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1
المؤلفون: Christoph Engel, Theodore Eisenberg
المصدر: Journal of Empirical Legal Studies. 13:116-152
مصطلحات موضوعية: Plaintiff, Corporate governance, media_common.quotation_subject, 05 social sciences, Liability, Morality, Education, Intervention (law), Harm, Law, 0502 economics and business, Normative, 050207 economics, Psychology, 050205 econometrics, media_common, Party
الوصف: Arguably, if a court holds a defendant liable for negligently inflicting harm on the plaintiff, this intervention combines three effects: (1) the court specifies the normative expectation, (2) the court expresses dissatisfaction with the plaintiff's behavior, for example, her level of activity, and (3) the court obliges the defendant to compensate the plaintiff. In the field, it would be close to impossible to disentangle the three effects, or to investigate how they interact with intrinsic reticence to inflict harm on a passive outsider. We therefore go to the lab. We do not find an effect of intrinsic morality. However, the intervention has a separate significant effect on each of the three channels.
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2
المؤلفون: Christoph Engel
المصدر: German Law Journal. 5:197-236
مصطلحات موضوعية: media_common.quotation_subject, Contempt, Face (sociological concept), Private governance, law.invention, Good governance, Public law, Sovereignty, law, 050602 political science & public administration, Selection (linguistics), Sociology, Constitutional law, 0505 law, Law and economics, media_common, 050502 law, Government, Constitution, Corporate governance, 05 social sciences, Doctrine, 0506 political science, CLARITY, Simple question, Law, Reputation
الوصف: Regulation is almost a synonym for public law. Government, relying on its sovereign powers, intervenes into freedom for the sake of social betterment. Reality less and less coincides with this traditional picture. Regulation is increasingly replaced by private or hybrid governance, i.e., by blends of private and public elements. Constitutional doctrine is not well prepared for the ensuing four-polar conflict. The four actors are government, the private regulator, its addressees, and the protectees. Constitutional doctrine treats private regulation as an exercise of freedom. The interest of protectees in good governance consequently lacks constitutional status. The conflict between private regulators and addressees is treated as if it were a normal conflict between two groups of individuals having opposing interests. An appropriate solution makes a difference between the constitutional protection of freedom and autonomy. The German constitution does indeed also protect autonomy, of municipalities, public broadcasters, universities, and private regulators. But the scope and level of protection against governmental interference reflects the governance task of private regulators. In a second respect, constitutional doctrine also ought to be amended. Private governance is rarely governance by law. It more often relies on social norms, technical code, incentives, or mixtures of legal with non-legal governance tools. The normative value of governance by law can be reflected in objective constitutional law. Finally, from all this a first set of insights can be derived for the constitutional treatment of hybrid governance.
URL الوصول: https://explore.openaire.eu/search/publication?articleId=doi_dedup___::96d63e2fb4c79c93902e80a6e1a2ab2a
https://doi.org/10.1017/s2071832200012402 -
3
المؤلفون: Christoph Engel
المصدر: SSRN Electronic Journal.
مصطلحات موضوعية: Generosity, Jargon, Individualism, Constitution, media_common.quotation_subject, Law, Corporate governance, Economics, Proportionality (law), Basic law, Autonomy, media_common
الوصف: Unlike its US counterpart, the German Constitution offers all-encompassing protection; in American jargon German law thus is in the Lochner era. But this generosity only applies to individual freedom, not to private governance. There are select guarantees of governance too, as for the churches and the universities. But according to general wisdom, these guarantees are enumerative. This paper challenges the general wisdom. It claims two things: there is a general protection of private governance, enshrined in Basic Law, Article 9. And a constitutional guarantee of governance is fundamentally different from the guarantees of freedom. Both classes of guarantees have in common that they protect against governmental intervention. Consequently, they also share the basic doctrinal properties: to violate the protection, the governmental act must intervene in an activity protected by the constitutional provision, and the intervention must fail the test of proportionality. But governance is protected as an activity. Government intervenes if private governance is prevented or impeded. Such intervention can be indirect, and therefore encompass internal organisation of the private governance body, or its access to resources. Yet neither the body's property nor its potential for making money are protected directly by the pertinent constitutional freedoms. Moreover, the proportionality principle has to be applied in a way that pays due respect to the fact that private governance by definition encroaches upon the individual freedom of its addressees.
URL الوصول: https://explore.openaire.eu/search/publication?articleId=doi_________::ae1376558a23af4b217013c7d48813b3
https://doi.org/10.2139/ssrn.462460 -
4
المؤلفون: Christoph Engel
المصدر: SSRN Electronic Journal.
