Blockchain Papers

Tina Ehrke-Rabel, Iris Eisenberger, Elisabeth Hödl, Lily Zechner

Distribuierte Systeme, wie die Bitcoin-Blockchain, stellen das Recht vor neue Herausforderungen. Das disruptive Potential liegt unter anderem im Fehlen einer zentralen, verantwortlichen Kontrollinstanz, an die das Recht traditionell anknupft, und im Verschwimmen der Rollen von „ProduzentInnen“ und „KonsumentInnen“ innerhalb des Systems. Die Erzeugung von Kryptowahrungen, wie Bitcoin, mittels „Proof of Work“ und die gleichzeitige Validierung von Transaktionen zwischen NetzwerknutzerInnen (sog „Mining“) ist ein Beispiel dafur, dass die rechtlich etablierten Kategorien heute fur eine effiziente Rechtsdurchsetzung unzureichend sind. „Mining“ kann rechtlich zwar als Glucksspiel iSd osterreichischen GSpG eingeordnet werden. Konsequenz dieser Einordnung sind allerdings Probleme beim Vollzug des folglich anwendbaren Ordnungs-, Abgaben- und Strafrechts. Daraus wird geschlossen, dass die Regulierung von „Peer to Peer“-Systemen neue Losungsansatze erfordert, sodass dem Staat seine rechtliche Steuerungsfunktion erhalten bleibt.

Tina Ehrke-Rabel, Iris Eisenberger, Elisabeth HHdl, Lily Zechner

German Abstract: Distribuierte Systeme, wie die Bitcoin-Blockchain, stellen das Recht vor neue Herausforderungen. Das disruptive Potential liegt unter anderem im Fehlen einer zentralen, verantwortlichen Kontrollinstanz, an die das Recht traditionell anknüpft, und im Verschwimmen der Rollen von „ProduzentInnen“ und „KonsumentInnen“ innerhalb des Systems. Die Erzeugung von Kryptowährungen, wie Bitcoin, mittels „Proof of Work“ und die gleichzeitige Validierung von Transaktionen zwischen NetzwerknutzerInnen (sog „Mining“) ist ein Beispiel dafür, dass die rechtlich etablierten Kategorien heute für eine effiziente Rechtsdurchsetzung unzureichend sind. „Mining“ kann rechtlich zwar als Glücksspiel iSd österreichischen GSpG eingeordnet werden. Konsequenz dieser Einordnung sind allerdings Probleme beim Vollzug des anwendbaren Ordnungs-, Abgaben- und Strafrechts. Regulierung von „Peer-to-Peer“-Systemen erfordert neue Lösungsansätze, um staatliche Steuerungsfunktionen zu erhalten. English Abstract: Distributed ledgers, such as the Bitcoin blockchain, create new challenges for authorities and legislators alike. The technology is considered disruptive due to the lack of a responsible legal entity and because the lines are blurred between the “producers” and “consumers” operating within it. The creation of cryptocurrencies, like Bitcoin, through “proof of work” and the simultaneous validation of transactions between users of the network (so called “mining”) perfectly illustrate how established legal categories are insufficient to achieve effective law enforcement at present. This paper shows that according to Austrian law, “mining” qualifies as a gamble. In that case, the applicable provisions of Austrian regulatory, tax and criminal law are, however, hardly enforceable. It follows that the regulation of “peer to peer”-systems requires an innovative approach, in order for the state to remain a key player in managing society.

