The purpose of this paper is to center our thoughts in the metaphysics and ethics of Hegel´s works, pointing out the relationship between the subject, the law and history. This theme arises from an interest in the text on Phenomenology found in the Prologue, number 11.1, entitled “The concept ..

Obwohl die Substitutionsbehandlung nachweislich den Gesundheitszustand opiatabhängiger Patienten verbessern und die Beschaffungskriminalität reduzieren kann, bestehen enge gesetzliche Regelungen, die die Therapiefreiheit der behandelnden Ärzte stark begrenzen: So werden durch das Betäubungsmittelgesetz und die zugehörigen Verordnungen nicht nur das Behandlungsziel (Abstinenz) sondern auch notwendige Therapiebausteine definiert, die darauf ausgerichtet sind, die Therapietreue des Patienten zu kontrollieren. Deutsche Ärzte, die die strengen Auflagen nicht strikt befolgten, wurden zu Gefängnisstrafen verurteilt. Wie der Artikel zeigt, fördern die bestehenden Gesetze eine „kontrollierende“ statt einer motivierenden (...) ärztlichen Behandlung, ohne wichtige Ziele, wie den Schutz der Allgemeinheit vor einer illegalen Verbreitung illegaler Opioide, vollständig zu erreichen. Zusammenfassend zeigt der Artikel, dass eine stärker am Wohl der Patienten ausgerichtete Substitutionsbehandlung (einschließlich notwendiger Kontrolluntersuchungen) mit hoher Wahrscheinlichkeit auch die Öffentlichkeit wirksamer vor den potenziellen Gefahren einer illegalen Verbreitung von gefährlichen Opioiden schützt als die Befolgung abstrakter, restriktiver gesetzlichen Normen. (shrink)

Cuidados paliativos: solución ética acorde con la dignidad humana al final de la vida Cuidados paliativos: solução ética de acordo com a dignidade humana no final da vida It is said that passing laws to legalize euthanasia is absolutely necessary but, in my opinion, it is more pressing to enact a law for the patient to access a universal palliative care service at the end of their life than a law on euthanasia. This article discusses the difference between euthanasia and (...) palliative care. It is affirmed that being in favor of the latter does not mean wanting the patient to be in pain and to suffer, nor extending their life unreasonably. However, opting for palliative care is, on the one hand, what the physician can ethically do as a health worker and, on the other, the only morally acceptable alternative to the natural end of human beings that is appropriate to their dignity. Therefore, palliative care immerses us in an anthropological reflection about our own limitation and fragility, since respect for human life and palliative care dignify the process of dying. Para citar este artículo / To reference this article / Para citar este artigo Zurriaráin RG. Cuidados paliativos: solución ética acorde con la dignidad humana al final de la vida. Pers Bioet. 2019; 23: 180-193. DOI: https://doi.org/10.5294/pebi.2019.23.2.2 Recibido: 08/04/2019 Aceptado: 24/07/2019. (shrink)

This paper analyses the Verlagsanzeige of the humanist, mathematician, astronomer and publisher Johannes Regiomontanus. How is humanism expressed in this famous document from German early printing and what is its relationship to philosophy? The article shows that Regiomontanus advocated a special form of humanism that went beyond the standard humanism that he valued, with ‘truth’ as its most important aspect. From the epistemological perspective of the history of philosophy in Regiomontanus’s publishing programme, the ‘truth’ of mathematics is seen, analogous (...) to some predecessors, as a paradigm of programmatic testimony. The integration of philosophy is evident in this, as in another specified way as well. (shrink)

The current practice of late termination of pregnancy in Germany has been criticized by the German Medical Association as well as several sociopolitical groups. The controversy has especially concerned the time limit for the termination of pregnancies and the counseling process prior to that intervention. The criticism, in part, originates from the reform of the German Abortion Law in 1995, and demands for change led to legislative initiatives in 2008.

