The article attempts to apply Alexis de Tocqueville`s views in the area of selected second- and third-generation human rights, i. e. the rights that over the course of the first half of the 19th century were not - with some exceptions - anchored in positive law. It takes form of sort of intellectual exercise in which, based on Tocqueville`s work, his potential stance towards chosen human rights is reconstructed. The paper briefly presents modern standards referring to second- and third-generation human rights, and confronts these with legal provisions provided by the French constitutions during and prior to Tocqueville`s life. The following parts of the paper show general Tocqueville`s stance towards the concept of human rights and attempt to answer the question issued in the title of the article.
{"title":"What Could Alexis de Tocqueville Have Told us about Second- and Third-Generation Human Rights?","authors":"Łukas Mirocha","doi":"10.25162/arsp-2021-0011","DOIUrl":"https://doi.org/10.25162/arsp-2021-0011","url":null,"abstract":"The article attempts to apply Alexis de Tocqueville`s views in the area of selected second- and third-generation human rights, i. e. the rights that over the course of the first half of the 19th century were not - with some exceptions - anchored in positive law. It takes form of sort of intellectual exercise in which, based on Tocqueville`s work, his potential stance towards chosen human rights is reconstructed. The paper briefly presents modern standards referring to second- and third-generation human rights, and confronts these with legal provisions provided by the French constitutions during and prior to Tocqueville`s life. The following parts of the paper show general Tocqueville`s stance towards the concept of human rights and attempt to answer the question issued in the title of the article.","PeriodicalId":41477,"journal":{"name":"Archiv fur Rechts- und Sozialphilosophie","volume":null,"pages":null},"PeriodicalIF":0.1,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88472426","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Verschwörungstheorien in Zeiten der Pandemie","authors":"M. Betzler","doi":"10.25162/arsp-2021-0027","DOIUrl":"https://doi.org/10.25162/arsp-2021-0027","url":null,"abstract":"","PeriodicalId":41477,"journal":{"name":"Archiv fur Rechts- und Sozialphilosophie","volume":null,"pages":null},"PeriodicalIF":0.1,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83587499","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper deals with the challenges of rationing of existential goods due to scarcity and conflicting interests (at the latest in the question of costs). The legal-political example pursued in this paper is rationing in the health care system, i. e. in curative and partly also in preventive measures. In each case - and in everyday life and by no means only in extreme corona pandemic situations - it is a question of whether there are absolute, ponder-proof claims to certain goods. Ultimately, this is to be denied, even if rationing, especially in Germany, is usually concealed behind vague concepts such as the medical necessity and economic efficiency of treatment. But the public authorities cannot escape the weighing process - even if its consequences are often fatal in industrial society. In particular, misunderstandings of human dignity as well as skewed accusations of utilitarianism and a misleading pseudo-controversy between deontology and consequentialism have for a long time obscured the fact that in liberal democracies a balancing of different aspects of freedom and freedom preconditions is inevitable. Due to parliamentary reservations, however, this weighing must not be outsourced to administrative committees. Caution is called for in all of this with the economic cost-benefit analysis, which is hardly tenable in its foundations, with egalitarian approaches, and with the traditional but unfounded idea that fundamental rights are primarily (or exclusively) protected in single situations and are not relevant in the case of mass concern. Based on the latter point, it can also be shown that the previous tendency is not convincing to judge areas such as curative health treatment, preventive corona hazard control and fine dust or climate policy as being completely different from each other in terms of fundamental rights.
{"title":"Rationierung, Abwägung und Kosten-Nutzen-Analyse im Sozialrecht","authors":"F. Ekardt, T. Rath, Hannah Kamischke","doi":"10.25162/ARSP-2021-0004","DOIUrl":"https://doi.org/10.25162/ARSP-2021-0004","url":null,"abstract":"This paper deals with the challenges of rationing of existential goods due to scarcity and conflicting interests (at the latest in the question of costs). The legal-political example pursued in this paper is rationing in the health care system, i. e. in curative and partly also in preventive measures. In each case - and in everyday life and by no means only in extreme corona pandemic situations - it is a question of whether there are absolute, ponder-proof claims to certain goods. Ultimately, this is to be denied, even if rationing, especially in Germany, is usually concealed behind vague concepts such as the medical necessity and economic efficiency of treatment. But the public authorities cannot escape the weighing process - even if its consequences are often fatal in industrial society. In particular, misunderstandings of human dignity as well as skewed accusations of utilitarianism and a misleading pseudo-controversy between deontology and consequentialism have for a long time obscured the fact that in liberal democracies a balancing of different aspects of freedom and freedom preconditions is inevitable. Due to parliamentary reservations, however, this weighing must not be outsourced to administrative committees. Caution is called for in all of this with the economic cost-benefit analysis, which is hardly tenable in its foundations, with egalitarian approaches, and with the traditional but unfounded idea that fundamental rights are primarily (or exclusively) protected in single situations and are not relevant in the case of mass concern. Based on the latter point, it can also be shown that the previous tendency is not convincing to judge areas such as curative health treatment, preventive corona hazard control and fine dust or climate policy as being completely different from each other in terms of fundamental rights.","PeriodicalId":41477,"journal":{"name":"Archiv fur Rechts- und Sozialphilosophie","volume":null,"pages":null},"PeriodicalIF":0.1,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89208543","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Vittorio Frosini und das Recht als Morphologie der Praxis","authors":"Antonio Merlino","doi":"10.25162/arsp-2021-0023","DOIUrl":"https://doi.org/10.25162/arsp-2021-0023","url":null,"abstract":"","PeriodicalId":41477,"journal":{"name":"Archiv fur Rechts- und Sozialphilosophie","volume":null,"pages":null},"PeriodicalIF":0.1,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77094073","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Fears caused by crisis reveal the fragility of open societies. The usual narrative sees liberal right securing individual freedom, yet it guarantees this promise by means of constant government interventions. Specifically in light of the example of dealing with fear, one can show how a network of technologies of care arises out of the guarantee of the freedom of right - a network that fosters repressive and paternalistic tendencies. In opposition to this “liberal logic” of freedom, one ought to adhere to a self-reflexivity of right that overturns the aporias in a productive manner.
