Hypermoral und Recht

Der Staat ◽  
2021 ◽  
Vol 60 (2) ◽  
pp. 211-241
Author(s):  
Michael Goldhammer

In jüngerer Zeit erfuhr der Begriff der „Hypermoral“ eine Wiederbelebung. Er steht für die Kritik moralisierend geführter gesellschaftlicher Debatten. Tatsächlich weist die Struktur neuzeitlicher Moral einen expansiven Charakter auf. Während dies vor allem Politik, Wirtschaft, Kirchen und private Lebensstile betrifft, scheint das Recht davon nicht betroffen zu sein. Es ist weniger anfällig für die Normmigration, weil sich die moralischen Inhalte an Form und Zuständigkeit brechen. Das Recht – das öffentliche Recht zumal – ist insoweit strukturell unmoralisch. Darin liegt eine Funktionsbedingung heutigen verfassungsstaatlichen Rechts. Der Beitrag zeigt, wie das öffentliche Recht aber dennoch Einbruchsstellen für hypertrophe Moralgebräuche aufweist. Sie liegen in der Form des juristischen Denkens und Argumentierens. Diese geräuschlose Migration ist dem stillschweigenden Modellcharakter der Moral geschuldet und kritisch zu hinterfragen. In recent times, the term "hypermorality" has experienced a remarkable revival. It stands for the critique of moralising public debates. In fact, the structure of morality in the modern period shows expansive features. While this primarily affects politics, the economy, churches and private lifestyles, law seems to be shielded from this debate. It is less susceptible to norm migration because moral reasoning is both prevented by the legal form and jurisdiction. In this respect, law – public law in particular – is structurally immoral. This is a precondition of law in modern constitutional settings. As this article however shows, public law nevertheless has points of entry for hypertrophic moral reasoning. They lie in the form of legal thinking and argumentation. This silent migration is due to the unspoken model character of modern morality and must be critically questioned.

2019 ◽  
pp. 93-116
Author(s):  
Paweł Sancewicz

The purpose of this paper was to present views of both Polish and German public law doctrine on the issue of the possibility to choose a legal form of implementa­tion of public tasks by the public administration. This issue is not only a theoretical matter because currently administration has to cope with increasingly complex and complicated public tasks that must be implemented. The article first explains the concept of the legal forms of action, distinguished from the measures available in administration. Next, the freedom of choice of the legal form of action as well as the instances of its abuse are analysed. The considerations carried out in the article allow to adopt the position that the choice of the legal form of action by public administration cannot be actually prejudged under Polish law. The main limitation of the freedom to choose the le­gal form of action is contained in Article 7 read in connection with Article 2 of the Constitution of the Republic of Poland which stipulate a legal framework that ought to embrace them. There is also a concern that the authorities may abuse certain forms of action in order to, for example, avoid certain administrative procedures or to achieve desired fiscal objectives. As indicated in the course of the analysis, the German doctrine and practice encountered similar problems, and now the experi­ence and undoubted successes of German law and practice could be a significant inspiration for Polish lawmakers in this area. De lege ferenda, it is necessary to propose the introduction of legal regulations that will enable or facilitate a free choice of the legal form of action by administra­tive bodies. However, establishing such regulations will only be possible and and effective when the administrative agreement becomes part of the Polish legal system.


2003 ◽  
Vol 31 (6) ◽  
pp. 545-556 ◽  
Author(s):  
Arye Rattner ◽  
Dana Yagil ◽  
Camelia Sherman-Sega

This study examined citizens' sense of entitlement to violate the law as a public response to an action of state authorities or as a private response to the harmful behavior of another person. Questionnaires examining sense of entitlement to violate the law, moral reasoning, political orientation and attitudes toward the law were administered to 329 Israeli students. The results show that respondents felt more entitled to violate the law as a public action than as an act of personal retaliation. Public law violation directed toward authorities was found to be most strongly related to political orientation. Nevertheless private law violation directed toward another person is related to the absence of a sense of obligation to comply with the law and to a lack of trust in legal authorities. Moral reasoning and religiosity were found to be indirectly related to both types of law violation. The results are discussed in regard to different types of triggers for law violation.


