Tag: law and ethics

An interesting constellation …, or: anything goes

da Peter Herrmann's Blog, posted in Slow Reading, works, works, projects, publications

(well, anything though surely no slide-presentation-simplification)

A colleague in Turkey had been

charged with “propagandizing for a terrorist organization” (Article No. 7/2 of Turkey’s Anti-Terror Law No. 3713) for signing the Academics for Peace statement “We will not be a party to this crime”. The statement criticized military actions in the Kurdish regions of Turkey and called for international observers to monitor the situation in place.

The colleague had been charged, and confronted with a “choice”: accepting being sentenced, with this admitting that the political activism had been a criminal verdict – then being “gratified” with the suspension of the sentence – the alternative: appealing and going to jail if the appeal is rejected.

Looking at it as matter of human rights, the case grasps attention on this/such case as it is the state who hinders the citizen to express a personal opinion – other issues may be raised.The human rights issue is about the fact, that HR emerged especially (if not only) as matter of protecting citizens (thought as being  “global”, though implicitly “private”) against arbitrariness of the state.

So far, so good. Only now comes the interesting part.The message – and call for action – came from the UK, currently also known as BREXITUK and had been sent by a colleague, using the university office mail at the

University of [… ] which is a charity and company limited by guarantee, registered in England (reg.no …)

Hesitation: First, I simply thought “a university”

Second thought (not the first time though): uni as charity sounds strange – education as charity, doing good. Doing so but to and for whom in whose name?

charity (n.)
late Old English, “benevolence for the poor,” also “Christian love in its highest manifestation,” from Old French charité “(Christian) charity, mercy, compassion; alms ….caritas by ‘charity.’ But the 16th c. Eng. versions from …

Doesn’t it say in Mathew 5.3.

“Blessed are the poor in spirit, for theirs is the kingdom of heaven.

Well, this opening for other field . I will have a go for that in another occasion …

https://www. aier.org/sites/default/files/Files/Images/Blog/9270/complexity.jpg

For here and now, adding to the puzzlement: does it mean a private body, engaging something like “spirit of general interest”, benevolent to society by providing education. This is actually a tricky one (yes, sloooooooooww reading, more thinking): it easily entails

  • the public, commonly understood as “statutory”, provided by the state, is not providing what it should provide, thus some other instance has to do it

or

  • The public cannot look after itself, thus an “instance from outside”, e.g. a benevolent “private”

Or it is

  • possibly “benevolence” itself the public and finally becoming true (well, for the philosophers, of course, a bit of Hegel’s cunning of reason and the absolute idea)?

Now, down to earth, nearly trivial, my question was and is: are (those) universities public institutions or not. Later I met Jeremy, how is fearing about the future of his home [he is European] as the Brexiters want to take it off him [well, their name does not say it clearly: they are Brits = they do not want to leave Britain but that want Britain to leave]) and asked him –  he confirmed that nearly all British universities are public.
Part of the exact definition of these universities is then, institutionally and legally that in this case we are dealing with a body that is

“registered as a higher education provider with the Office for Students (OfS) and is subject to the OfS Regulatory Framework. The OfS is also the University’s principal regulator for charity law purposes on behalf of the Charity Commission for England and Wales.”

Is then the OfS the public and who/what is it? Possibly a kind of council, or “soviet” to use another term?

So, coming back to the HR-issue: Having stated

The human rights issue is about the fact, that HR emerged especially (if not only) as matter of protecting citizens (thought as being  “global”, though implicitly “private”) against arbitrariness of the state.

it now means that one state (to be more precise: an institution from one state, or even more precise: somebody working in a representative position of one institution of one state has to stand ups against one the breach of HR by another state.Did I say by another state? Well, more precision would suggestBreach of HR by one person (Erdogan) who claims that he represents the state – as the public – and can thus oblige every citizen to accept those rules, even if they are finally private rules in the sense of the rules an individual defines …

Still to be added: representing in the one case means “speaking for”, in the other case it claims to mean “to be”. ‘L’État, c’est moi’

