedings (criminal, civil, insurance, etc.), the author outlined a picture of the trial as a communication occurrence, in which persons with various levels of communication competence are involved in the interaction. Among other things, the book answers the questions: "How does the communication process between a judge and a non-professional participant proceed?", "Implementation of which communication activities cause the greatest difficulty for non-professional participants?" and "How do judges try to counteract these difficulties?".

This book explores how judiciaries in different parts of the world are responding to climate change and how climate change intersects with the law. It offers feminist approaches to the judicial responses to climate change in the Global South, providing both jurisdictional and thematic reviews. Climate change is one of the most pressing global issues facing humankind, and is currently reshaping geopolitics, governance, law, and international relations around the world.The book¿s originality lies in its endeavour to highlight judicial perspectives on climate change from prominent female researchers who have been working on this subject professionally and/or academically, bringing both regional and international views to the subject. The main objective is to give a new meaning to the study of climate change by bringing together the most recent aspects, including climate litigation, eco-constitutionalism and the environmental rule of law, climate and environmental justice, climate geopolitics and climate governance.The book will be of interest to students, academics, and scholars of climate law and environmental law around the world.

This handbook presents the roots of symbolic racism as partly in both anti-black antagonism and non-racial conservative attitudes and values, representing a new form of racism independent of older racial and political attitudes. By doing so, it homes in on certain historical incidents and episodes and presents a cogent analysis of anti-black, Jim Crowism, anti-people of color (Black, Latino, Native Americans), and prejudice that exists in the United States and around the world as a central tenet of racism. The book exposes the reader to the nature and practice of stereotyping, negative bias, social categorization, modern forms of racism, immigration law empowerment, racialized incarceration, and police brutality in the American heartland. It states that several centuries of white Americans' negative socializing culture marked by widespread negative attitudes toward African Americans, are not eradicated and are still rife. Further, the book provides a panoramic view of trends of racial discrimination and other negative and desperate challenges that Black, Indigenous, and People of Color face across the world. Finally, the volume examines xenophobia, racism, prejudice, and stereotyping in different contexts, including topics such as Covid-19, religion and racism, information manipulation, and populism.The book, therefore, is a must-read for students, researchers, and scholars of political science, psychology, history, sociology, communications/media studies, diplomatic studies, and law in general, as well as ethnic and racial studies, American politics, global affairs, populism, and discrimination in particular.

This book intertwines two major themes in contemporary legal theory - the concepts of human dignity and the problem of the autonomy and limits of the law - while also addressing two other key aspects - the first one concerned with human rights practices and foundations (in their direct connections with the issue of dignity), the second one considering the role that the law's aspirations attribute to the experience of an autonomous subject-person (and the demands that identify his/her position in the dialectical counterpoint with the rethinking of a community). The diversity of perspectives that each of these themes allows is explored in various contexts and with unmistakable implications concerning juridical validity, rule of law practices, pluralism, political and practical-cultural challenges, and divisive "e;bio-ethical"e; issues. This means considering the separation or separability theses between law and morality and the juridically relevant experience of person(hood) as a dialectic between autonomy and responsibility, the orthodox and heterodox images of comparable concreteness and incomparable singularity, the challenges of external points of view and interdisciplinary approaches.

This book analyzes the conflict that emerges between parties after a breach of contract and how different legal remedies can best reduce conflict. Causes for conflict include equity, efficiency, and ethical reasons that parties might consider and use to blame the other or to justify breach. In the end, if not resolved through apologies or renegotiation, conflict leads to aggrievement and behavioral reactions in form of retaliation by the victim against the promisor in breach. The book provides empirical evidence from laboratory experiments for how individuals react to perceived wrongful acts such as breach of contract and for the function of legal remedies to reduce retaliation by disappointed promisees in providing them compensation. It reveals how the inequality in the outcome, and not the inefficiency of breach of contract, causes aggrievement and retaliation by victims. The book concludes with a comparative law and economic analysis of remedies for breach of contract adopted in different leading jurisdictions, with important normative implications for the American insistence on expectation damages, the French expansion of specific performance with "e;astreinte"e;, the German junction of specific performance, expectation damages, and disgorgement damages, and the British timid acceptance of partial disgorgement damages.The book will appeal to scholars, researchers, and students of economics and law, interested in a better understanding of remedies for breach of contract.

Dieses Buch fragt danach, wie Recht und Rechtsprechung, Staats- und Rechtstheorie sowie moderne Verhaltensökonomie die Rationalität und den Egoismus des Menschen begreifen und wie dies die Wahl staatlicher Steuerungsinstrumente beeinflusst. Das scheinbar neuartige Instrument Nudging wird mit Blick auf Umweltschutzinstrumente, die Regulierung des Tabakrauchens und der Organspende in den öffentlich-rechtlichen Handlungsformenkatalog eingeordnet, wobei verfassungsrechtliche Grenzen diskutiert werden. Zielgruppe sind die an der "Metaebene" des Rechts und der Verhaltenssteuerung interessierten Leserinnen und Leser.