2021 ◽  
Vol 0 (0) ◽  
Author(s):  
Gregory C. Keating

Abstract Instrumentalist ideas have long been prominent in torts scholarship. Since the rise of legal realism, discussions of deterrence, compensation, the minimization of accident costs, and the distribution of losses have dominated scholarly discourse. In the past several decades, however, wholesale rejections of instrumentalist tort theory have arisen. The most uncompromising of these views rallies around the avowedly formalist battle cry that tort is “private law”. Ernest Weinrib’s elegant and influential book, The Idea of Private Law, declares its allegiance to that thesis in its title, and the idea figures almost as centrally in Arthur Ripstein’s recent and important Private Wrongs. Theorists who rally around the banner of “private law” claim that tort law’s governing principles of right and responsibility tumble out of the field’s characteristic legal form. Law, as they understand it, is constitutive of just relations among persons, not an instrument for the pursuit of independently valuable ends. For scholars like Weinrib and Ripstein, “private law” is the Kantian idea of reason that makes our actual law of torts intelligible. The claim that torts is a law of wrongs where persons bring claims in their own names for harms that they have wrongly suffered against those allegedly responsible for those wrongful harms is powerful and persuasive. The claim that the obligations persons owe one another in tort are obligations owed among equal and independent persons is likewise compelling. But theorists of tort as “private law” overshoot the mark by both asking and making too much of form. They ask too much of form when they attempt to make sense of the private law of torts solely in terms of form—eschewing all talk of interests. We cannot understand or justify the law of torts without attending to the interests that it protects. In tort, as elsewhere, rights and the duties they ground protect important individual interests. For example, it is our interest in the physical integrity of our persons that grounds the law of negligence. Theorist of tort as “private law” make too much of form when they present the legal category as its own private fiefdom walled off from surrounding legal fields. For Ripstein and Weinrib, “private law” is its own autonomous domain, sealed off against infection by any legal field whose form identifies it as “public law”. In our law, the private law of torts cooperates and competes with public law institutions as a response to the pervasiveness of accidental harm in an industrial and technological society. It is one way of institutionalizing our interest in safety. Establishing rightful relations among free and equal persons in civil society requires that institutions protect persons’ urgent interests, not just establish their formal independence. The theoretical understanding that we need will recognize that we misunderstand even the private law of torts itself if we sever it entirely from forms of collective responsibility for avoiding and repairing accidental harm with which it competes and cooperates.


2020 ◽  
Vol 135 (573) ◽  
pp. 337-358
Author(s):  
David Onnekink

Abstract This article underscores the significance of symbolic communication in early modern international relations. Taking naval incidents during the period leading up to the Third Anglo-Dutch War (1667–72) as a case-study, it shows how the use of imagery constituted an undervalued symbolic language in which vital interests were communicated by diplomats. Moreover, it argues that the way in which these incidents were discussed in diplomatic circles was relevant to and congruous with public debates. It also highlights the often-ignored international dimension of popular disputes. An overall objective is to further the debate on a New Diplomatic History for the early modern period.


2005 ◽  
Vol 21 (2) ◽  
pp. 277-291
Author(s):  
Pierre Lemieux

This paper surveys the outlook and statements of Quebec and Canadian legal scholars and judges on issues of administrative law. It attempts to determine whether scholarly writings merely describe the existing state of the law, or whether they play a creative role in pointing for the courts the way in which law should develop towards an ideal model. To this end, an assessment is first made of the creative power of judges when interpreting the law and of the reactions of scholars to this. Then, an attempt is made to show affinities between judges' and scholars' outlook in cases where an administrative decision conflicts with individual rights or liberties. The paper concludes that while most public law writing in Canada and Quebec usually reads as a restatement of current case law, recent works show an increasing tendency towards independent, critical legal thinking.


2020 ◽  
Vol 6 (3) ◽  
pp. 30-36
Author(s):  
Elena M. Krupenya

The author analyzes doctrinal legal thinking in the context of ontological characteristics of thinking the object of metasubject research in the field of cognitive psychology, physiology of thinking and other areas of modern science and, above all, in philosophy. As a result, problematizes the resources of doctrinal legal thinking in the process of producing new true knowledge, organized in the form of private legal theory, the indicators of which correlate the criteria of epistemology. Attention is drawn to the fact that in the process of developing private legal theories, which feeds the General legal theory, at the initial stage, of course, it is important to use the experience accumulated within a certain doctrine. Nevertheless, the limitation of the doctrinal legal worldview is noted. The author sees it in the fact that the doctrinal legal worldview (paradigm) is not able to ensure the transition to a qualitatively new knowledge according to the epistemological Maxim: from the old knowledge, the new is fundamentally not deducible. In this regard, the author substantiates the heuristic possibilities of a complex methodology. It is a complex, contextual methodology that allows, firstly, to obtain a qualitatively new knowledge about the object of a private theory; and, secondly, a complex methodology allows us to count on the fact that the knowledge obtained as a personal knowledge thanks to the subject of the study, legal and related state reality are able to be expressed and framed in lexical constructions the knowledge obtained, nevertheless, meets the criterion of objectivity. An illustrative example is the private theory of public law status, which is characterized in the context of epistemological criteria, namely: object, subject, empirical and regulatory framework, philosophical and ideological grounds and, of course, complex methodology.