At the end it surely still remains a lot to be clarified, and even to be formulated as question. I suppose it is a challenge I may pass on to my new students, when commencing teaching next week

Company, business, work

at the Berlin School of Economics and Law.

paradoxes of jurisprudence

da Peter Herrmann's Blog, posted in academic life - living in academia, thoughts on life and its philosophy
  • All right, but also all just?
Recently I received a mail (see below), calling against ending the discriminatory practice of the AirBnB-business, namely the difficulties of “foreigners”, namely potential customers with a foreign, non-european name (see here an article in Le Monde, here in the Guardian). For the organisation that sent the mail, la Maison des Potes – Maison de l’égalité, reason to argue against the discrimination – and up to some point there is nothing wrong with such complain.
But then … there is a point: AirBnB is one of those “sharing-economy” ventures that are in fact not sharing anything. On the contrary, they contribute to ruining local accommodation markets, make housing unaffordable to many due to the fact that speculators are buying apartments, blocking them for normal use as it is more profitable to use the space for “quasi-hotel”-business and forcing ordinary citizens to live in some subordinate quarters … or even on the streets.
So, the constellation becomes weird when looking at it from the legal side:
calling for the protection of people who want to rent, legitimising this way indirectly AirBnB, and thus contributing to a situation that is too often contributing to eviction … then, however, the legal system is reluctant to protect the homeless.
– All right, but also all just? – below a documentation of the mail
– Before another and (for me) similar contradiction – economic and political issues, political-economic issues aren’t different: the immediate personal encounter during the Economic Forum in Krynica – with (not only) the Polish Vice-capo and a high-level politician from Hungary’s fidesz had been simply shocking – as much as seeing who was providing the stage: not only KPMG:
and the “excellence” in performing Panem et Circenses as means of establishing and maintaining hegemony. But even there remarkable: during the same panel the voice of a multi:
“Nationalism is bad for you!”
So there will be and are somewhat strange coalitions again – again, as all this is of course well known from history. – Hegel’s Cunning of history?
***
In the following the mail mentioned above:

Cher(e) ami(e),Selon une enquête de France Info diffusée la semaine dernière, de nombreux utilisateurs d’Airbnb estiment que leurs demandes de location ont été rejetées en raison de leur nom à consonance étrangère.

Certains particuliers qui mettent en location leur bien sur ces sites web annulent la location lorsque la consonance du nom du locataire ne leur plait pas. La preuve de cette discrimination est apportée par des opérations de testings : lorsqu’un ami présente sa candidature avec un nom à consonance plus européenne, le bien lui est loué sans problème.

Pour la Maison des Potes ce type de comportement discriminatoire, prouvé par ces opérations de testings, peut être et doit être condamné par les tribunaux. La Maison des Potes épaulera chaque victime de discrimination pour l’action en justice à mener et se constituera partie civile à ses côtés.

Si vous avez utilisé ces sites web et que vous avez le sentiment d’avoir été écarté d’une location du fait de la consonance de votre nom nous vous invitons à nous contacter le plus rapidement possible par e-mail contact@maisondespotes.fr ou par téléphone au 01.44.93.23.23 du Lundi au Vendredi de 10h à 18h.

Des testings pourront être organisés suite à vos signalements.

Si vous souhaitez nous aider à réaliser ces opérations de testings pour combattre ces discriminations, nous vous invitons à nous contacter en vous inscrivant sur ce formulaire : http://www.maisondespotes.fr/operation-de-testing-contre-les-discriminations

Amitiés antiracistes

Human Rights – shifting borders to new limits?