G. Lubbe-Wolff

Gertrude Luebbe-Wolff, born 1953, studied law at the Universities of Bielefeld and Freiburg (1969-1974) and took an LL.M. degree at Harvard Law School (1975). Having compeleted post-graduate practical legal training and received a docotoral degree (University of Freiburg, 1980), she worked at the University of Bielefeld and qualified for academic teaching and research (“Habilitation”, 1987). From 1988-1992 she served as Director of municipal environmental administration in Bielefeld, where her family lives. As a professor of public law at Bielefeld University, faculty of law (since 1992), she headed the directorate of the university's Center for Interdisciplinary Research (1996-2002), chaired the Federal Government's Council of Environmental Advisors (2000-2002) and received the Leibniz Award (German Research Foundation, 2002). Prior to being elected Justice of the German Federal Constitutional Court in 2002, she was a Deputy Judge at the Constitutional Court of North Rhine-Westphalia. I have found it difficult to identify the writings that have been most important to my intellectual history. The reason may be reluctance to accept the idea that any single book has had the power to influence me at all. To my own surprise, almost all the books I have listed are books that I first read before I was twenty-five. Number ten is the only exception. Most of the fields in which I have worked and at least one of the fields in which I have read a lot, and which has influenced some of my writings (economic theory), are heavily underrepresented or even not represented at all. So be it. When in doubt, I have preferred to name books by German authors. I thought that would be more interesting to non-German readers. In Gustav Schwab's colorful renarration, the ancient Greek myths had been adapted to nineteenth-century pedagogical purposes, mainly by purging them of explicit sex and of some of the cruelties that might frighten children too much (like Chronos’ devouring his offspring). Yet, what remained was enough to intrigue a little girl instilled with Catholic ideals of virtue and growing increasingly critical of some of the humans who advocated them. So little virtue even in gods! The higher in rank the god, the worse: Zeus frantic, promiscuous, and—that much could be read between the lines—a rapist. His wife, Hera, jealous enough to try killing one of his illegitimate sons by sending snakes into his crib. And so forth. I suspected that the Greeks had molded these gods after their own image and felt there was progress in praying to a more civilized god. Nevertheless, I found Mount Olympus and its inhabitants more thrilling to read about than the Christian heaven and Christian Trinity. What totally escaped my understanding when I first became acquainted with Hercules, Theseus, and Achilles was the fatal importance of the type of heroism they represented for the historical self-perception of Germans. None of the adults who, to my delight, liked my recounts of the adventures of these heroes (reports on earlier readings had been much less successful in capturing attention) ever commented on that side of the story. Decades later, I found out on my own. “Her thoughts are my thoughts, and our feelings are the same,” I wrote into my diary in early 1966, having started to read the diary Anne Frank wrote during the more than two years she, her family, and four other Jews spent hidden in an Amsterdam achterhuis before the Nazi occupants found them and eventually killed all of them except Anne's father. The presumptuousness and blatant inadequacy of these identifications did not occur to me then. I was aware that her situation and the way she coped with it were incomparable. But that did not prevent me from feeling closer to her than to anyone I had met in the books of my first twelve years. However, unwarranted this feeling of intimacy may have been, it had an effect that would have pleased Anne. More than anything I had experienced so far, it opened my eyes and my heart for the monstrosity of what my country had done, and for the enormity of the loss it had caused. Schiller is best known as a dramatist and lyric poet; however, he was also a historian. His History of the Thirty Years’ War (1790) is the first major historical work I read. The great war that devastated Germany from 1618 to 1648 is a pivotal event in German history. Many European powers were involved as protectors of their fellow believers and, of course, in pursuit of interests of their own, although, in essence, it was a war between Protestant and Catholic territories of the Holy Roman Empire. If Germans later became obsessed with the “state,” it is because of what they had had, instead, for centuries: an Empire, albeit in decay, unable to subject the vested rights and interests of the princes of its more than three hundred territories to common public purposes, whether civil or military, and unable even to prevent its members from waging war against each other. As Hegel, to whom I will come later, put it in his Essay on the Constitution of the German Empire (1801): “When only too often, you see vast numbers of German soldiers in the field, trust that they are not up to defend Germany, but to lacerate its viscera.” From Schiller's history of the Thirty Years’ War, I learned about the worst and most traumatizing example of this calamity. From his accounts of what the presence or passage of huge armies meant for a region, even if they were friendly, and from his depiction of the extremely unfriendly siege and conquest of the city of Magdeburg by Catholic Bavaria's army under General Tilly, I learned about the extremes of hardship and cruelty that may accompany warfare. I also gained an idea of how standards of humane behavior are affected by material conditions, for instance, by whether there is a means to feed brigades other than by forced requisition and means of remunerating them other than by giving them license to rob and murder (“They must get something for their peril and labor,” Tilly