Das Recht auf Asyl bei Emer de Vattel 1758: unvollkommenes Recht, vollkommenes Recht, Menschenrecht

When, within the framework of a highly controversial debate of the early 1990s in Germany on the right to asylum, Winfrid Brugger argued, a human right to asylum could not be based on sound reason, he referred to the supposed impossibility of an imputation of the plight of refugees to certain foreign states. In more recent debates, similar arguments have been brought forward and formulated as a problem of imperfect or perfect duties and rights. Much earlier, in 1758, Emer de Vattel already had discussed the right to asylum as a right that has aspects of both an imperfect right and a perfect right. This has mostly been ignored in the recent debate. In this article, I try to show how de Vattel reasoned. His argumentation limited the otherwise strong sovereignty of states by referring to the reasons of the moral legitimacy of their powers. This led him to the result that the per se perfect right to asylum, imperfect in relation to specific states, can, if states collectively fail to admit a refugee in urgent danger, become a claim against a specific country in the shape of a perfect right to self-help. I will briefly try to reconstruct some of de Vattel‘s ideas with concepts of Ronald Dworkin and Robert Alexy. The difference between Dworkin’s rule and Alexy’s Regel becomes relevant for understanding de Vattel’s perfect and human right to asylum. In the end, I will briefly investigate how much of de Vattel’s thought depends on assumptions a XXIst century thinker would probably not be ready to suppose any more. It will become clear that de Vattel’s thought on asylum is mostly independent from rather controversial assumptions of his work; it fits rather well to some recent approaches limiting sovereignty by human rights and concepts of territorial justice.

Das Wissen im Subjekt. Zur Bedeutung des inneren Forums im Wandel strafrechtlicher Sozialkontrolle

Subjects are not simply found. They are constructed by institutions, social practices and societies. The subject is the result of subjectification. This analysis of transformation aims to show, on the basis of penal practices, that an appropriate understanding of the legal subject cannot begin with a history of progress or decay, however conceived, but has to focus on the dialectic of subjugation and liberation. It then becomes visible that every normative order has to be understood as coping with contingencies, crises and struggles that repeatedly drive law into reflexivity. This reflexivity shows the precariousness of all law and yet makes it clear that free societies cannot do without it.

Migration und Weltbürgerlichkeit Zum konstitutiven Reflexionsverhältnis zwischen Recht und Sittlichkeit im Anschluss an Kants „Gesetz der Hospitalität“

In his late work Perpetual Peace. A philosophical sketch from 1795/96, Kant gives us some hints on the relation between migration and cosmopolitanism. In his “general law of hospitality”, which is not a law of guest, but guarantees a right of migration, he reminds us all as citizens of the world. But a special antinomy of the law of world citizen provokes reflection on the fact, that any law could not protect us sufficiently - especially in the case of human rights - if a certain morality is missed in general. We need an understanding of what it means to be a world citizen. In spite of some recent discussions, which try to define or exclude the question of migration as an only special problem, it has to be recognized that it is a question of world-wide importance which belongs to the main questions of freedom in the world.

Legalität als Waffe? Zur Dialektik von Entlegitimierung und Relegitimierung der Legalität bei Schmitt und Kervégan

In his contribution, Klaus Günther deals with Schmitt’s distinction between legality and legitimacy. According to Günther, Kervégan’s decontextualization of the distinction first requires a recontextualization. Thus, he shows to what extent it is underlaid, even interwoven, with another distinction, namely with the distinction between pays réel and pays légal. It has been coined by the political opposition against the principles of 1789 and determines the conceptual framing of law, democracy and human rights until today. Above all, it obfuscates their interrelationships and blocks an adequate conception of legitimacy by legality.

Sorge – Macht – Recht. Konzeptionelles in der Praxis der Pandemiebekämpfung

The coronavirus pandemic as an exceptional social situation demands social-philosophical answers. On the basis of care and power as relationship concepts, the following essay discusses several aspects of German pandemic law and its potential for the struc- turing of social relationships. It will turn out, that even if there is no stringent concept, many legal aspects are linked to the care for ourselves and others as well as to themes of power. So, they include a potential for a deeper understanding of social interaction in the current situation.

Die (Wieder-)Geburt der Grundrechte aus dem (Un-)Geist der totalen Prävention

In the section „On the Constitution“ in his „Foundations of Natural Right“, Johann Gottlieb Fichte designs a total police state. The passport functions as an instrument to ensure permanent surveillance of citizens. This text paradigmatically shows that total surveillance is not only incapable of guaranteeing the desired security, but that it endangers it itself. The need for fundamental rights can therefore be derived from surveillance itself.