da Peter Herrmann's Blog, posted in social quality, thoughts on life and its philosophy, works, works, projects, publications
Human Rights – and one may say jurisprudence in general – is dealing with the fundamental tension of setting limits in order to reach universality. This means in particular being aware of the trap entailed in this constellation. Usually it is seen as “mission impossible”, left outside of the debate of the lege feranda; here it is suggested to take up Marx’ remark in a footnote in The Capital, volume I, saying:
“Proudhon begins by taking his ideal ofjustice, of “justice éternelle”, from the juridical relations that correspond to the production of commodities: thereby, it may be noted, he proves, to the consolation of all good citizens, that the production of commodities is a form of production as everlasting as justice. Then he turns round and seeks to reform the actual production of commodities, and the actual legal system corresponding thereto, in accordance with this ideal. What opinion should we have of a chemist, who, instead of studying the actual laws of the molecular changes in the composition and decomposition of matter, and on that foundation solving definite problems, claimed to regulate the composition and decomposition of matter by means of the “eternal ideas”, of “naturalité” and “affinité”? Do we really know any more about “usury”, when we say it contradicts “justice éternelle”, “équité éternelle”, “mutualité éternelle”, and other “vérités éternelles” than the fathers of the church did when they said it was incompatible with “grâce éternelle”, “foi éternelle”, and “la volonté éternelle de Dieu”?”
Still, there is the claim of some universality needed when it comes to (human) rights – finally it is the function of law to construct a hegemonic framework which than is broken down into smaller units, guided by the principle of binarisation.
With this reference in mind it should be possible to elaborate a more historicised take on HR, demanding to refer consciously to a “progressive economy”, i.e. the potentiality of a formation oriented on the interwoven matters of
  • Producing goods, but more importantly producing people, relationships and available time
  • Producing inclusion as condition of integrity – different to ancient societies, where slaves had been doing the work that allowed non-slaves to develop themselves in commune.
Human Rights – universally meaningful, though founded in a well understood partisanship, cum ira et studio: Hegemonies … – they follow the rule which Ovid is looking at:
In nova fert animus mutatas dicere formas/corpora — I intend to speak of forms changed into new entities.
Here you can find the recoding of a short presentation around these questions, given on the 12th of September 2018 at the Max Planck Institute for Social Law and Social Policy.

where legal scholars and economist (should) sit at the same table

da Peter Herrmann's Blog, posted in academic life - living in academia, contemporary socio-economic situation, Peter's Log, works, works, projects, publications

And of course, they should be joined by political scientists and politicians …

As usual, i am working on different projects, the one being the preparation of the workshop on The political economy of right wing populism, the other the question of digitisation and, of not anything else: continuing the work we started in February as part of the International scientific and practical seminar: “Occupation: Russian practice and international experience”: the book I am editing together with Vyacheslav Bobkov – we will discuss this further during the International Scientific-Practical Conference

“Instability Of Employment: Russian And International Contexts Of Changing The Legislation On Labour And Employment”

commencing tomorrow at the ФГБОУ ВПО “РЭУ им. Г.В. Плеханова” in Moscow

where I arrived a few minutes ago, coming from Anhui.

The following paragraph – the draft of a co-written contribution, that links to the different projects mentioned – may be worthwhile to be published here – taken out of its original context, valid in various contexts that characterise in my view much of the current situation in which economic greediness and acquisitiveness, political populism, and so-called hedonism alike are finding futile ground. So the para is the following:

… this is about the ‘major conflicts’ but also about the small print. One example may do suffice – in fact it is one that also shows that we are facing a thorough interpenetration, already going on for a long time, reaching seemingly unrecognised into the mentality: the common law tradition is increasingly eroding for a simple reason: “modern business” needs reliable frameworks for “mathematised rationalities” and “protestant ethics” – something that common law does not guarantee to the same extent as civil law (Romano-Germanic tradition). This is a particularly interesting example as it clearly shows the way in which accumulation regime and mode of regulation are entangled. This is expressed not only expressed in the fact of the legal regulations ‘for business’ as a system of systematic compilation and deductions (Leges Duodecim Tabularum or Duodecim Tabulae) but also in the regulatory system itself establishing the tradition of the “constitutional state” (Rechtsstaat).