said, in Magdeburg, when supplicated to stop his soldiers from plundering, setting blazes, assaulting women and spiking babies, or throwing them into the fire.) There was also evidence, however, that present material conditions, however important, do not necessarily work as full determinants. Under material conditions quite similar to those under which Tilly's army operated, the Protestant Swedish king Gustav Adolphus, according to Schiller, managed to set limits to what his troops could do to the local population. Even he could not disallow his soldiers three hours of pillaging after taking over Frankfurt an der Oder, but the general disciplinary regime was severe punishment for all excesses, and, on the whole, the conduct of the Swedish army was exemplary, so Schiller, the Protestant, reports. Schiller's description of the atrocities of the Thirty Years’ War also confirmed my belief that the world I lived in was a much better place than the world of Tilly's and Gustav Adolphus's contemporaries, and that this was not momentary good luck but the consequence of a progress toward reason and humanity that while open to backlashes was unlikely to be completely reversible. The Holocaust presented a challenge to that conviction, but not, in my view, a refutation. It was only much later that I arrived at a clearer understanding of that intuition. Schiller himself, the fervent spokesman of Enlightenment, was not naïve in his optimism nor in his idealism. He believed in the power of the ideals of freedom and tolerance, just as he acknowledged the power of religion; however, he also knew and described how such powers needed association with less sublime interests and ambitions in order to become effective historical forces (this association is what Hegel, later, called the “stratagem of reason”). Schiller's narration does not include the history and the details of the Peace of Westphalia, which ended the war in 1648. Nor does it contain an analysis of the historical importance of this long and terrible religious war on the way to full recognition of religious freedom as a human right, or of its importance for the development of international law (it is not accidental that Grotius's De jure belli ac pacis appeared in the course of that war, in 1625). Schiller wrote too early for that. His other historical book, the History of the Revolt of the Netherlands,1 may be more enjoyable (same delightful language, same grasp of the human fears and passions at work, not so many battles). If, nevertheless, the History of the Thirty Years’ War made the greater and more lasting impression on me, this is probably not only because it was my first experience with great historiography but also because it gave me an initial sense of the role of war in the history of mankind and of its particularly prominent role in the history of Germany. Wittgenstein's Philosophical Investigations were my introduction to analytical philosophy. I loved the work, although (or perhaps precisely because) I felt it was people other than myself who badly needed his instruction. It is probably due to my pleasure with Wittgenstein that I considered studying linguistics and, having rejected that plan and studied law instead, made legal semantics one of my first objects of research. Later, when ordinary-language philosophy inundated the philosophical book market and came to dominate philosophical faculties, much of what I read and heard regarding it bored me out of my mind. Understanding the meaning of “meaning” and the meaning of the other languages you use seemed a necessary but not everywhere a sufficient prerequisite of good philosophy. One day, I hope, my compatriots will admit Rudolf von Jhering to the place of most eminent German jurist, which has long been occupied by Friedrich Carl von Savigny. This would indicate that German legal culture is pragmatic, rational, and strong. Savigny, a great savant in Roman law, was the head of the Romantic school of law, and the most prominent opponent of codification at the beginning of the nineteenth century. Law—like language, fairy tales, and folksongs—so he held, had always grown slowly and quietly out of the specific spirit of a people and should continue to do so. The young Jhering, himself a Romanist, admired Savigny for his analytic power in discovering the fundamentals of Roman law under the layers of doctrinal sediment accumulated by generations of less-than-inspired jurisprudence. Still, in trying to carry on with the same endeavor and to explain jurisprudence as an art—or, rather, a science, like chemistry—that consists in finding the conceptual elements and more abstract rules implicit in the existing legal material, he ended up advocating an awareness of how the formation of legal concepts and rules is a matter not just of logical analysis but of human interests and purposes (Purpose in Law, 1877–1883). Accordingly, the Romantic view of the evolution of law was to be rejected. Law and rights, Jhering explained in The Fight for the Right (1872), were not the result of organic, silent, plantlike growth but a product of conflict and combat. Not only their adaptation to changing needs and circumstances but even their mere effective maintenance must be fought for. Going to court when your right is being intruded upon, willfully, is a contribution to that fight and a duty of the citizen toward himself and toward the community, even if only a small material value is at stake. The ideal values at stake are the legal order and the good morals that depend on it. This is what you defend in defending your right when it is violated, and it is from the readiness to engage in such a fight for your right that you can recognize the status of a society's moral health. It is forty years since I first read Purpose in Law and The Fight for the Right and fell in love with Jhering's brilliant style, his humor, and the ravishing mix of his rational sobriety and sensitiveness to human feelings. As a student of law, in much of what I had to read and listen to, I