Increasingly, international governmental networks and organisations make it necessary to master the legal principles of other jurisdictions. Since the advent of international criminal tribunals this need has fully reached criminal law. A large part of their work is based on comparative research. The legal systems which contribute most to this systemic discussion are common law and civil law, sometimes called continental law. So far this dialogue appears to have been dominated by the former. While there are many reasons for this, (...) one stands out very clearly: Language. English has become the lingua franca of international legal research. The present book addresses this issue. Thomas Vormbaum is one of the foremost German legal historians and the book's original has become a cornerstone of research into the history of German criminal law beyond doctrinal expositions; it allows a look at the system's genesis, its ideological, political and cultural roots. In the field of comparative research, it is of the utmost importance to have an understanding of the law's provenance, in other words its historical DNA. (shrink)

In German criminal law, intention is the label used not only for cases of knowledge and desire; it also includes cases of what the common law would call recklessness. German criminal law calls its approximation of recklessness dolus eventualis. It is on that concept that the article concentrates. After a brief review of the historical development of the German concept of intention, the author shows that dolus eventualis consists of two components: the cognitive element, which (as in (...) the common law) considers the state of the accused's knowledge that the offence may occur, and a volitional or dispositional element which is unknown to the common law. The author concludes that the volitional or dispositional element is not plausible, and that in any harmonization of concepts of intention in the criminal law of the European countries such an element should not be adopted. (shrink)

Definition of the problem The reform of German guardianship law coming into force in 2023 will remove the term “well-being” from the law. This is intended to emphasise that the legal guardian should be guided by the subjective wishes of the person rather than by an objective understanding of well-being. This article analyses the understanding of well-being underlying the reformed guardianship law in comparison to common conceptions of well-being in philosophy and medical ethics, aiming to promote interdisciplinary understanding between (...) ethics and law. Arguments The justification for the reform emphasises that the law is based on a subjective understanding of well-being. However, this understanding does not correspond to philosophical subjective theories of well-being, according to which only things that a person desires can contribute to her well-being. In contrast, the guardianship law assumes that the fulfilment of certain wishes can lead to objective harm to the person and thus impair her well-being. Negative consequences for the objective well-being of a person are only relevant insofar as they indicate a limit to following current wishes that are based on a natural will and are not an expression of self-determination. Conclusion While the term “well-being” is removed from reformed guardianship law, the law implicitly contains an understanding of well-being comparable to a hybrid conception of well-being from a medical ethics perspective. According to this conception, fulfilment of a person’s wishes generally contributes to her well-being, although certain objective criteria are also taken into consideration. (shrink)

Definition of the problem The reform of German guardianship law coming into force in 2023 will remove the term “well-being” from the law. This is intended to emphasise that the legal guardian should be guided by the subjective wishes of the person rather than by an objective understanding of well-being. This article analyses the understanding of well-being underlying the reformed guardianship law in comparison to common conceptions of well-being in philosophy and medical ethics, aiming to promote interdisciplinary understanding between (...) ethics and law. Arguments The justification for the reform emphasises that the law is based on a subjective understanding of well-being. However, this understanding does not correspond to philosophical subjective theories of well-being, according to which only things that a person desires can contribute to her well-being. In contrast, the guardianship law assumes that the fulfilment of certain wishes can lead to objective harm to the person and thus impair her well-being. Negative consequences for the objective well-being of a person are only relevant insofar as they indicate a limit to following current wishes that are based on a natural will and are not an expression of self-determination. Conclusion While the term “well-being” is removed from reformed guardianship law, the law implicitly contains an understanding of well-being comparable to a hybrid conception of well-being from a medical ethics perspective. According to this conception, fulfilment of a person’s wishes generally contributes to her well-being, although certain objective criteria are also taken into consideration. (shrink)

This article seeks to contribute towards the emergent field of law and emotion by offering a multi-perspectival study that combines legal, philosophical and empirical considerations into an interdisciplinary research on shame in the German courts of lower and middle instance. On the basis of this joint theory, the study proposes the existence of law-relevant emotions, whose relevance could be argued phenomenologically and validated empirically; hence, the main claim of this study: in the courtroom emotions are communicated for specific procedural (...) purposes. The interdisciplinary nature of the study enables us to determine the role and function of shame in an institutional setting, its relation to other emotions and, more importantly, obtain the sense of shame as it acquires a specific institutional relevance. (shrink)

