This paper explores what is apparently a non-topic for Luhmann. Luhmann is preoccupied with decision-making rather than with judgment. The paper argues that Luhmann, attempting to find a way out of the dilemma between the fundamentalism of positivistic legal theory and the relativism of anti-foundationalist post-modern thinking, presents the epistemological–ethical doublet of a “self-binding” of the law. In this bootstrapping manoeuvre decision plays the central part. The paper begins by examining judgment in its relation to decision as considered by non-system-theoretical (...) thinking. Against that background it unfolds the distinction between distinction, form and decision in systems theory and in the system-theoretical observation of the law. The article then discusses Luhmann’s description of the functioning of decision(-making) within the legal system. The hypothesis is that Luhmann blends here cognitive with ethical aspects. Finally, the article addresses Luhmann’s polemics against alternative approaches to his own. The suggestion is that ‘judgment’, in Luhmann’s systems theory, re-enters by the back door as an ethical–theoretical imperative that commands theory’s responsibility for society and law. (shrink)

This paper examines the role of performance in law and music as a structural means of their self-programming construction. Music and law are considered as parallel social practices or performative doings. The paper begins with a critical analysis of the special aesthetical features of present-day juridical practice as exemplified by legal trial and legal expertise. Drawing upon reflections on the modern discourse on aesthetics and art, the article then examines in greater detail the specific traits of performance in law and (...) jazz music. Performative processes move from representation to presentation, from a preoccupation with rules and controlling to induced self-programming. Both law and jazz regard the unknown future as a resource for present decisions by “inventing” new possibilities; both require, expand and promote a responsibility that does not follow from statutes nor can be expressed in a code of ethics. Finally, the article addresses the performance situation in jazz. Jazz being polyphonic and improvisational by nature, improvisation makes explicit tradition by staging the context dependency of its performance. It is mediated by the knowledge, the operational history and the communication of the participants. Jazz is an exercise in the possibilities of an “aesthetics of imperfection” which can open up new ways of seeing law and politics. (shrink)

Usury ceilings seem indefensible. Their opponents insist these caps harm the consumers they are intended to help. Low ceilings are said to prevent the least advantaged agents from accessing legal credit and drive them into the black market, where prices are higher and collection methods are harsher. But in this paper, I challenge these arguments and show that the benefits of interest-rate limitations in the most expensive credit markets clearly outweigh the costs. The test case is payday lending. Deregulated pricing (...) in this market produces negative externalities that justify usury restrictions. Unless prices are capped, the more solvent majority of borrowers is compelled to cross-subsidize the least solvent debtors, who have a high rate of default. Rationing the riskiest debtors out of this market by means of a moderate usury cap puts an end to this unfairness and produces fewer bad consequences than the advocates of deregulated pricing recognize. I argue that only an extreme principle like maximizing the minimum could justify a free market in payday credit. (shrink)

Copyright © 2008 by International Union for Health Promotion and Education.

Despite being considered the proverbial backbone of our healthcare systems, nursing still seems to struggle to scientifically demonstrate its contribution to care experiences and patient outcomes. This leads to erosive tendencies that threaten the development of the profession and its progress as an academic discipline. With this paper, we want to contribute to the theoretical discourse concerning the nature of nursing and the research into its effectiveness. We begin by outlining a set of prevailing paradoxes and their consequences relating to (...) nursing and nursing research: the issue of demonstrating its unique contribution despite a clear societal mandate; a discrepancy between subjectively experienced effectiveness and objectively ascertainable effectiveness; and a mismatch between theoretical premises of nursing and task‐oriented cultures in practice environments. Using an example of a seemingly simple nursing intervention, we intend to demonstrate the qualities and complexities of nursing. We further illustrate this by drawing on several of our research projects using theory‐based evaluation methodologies. From these illustrative examples, we distil two insights relating to nursing interventions that we consider fundamental: the nurse, as a person, is central to its unique effectiveness; and there is always an interplay between context, intervention and its intended effect. We summarise our considerations and argue the case for conceiving research designs in alignment with theoretical premises of nursing. (shrink)

We address concerns raised by Maul (2012) regarding the validity of the Mayer-Salovey-Caruso Emotional Intelligence Test (MSCEIT). We respond to requests for clarifications of our model, and explain why the MSCEIT’s scoring methods stand up to scrutiny and why many reported reliabilities of the MSCEIT may be underestimates, using reanalyses of the test’s standardization sample of N = 5,000 to illustrate our point. We also organize findings from four recent articles that provide evidence for the MSCEIT’s validity based on (...) its relations with other tests. (shrink)

This paper uses the example of payday loans to identify two standards of exploitation that better accord with intuitions about taking unfair advantage than neoclassical or neo-Marxian exploitation theory. These two standards are derived from ongoing policy debates about the regulation of payday loans. The sufficiency standard is more restrictive than relative-advantage theory, but the latter indicates when exceptions to the prohibition on exploitation should be made for the sake of the disadvantaged party.