Following a dialogic and interdisciplinary approach, this book highlights changes in the concept and action of disobedience, presenting a theoretical framework and applied case studies.Disobedience has traditionally been played out through collective actions and protests which configure and propose alternative social scenarios to the status quo. Today, in a changing socio-historical context, disobedience represents a mode of political participation and a form of an active citizenship attempt to correct authoritarian drifts. Furthermore, it often highlights social problems and morally controversial issues. Disobedience is not only a right granted to the individual within democratic systems and/or duty imposed in the interest of society in a pro-social sense, i.e. defense of human rights and a tendency towards equalization, but it also became an alternative process, often symbolic, of construction of reality.The book focuses on a) reconstructing the concept of socialdisobedience and the field's state of the art from an innovative, contemporary, theoretical, and conceptual perspective and b) analyzing its phenomenology within a specific territorial horizon, with the objective of uncovering social and pro-social aspects related to today¿s forms of disobedience. The book therefore will appeal to students, scholars, and researchers of contemporary political theory, political science, democratization studies, social movement studies, criminology, legal theory, and moral philosophy.

Combining philosophical and historical perspectives, this book focuses on the rise of a legal institution that has dominated the economy of knowledge ever since it burst onto the scene at the dawn of modernity in the heartlands of Europe. From the age of print to the age of networks and disruptive technologies, this book explores the place of copyright amid the various conceptual transformations it has undergone over time. Uniquely, it presents an in-depth philosophical treatment of the cultural history of copyright from its beginnings to the present.Although copyright is a central topic, the content is by no means limited to it. The main question the author seeks to answer is: how do legal institutions emerge and how do they evolve over time? Though copyright is a wonderful example for tackling this question, a selection of other institutions, such as the social practice of promising in eighteenth-century Britain, are also addressed at considerable length. What the author has managed to show in this book is that the transformations which modern law has undergone since the eighteenth century are inextricably linked to those which have shaped the modern subject to the core. Law forms part of those great schemes of intelligibility that allow us to understand ourselves better. We need to delve deep into the multiple layers of culture if we want to fully understand how the morphology and cultural archaeology of our legal institutions intertwine.

Pedro Dorado Montero was one of Spain¿s most relevant authors. He contributed to modern Criminal law and Penology with a very unique theory: the Protective Law for Criminals. In a time when neoclassical penal theories and new positivist theories clashed, Dorado Monterös proposal served as a bridge between the criminal law conceptions of the 19th and 20th centuries.In order to explore his role in the introduction of positivism within Spain and the subsequent success of this trend, this book addresses several aspects. The first three analyzed are his scholarly career, the historical and international context in which he lived, and the various European and other international influences he was exposed to. On this basis, two major points are then discussed.Firstly, Dorado Montero has been traditionally included within the movement known as correccionalismo. However, his legal-philosophical and criminal thought indicates otherwise. It seems to lie closer to positivism than to neoclassical positions. This research aims at challenging the accuracy of the ¿eclectic¿ label which traditional historiography has applied to him.In turn, Dorado Montero described a reality in which every moral value and legal representation was a mere product of mankind¿s imagination. Man is responsible for the elaboration of morals, law and culture in his own mind. Thus, for him, there were as many moral and legal orders as there were human beings on the planet. Such a claim is polemic even today. Unsurprisingly, the author received criticism from both neoclassical and positivist schools. Thus, the existence of a ¿Doradian positivism¿ is explored. Despite the growing interest in these topics over the last few decades, Dorado Montero has somehow been overlooked ¿ even though his Derecho protector de los criminales described the criminal law of the future as well, one that will have to face the new neurological, medical, psychological and genetic challenges of our time.

Bogen giver en solid indføring i de bærende principper i indkomstskatterettenGrundlæggende Skatteret indeholder en solid gennemgang af skatterettens grundprincipper samt en nærmere fremstilling af reglerne om beskatning af fysiske personer, beskatning af erhvervsdrivende, kapitalgevinstbeskatning, beskatning af selskaber m.v. Bogen ajourføres årligt og udkommer i begyndelsen af hvert kalenderår.Målgruppe:Grundlæggende Skatteret anvendes som lærebog af jura- og revisionsstuderende. Bogen er også velegnet som håndbog til alle, der har brug for en let og overskuelig introduktion til skatteretten.Om forfatterne:Henrik Dam er rektor ved Syddansk Universitet, dr.jur., ph.d. Henrik Gam er dommer ved Østre Landsret, lic.jur. Jacob Graff Nielsen er dekan og professor i skatteret ved Københavns Universitet, ph.d.