This article considers the various suggestions that have been put forward by German scholars to replace the traditional concept of intention, which the author has criticized elsewhere (Taylor 2004). The debate on this topic has become a minor academic industry in Germany, and should be better known as the English-speaking world struggles with its own concepts of intention. Despite the great amount of effort and ingenuity devoted to this topic in Germany, however, the author concludes that only one theory (...) of intention, that put forward by Professor Wolfgang Frisch, shows any substantial degree of promise. (shrink)

This article assesses interactions between American and German eugenicists in the interwar period. It shows the shifting importance and leading roles of German and American eugenicists: while interactions and exchanges between German and American eugenicists in the interwar period were important and significant, it remains difficult to establish direct American influence on Nazi legislation. German experts of race hygiene who advised the Nazi government in drafting the sterilization law were well informed about the experiences with similar (...) laws in American states, most importantly in California and Virginia, but there is little evidence to suggest they depended on American knowledge and expertise to draft their own sterilization law. Rather, they adapted a body of thought that was transnational by nature: suggesting that the Nazis’ racial policies can be traced back to American origins over-simplifies the historical record. Still, the ‘American connection’ of the German racial hygiene movement is a significant aspect of the general history of eugenics into which it needs to be integrated. The similarities in eugenic thinking and practice in the USA and Germany force us to re-evaluate the peculiarity of Nazi racial policies. (shrink)

The article aims to illuminate the recent debate in Germany about the legitimacy of circumcision for religious reasons. The aim is both to evaluate the new German law allowing religious circumcision, and to outline the resulting conflict between the surrounding ethical and legal issues. We first elucidate the diversity of legal and medical views on religious circumcision in Germany. Next we examine to what extent invasive and irreversible physical interventions on infant boys unable to given their consent should be (...) carried out for non-medical reasons. To this end, the potential benefits and harms of circumcision for non-medical reasons are compared. We argue that circumcision does not provide any benefits for the ‘child as a child’ and poses only risks to boys. We then set out to clarify and analyse political justifications of the new circumcision law. We demonstrate through this analysis how the circumcision debate in Germany has been transformed from a legal and ethical problem into a political issue, due at least in part to Germany's unique historical context. Although such a particular political sensibility is entirely comprehensible, it raises particular problems when it comes to framing and responding to medical ethical issues – as in the case of religious circumcision. (shrink)

This book combines philosophical, intellectual-historical and political-theoretical methodologies to provide a new synoptic reading of the history of German political philosophy. Incorporating chapters on the political ideas of Luther and Zwingli, on the politics of the early Enlightenment, on Idealism, on Historicism and Lukács, on early Twentieth-Century political theology, on the Frankfurt School, and on Habermas and Luhmann, the book sets out both a broad and a detailed discussion of German political reflection from the Reformation to the present. (...) In doing so, it explains how the development of German political philosophy is marked by a continual concern with certain unresolved and recurrent problems. It claims that all the major positions address questions relating to the origin of law, that all seek to account for the relation between legal validity and metaphysical and theological superstructures, and that all are centred on the attempt to conceptualise and reconstruct the character of the legal subject. (shrink)

From the Reformation to the present, German political philosophy has done much to shape the contours of theoretical debate on politics, law, and the conditions of political legitimacy; many of the most decisive and influential theoretical impulses in European political history have originated in Germany. Until now, there has been no thorough history of German political philosophy available in English. This book offers a synoptic account of the main debates in its evolution. Commencing with the formal reception of (...) Roman law and the constitutional reforms in the Holy Roman Empire in the late fifteenth century, German Political Philosophy includes chapters on: · the political ideas of Luther, Zwingli and Melanchthon in the Reformation; · the natural-law theories of the early German Enlightenment; · Kant, Hegel and the age of German idealism; · romanticism and historicism; the Young Hegelians and Karl Marx; · legal positivism and organic theory; · Nietzsche, Weber and early sociology; · neo-Kantianism in the late nineteenth century; · constitutional theory in the Weimar Republic; · the critical theories of the Frankfurt School; · post-1945 sociological functionalism; · Niklas Luhmann's systems theory. At the heart of this book is the claim that, despite - or perhaps because of - the great upheavals and ruptures in the history of state-formation in Germany, there are certain recurrent themes and concerns which persist through these discontinuities to give a distinctive character to German political reflection. This valuable book will be of great interest to political philosophers, intellectual historians, lawyers, and historical sociologists.'. (shrink)

