Freiheit heißt Leben

2021 ◽  
Vol 30 (3) ◽  
pp. 247-265
Author(s):  
Christian Jasper
Keyword(s):  
Human Dignity ◽  
German Law ◽  
Roman Catholic ◽  
Christian Faith ◽  
Constitutional Court ◽  
Liberal Society ◽  
Legal Rules ◽  
The Public ◽  
German Constitutional Court ◽  
The Individual

Liberty means to live. That is what Christian Jasper is convinced about regarding the understanding of liberty in German law and Christian faith. The author introduces the reader in the letter Samaritanus bonus on the care of persons in the critical and terminal phases of life which the roman catholic Congregation for the doctrine of the faith published on 14th July 2020. Therefore, the author compares theological and legal understandings of the idea of liberty. Whereas the German Constitutional Court puts much emphasis on the defence of autonomy the author highlights that human dignity implies more than the individual right to act arbitrarily. Modern societies require individuals who behave moral. The challenge is to avoid misunderstandings between the different faculties and to find wise compromises between moral expectations and legal rules in a liberal society. The lecture of Samaritanus bonus may help to improve the public discussion.

The Business Management of Foreign Life Insurance Companies according to German Imperial Law

1902 ◽  
Vol 36 (4) ◽  
pp. 374-385
Author(s):  
Karl Samwer
Keyword(s):  
Life Insurance ◽  
Business Management ◽  
German Law ◽  
International Congress ◽  
Insurance Companies ◽  
The Public ◽  
German States ◽  
Firm Basis ◽  
The Individual ◽  
Government Legislation

The Paper of Mr. H. R. Harding upon “Government “Legislation in reference to the working of Life Assurance “Companies”, submitted to the First International Congress of Actuaries, the supplement added thereto by myself relative to German Law, and my paper upon German Insurance Legislation for the Second International Congress, show that the public Law relative to the business management of home and foreign Life Insurance Offices differed until recently in the individual German States, and in many of those individual States a firm basis was lacking.

The Effects of the Judgments of the European Court of Human Rights According to the German Constitutional Court

2010 ◽  
Vol 11 (5) ◽  
pp. 513-526 ◽  
Author(s):  
Christian Tomuschat
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Constitutional Court ◽  
Federal Republic Of Germany ◽  
The Rule Of Law ◽  
Basic Law ◽  
European Court ◽  
German Constitutional Court ◽  
The Individual ◽  
Willingness To Cooperate

The Federal Republic of Germany counts among the earliest States parties to the European Convention on Human Rights (ECHR). It ratified the ECHR on 5 December 1952, three years ahead of Italy, and hence found itself among the original members of the treaty system when the ECHR entered into force on 3 September 1953. For the new democratic Government, it was a decision of principle to affirm its willingness to cooperate peacefully within the group of European States, submitting to an international review mechanism with regard to all of its activities. Therefore, very shortly afterwards, it accepted also the individual application under Article 25 ECHR, which at that time was not yet compulsory for all States parties. For many years under the Nazi dictatorship, Germany had brought death and destruction to its neighbours. Now, organized under a democratic and liberal constitution, the Basic Law (BL), it wanted to manifest its newfound identity as a civilized State abiding by the rule of law.

scholarly journals Axiological Aspects of Anthropological and Social Sources of Law Formation

2021 ◽  
pp. 123-131
Author(s):  
Olena ZHURAVSKA
Keyword(s):  
Human Dignity ◽  
Social Practice ◽  
Public Perception ◽  
Constitutional Court ◽  
Legal Norms ◽  
The Public ◽  
Positive Law ◽  
Proposed Model ◽  
Social Idea ◽  
Legal Restrictions

The article analyses some axiological aspects of anthropological and social sources of law formation through the analysis of the system, which includes social (legal) values and principles of law. It is emphasized that such division and delimitation are quite conditional, since principles provide for the requirement of guidance by values. Significant social idea that has become a legal value is reflected in the principle of law, and is governed by law. It has been proved that the legitimacy of positive law in a modern state-organized society, which is characterized by such phenomena as the rule of law and civil society, is directly related to the extent to which it reflects social values. The source of law becomes in demand if the proposed model of behaviour provides protection, provision, reproduction of socially recognized value that is important to society. The public significance of the behaviour model receives legal support, public perception and reproduction in the course of social practice. Over time, the most important legal values are transformed into the principles of law and are concretized in legal norms. Among the most expressive legal values that are clearly reflected in international and national law there is human dignity, freedom, justice and equality. Human dignity is the basic idea of humanism, which proclaims the protection of a person, his/her rights and freedoms; the satisfaction of his/her interests and needs. In the national legal system, this value is reflected in the Constitution, which recognizes a person, his/her life and health, honour and dignity as the highest social value. The Constitutional Court of Ukraine recognizes human dignity as a system-forming value and a source of human rights. Freedom includes the issue of potential and real ability of a person to be a subject of law, reflected in the form of such principles of law as general permission and special permission. Justice as a legal value is a special mechanism for maintaining the balance of legal values, a means of justifying and recognizing legal restrictions, a criterion for assessing legal phenomena and institutions. Equality in law is understood today as equality of opportunities and is reflected in the form of the following interrelated aspects: equality before the law; equality before the court; equality of rights, freedoms and responsibilities of a person and citizen.