This unique and timely book offers a synthesis, analysis, and evaluation of education-related rulings of the US Supreme Court from 2005 to the present. Throughout the course of the twentieth century into the twenty-first century, the Supreme Court issued rulings, which frequently vacillate based on the political composition of the justices who sit on the bench. Chapters will cover both an overview of the role of Supreme Court rulings in school policy and the court¿s transformation in the late twentieth century into the present day. These themes will be converted into robust chapters which will provide a legal analysis of the Roberts Court years, and an evaluation of the jurisprudence and its practical effect on public schools.

The translation of legal documents in today¿s globally interconnected world calls for novel approaches to overcoming traditional language barriers. The verbal language used in legal documents can be accompanied or even replaced by various types of semiotic resource, such as symbols, diagrams, and icons, while the advancement of digital tools and the introduction of new technologies offer those drafting contracts and other legal documents access to an ever-expanding toolbox for the translation process.This book makes a significant contribution to the existing literature on legal translation and intersemiotic translation by sharing valuable insights and opening up new avenues of inquiry, fostering further exploration of this evolving domain and enabling practitioners to use these diverse communication tools responsibly and effectively.Given the book¿s structured multidisciplinary approach and extensive analyses of the characteristics of intersemiotic legal translation, its potential, and the complexities that arise at the intersection of law, language, and semiotics, it will appeal to legal practitioners, translators, semiotic scholars, and legal philosophers alike.Whether you are a legal professional aiming to expand your expertise, an academic seeking a new research direction, or are simply intrigued by the fascinating interplay of law, language, and semiotics, this book offers a valuable resource that sheds light on the unique dynamics of translating legal concepts using approaches other than traditional verbal communication. As such, it is an essential read for anyone who is interested in the changing landscape of law, language, and translation.

Indem die Rechtswissenschaft das Recht vorandenkt, kann sie am zivilisatorischen Fortschritt mit und durch Recht mitwirken. Dieser Sammelband reflektiert über diese These, die für Prof. Dr. h.c. Heike Jung eine Art Bekenntnischarakter hat, und wirft hierzu Schlaglichter auf herausgehobene Bereiche, in denen sich eine gewichtige Rolle der Rechtswissenschaft bei der Weiterentwicklung des Rechts aufdrängt: Die "tour d'horizon" reicht dabei vom Völkerstrafrecht über die die Rechtswissenschaft als Akteur der Rechtsentwicklung im Bereich der Digitalisierung bis hin zur Rolle der Strafrechtswissenschaft bei der Begrenzung und Bewältigung des menschengemachten Klimawandels.Mit Beiträgen vonProf. Dr. Joxerramon Bengoetxea | Prof. Dr. Michael Bohlander | Prof. Dr. Dominik Brodowski, LL.M. (UPenn) | Prof. Dr. Thomas Elholm | Prof. Dr. Maximilian Herberger | Prof. Dr. Dr. h.c. Heike Jung | Prof. Dr. Karl-Ludwig Kunz | Dr. Anke Morsch | Prof. Dr. Kathrin Nitschmann | Prof. Dr. Carl-Friedrich Stuckenberg,LL.M. (Harvard) | Prof. Dr. Julien Walther

This book explores the historical and legal importance of two principles, Quod Omnes Tangit, and Tianxia Wei Gong, which have played significant roles in European and Chinese political and legal history. While Quod Omnes Tangit has been thoroughly researched, Tianxia Wei Gong has not been systematically examined. This thesis fills this void and connects these two principles for the first time. Quod Omnes Tangit was initially introduced in Justinian's Codex Civil, while Tianxia Wei Gong originated from Liji, one of the books in a key series of works by Confucius. Liji is comparable to the Thora in the Old Testament and is considered as important as law in Chinese legal history. Both principles have undergone comparable developmental processes, with scholars contributing to their reinterpretation. This book thoroughly examines the interpretations of individual scholars, with particular attention given to Liang Qichao, who is the only one to have mentioned both Tianxia Wei Gong and Quod Omnes Tangit. The book also provides an explanation for the original discrepancies in their concepts, particularly their methodologies in distributing and legitimizing rights. This research will be of interest to legal philosophers and historians in both the Western and Eastern worlds, legal practitioners and policymakers, and researchers seeking to explain current events and explore fundamental differences between the East and West.