This paper investigates the phenomenon of judicial law-making in the practice of the highest courts dealing with criminal matters in Germany and Poland on the basis of 200 of their decisions. While German jurisprudence principally acknowledges the right of the judiciary to create new law, the Polish legal theory generally rejects this notion. Still, research indicates that, in practice, the differences in the frequency and intensity with which these courts pass creative rulings are not as substantial as the discrepancy (...) in the theoretical stance would suggest. Owing to circumstances, both the German Federal Court of Justice and the Polish Supreme Court are willing to create new legal norms, but the dimensions of judicial law-making presented by these bodies deviate from each other. In the research sample, the German Federal Court of Justice was more inclined to introduce legal institutions that were foreign to the statutes and rule against the will of the lawmaker explicitly stated in the preparatory works. On the other hand, the Polish Supreme Court used logical conclusions more often, but did not also refrain from passing rulings against the clear wording of the statutory law, and was just as willing to go beyond the wording of the law as was the German Federal Court of Justice. Notably, only the German apex court is willing to openly admit that it creates new legal norms, whereas the Polish Supreme Court does not concede in the reasons that its decisions are of a law-making nature, especially when it applies so-called “interpretation in the wider sense”—which is, in essence, a “concealed” way of creating new legal norms. (shrink)

The present religious constitution of the Federal Republic of Germany is the product of protracted historical conflicts and political settlements that began in the sixteenth century. The mediation of these conflicts and settlements and the piecemeal establishment of the constitution was the achievement of imperial public law and diplomacy. Germany’s religious constitution—a secular and relativistic juridical framework protecting a plurality of confessional religions—pre-dated liberalism and democracy, and owes nothing to normative philosophical constructions of individual freedoms and rights, or social justice (...) and moral community. Rather, it was the product of a political compromise between warring confessional blocs, and of the institutions of public law that were the instruments and effects of this compromise. (shrink)

While the roots of modern German sociology are often traced back to historicism, the importance of rational natural law in the inception of the founding work of German sociology, Gemeinschaft und Gesellschaft by Ferdinand Tönnies, intended as a ?creative synthesis? between rational natural law and romantic historicism, should not be overlooked. We show how in his earliest scholarly work on Thomas Hobbes and John Locke the shift in the meaning of the two concepts ?Gemeinschaft? and ?Gesellschaft? represents a (...) departure from early liberal enlightenment to a Weltanschauung marked by romantic authors such as Fichte, Novalis and Haller, by Schopenhauer, Nietzsche, Spencer and Marx, notwithstanding Tönnies' adherence to the political and social values of a liberal civil society. (shrink)

Hegel’s definition of the state as a common public authority in The German Constitution marks his first thorough attempt to understand the authority of the modern state in terms of the rule of law. Such an understanding of the state constitutes an important advance in Hegel’s political philosophy since, in his early political-theological writings, the legal relation was in essence excluded from the political sphere. Positing a fundamental opposition between legality and authentic ethical life, Hegel interpreted societies in which (...) legal forms become particularly pronounced as societies founded on degenerate political institutions and caught up in an inexorable process of decline. Until Hegel grasped the positive ethical significance of legal authority, something accomplished in The German Constitution, his theory of the state remained largely determined by a Greek-inspired, virtue-based paradigm of political life. Only with the overcoming of this paradigm could he move to a comprehensive analysis of both modern institutional structures and the political theories that attempt to understand and justify them. Hegel’s evolving theory of modern legal form thus provides an important index and measure of his complex stance toward modern political society and of his critical assessment of the self-interpretations of modernity offered by the natural right tradition and the Enlightenment. (shrink)