The analysis of genetic and epigenetic mechanisms of the genotype–phenotypic connection has, so far, only been possible in a handful of genetic model systems. Recent technological advances, including next‐generation sequencing methods such as RNA‐seq, ChIP‐seq and RAD‐seq, and genome‐editing approaches including CRISPR‐Cas, now permit to address these fundamental questions of biology also in organisms that have been studied in their natural habitats. We provide an overview of the benefits and drawbacks of these novel techniques and experimental approaches that can now (...) be applied to ecological and evolutionary vertebrate models such as sticklebacks and cichlid fish. We can anticipate that these new methods will increase the understanding of the genetic and epigenetic factors influencing adaptations and phenotypic variation in ecological settings. These new arrows in the methodological quiver of ecologist will drastically increase the understanding of the genetic basis of adaptive traits – leading to a further closing of the genotype–phenotype gap. -/- . (shrink)

The significance of the complicated numbering of the propositions in the Tractatus has occasioned much speculation. Wittgenstein's own explanation has, following Stenius, been generally regarded as misleading. But an examination of the Prototractatus reveals that the numbering system was for Wittgenstein principally an aid in the composition of his work. It allowed him to mark out certain propositions which required further work or supplementation, without disturbing the basic structure of the treatise. But the reworking of the Prototractatus to form the (...) Tractatus considerably changed the original order in which the ideas were connected, and thus made it more difficult to understand the Tractatus. Several specific examples make it clear that it is essential to look back at the context of the Prototractatus in order to achieve a correct interpretation of many of the propositions in the Tractatus. (shrink)

The concept of noncombatant immunity prohibits the intentional targeting of noncombatants. The availability of nonlethal weapons (NLW) may weaken this prohibition, especially since using NLWs against noncombatants may, in some cases, actually save the noncombatants' lives. Given the advancement of NLWs, I argue that their probable appearance on the battlefield demands close scrutiny due to the moral problems associated with their use. In this paper, I examine four distinct cases and determine whether the use of NLWs is morally permissible. While (...) it seems that the reduced harm caused by NLWs makes their use more acceptable, adhering to noncombatant immunity requires more than not killing noncombatants. It also requires that military forces treat noncombatants a certain way. In the cases I present, to use NLWs against noncombatants treats them as combatants and coerces them to do something against their will. While a consequentialist foundation for noncombatant immunity may permit this action, a rights-based concept of noncombatant immunity does not. I contend that only a rights-based concept of noncombatant immunity is viable, and that the availability of NLWs should not significantly alter the prohibitions prescribed by noncombatant immunity. (shrink)

In this paper, I propose to use Johan Galtung’s notion of structural violence as aguide for linking society’s problems of processing social meaning to the very idea of law. At the heart of my interest is the discrepancy Galtung sees between real and possible social conditions. I will first focus on the specific character of violence as communication. I will then consider the consequences of the heterogeneity of the languages that law speaks. Law and everyday practice not only refer to (...) actions in different ways, but also constitute different actions through their references. Law thus acquires a double validity: an internal one, based on the consistency of its discourse, and an external one, derived from successful translations of practical certainties. While the former defies the assumption that law can be somehow resonant, the latter paves the way for a critical understanding of law. The final section argues that if practical reason aims to create just conditions, and law is meant to sustain life, its purpose cannot be the mere optimisation of the given. Law must address the totality of possible transformations, exploring contained but not yet realised models. (shrink)

Drawing on theory and research on ethical leadership and ethical climate, we examine ethical climate as a mediator of the relationship between ethical leadership and employee misconduct. Using a sample of 1,525 employees and their supervisors in 300 units in different organizations, we find support for our hypothesized model. We discuss theoretical and practical implications of these findings.

This year marks the 30th anniversary of the publication of Niklas Luhmann’s (1927–1998) magnum opus Soziale Systeme. Grundriss einer allgemeinen Theorie [14]. On the occasion, this Special Issue of the International Journal for the Semiotics of Law celebrates the contribution of Luhmann’s thinking to our understanding of law, justice, and society.Luhmann’s work is wide open for argument. Some consider it the grand unified theory able to completely grasp social reality. Others see nothing but a substantially void conglomeration of analytical constructs (...) and “behaviouristic” descriptions joined together with “pseudo-empirism” [24, pp. 310, 313] or a hermetic ensemble of “self-mystifying semantics” [7, p. 76] supported by sophisticated strategies of pure self-apology. It might seem that the “giant” [1] theorist of the social has encouraged such impressions with pretensions which were “grandiose” in more than one respect [9, 23]. Indeed, readers who encounter systems theory for the first ti. (shrink)

This paper takes a virtuist approach to medical ethics to explore, from an empirical angle, ideas about settled ways of living a good life. Qualitative research methods were used to analyse the ways in which a group of 15 general practitioners articulated notions of good doctoring and the virtues in their work. I argue that the GPs, whose talk is analysed here, defined good general practice in terms of the ideals of accessibility, comprehensiveness, and continuity. They regarded these ideals significant (...) both for the way they dealt with morally problematic situations and for how they conducted their professional lives more generally. In addition, I argue that the GPs who articulated these ideals most clearly were able to, in part, because they shared the experience of working in rural areas. This experience helped them to develop an understanding of the nature of general practice that their urban colleagues were less able to draw on. In that sense, the structural and organisational framework of general practice in rural areas provided the context for their understanding of ideals in general practice. (shrink)