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The author or concept searched is found in the following 3 entries.
| Disputed term/author/ism | Author |
Entry |
Reference |
|---|---|---|---|
| Fundamental Rights | Böckenförde | Brocker I 774 Basic rights/Böckenförde: have a double structure: as a) subjective rights of defence Brocker I 775 and b) objective basic standards.(1) Brocker I 778 Objective law standards: in this understanding, fundamental rights have an optimizing character.(2) Here, fundamental rights radiate into other areas of law - with priority being given to them, since fundamental rights are constitutional law.(3) Ratio of fundamental rights/scope of jurisdiction: Böckenförde criticises the concept of the "objective order of values" of the fundamental rights (so used in the so-called Lüth-judgement of the Federal Constitutional Court in 1958, (4) In which the court had regarded freedom of expression as also relevant to private law. Accordingly, fundamental rights have an indirect third-party effect. >Jurisdiction. Values/value interpretation/law/BöckenfördeVs: the value interpretation of fundamental rights is characterised by Böckenförde as a permanent facon de parler of the court and marked as a disguise formula and sharply criticised as a disguise formula for judicial or interpretative decisionism.(5) >Values. Brocker I 779 Problem: a rational justification for values and their ranking is not recognizable, therefore the value order formula does not provide a justification, but on the contrary covers rather that judges must make decisions in cases of conflicting fundamental rights, which they then did not justify further with the reference to the value order formula. This will considerably increase the court's scope at the expense of the democratically legitimised legislature. A further problem: if fundamental rights are regarded as a norm under objective law, this also creates a duty on the part of the state to protect them.(6) The problem was now that the content and scope of state duties of protection could not be derived from the constitution. The duty to protect is just as indeterminate as the figure of value and an invitation to intervene in the sphere of action of the citizen in a regulating manner. >Norms. Brocker I 780 However, since the protective function is now exercised more by action than by omission, there is a danger of legalising all conflicts on genuine political issues in principle. Problem: this leads to a shift within the separation of powers from democratic legislators (the parliament) to constitutional jurisdiction. This would then take on the role of the creator of the legal system instead of applying the law and thus limiting itself to the control function.(7) 1. Ernst-Wolfgang Böckenförde, Staat – Verfassung – Demokratie. Studien zur Verfassungstheorie und zum Verfassungsrecht, Frankfurt/M. 1992 (zuerst 1991), Abschn. 1. 2. Ibid., Abschn. 2. „Rechtsstaatliche Freiheitsgewähr“. 3. Ibid. p. 166f. 4. BVerfGE 7, 198ff. 5. Böckenförde 1992, S. 135. 6. Ibid. p. 173f. 7. Ibid. p. 183f Tine Stein, „Ernst-Wolfgang Böckenförde, Staat – Verfassung- Demokratie“, in: Manfred Brocker (Ed.) Geschichte des politischen Denkens. Das 20. Jahrhundert. Frankfurt/M. 2018 |
Böckenf I Ernst-Wolfgang Böckenförde State, Society and Liberty: Studies in Political Theory and Constitutional Law, London 1991 German Edition: Staat, Gesellschaft, Freiheit. Studien zur Staatstheorie und zum Verfassungsrecht Frankfurt 1976 Brocker I Manfred Brocker Geschichte des politischen Denkens. Das 20. Jahrhundert Frankfurt/M. 2018 |
| Legal Positivism | Dworkin | Brocker I 594 Legal Positivism/DworkinVsLegal Positivism/DworkinVsUtilitarianism/Dworkin:[Legal] positivists and utilitarians are united by their opposition to the idea of natural, morally predetermined rights for the state. Positivists reject them because they attribute all normative facts of the law to social facts such as legislation and judicial further training in law. Utilitarians deny them because their last criterion is the social (overall) benefit. Against both perspectives, Dworkin wants to defend a law-based theory to which his book title refers. Brocker I 596 Legal Positivism/DworkinVsPositivism/DworkinVsHart, L. H. A.: Dworkin rejects a system of rules like Hart's: see Rules/Hart, Law/Hart: instead, one must distinguish between law and principles. ((s) Thus Dworkin is influenced by Kant). Rules are either valid or not - however, principles can collide without at least one of them having to be invalid. Principles/Dworkin: have a certain weight and indicate in which direction arguments point. (1) Brocker I 599 DworkinVsPositivism: no description of law is possible that does not include judgmental judgements. For illustration, Dworkin introduces the character of the talented judge Hercules, who knows all the important institutional facts of law and its history, as well as all principles and goals. This allows him to make an accurate assessment of the law in an overall context. Justification/Dworkin: thesis: the justification of law in a matter of best available arguments is substantial in