Interestingly, this comes right now under pressure and is in different ways qualified, hollowing out the scope and degree of liability of the state,[1] the emphasis of individuality (including corporate social responsibility) and the accentuation of ‘governance’ as systematic deregulation of government. Such shifts can be found by way of “Global Governance”, characterised by different strands, entangled like the threats of a rope: (i) international and global organisations play increasingly a role and in tendency even openly contesting state power; (ii) not strictly “statutory” in character, there is a tendency of strong think tanks developing power positions that go far beyond the traditional role of opinion leaders: the World Economic Forum, The Bilderberg Conference and the Club de Madrid are examples, all characterised by the fact that leading representatives of big business, [former] members of governments and some mainstream ‘trendy’ academics are part of these undertakings; (iii) the traditional lines of division and distinction are frequently blurred and contested – here it is about socio-economic strata but also about boundaries of states, regions etc.; (iv) non-binding, often “think-tank-like” left-intellectual-liberal proposals; (v) critical and clientelist claims (iv) new ethics also being brought forward in organisations as the WEF, IMF, WB and Bilderberg. – It has to be said that all this does not replace objective societal structures and division; much of the effect can probably be seen as reflection of changing processes of politisation: the trend of a flattening can be seen on the one hand, establishing mechanisms of ‘presentationalism’ as dominant feature, supporting the emergence of a post-factual; on the other hand we find the push and pull effects when it comes to redefining politics as administrative issues, solely bound to factuality and rules.[2]

[1] This is still relevant even if we accept that even the Rechtsstaats-traditon strongly emphasised “The Limits of State Action” as the title of the work by Wilhelm von Humboldt suggested (see Humboldt, Wilhelm von, 1792: The Sphere and Duties of Government (The Limits of State Action); London: John Chapman, 1854)

[2] one has to acknowledge that there is ontologically and epistemologically a close kinship between post-truth and evidence based politics and policies, both dissecting complex truth.

To where do we go from here?

da Peter Herrmann's Blog, posted in academic life - living in academia, Peter's Log, thoughts on life and its philosophy, works, works, projects, publications

From teaching economics at Bangor College China, in Changsha, China – some reflections had been published here earlier, and also here – I arrived now – after some interim work in France and The Netherlands – in Munich, Bavaria, a generous grant from the Max-Planck-Institute for Social Law and Social Policy allows me occupying from today a research position for the next twelve month, looking at issues around digitisation – some books I asked for are already at my disposal on my new desk. And right at the beginning, after having been giving out against orthodox economics [not so much from a heterodox, but from an unorthodox position (or was it more from an alternative orthodoxy?)], I am now wondering if – cum grano salis – heterodox thinking is needed also when it comes to law?

[scan from: Johann Wolfgang Goethe, Faust – Der Tragödie Erster Teil, mit Illustrationen aus drei Jahrhunderten, ed. by Hans Hanning, Berlin: Rütting & Loening, 1982, 2nd ed., p. 123
Teufelspakt_Faust-Mephisto, by Julius Nisle]

And much as Marx did not ‘invent communism out of the blue’, but based it in historical analysis [see in particular Engels’ Work on ‘The Origin of the Family, Private Property, and the State’] , such historical review is also most valuable in jurisprudence. A nice passage I found – in a book by St Germain, writing  on the Dialogues between a doctor of divinity and a student in the laws of England –  and surely not suggesting that we find the alternatives in divinity …

And so it appeareth, that equity taketh not away the very right, but only that that seemeth to be right by the general words of the law. Nor it is not ordained against the cruelness of the law, for the law in such case generally taken is good in himself; but equity followeth the law in all particular cases where right and justice requireth, notwithstanding the general rule of the law be to the contrary. Wherefore it appeareth., that if any law were made by man without any such exception expressed or implied, it were manifestly unreasonable, and were not to be suffered …

Reading this on page 45, we read already a page earlier as definition:

Equity is a right wiseness that considereth all the particular circumstances of the deed, the which also is tempered with the sweetness of mercy. And such an equity must always be observed in every law of man, and in every general rule thereof: and that knew he well that said thus, Laws covet to be ruled by equity. And the wise man saith, Be not overmuch right wise; for the extreme right wiseness is extreme wrong: as who saith, If thou take all that the words of the law giveth thee thou shalt sometime do against the law.