{"title":"Freiheit und Angst","authors":"B. Zabel","doi":"10.25162/ARSP-2021-0001","DOIUrl":"https://doi.org/10.25162/ARSP-2021-0001","url":null,"abstract":"Fears caused by crisis reveal the fragility of open societies. The usual narrative sees liberal right securing individual freedom, yet it guarantees this promise by means of constant government interventions. Specifically in light of the example of dealing with fear, one can show how a network of technologies of care arises out of the guarantee of the freedom of right - a network that fosters repressive and paternalistic tendencies. In opposition to this “liberal logic” of freedom, one ought to adhere to a self-reflexivity of right that overturns the aporias in a productive manner.","PeriodicalId":41477,"journal":{"name":"Archiv fur Rechts- und Sozialphilosophie","volume":null,"pages":null},"PeriodicalIF":0.1,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73075014","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Drittwirkung als Erstwirkung?","authors":"Isabelle Ley","doi":"10.25162/arsp-2021-0025","DOIUrl":"https://doi.org/10.25162/arsp-2021-0025","url":null,"abstract":"","PeriodicalId":41477,"journal":{"name":"Archiv fur Rechts- und Sozialphilosophie","volume":null,"pages":null},"PeriodicalIF":0.1,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80589519","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
I suggest an account of desuetudo in game-theoretic terms. I argue that there is an asymmetry with consuetudo, because consuetudo cannot be fully captured by a game-theoretic analysis, while desuetudo, properly understood as a dynamic, diachronic process, can. A norm (not necessarily a consuetudo) ceases to exist because there’s no need anymore, in an interactive situation, to foster certain equilibria, even though the same norm which is going in desuetudo might not have emerged as a consuetudo. While this kind of norm dynamics cannot explain all kinds of consuetudines, it can explain desuetudo, understood as a dynamic process ending with normative indifference, from a state which was normatively relevant. In this game-theoretic account the dynamicity is captured by the repeated occurence of the game, while desuetudo is the opposite process, in terms of normativity, with which a norm emerges (regardless of the fact whether the initial norm was a consuetudo or posited).
{"title":"Desuetudo: A Game-Theoretic Approach","authors":"Federico L. G. Faroldi","doi":"10.25162/arsp-2021-0016","DOIUrl":"https://doi.org/10.25162/arsp-2021-0016","url":null,"abstract":"I suggest an account of desuetudo in game-theoretic terms. I argue that there is an asymmetry with consuetudo, because consuetudo cannot be fully captured by a game-theoretic analysis, while desuetudo, properly understood as a dynamic, diachronic process, can. A norm (not necessarily a consuetudo) ceases to exist because there’s no need anymore, in an interactive situation, to foster certain equilibria, even though the same norm which is going in desuetudo might not have emerged as a consuetudo. While this kind of norm dynamics cannot explain all kinds of consuetudines, it can explain desuetudo, understood as a dynamic process ending with normative indifference, from a state which was normatively relevant. In this game-theoretic account the dynamicity is captured by the repeated occurence of the game, while desuetudo is the opposite process, in terms of normativity, with which a norm emerges (regardless of the fact whether the initial norm was a consuetudo or posited).","PeriodicalId":41477,"journal":{"name":"Archiv fur Rechts- und Sozialphilosophie","volume":null,"pages":null},"PeriodicalIF":0.1,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76704905","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Weder Idealismus noch Naturalismus: Zum Anliegen einer Idealitätstheorie des Rechts","authors":"Lorenz Kähler","doi":"10.25162/arsp-2021-0020","DOIUrl":"https://doi.org/10.25162/arsp-2021-0020","url":null,"abstract":"","PeriodicalId":41477,"journal":{"name":"Archiv fur Rechts- und Sozialphilosophie","volume":null,"pages":null},"PeriodicalIF":0.1,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84741217","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Freiheit und Sozialstaatlichkeit in Kants Rechtslehre","authors":"Stefan Späth","doi":"10.25162/arsp-2021-0028","DOIUrl":"https://doi.org/10.25162/arsp-2021-0028","url":null,"abstract":"","PeriodicalId":41477,"journal":{"name":"Archiv fur Rechts- und Sozialphilosophie","volume":null,"pages":null},"PeriodicalIF":0.1,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83375367","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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