مصطلحات موضوعية: business.industry, media_common.quotation_subject, Corporate governance, Social environment, PARRY, Legal aspects of computing, Competitor analysis, Computer Science Applications, Internet governance, Globalization, State (polity), Political science, Law, The Internet, Command and control regulation, business, media_common
الوصف: The Internet epitomizes globalisation. There are not many international treaties on Internet issues so far. For the time being, governance of the Internet by law will thus basically have to be governance by national law. Most cyber scholars are therefore in the business of exploring alternative governance tools. The typical approach is hybrid, combining state with non-state inputs, and using soft forms of governance, not command and control regulation. Against this background, this papers makes two related points. The preoccupation of the legal discourse with globalisation is partly misleading. The Internet has more and even more profound challenges to governance by law: the libertarian beliefs of many Internet activists; the egalitarian culture of Netizens; the ultra high speed of evolution; and the almost complete decontextualisation of Internet communication. Despite these many and profound challenges, Internet governance by law is not pointless. Separately, the law is able to parry each of these challenges, albeit to a varying degree. The law comes in more troubled waters, if these challenges compound. But even then, there is room left for the law. Policy makers should thus not rule the law out a limine. They should properly weigh the many advantages governance by law has over alternative institutions.
URL الوصول: https://explore.openaire.eu/search/publication?articleId=doi_dedup___::f590534543a57a6dd2d5ae00727f376e
https://doi.org/10.2139/ssrn.325362 -
5
المؤلفون: Christoph Engel
المصدر: SSRN Electronic Journal.
مصطلحات موضوعية: European Union law, Jurisdiction, Constitution, Corporate governance, media_common.quotation_subject, Fundamental rights, Project governance, Political science, Law, Political Science and International Relations, Sociology, Constitutional court, Business and International Management, Constitutional law, Legislator, Law and economics, media_common
الوصف: A technology often reaches perfection when its successor is already in place. Miraculously speedy and reliable punch card readers were finally available on the market when demand shifted to personal computers, to cite only one example. Do constitutions follow the same evolutionary pattern? Constitutional law, in general, and the doctrine of fundamental freedoms, in particular, are in admirable shape. Their dogmatics have been amply tested; they are elegant and rich. But they have been developed for the nation state. Yet governance reality is increasingly different. The state is competing with foreign, international and private governing authorities, or it is joining them in hybrid efforts. Will de-constitutionalization ensue? Or will the existing constitutions be able to face, or even alter, the new reality? This is a paper about governance. Hardly a term is more disputed in the social sciences. This paper looks at (potentially) global, not national or European governance. It therefore cannot avoid using the broadest of all possible definitions of governance. Since on the global scale there is no such thing as a widely undisputed higher order system, the term governance must comprise all modes of social ordering, by whatever actor or actor configuration. The focus of this paper is on divergent governance bodies, not governance tools. It does not want to explore whether the pertinent body uses (quasi-)legal rules, incentives, moral suasion or any other tool for governing the behavior of its addressees. It simply looks at who purports to change the behavior of a class of addressees, in the alleged interest of some protectees. Moreover, when it speaks of governance, the paper exclusively looks at intentional attempts to change the behavior of addressees. The limitation inherent in this becomes clear when looking at a constitutional court. To the extent that it has jurisdiction, one can interpret such a court as the supreme legal authority. At the limit, the court can even overrule the legislator. But, strictly exceptional instances notwithstanding, a constitutional court does not itself write the law. It, at most, invalidates existing rules, or gives them a different meaning. In both cases, parliament remains the governing body. Finally, this is an interdisciplinary paper in that it draws on insights from the social sciences, and from political sciences in particular. But it does so exclusively in the interest of better understanding a dogmatic problem of constitutional law: how can and how should a national constitution react when governance activities cannot (exclusively) be attributed to the governance bodies created by the constitution? More specifically even, the paper does not intend to design the appropriate reaction for a concrete instance of not exclusively public national governance. Its goal is much more modest. It wants to provide constitutional lawyers with a conceptual framework for addressing such concrete design problems. This explains why the paper does, by far, not exploit the richness of the discussion on hybrid international governance in the political sciences. The following sketch purports to address these questions from the angle of the German constitution. It starts with a taxonomy of governance authorities (II). It briefly summarizes the normative arguments for and against international, private and hybrid governance (III). It points to the option of privatizing, internationalizing and hybridizing the constitution itself (IV), but focuses on strategies for the existing national constitutions in the face of an altered reality (V). The concluding dogmatic treatment is confined to fundamental freedoms. It starts by isolating the international (VI) and the private dimension (VII), then goes on to address the more complex private international (VIII) and hybrid forms of governance (IX).
URL الوصول: https://explore.openaire.eu/search/publication?articleId=doi_dedup___::a12c2f225b73be2129b25980cc8a756e
https://doi.org/10.2139/ssrn.278875
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