The current state of mental health law in England and Wales exhibits a set of systematic antinomies. This should not be seen as a flaw of the legislation; the antinomies in law reflect an underlying antinomial structure at work where the vocations of care are practiced and regulated in a broadly liberal legal environment. The aim of this paper is to identify these antinomial structures and to deploy resources from the post-Kantian idealist tradition to diagnose them and to consider how (...) they might be managed. (shrink)

This paper describes the automated classification of legal norms in German statutes with regard to their semantic type. We propose a semantic type taxonomy for norms in the German civil law domain consisting of nine different types focusing on functional aspects, such as Duties, Prohibitions, Permissions, etc. We performed four iterations in classifying legal norms with a rule-based approach using a manually labeled dataset, i.e., tenancy law, of the German Civil Code ). During this experiment the \ (...) score continuously improved from 0.52 to 0.78. In contrast, a machine learning based approach for the classification was implemented. A performance of \ was reached. Traditionally, machine learning classifiers lack of transparency with regard to their decisions. We extended our approach using so-called local linear approximations, which is a novel technique to analyze and inspect a trained classifier’s behavior. We can show that there are significant similarities of manually crafted knowledge, i.e., rules and pattern definitions, and the trained decision structures of machine learning approaches. (shrink)

This paper analyzes and evaluates the 2007 majority opinion of the German National Ethics Council which seeks to establish new information (as to the inferior quality of legally procurable human embryonic stem cells) as a sufficient reason for a relaxation of the 2002 Stem Cell Law. A micro-level analysis of the opinion’s central section is conducted and evaluated vis à vis the strongest known opponent position in the national debate at that time. The argumentation is claimed to rely on (...) an unsupported semantic assumption regarding the parthood relation of the 2002 compromise and to misconstrue the strongest known opponent position. (shrink)

ArgumentData collections are a hallmark of nineteenth-century administrative knowledge making, and they were by no means confined to Europe. All colonial empires transferred and translated these techniques of serialised and quantified information gathering to their dominions overseas. The colonial situation affected the encounters underlying vital statistics, enquête methods and land surveying. In this paper, two of those data collections will be investigated—a survey on land and a survey on indigenous law, both conducted around 1910 on the Micronesian island of Pohnpei, (...) which had fallen under German colonial influence a decade earlier. Strikingly, there are no enumerators or envoys of the state visiting the doorsteps of Pohnpei. To facilitate the data collection on homesteads, the whole population of the island was called upon to measure their respective plots of land themselves, without resorting to certified land surveyors. The preserved cadastral lists and spreadsheets testify to a rather peculiar contact between the colonizing administration and the colonized peoples. I argue that the production of data made encounters necessary, which are best observed though a methodological focus on data practices. I argue, furthermore, that the Pohnpeians were prompted during the surveys to define their homestead in new terms. This did not only entail new two-dimensional plots but also a new regime of private property. The change in the legal concept can be seen as a continuation of colonial violence by other means, given that it happened in the aftermath of the defeated Pohnpei Rebellion. The argument of the paper is, therefore, that data collection can have formative effects on society, and that measurement and quantified information are often, as Witold Kula argued, a scene of conflict. At its core, the installation of these metric regimes signified a change in patterns of justification, resource management and the unwritten constitution of the Pacific island. (shrink)

Emergence of the modern science of international law is usually attributed to Grotius and other somewhat heroic ‘founders of international law.’ This book offers a more worldly explanation why it was developed mostly by German writers ...

This paper is a historical, legal and philosophical analysis of the concept of human dignity in German and Kenyan constitutional law. We base our analysis on decisions of the Federal Constitutional Court of Germany, in particular its take on life imprisonment and its 2006 decision concerning the shooting of hijacked airplanes, and on a close reading of the Constitution of Kenya. We also present a dialogue between us in which we offer some critical remarks on the concept of human (...) dignity in the two constitutions, each one of us from his own philosophical perspective. (shrink)

