290007 Legal theory in the digital world (S) (WiSe 2023/2024)

Beschreibung:
The concept of law, judicial decision-making, and the ethical evaluation of various instantiations of the legal phenomenon lie at the center of gravity of legal theory. The importance of these issues is not merely speculative; they carry significant practical repercussions. Depending on the concept of law upheld, one will be faced with different legal systems with respect to the same political community. After all, if morality interferes with what counts as law, the very composition and content of the respective normative repertoire undergoes change. Different concepts of law also impact the theory of legal interpretation. Finally, ethical evaluation is an inescapable component of the reflected and responsible engagement with diverse manifestations of the legal phenomenon, such as, for example, to which institutional actors should fall the competence to create new legal norms, solve certain legal conflicts, impose sanctions of the most varied kinds, etc. Legal concepts - whether they concern the law itself, legal interpretation, or any other manifestations of the legal landscape - are not immutable, nor should they arise from the mere opinions of scholars dedicated to their analysis. The present world is going through a series of breathtaking transformations, especially those brought about by new digital technologies such as artificial intelligence. This already impacts, and will impact even more – formally and substantively – legal decision making and the mechanisms of coercion and interference with the behavioral preferences of the people addressed by the law. The reverberations of the growing influence of new digital technologies not only require ethical evaluation but will also be felt in the concept of law, the mastery of which is not only indispensable for a reflected and responsible legal practice, but also for the very self-understanding of contemporary and future society. After all, even though it has been and remains decisive in promoting large-scale injustices throughout history, law is the social artifact that ultimately makes civilization possible. The course aims to foster the understanding of legal theory in the digital world to navigate digital minefields such as the use of algorithms in the drafting of legislation, the involvement of artificial intelligence in judicial decision-making as well as the ethical appraisal of digital surveillance.

1 Preliminary issues

2 Law - fragments of a conceptual explanation

2.1 Institutionality

2.2 Normativity

2.3 Coerciveness

3 Legal theory

3.1 General introductory remarks

3.2 Different types of legal theory

3.3 Legal theory and legal dogmatics

4 Law and morality

4.1 Occupation of one and the same terrain

4.2 Two senses of morality

4.3 Overview of metaethics and normative ethics

4.4 Crucial mutual interactions

5 Basic conceptions of legality

5.1 Object of dispute

5.2 Non-positivism

5.3 Positivism

6 The specific purpose of law

7 Early explorations into the reciprocal interactions between law, legal theory and digitalization

7.1 Brief inventory of the relevant digital technologies for the lectures
7.2 Digital technologies and socio-institutional developments
7.3 What lies ahead in the lectures
7.3.1 Institutionality
7.3.2 Normativity
7.3.3 Coerciveness
7.3.4 Legal reasoning

8 Institutionality

8.1 General introductory remarks

8.2 Law making

8.3. Law enforcement

8.4. Law applying

9 Normativity

9.1 General introductory remarks

9.2 Granularity

9.3 Embedding

10 Coerciveness

10.1 General introductory remarks

10.2 Two senses of coercion

10.3 Surveillance technologies

11 Legal reasoning

11.1 General introductory remarks

11.2 Judicial interpretation of law (legislation)

11.3 Judicial law making

11.4 Could/should machines replace human judges?

12 Concluding thoughts and discussion on digital tech’s impacts on the nature of law

12.1 Have new digital technologies had revealing, highlighting or transformative impacts on the nature of law?

12.2 Are new digital technologies likely to have new foreseeable revealing, highlighting or transformative impacts on the nature of law?