Intellectual Property and Privacy Law

2021 ◽  
pp. 135-148
Author(s):  
Megan Richardson
Keyword(s):  
Intellectual Property ◽  
Personal Identity ◽  
Human Dignity ◽  
Personal Information ◽  
Private Sphere ◽  
Loss Of Control ◽  
The Public ◽  
Privacy Law ◽  
Digital World ◽  
The Individual

This chapter explores the intersections between intellectual property (IP) and privacy law. It notes that while the scope of what we may consider to be ‘intellectual property’ continues to expand to cover new creative and innovative practices, so too the meaning and scope of what we may consider to be ‘privacy’—traditionally understood as allowing the individual to enjoy a private sphere free from the public gaze—has come under pressure to expand to address new situations where loss of control over personal information and incursions on personal identity are seen to undermine human dignity and liberty. Thus ‘privacy’ and ‘intellectual property’ become ever more imbricated in our modern digital world, and we can expect to see ever more interchange between the laws that regulate these domains.

The Legal and Economic Questions posed by the German Constitutional Court’s decision in the Public Sector Purchase Programme (PSPP) Case

2021 ◽  
Vol 7 (3) ◽  
pp. 399-412
Author(s):  
Andrew James Perkins
Keyword(s):  
Monetary Union ◽  
Judicial Review ◽  
European Monetary Union ◽  
Central Banks ◽  
Central Banking ◽  
Constitutional Court ◽  
European Law ◽  
European Monetary ◽  
The Public ◽  
German Constitutional Court

This paper seeks to explore the PSPP decision of the German Constitutional Court and its effect on the monetary policy decisions taken by central banks. It begins by exploring the decision and its effect in Germany, together with its wider implications for the European Monetary Union before moving onto consider the standard of review that should be applied by the Courts when they are required to review central banks actions. Conclusions are reached to show that any standard of review should be limited because of the unique economic and political circumstances in which central bank decision making takes place. Keywords: Central Banking; Judicial Review; Proportionality; European Law; European Monetary Union.

When, if not Now? An Update on Civil Partnership in Germany

2016 ◽  
Vol 17 (3) ◽  
pp. 487-508 ◽  
Author(s):  
Anne E.H. Sanders
Keyword(s):  
German Law ◽  
Case Law ◽  
Constitutional Court ◽  
Same Sex ◽  
Same Sex Couples ◽  
Recent Developments ◽  
German Constitution ◽  
German Constitutional Court ◽  
Same Sex Parents ◽  
Open Marriage

Following the article “Marriage, Same-Sex Partnership, and the German Constitution,” which was published in theGerman Law Journalin 2012 (seeAnne Sanders,Marriage, Same Sex Partnership and the Constitution, 13 German L.J. 911 [2012]), this article provides an update on recent developments in relation to same sex partnerships in Germany. The focus of this Article is case law of the German Constitutional Court from 2002 through today, but it also discusses other court decisions in relation to the rights of same sex parents. The Article concludes with an examination of a recent draft law which—if successful—will open marriage to same sex couples. While its chances for success are extremely slim, this Article argues that same sex marriage will eventually be introduced in Germany.

scholarly journals The Constitutionality of Negotiated Criminal Judgments in Germany

2014 ◽  
Vol 15 (1) ◽  
pp. 81-105 ◽  
Author(s):  
Thomas Weigend ◽  
Jenia Iontcheva Turner
Keyword(s):  
Criminal Law ◽  
German Law ◽  
Plea Bargaining ◽  
Federal Court ◽  
Constitutional Court ◽  
German Version ◽  
Court Of Justice ◽  
Federal Court Of Justice ◽  
Federal Constitutional ◽  
German Constitutional Court

In a long-awaited judgment, the German Constitutional Court in 2013 upheld the constitutionality of the 2009 German law authorizing the negotiation of criminal judgments between the court and the parties. The German version of plea bargaining, which had grown from the grassroots of criminal law practice, was later accepted by the Federal Court of Justice and written into § 257c of the Code of Criminal Procedure (StPO) in 2009. In light of these developments, a verdict of unconstitutionality by the Federal Constitutional Court was the final hope of those who opposed the replacement of the search for truth with a system of negotiation. The Court deflated these hopes, but at the same time refrained from giving an unconditional stamp of approval to the burgeoning practice of negotiating judgments. The Court attempted to rein in that practice by giving the statute a literal reading, emphasizing the limitations it places on negotiations, and strictly prohibiting any consensual disposition outside the statutory framework.

scholarly journals The German Federal Constitutional Court’s Exercise of Ultra Vires Review and the Possibility to Open an Infringement Action for the Commission