nature. Dworkin therefore sees no problem in the fact that his ideal judge is an isolated hero who apparently interprets the law monologically. VsDworkin: siehe Michelman 1986 (2), 76; Habermas 1994 (3). Jurisdiction/Dworkin: Responsible judges, according to Dworkin, do not succumb to the temptation to seek reasons and points of view outside the law just because so far no article of the constitution, no legal text and no explicit judgment provide authoritative information on a difficult case. Brocker I 600 Legal PositivismVsDworkin: a positivist could argue that Dworkin only wants the American legal system to appear in the most positive light possible, but his approach is unsuitable for giving general assessments of legal systems, such as today's Iranian legal system. Dworkin's approach is unsuitable because it already presupposes that a legal system must embody rational contents such as the idea of individual rights Brocker I 601 against the state. However, this is not a conceptual characteristic of law, but a fragile and in fact not generally recognised achievement of legal history. 1. Ronald Dworkin, Taking Rights Seriously, Cambridge, Mass. 1977 (erw. Ausgabe 1978). Dt.: Ronald Dworkin, Bürgerrechte ernstgenommen, Frankfurt/M. 1990, S. 58-64 2. Michelman, Frank I., »The Supreme Court 1985 Term – Foreword. Traces of Self-Government«, in: Harvard Law Review 100/1, 1986, 4-77. 3. Habermas, Jürgen, Faktizität und Geltung. Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats, Frankfurt/M. 1994, S. 272-276. Bernd Ladwig, „Ronald Dworkin, Bürgerrechte ernstgenommen“ in: Manfred Brocker (Hg.) Geschichte des politischen Denkens. Das 20. Jahrhundert. Frankfurt/M. 2018 |
Dworkin I Ronald Dworkin Taking Rights Seriously Cambridge, MA 1978 Brocker I Manfred Brocker Geschichte des politischen Denkens. Das 20. Jahrhundert Frankfurt/M. 2018 |
| State (Polity) | Bobbio | Gaus I 406 State/Democrcy/Bobbio/Bellamy/Jennings/Lassman: With post-war Italian politics dominated by the two 'religions' represented by the Catholic Christian Democrats (DC) and the Gramsci- inspired Italian Communist Party, political theorists continued to address the tensions between the two Romes, particularly the difficulties of reconciling the pragmatic concessions of politics with a broader cultural and moral aspiration for social unity. Unsurprisingly, dissenters on both sides typically accused their parties of sacrificing the latter to the former. Significantly, the main political thinker to emerge in this period, Norberto Bobbio (1909-[2004]), though aligned to neither camp as a member of the 'lay' Italian Socialist Party (PSI), led a return to the neo-Machiavellian tradition of Pareto and Mosca (Bobbio, 1977)(1). Bobbio started out as a legal theorist, and his earliest writings were inspired by the legal positivist tradition of Hans Kelsen - a distinctive position in the Italian context that proved highly influential. Bobbio shared Kelsen's deep commitment to the liberal ideal of the Rechtsstaat, sharply criticizing the right and especially the Marxist left for overlooking the importance of the rule of law for the defence of individual liberty. >Freedom/Kelsen. Law/BobbioVsKelsen: However, he had a more realist view of the nature of law than Kelsen, regarding it as institutionalized power. This approach led him to a series of path-breaking studies of Hobbes and ultimately to political theory. In 1972 he exchanged his chair in law at Turin University for one in the newly created politics faculty. He now embarked on a series of essays exploring the nature of the state and democracy. These pieces were often motivated by his own engagement with the peace movement (Bobbio, 1979)(2) on the one hand, and his critique of the radical new left (Bobbio, 1987a)(3) on the other. Cosmopolitanism: Deeply opposed to nuclear weapons, he became a pioneering advocate of some form of cosmopolitan democracy as the only plausible way to institutionalize international law. Yet he remained deeply sceptical of radical schemes for participatory democracy at any level. Democracy: Returning to Pareto and especially Mosca, Bobbio (1987b)(4) defined democracy as simply a means for formalizing the rules whereby elites compete for and exercise power. Though modest by comparison with the hopes of radical democrats, it offers the only available mechanism whereby 'force' can be limited by "consent'. 1. Bobbio, N. (1977) Saggi sulla scienza politica in Italia. Bari: Laterza. 2. Bobbio, N. (1979) Il problema della guerra e le vie della pace. Bologna: Il Mulino. 3. Bobbio, N. (1987a) Which Socialism? Marxism, Socialism and Democracy, ed. Richard Bellamy. Cambridge: Polity (first Italian edn 1976). 4. Bobbio, N. (1987b): The Future of Democracy. A Defence of the Rules of Game. Minneapolis Bellamy, Richard, Jennings, Jeremy and Lassman, Peter 2004. „Political Thought in Continental Europe during the Twentieth Century“. In: Gaus, Gerald F. & Kukathas, Chandran 2004. Handbook of Political Theory. SAGE Publications |
Gaus I Gerald F. Gaus Chandran Kukathas Handbook of Political Theory London 2004 |
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