Korea relieved

On Saturday 14th of December 2024 the Parliament of Korea voted with 204 out of 300 votes, the required 2/3 majority of the parliament to dismiss the president. The declaration of martial law has been the most serious attack on democracy in Korea since its founding in 1987. It is the 3rd impeachment of a Korean president in this short time of democratic life cycle. After impeachment the constitutional court has to confirm the impeachment also with 6 out of 9 judges in favor of impeachment. In 2017 the judges confirmed the impeachment of a president due to corruption charges, but in 2004 another president was reinstated after illegal campaigning charges were retracted. Democratic procedures hinge on checks and balances in the constitutional set up of a state. Nominations, votes of confirmation of judges are important safeguards against illegal martial laws to restrict or even abandon democracy. Pressure from the street, the people at large, is another safety net of democracy. It should not be the last resort for democracy’s survival as it is likely to come at high costs of human lives.

Sociolegal Circularity

At times legal systems feel like going round in circles. Legal procedures move from one stage to the next and they may get referred back to the previous instance to resolve a particular issue or restart the procedure. This has good reasons with the aim of “doing justice”. Sociolegal circularity, however, begins before the, right at the beginning and negotiation of legislation on which all legal systems are based in democracies, that is. Hence, the legal definition of waste, recycling as part of the circular economy and society is rather crucial.
Circularity is a complex sociolegal issue as the example of PFAS in plastics demonstrate. In economic theory the existence of externalities invites profit seeking of the kind like: “the sea in large part is owned by us all and there is no price attached to the (ab)use of it. Dumb PFAS into the sea, because the costs of cleaning up will be shared by all of us”. In order to limit the extent of this economic logic, we have to rely on sociolegal processes. The precise definition of property rights and liabilities beyond the PFAS issue have to be well-defined. It is an intergenerational topic as well, not only in view of deferred payments.
Parliaments have to be rather competent to look through all the complex issues of producing and recycling of materials to make sound provisions in law including future generations. Going round in circles in parliament is yet another element of necessary condition of circularity in a rather broad sense.
The air we breathe and the water we drink have become part of this “economic externality”, which is a very internal, inside of our body kind of sociolegal affair. Who is responsible for the bad air we breathe and the contaminated water we drink? Air and water have for a long time become marketable products. The more your local water is polluted, the more we are forced to buy water. The more the air in inner cities is filled with fine dust particles, the more medical doctors, hospitals and rehabilitation facilities we need to construct.
For GDP calculations these are win-win-win situations, although they make us all worse off. Society and politics are in charge to define and redefine (yes, circles again) the legal basis with a lot of precision and scientific detail. Sociolegal circularity is key. You just have to turn it in the right direction.
(Image, Palais de Justice, Brussels view from Forest district).

Democracy in Korea

For all scholars of the theory of democracy the writings of Alexis de Tocqueville (1835) “De la démocratie en Amérique” are a major point of reference. The comparison of the democracy in America with the French king and both constitutions reveals comparative strengths and weaknesses of political systems. Korea after the 4th of December 2024 is yet another warning of what are the dangers to democratic systems. The attempted “coup d’état” by the president of Korea together with a former defense minister and several hundred soldiers has failed due to the speedy reaction of the elected members of parliament and an attentive and reactive public (Korea Times reports).
Tocqueville (p.130-131, French edition online) states, beyond the separation of powers (John Locke), the importance of the right to nominate key positions in a society also public opinion for the survival of democracy. Modern social media have increased the “reaction time” of public opinion and the “time to action” if need be. The combination of both elements of public opinion ensured that parliamentarians in Korea rushed to parliament and used their potentially last chance to vote against the imposed martial law, which started to seal off parliament already.
Several lessons for democratic systems derive from this. Separation of power remains key for democracy. The distribution of state functions on many shoulders under the control of parliament are essential. Legal mechanisms, in case of a spontaneous attack on the system, have to be able to react fast in order to avoid spreading fake news about legality/illegality of interventions. Public opinion, the people at large, should have their opinions distributed rapidly as well. This is necessary even beyond the traditional media of TV, radio and print. In Korea 2024 the attempted “coup d’état” tried also to block traditional media and prominent figures of the opposition with high power of influencing and reach on social media.
Tocqueville stated already that kings are threatened by revolution. Elected presidents have to fear public opinion. A lesson still valid beyond the US., France and Korea in the 21st century.
(Image: joint exhibition at “Traditional Korean Painting”, Korean Cultural Centre Brussels, 2024)