2019 ◽  
pp. 90-93
Author(s):  
S. A. Komissarov

The article deals with the codification of administrative legislation. The basic concepts are considered, approaches to a problem are revealed, directions of improvement of the current legislation are analyzed. The main attention is paid to the issue of codification as a legal category and codification of administrative law, since it is a form of lawmaking, and its main purpose is to providing the most complete legal regulation of a certain sphere of social relations by adopting logically complete normative acts of complex and generalizing nature. It is suggested that public law should perform the function of public order, which is provided with appropriate means of influence in case of violation of relations in this field. It is emphasized that the list of remedies of public order includes the rules of public law, but those with a protective orientation, public-legal relations that arise in cases of committing offenses in the sphere of public order, and acts of implementation of these rules. As for administrative law, its main function should be to protect the rights and freedoms of a citizen from illicit acts or inction of state bodies (officials). On the basis of a critical analysis of the foundations of post-Soviet jurisprudence, a modern understanding of the role and content of norms of administrative law is offered, as well as a comprehensive, balanced and consistent revision of the legislation, and its adjustment with modern European standards. In particular, there is an urgent need to reform the administrative law of Ukraine, the basis for defining the purpose of which is an approach formed in Soviet times, which should be based on a substantially updated, more democratic understanding of the public purpose of public law, which will replace Soviet administrative law. It is concluded that a qualitatively new ideology of legal thinking must be created and practically introduced in Ukraine.


2019 ◽  
pp. 112-115
Author(s):  
V. R. Bila

The article poses the question of updating approaches to types of forms of public administration. Therelationship between legal and organizational forms of public administration is established. The latter term is proposed to use insteadof the commonly used phrase "unlawful forms of public administration", which is used to denote those external manifestations of the activity of public administration bodies, which does not entail a direct legal consequence. The critique of the term "illegal forms of public administration" has been supported. It is stated that the perception of organizational forms as not causing legal consequences does not fully reflect the legal validity. Separate organizational forms are defined by law as the solepossible for the adoption of certain types of administrative decisions by collegiate bodies of public administration, and their non-compliance leads to the nullity of further legal form. The given group of forms of activity of the public administration has a special legal nature and significance for objectification of the legal activity of the subjects of public administration, in connection with which such a group is proposed to be terminated as "structural forms of public administration". The given justifications of the relevant term are presented as debatable. It was emphasized that the failure of organizational forms to cause legal consequences in the field of public administration does not in any way deprive their properties of causing legal consequences in the private legal relations. It is noted that public administration can act in public-law and private law forms, and forms of public administration are only a part of public-law forms, which include other types of legal forms, the use of which is provided for by the rules of the current legislation. It was concluded that public administration as a concept of functioning of executive bodies, local self-government bodies and their relations with civil society significantly changed the interrelationships of legal and organizational forms of public administration and strengthened them to such an extent that it is sometimes impossible to draw a clear line between these types forms.


Author(s):  
О.А. ХОЛОДОВ ◽  
O. A. KHOLODOV

Abstract. Purpose. Study of the structure of the agricultural sector in the context of organizational and legal forms, assessment of the features of their economic activity, identification of growth potential and constraints to the development of agricultural enterprises by the results of SWOT analysis. Methods. The structure of agricultural enterprises in the context of organizational and economic forms is analyzed. The activity of public and non-public joint stock companies, limited liability companies, agricultural (production) cooperatives in the Rostov region. As the main approach, the SWOT-analysis is used, which is based on the results of a survey of managers and specialists of various forms of management in the agricultural sector of the Rostov region. A quantitative assessment of the results of the SWOT analysis is proposed. Results. Distinctive strengths and weaknesses of functioning of the enterprises of agrarian sector of the Rostov region in a section of organizational and legal forms of managing are revealed. The factors of internal and external environment affecting the efficiency of agricultural enterprises in the modern period are substantiated. The most effective organizational and legal forms in agriculture on the basis of the received expert assessment are defined. Scientific novelty. A total index of SWOT-analysis was developed, which allows to quantitatively reflect the obtained data of the survey of managers and specialists of agricultural enterprises in the context of each organizational and legal form.


2020 ◽  
Vol 22 (2) ◽  
pp. 6-9
Author(s):  
MAXIM S. SAFONOV ◽  

In the article, development institution is considered from its legal form and nature, in which it can and should carry out its activities, namely, as a subject of public law. The relevance of this article is expressed by the introduction in the Russian law of a public law company concept, which is a new alternative to state-owned corporations. On July 3, 2016, Federal Law No. 236- FZ “On Public Law Companies in the Russian Federation and on Amending Certain Legislative Acts of the Russian Federation” (with amendments and additions) was adopted. After its adoption, a new wave of discussions began to take place on the active use of such concepts as a legal entity of public law in Russian legislation. At the legislative level, it became necessary to implement general principles regarding legal entities of the same type in the framework of the legal matrix, into which it is possible to attribute all known subjects of law. The special legal nature of development institutions requires a particular legal form that would meet the goals and objectives set for them. The use of almost all the provisions of the legal entity of public law theory, in modern practice, can be the correct decision to create the necessary legal form for development institutions. This will allow taking into account the features of the property base of their activities, peculiarities of management of the development institution, setting goals when making decisions, the ability to use specific tools of state regulation of economy in the implementation of public functions assigned to the development institutions.


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