Die zivilrechtliche Haftung für Grenzbäume – geklärte und ungeklärte Fragen

Natur und Recht - Grenzbäume werfen in der Praxis immer wieder verschiedene Rechtsfragen auf. Sie können durch Überwuchs störende Wirkungen auf Nachbargrundstücke haben....     

Identity orientation and stakeholder engagement—the corporatisation of elite schools

Identity orientation provides a means to understand the social motivations of organisational relationships and organisational policy and practices. This study uses identity orientation to understand the highly marketised context of independent ‘elite’ schools in Australia and how they relate to stakeholders to straddle their roles as social institutions that are increasingly required to operate in a corporate manner. Interviews with managers in quite new school roles such as marketing communication and business management were conducted in non‐government schools to understand the schools' external orientations, coveted internal member traits, and frames of reference. The study shows that, in contrast to existing literature on the rhetoric of schools as focusing on ‘the child’, there was a strong emphasis on individualistic orientations in schools that saw stakeholders in instrumental terms of resources and connections, saw teachers as providing an innovative and leading edge, and used other prestigious schools as their frame of reference. To a lesser extent, schools would also be interested in the relationships with families, teachers, and the community for their own means. There were very few instances where the identity orientation was contributing to society, instead, focusing on university and network outcomes for pupils. Using identity orientation provides a theoretical lens to connect organisational governance to stakeholder engagement by providing insights into an organisation's identity including practices and behaviours, in relation to others. Copyright © 2014 John Wiley & Sons, Ltd.     

Reflective Judgement and Prudential Rationality: A Contribution to an Inclusive Practical Application of Law

Hannah Arendt has developed a theory of the importance of judgment of taste for political manners, founded on the Kantian aesthetic theory. Nowadays this theory is considered a current theoretical reference for establishing a political way to reconcile the demands of the radicalization of deliberative democracy with the need for political inclusion (Iris Marion Young, Seyla Benhabib). Albena Azmanova in her The Scandal of Reason: A Critical Theory of Political Judgment proposes an inclusive political rhetoric. The political theory founded on judgment is based on Kant’s philosophy; it was developed by Arendt and has greatly influenced the current debate, as an alternative theory in which the moral basis of law can be more sensitive to human contexts; a universalist theory more adequate for dealing with the tragic dimension of human life. The theory of political judgment uses the concepts of reflective judgment and ‘enlarged thought’ as its main concepts. As a starting point, a theory like this considers the singular judgments of justice that each person makes. The background, therefore, is not a rational foundation of principles, but the capacity of rational beings to make judgments. This post-metaphysical theory of law, based on a theory of judgment, is a critique of legal positivism, but presents itself as an alternative to the idealistic theory of law. But this theoretical project has received some criticism related to the adequacy of Arendt’s rereading of Kantian philosophy and her attempt to approximate Kant’s reflective judgment to the Aristotelian concept of phronêsis. Some critics, such as Bryan Garsten, believe that Kant’s rhetoric of public reason diminished and displaced the prudential faculty of judgment that Arendt is to be interested in reviving. Arendt’s attempt to find a theory of judgment in Kant’s aesthetic theory is not successful, in Garsten’s view. Our purpose is to show that a critical theory of judicial judgment is not only possible, but necessary; Arendt’s theory of judgment offers an important contribution to a critical theory of judicial judgment, particularly one devoted to the construction of a legal theory that prioritizes a politics of social inclusion. This theory proposes a critical approach to the project of the procedural conception of democracy, since it can mask social exclusion. An adequate understanding of judicial argumentation cannot forget that it happens in a rhetorical context: it is not only important what a discourse says, but how it says it. The radicalization of deliberative democracy supposes a revision of the ways judicial deliberation is thought: not by reference to universal or at least general principles, but taking into consideration what is ‘critically relevant’, with a view to remedying social injustice (following Azmanova).

     

Secondary Iatrogenic Harm: Claims for Psychiatric Damage Following a Death Caused by Medical Error

The purpose of this paper is to investigate the feasibility of claims for psychiatric damage following the death of a family member, where that death has been caused by medical error. ¹ The relative's position is a subject of heightened interest since the exposure of the plight of the parents involved in the UK organ scandal, ² and in the case of an iatrogenic death it is, of course, the family who are essentially the focus of the law's attempts to provide redress. Whilst the cases of deceased patients' relatives seeking damages for mental harm are inherently problematic in light of the restrictive secondary victim criteria applicable to psychiatric damage claims, a close look at the rules which permeate this area of compensation reveals that denying compensation to the relative suffering psychiatric harm is difficult to sustain. ³