Legal devices

In the 1st chapter of “The code of capital”, Pistor (2019, p.3) specifies the 6 major modules of the code that creates a lot of wealth, but is also eager to keep it to a few privileged persons in society. In order of appearance and not exclusively they are: “contract law, property rights, collateral law, trust, corporate, and bankruptcy law. In these modules 4 major attributes of assets are defined for the holder and later exercised courts as well as other state institutions: (1) priority, (2) durability, (3) universality, and (4) convertibility. In other words, the legal devices rank claims in a qualitative sorted order and guarantee the value of such claims over time and space. The fatal vice of the device is the convertibility of private claims in to one against the state as the ultimate insurance against a risk of credit default by other parties. Similar to bitcoins today, the financial derivatives make it possible to “create money” out of nothing, just like a “deus ex machina”. The states had and still have no control over this “artificial creation of money without being linked to a kind of reserve value.
Such intangible assets may contribute to wealth creation as tools that facilitate a faster turnover of goods and services in an economy or between countries and thereby create corresponding real value. The control of trade and currencies, however, becomes also subject of additional possibilities of fraud and crime. Here again it is the legal system that is challenged to protect the application and efficient functioning of the 6 major modules of the code of capital. The concerns of inequality in and through law are relegated to politics and policies within single states.
The final chapter 9 states rather bluntly: “capital rules by law” (p.205), but it enumerates several ways, how to curtail this code of capital. Tax sheltering in other countries or taxation by choice of country should be made more difficult. Blacklisting is efficient in most cases (p. 225). Arbitration might work if somehow an equality of power is achievable. Internalization of externalities is easier said than done, but needs to be considered right from the beginning of  changing laws. Purely speculative contracts should be referred to “casinos” and betting instances and no longer be eligible for business contracts. The revision of the education of lawyers is another part of the counter measures. The autopoiesis of the legal system and its profession has been highlighted by Niklas Luhmann before. A great deal of the difficulties we face with the code of capital appears to be due to the self-referential exclusionary practice of legal devices. We have to bring society back into the discourse of law in order to preserve democratic structures and the equality of chances in society.
The strength of “collective rights” in labour law, of cooperatives or the share economy allow for potential remedies to the hijack of law through capital and exchange markets. Open source movements as in software creation are forward-looking models that the creative commons licensing for security, but also equality purposes. Employees’ input in the process of capital creation should be rewarded and codified accordingly. Last, but not least, countries will have to reclaim legal authority in parts of law that affects “the wealth of a nation” and its distribution. Similar to  “no taxation without representation” we should claim “no legislation on us, without us”. The role of legal advisory firms to draft laws outside of parliament has probably gone too far already. The task of politicians to understand the consequences of what they vote for in parliament has become more and more difficult, yet there is no way around a drastic increase in competences, legal and otherwise.

Juridification

Law has entered almost all domains of life. This has a lot of positive effects. Law in general, we tend to believe, has an intrinsic link to justice. If you go to court after failed attempts of mediation you will get a judgement(s) from several instances at times and with substantial delays. Justice, however, is a much more complex issue. Ethical concerns enter the stage as well as the ability and willingness to devote substantial resources to support a legitimate or legal claim. A kind of balance of power appears to be a necessary precondition for justice to be achieved. Of course, jurisdification is a process, where time plays to the advantage of one or the other side of contestants. The book by Katharina Pistor, “The code of capital. How the law creates wealth and inequality” has highlighted the importance of the legal intermediaries in the juridification and codification of modern societies. The basis of today’s capitalism relies on an expansive definition of what constitutes capital. The transformation of debt into a product, which can be traded by a “second hand” rather than the “invisible hand”, had created a warning to societies that the extension of rights and volumes led to a financial crash of the most powerful economies. The states, i.e. taxpayers, had to step in to guarantee credits taken out by banks and other financial institutions and ensure the solvability of underwritten debt. The state guaranteed for losses of capital and enforced the rule that deficits had to be shared among all. A well calculated bankruptcy of the system was then managed by lawyers and bankers rather than the politically elected representatives of the people.
The juridification has been extended to intellectual property rights as well. This made the fruits of intellectual property tradeable. It is rarely the authors that negotiate translation rights or the use of a novel as a screenplay. You better rely on a specialised lawyer to assist you in the national or transnational defence of intellectual property rights.
Artificial intelligence relies on huge data inputs. It is not an easy task to define ownership of data, especially of what we believe are “your own” data. Juridification means that a process of narrowing down definitions or the opposite, absence of a proper definition, creates market opportunities to trade data and the right to collect or use those data for specific or encompassing purposes.
Are we still all equal in front of the law? Or do the better informed have a significant advantage over the rest of society? Financial resources play a vital in the legal system as well. Collective solutions, like associations of consumers or trade unions, have demonstrated that they may operate as a societal antidote in the biased codification of capital. Democracies are well advised to open their eyes to the blind spots in the “regard” of justitia.
(Image: Auguste Rodin, Cariatide à la pierre, enlarged bronze statue in Paris)