2020 ◽  
Vol 21 (5) ◽  
pp. 1078-1089
Author(s):  
Sara Poli ◽  
Roberto Cisotta
Keyword(s):  
Case Law ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Related Case ◽  
The Public ◽  
Court Of Justice ◽  
Domestic Courts ◽  
Federal Constitutional ◽  
German Constitutional Court ◽  
Article 5

Abstract The paper examines the possible opening of an infringement procedure against Germany as a result of the breaches that emerge from the declaration by the German Constitutional Court that the Court of Justice has acted ultra vires in the Weiss judgment (C-493/17). The proportionality assessment of the Public Sector Purchase Programme (PSPP) of the European Central Bank (ECB), carried by the Court of Justice, is contested by the domestic court. We recall that the Commission enjoys great discretion regarding the launch of an infringement action based upon Article 258 of the TFEU and may be reluctant to use its powers, considering the special position of the constitutional courts in the context of Article 267 TFEU as well as the present situation of emergency following the pandemic. Yet, the possibility to start an infringement procedure for breaches of Treaty obligations resulting from an incorrect interpretation of domestic courts was admitted in case C-129/00 Commission v. Italy and applied in two subsequent cases (C-154/08 Commission v. Spain and C-416/17 Commission v. France). As a result of the ruling of May 5, 2020, the Court of Justice may find that Germany failed to fulfil obligations stemming from Article 267 TFEU and the related case-law, Article 19 TEU, as well as Article 5(2) TEU. Other breaches concern the independence of the ECB and of the Bundesbank (being it a Member of the European System of Central Banks (ESCB) and of the Eurosystem) as defined in Articles 130, 282(3) TFEU and Article 7 of the Protocol (No. 4) on the Statute of the ESCB and of the ECB. We argue in favour of the violation of all these provisions read in conjunction with the duty of loyal cooperation, laid down in Article 4(3) TEU. Yet, we conclude that it is uncertain whether the Commission will open (or continue) an infringement procedure against Germany since the Bundesbank may act to satisfy the requests of the German Constitutional Court in relation to the proportionality of the PSPP. It is to be hoped that the German State organs will make sure that the PSPP may be continued, thus ensuring the functioning of the Eurozone, despite the attack of the BVerfG to the EU Judicature and to Weiss ruling in particular.

scholarly journals The Rise of Technocracy and the COVID-19 Pandemic in Taiwan: Courts, Human Rights, and the Protection of Vulnerable Populations

2021 ◽  
Vol 22 (6) ◽  
pp. 1115-1132
Author(s):  
Tsung-Ling Lee
Keyword(s):  
Public Health ◽  
Human Rights ◽  
Case Law ◽  
Constitutional Court ◽  
Health Crisis ◽  
The Public ◽  
Public Health Crisis ◽  
Greater Good ◽  
Pandemic Response ◽  
The Individual

AbstractDriven by the need to address the immediate public health threats of the COVID-19 pandemic, this has seen a rise of the technocratic mode of governance around the world. A technocratic approach is evidence-based and relies upon the guidance of experts to respond to the public health crisis. The rise of technocracy reflects a utilitarian calculus that seeks to preserve the greater good. Taiwan’s pandemic response exemplifies the strengths and weaknesses of this type of governance. Based on an analysis of the relevant case law of the Taiwan Constitutional Court, legislation, and political developments this Article takes a legal-historical look and traces the current technocratic approach—defined for this Article as an experts-driven and procedural-driven process—which is a hallmark of Taiwan’s pandemic response. Examining Taiwan’s pandemic response through a human rights lens sheds light on a more complex relationship between the collective right to health and life, and the individual rights to health, work, privacy, and liberty during the pandemic.

Bürgerliche und ästhetische Öffentlichkeit bei Wieland, Schiller und Goethe: Eine Vorgeschichte der Leitkulturdebatte

2020 ◽  
Vol 49 (1) ◽  
pp. 63-102
Author(s):  
May Mergenthaler
Keyword(s):  
Public Sphere ◽  
National Culture ◽  
Democratic Society ◽  
Liberal Society ◽  
Ongoing Debate ◽  
The Public ◽  
Long Period ◽  
National Tradition ◽  
Majority Culture ◽  
The Public Sphere

Abstract This essay explores the concepts and practices of culture and the public sphere that Wieland, Goethe, and Schiller outline and realize in their journals, letters, and other writings. The background of this investigation is the ongoing debate in Germany about the function of a majority culture, based on a national tradition, in a multi-cultural, democratic society. The investigation of the three authors’ concepts and practices of both the public sphere and publishing demonstrates that majority cultures can be conceived in a variety of ways that can be more or less compatible with a liberal society. In their journals, Die Horen and Propyläen, Schiller and Goethe, respectively, are speaking to an ideal public, with the support of a select number of like-minded authors, aiming at the establishment of a national, symbolically structured culture and education (Bildung) that shows affinities to absolutist political structures. By contrast, Wieland opens his Der Teutsche Merkur up to a variety of contributors and readers, which are conceived and accepted as fallible, though teachable, with the goal of furthering the development, over a long period of time, of a national culture that is, at the same time, universal and timeless, thereby questioning the concept of nationhood.

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