There are obviously two major, and somewhat opposed, developments putting humanity and the way humans organise themselves to test: on the one hand we find the development of digitalization and so-called artificial intelligence, questioning the independence and exceptionality of humankind; on the other hand, nature and the perception of nature respectively are equally putting humankind under threat.
Of course, this has major implications for politics, for law and in particular for the understanding of human rights.
Both developments require to rethink the anthropocene and it’s specification as capitaloscene. From a legal perspective this means that the monopoly of humans as legal subjects (see below) is questioned, and both, nature and artificial intelligence, gain positions that question or at least qualify this monopoly. Obviously, from the current perspective of the legal system it is impossible or at least extremely difficult to find an appropriate answer to this challenge.
Major grievances of humankind can be seen in the following:
- Copernicus, questioning the centrality and thus uniqueness of the planet earth
- Darwin, questioning the superiority of humankind
- Freud, confronting us with the principal limitation of superior rationality
- and more recently digitization/artificial intelligence and the pandemics – and with the latter: nature claiming its right.
Thus, we are confronted with different perspectives that are fundamentally questioning the superiority of anthroposcene, requiring the reinterpretation of the social shaped by the currently globally dominant reality of the capitaloscene.
The traditional juridical system is very much a reflection of the capitaloscene, the respective institutions are at the very same time a challenge to the political system and the traditional separation of power as outlined by Montesquieu. Leaving the necessary complex analysis aside, we are witnessing a situation where the ruling groups are in many cases not willing or able to take steps to do what is generally accepted as being necessary – controlling the most powerful enterprises, that are now claiming direct control of our action, behaviour and thinking by changing fundamentally the accumulation regime, mode of regulation, life regime and mode of living to protect environmental destruction.
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Under these conditions the political institutions and the juridical provisions fail to work properly. One point that is frequently highlighted, though in practical respect often neglected, is given by the reached stage of globalisation that undermines the ability of nation states to act as sovereign. Another aspect is a certain kind of overregulation: By definition, legislation must be general and abstract, i.e. every thinkable case of a specified category must be addressed by a legal piece (act, regulation, administrative requirement …). However, as reality and/or the perception and interpretation of reality is becoming increasingly differentiated, the assessment of an act or behaviour may need to be shifted from one category to another, relevant categories may require to be broadened, or the system of categories must follow the differentiation of reality and/or the assessment and interpretation of reality respectively. E.g., while we may talk at an initial stage about killing, we come to a point where killing may be considered a murder, manslaughter, self-defence, emotional act, act of war …; thus, legislation addressing killing falls short to cover the different kinds of killing in an appropriate manner – while we still deal with killing in some respect as matter of criminal law, an act of war will obviously be shifted to military law or law concerning national security, certain cases may be considered in terms of business law or fall under social security legislation, family law etc.. To some extent such attributions are not least a reflection of systemic framing: we may consider that coverture as societal norm, as historically known from Common Law to at least 1870 (UK’s Married Women’s Property Act) shed different light on killing a wife than modern legislatures, seeing women at least formally as having equal rights as men. In more general terms we may critically refer to the categorical imperative: As long as we are referring to an abstract, overgeneralising category, the categorical imperative may be applied; however, the more concrete the application becomes, the more manifest contradictions between categories will come to the fore and with this the need to enter a (discursive ?) process of categorical redefinition. Concrete, Kant is right on the general and formal level, stating
[t]ruthfulness in statements that cannot be avoided is the formal duty of man towards everyone, no matter how great a disadvantage may result for him or for somebody else; and although I do not do injustice to the one who unjustly compels me to make a statement, if I falsify it, I nevertheless do injustice in the most essential part of the duty in general by such a falsification, which can therefore also be called a lie (although not in the jurist’s sense): i.e. I do, as much as is in me, that statements (declarations) find no credence at all, consequently also all rights, which are founded on contracts, cease to exist and lose their force; which is an injustice done to mankind in general.
(Kant, Immanuel, 1797: Über ein vermeintes Recht aus Menschenliebe zu lügen’; https://korpora.zim.uni-duisburg-essen.de/Kant/aa08/425.html ; page 426: line 14– 24; accessed: 08/08/2022; translation P.H.)
However, if the man with the axe stands in front of the door, the categorical point of reference will shift from the right to truthfulness to the right of life.
The complex changes of the scenario, as they frequently occur in form of re-valuations, entail a crisis of the political and legal system – in short, (i) the existing structures are acknowledging the general need to act, (ii) but fail to do so, while the traditional structures (parliamentary jurisdiction, petitions, consultations …) are not responsive, and (iii) the limits of the reach and scope of traditional actors is diminishing and (iv) actions that are in very general terms illegal, are at least questioning the existing mechanisms (e.g. civil disobedience, using blockades …) finally (v) the mainstream cannot easily find appropriate answers, being itself torn between wants and necessities; one may see it also as tension between political voluntarism of reason (“wishful thinking”) and needs of restrictive legal regulation. Regarding disobedience two approaches persist: Arendt for instance sees civil disobedience as permanently needed means of the process of democratisation; on the other hand, for instance Rawls, Dworkin and Habermas see it as legitim means in cases of emergency, quasi as last resort.