Gerichtsentscheidungen können ohne Bezugnahmen auf andere Texte weder getroffen noch verfasst werden, Zitate sind in Gerichtsentscheidungen omnipräsent. Jede Entscheidung berücksichtigt einschlägige Normtexte oder Präjudizien, in erster Linie zur Sicherstellung einer kohärenten Rechtsprechung. Durch den Akt des Bezugnehmens demonstrieren Gerichte, dass sie in ihren Entscheidungen auf einer etablierten Rechtsdogmatik aufbauen. Diese Integration in die bestehende Dogmatik legitimiert die Entscheidung und schafft damit Rechtssicherheit durch Rechtsvorhersagbarkeit. In Gerichtsentscheidungen finden sich darüber hinaus Bezugnahmen auf Texte, die nicht über rechtliche Autorität verfügen und denen entsprechend keine derartige Funktion zugeschrieben werden kann. Unter den von Gerichten zitierten Quellen finden sich neben Gesetzestexten z.B. auch Bezüge auf ausländisches Recht, auf wissenschaftliche Quellen oder sogar auf literarische Texte. Die vorliegende Arbeit beschäftigtsich in Anbetracht dessen mit der Frage, wie und warum Gerichte zitieren. Am Beispiel von Entscheidungen des Bundesverfassungsgerichts und des Supreme Court of Canada schlägt die interdisziplinäre Studie sowohl philologische als auch rechtswissenschaftliche Auswertungskriterien zur empirischen Rekonstruktion von Zitatfunktionalisierungen vor und nimmt dabei ferner auch eine komparative Perspektive auf rechtskreisbedingte Unterschiede zwischen den Zitationspraktiken vor Gericht ein.

This book shares state-of-the-art insights on judicial decision-making from both theoretical and empirical perspectives. It offers in-depth coverage of the forefront of the field and reviews the most important issues and discussions connected with an empirical approach to judicial decision-making. It also addresses the challenges of judicial psychology to the ideal of rule of law and explores the promise and perils of applying artificial intelligence in law. In closing, it offers empirically-driven guidance on ways to improve the quality of legal reasoning.

Based on the Judicial Transparency Index Assessment (2019 and 2020) conducted in China by the Institute of Law of the Chinese Academy of Social Sciences, this book summarizes and analyzes the current situation of judicial openness in China, using a sample of 218 courts across the country for the study. The book analyzes the ideological and institutional origins of judicial openness and examines the operation of judicial openness through the practical experience of role replacement. By analyzing evaluation data in the fields of audit information disclosure, trial information disclosure, judicial enforcement data disclosure, and judicial reform data disclosure, the book points out that the current judicial disclosure has made significant progress, but there are still problems such as unclear disclosure standards, insufficient rigidity in disclosure requirements, and the scope of disclosure still needs to be expanded. The book recommends accelerating the disclosure of judicial legislation, public standards, and strengthening assessment and accountability.

This book analyses gender-based offences on the Internet from the perspective of international human rights law, interwoven with rights theories and feminist legal theories. It investigates whether international human rights law is applicable in regulating harmful online conduct and speech, with a focus on sexual violence, various forms of harassment, sexist hate speech and harmful pornography. This involves assessing whether gender-based online offences are considered violations of international human rights law and - if they are recognised as such explicitly or by way of interpretation - the extent of state obligations. The book reviews a range of international law sources, such as selected international human rights law treaties, case law, soft-law documents and academic scholarship. The application of general human rights law provisions to the online sphere is evaluated by considering the online/offline coherence of provisions as well as potential gaps, inconsistencies and disadvantages that exist in the regulation of online gender-based offences. The makeup, aim and effect of social spheres, areas of law and legal principles are thus assessed in relation to gender and the Internet. Aspects discussed include the architecture of the Internet, the structure of public international law, the harm principle as employed in domestic law and international human rights law, and the scope of particular rights, mainly involving the freedom of expression and the right to privacy. Working from the premise that the transposition of international human rights law to the Internet must ensure the former's functionality and effectiveness, the book argues that a contextual application of rights is called for. This requires assessing what is harmful online - including the effects of online speech and conduct - and what are effective means of regulating liability on the Internet. In turn, such assessments require a gender-sensitive approach.

The book focuses the openness of Chinese copyright law and patent law, namely the right limitation and exception rules (as the IP-internal balancing mechanism) and the right enforcement and protection (as the IP-external balancing mechanism). It examines the highlights of the 3rd and 4th amendments to the Chinese copyright law, patent law and the trademark law, addressing the most debated questions during these amendments. This book also takes a comparative approach to study the legislations and case laws in the USA, EU and China. The comparison covers the legislation, case decisions, which could offer useful clues for legislators to revise the current law, for judges to decide the cases about relevant topics and lay down their market plans. Moreover, this study also provides several recommendations for the right holders who are currently operating or planning to operate in China, regarding the de facto protection levels of their IP rights, the risks of right infringement and litigation costs as well as the trend of the goalsetting in their intellectual property strategy.

»Law and Economics in all his facets«: The Festschrift pays tribute to Klaus Mathis' invaluable contribution at the interface of law and economics and constitutes a coherent reference work for the economic analysis of law. Fundamental thoughts on efficiency, justice and interdisciplinarity are followed by contributions in five areas of application of a law and economics perspective: corporate responsibility, environment, digitalization, economic and social policy, and consumer and insurance protection