On Uncertainty

Uncertainty is a catchword for all sorts of undetermined occurrences, which we might have to confront. We associate economic uncertainty with the difficulty to forecast or predict the economic evolution of key indicators like inflation, GDP, CO2-emissions, energy and raw materials’ prices and availability. Even factors like increases in greed of CEOs, psychological factors like insecurity about external or internal conflicts drive these macroeconomic indicators. Micro-level features of your own stage or evolution of the life course have an impact on and will be affected by uncertainty. Employment, housing, family, or household composition are subject to high levels of uncertainty. These micro- and macro- level factors are, of course, not limited to the domain of economic phenomena. Most recently, political uncertainty has reentered the international and national sphere with the re-election of Donald Trump as president of the United States. This election outcome of the U.S. is perceived by many as increasing the overall uncertainty due to the unpredictability of political decisions and even previous treaties with the U.S. or where the U.S. is a major partner in the agreement. These economic and political uncertainties are accompanied with a perception of growing legal uncertainty even in very personal spheres of life. Last, but not least uncertainty about climate changes like heating up of the planet and more devastating flooding and droughts contribute to increased uncertainty about future developments and the need to initiate adjustment processes and the financing of those.
The individual and societal ways to cope with increased uncertainty are one of the major economic, political, legal and social issues for the coming years. The answers are likely to be found in mutual, cooperative and risk sharing arrangements. The social in society will be a major part of dealing with increased uncertainty. (Image: Extrait of Paul Klee, Seiltänzer 1923)

Justice Tech

The digital or hybrid courtroom has become more the rule than the exception in Germany. Video conference equipment reduces costs and can speed judicial processes. Even the production of transcripts from the proceedings and circulation of documents and certificates, enhanced by AI will change the speed to exercise justice. Digital tools and technology has found its way into the courtroom and younger lawyers and judges as well as the accused or defendants will value the simplified procedures. Until this is the standard in all legal domains we shall have to wait a bit. In Germany 2026 is the deadline to install the adequate equipment and tech companies and consulting firms like Arktis are well prepared to support this overdue process. In terms of an economic theory of the judicial process a judgement that is delivered years later has to apply a discount rate of at least equal to annual inflation. For moral issues another discount rte might apply. Excessive delays of judgments may cause additional suffering on the side of victims. Justice Tech, therefore, has a role to play in the practical and theoretical debate about „doing justice“. (Image SCCON Berlin 2024-10)

Democracy celebrates

With all the bad experiences of Nazi-Germany and the failure to defend democracy in Germany against its fascist enemies in the 1930s, it was a pleasure to celebrate democracy in Germany together with a huge crowd. 3 days of information and party around the major institutions of democracy Parliament, government, federal governments, constitutional court and all ministries joining in with pavilions in the parks nearby allowed a bottom up feeling of democracy. Visiting the chancellery as well as the parliament in a single day shows the openness of these institutions and the ease of access to our political system. People of all ages and all walks of life strolled around and enjoyed the day. Freedom to voice your opinion was easy and many took their time to do it. Civil society organizations were a natural part of the show. We seem prepared to stand up for our democratic values and principles. This will be tested in all the forthcoming elections.

Checks and balances

The principle of checks and balances refers back to the separation of powers introduced by the French political theorist Montesquieu in his writings “De l’esprit des loix” in 1748. 40 years later in 1788 James Madison wrote as §51 in “The Federalists Papers” explicitly about the system of checks and balances as part of the constitution of the USA. For maintaining the principle of separation of powers it is necessary to install a system of checks and balances between the powers to prevent one power dominating the others. These well-known principles of democracy face, nevertheless, continuous challenges as to the balance of the powers (legislative, executive, judiciary). In order to safeguard democracy a basic scepticism towards the exercise of power is warranted. “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.” (Federalist Papers, 1788, p. 239).
The necessity of auxiliary precautions has led modern democracies to a multiplicity additional checks and balances. Independent Anti-fraud offices, disciplinary committees within the separate powers as well as the checks and balances between the separate powers play a role in the survival of democracy. Recently, in July 2023 services like the internal service of the police to overlook the adequate execution of the force applied by police have been much in the headlines. Checks and balances apply to each branch of separate powers internally, and if they prove inadequate, they have to be corrected by other powers. This is the procedural as well as fundamental interaction within the separation of power. Presidential systems, where this system of checks and balances has major deficiencies, are very likely to fail its people through an overpowering executive. Neither the country of Montesquieu, nor of the Federalists is free of these dangers. Freedom of speech, freedom of movement and to meet with people, all contribute to strengthen checks and balances in a democracy. “A dependence on the people is, no doubt, the primary control of the government” (p.239).