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Part of the structures and the reflection on structural changes is historically framed by the legal systems (in particular Customary/Case Law versus Roman Law) and the linkage of different layers of legislative processes – where legislative processes are stretching into processes of implementation and application.
We arrive at a six-layer perspective on legislative processes: the first is concerned with the pre-legal definitional framework – a general set of norms and images of the world, of humans and the role of humans in the universe are not necessarily explicitly formulated, however they are enshrined in societal, social and individual thinking. Even if individuals to not accept (all of) these norms, they are bound to them even if it may be by negation – there is no god without devil. Second, we find the explicit formulation and condensation of these general understandings, transferred into legal norms, especially in constitutions. But they are equally relevant when outlining strategic plans or frameworks for special legislation and administrative procedures. Third, there are special legislative pieces on a distinct, ‘lower’ level – while bound to the general framework they provide an operational reference, relevant for everyday life of a society, social groups and their relationship to each other and for individual behavior. The fourth level is concerned with the checks and balances of the legislation, in concrete terms for instance the interpretation by high courts, constitutional courts and the like. Here we can speak of a control instance, directed to the legislator and being concerned with – for instance – questions of constitutionality of acts, consistency of formulations etc. Fifth, – though we are especially here looking at main differences between nations etc. – we find distinct systems of quasi-official interpretations, being guided and at the same time guiding the application of law. While, of course, acts are the ultimate point of departure for any judgement, and while reference will then be made to decisions and judgements by the constitutional court (or equivalent), we find another level that is employed by elaborating praxis oriented quasi-official comments, summarising the prevailing opinion (often abbreviated as h.M. [herrschende Meinung] – such comments are official by representing the prevailing opinion, to be distinguished from the minority opinion. The prevailing opinion – as such or with direct reference to the published comments – are used also by judges and may be seen as “secondary law”/”law of second order” although they are not official in terms of being positively sanctioned or even authorised by the legislator. As far as this refers to Germany, this is an expression of the special position of the legal profession and professionals, as it had been defined especially by Max Weber, characterising professionals especially by the rule “sine irā et studio, quorum causas procul habeo” (Tac. Ann. I 1-2 – without hostility and partisanship, the reasons for which I have far away). On a sixth level we are concerned with individual “cases”, i.e. (supposed) breaches of the law by individuals, institutions, administrative bodies etc., brought to the court and now being a matter of interpreting law and behaviour and evaluating if and where exactly we find a breach – this, of course, entailing possibly questioning the legislation.
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However, under these conditions the procrustean bed of logical developments are under threat. This is the tendency to dissolve the traditional linear-hierarchical arrangement; it is replaced by a mechanism that is comparable to a control system that has recently been playing a role in biological research under the name of “selectively advantageous instability” (SAI) (see Orf, Darren, 2024: Scientists Found a Paradox in Evolution – and It May Become the Next Rule of Biology. A new study unexpectedly reveals that cells thrive on chaos: May 24, 2024 9:20 AM EDT; https://www.popularmechanics.com/science/animals/a60848559/rule-of-biology-evolution-paradox/; 25/05/2024). In Jurisprudence we find already since some time similar discussions, especially under the heading “governance”. Against this background, core mechanisms and terms of the legal system need to be revisited:
First, the validity (reach and scope) of essential characteristics of the law, by and large captured by the following, needs to be reassessed:
- the state monopoly on the use of force
- enforcement by means of legal proceedings, in particular court proceedings, but also administrative proceedings; decision-making and enforcement).
- the written fixation of the law (although not absolutely necessary),
- law-making in a special procedure as a democratic legitimisation of the law and
- the focus on the realisation of justice,
- furthermore, legal certainty as a peculiarity of the law, which follows from its enforceability and substantive fixation and also includes the possibility that the individual can enforce his right (if necessary by force).
(see http:/www.jwilhelm.de/methode.pdf)
Second, the concept of the legal subject, which must traditionally
- be in a position to have rights and obligations under the law
- be able to act in its own name
- be able to sue and be sued in court
- be able to be held liable for their actions.
may also need some revision if the traditional understanding of “human actors” looses its rational as universal singularity.
Third, the rules of legal order/hierarchy will be subsequently redefined
- Lex superior derogat legi inferiori (Priority of the higher-ranking law over the lower-ranking law)
- Lex specialis derogat lex generalis (Priority of the specific over the general law)
- Lex posterior derogat legi priori (Priority of the later over the earlier law)
The often celebrated rule of law is not necessarily invalidated, perhaps it finds on the contrary a new backing by possibly remerging righteousness and justice.