In societies of high legal culture, criminal law is regarded as a protective and repressive measure of the state, as an imperative of crime and inevitable punishment (as a strict rule). Therefore, the article attempts to show the fact that the entirety of the provisions and norms of criminal law, consolidated in a modern democratic state under the rule of law (or, at least, a state that is attempting to become such a state), allows for the assertion that the purpose (...) of criminal law is coordination or, at least, the balance of the interests of conflicting subjects—the victim and the culprit, the culprit and the state. Thus, by means of criminal law, one can try to attain legal concord in seemingly irreconcilable situations. The reality of such striving is confirmed by court practice and statistics in criminal justice. The article analyses the origin of the reconciliation function, essentially a new aspect of criminal law. A position is formed that the fundamentals of such a function of criminal law are “laid” by the provisions of the Preamble to the Constitution of the Republic of Lithuania that the striving of the Nation is an open, just and harmonious civil society and a state under the rule of law. For the implementation of these provisions, one makes use of the possibilities of penal law-making and respectively corrects the penal policy. (shrink)

The first complete English translation of a groundbreaking work. An ambitious account of the relation of mathematics to logic. Includes a foreword by Crispin Wright, translators' Introduction, and an appendix on Frege's logic by Roy T. Cook. The German philosopher and mathematician Gottlob Frege (1848-1925) was the father of analytic philosophy and to all intents and purposes the inventor of modern logic. Basic Laws of Arithmetic, originally published in German in two volumes (1893, 1903), is Freges magnum opus. (...) It was to be the pinnacle of Freges lifes work. It represents the final stage of his logicist project the idea that arithmetic and analysis are reducible to logic and contains his mature philosophy of mathematics and logic. The aim of Basic Laws of Arithmetic is to demonstrate the logical nature of mathematical theorems by providing gapless proofs in Frege's formal system using only basic laws of logic, logical inference, and explicit definitions. The work contains a philosophical foreword, an introduction to Frege's logic, a derivation of arithmetic from this logic, a critique of contemporary approaches to the real numbers, and the beginnings of a logicist treatment of real analysis. As is well-known, a letter received from Bertrand Russell shortly before the publication of the second volume made Frege realise that his basic law V, governing the identity of value-ranges, leads into inconsistency. Frege discusses a revision to basic law V written in response to Russells letter in an afterword to volume II. The continuing importance of Basic Laws of Arithmetic lies not only in its bearing on issues in the foundations of mathematics and logic but in its model of philosophical inquiry. Frege's ability to locate the essential questions, his integration of logical and philosophical analysis, and his rigorous approach to criticism and argument in general are vividly in evidence in this, his most ambitious work. Philip Ebert and Marcus Rossberg present the first full English translation of both volumes of Freges major work preserving the original formalism and pagination. The edition contains a foreword by Crispin Wright and an extensive appendix providing an introduction to Frege's formal system by Roy T. Cook. Readership: Scholars and advanced students in philosophy of logic, philosophy of mathematics, and early analytic philosophy. (shrink)

The article deals with the impact of the recent jurisprudence of the European Court of Human Rights (ECHR) on the German labour law practice. After a brief introduction of the general importance of the jurisprudence of the ECHR for the German labour law (I.), the authors illustrate the German and the ECHR’s jurisprudence on the duty of loyalty towards the ecclesiastic employer (II.) and whistle blowing (III.). Analysing this jurisprudence, the authors come to the conclusion that the (...) ECHR approved the principles of the German jurisprudence in these cases. Therefore, its impact on the practice will be rather marginal as it does not obtain such a far-reaching significance that a change in the jurisprudence regarding dismissals is to be expected. The judgements merely raised the awareness for the set of problems in the context of ecclesiastic employers and whistle blowing. In this regard, the article will try to provide the reader with basic directions on how to deal with this jurisprudence. Finally, the authors argue that concerns, the ECHR could evolve into a further instance reviewing all German judgements not only regarding the question if there is a violation of the Convention or not but regarding the correctness of the findings are unfounded. On the other side, the article addresses the problem that – apparently – applications have been declared admissible by the ECHR despite Art. 35 para. 1 of the European Convention on Human Rights because the final decision on the national level – dismissing the complaint as inadmissible – did not reveal the reason why the application did not succeed. (shrink)