missed Jhering's pragmatism, his rule-oriented reasoning, and his sense of how good mores are tied to good law. As a judge, I learned to appreciate that some of those who have been wronged abstain from filing a lawsuit. However, it is probably due to Jhering that I know the importance of what I am doing not only when examining the Treaty of Lisbon but also when dealing with so-called petty cases. This book is famous—or infamous, with parts of the audience—for the message concentrated in its subtitle (A Report on the Banality of Evil). Arendt's observation that Adolf Eichmann, the leading administrative organizer of the Holocaust, was a nondescript, utterly nondemonic subordinate and the subtitle phrase in which she had summed up this finding stirred intellectual and emotional turmoil in the ’60s. I did not quite understand that. Would it be more comforting to think that, where there is exorbitant crime, there must be some sort of devilish power in the delinquent? To me, the idea that great, immeasurable crimes can be committed by people devoid of any Luciferian greatness or other stature did not seem disquieting. What struck me was not Arendt's analysis of Eichmann and his trial but the part of the book that describes the course of the deportations all over Europe. I do not know whether this account is historically correct in every reported detail. It certainly is not comprehensive in identifying the reasons why patterns of collaboration or, less frequently, noncollaboration evolved so differently in the various European countries. However, it gave me a more vivid sense than many other readings had given me previously of how the project depended on compliance and acquiescence;2 of the extent to which, therefore, the presence or absence of empathy mattered; of the extent to which empathy had been absent in Germany; and of the complexity of factors bearing on how each nation behaved in this historical instance. In an auditorium of one hundred German students, you will not find one, today, who has read Karl Marx. During the student movement that began in 1968, this was different. The blue volumes of the works of Marx and Engels, if not the complete edition, printed in the German Democratic Republic, were the central object of study, and it was from Marx's Critique of Political Economy, from the three volumes of his Capital, that the activists drew their assurance of victory. It delivered scientific proof—so those who knew told those who had not yet understood—that capitalism was just a transitory phenomenon, doomed because of the unalterable tendency of the rate of profit to I much of what I in the of the I did not have any for the But what if our part of if the of the of the was not a matter of but a matter of I was about the of and the of mankind the way you could the of the nevertheless, I did not see a full of the of such in Karl of So I studied Marx's Capital, other writings of to find out whether his to have of the historical of was As as I the on the that the value of a is by the of that is to it. the to the by the tendency of profit to with the of human needed in Marx's however, I found his of necessary to be a from which, when you to see what was in the that Marx had with up with their way such a could work as a to the of the course of history. This is how the first of me that I did not have to to is the of the important in my The two most important are my and my must be given for my with the whom I met at a in Lisbon in most people know only from Karl The and its where he is as and as a of I do not know of a greater in the history of philosophy. What of Right is all and in which he is from all his from its had long been on the of law and as in of with its into a of right, dealing with rights and and a of virtue being precisely by its of any or other with the of virtue those of law. It is this that to with his of law and mere as because they on and do not include Christian of while with all its because it any is as but that is The of that law and order and must not be and against each other but must be to a in which the of its and elements is not but and is this or This is in the and and of the of and it most when you at the elements of what called elements are and himself in other this to the the three elements of virtue which are the of in the Catholic and In his of the the family the ideal of you to the general mainly by for your own good and that of your the ideal of And the which the of taking part in it their and it as their own the ideal of an that the right to own of Catholic ideals of a moral which consists in that will human and interests in a way that is with will them work the common He moral and as ideals of In an and more it will under circumstances be sufficient to be just and that is the better of The of philosophy of right was to about legal as a consequence and prerequisite of moral about the necessary of and progress as he to the of from one country to about the of and about the of he against the that will from any at a by mere virtue or by be it religious or than by law. have to understand and his in books can be This one was part of a I a years for the of better understanding the against as an of that was historically prominent in Germany. most known works are about capitalism and the role of Jews in today, was one of the after the of War I a German to the world from to the of To the of and the German of a in the war as the critical between heroism and the German an to his his wife, and to to more there the only profit and The of German and German is of anything that even or, more European and This is From the German self-perception had in with and found in moral war as the most on because it was at war that the moral of German heroism became and many from the between and War was into a of and I with a better understanding of the between the elements of that and with a more sense of the and involved in the of and with more awareness of the to international and law.

Manfred Novak, Bettina Perthold-Stoitzner

Since the UOG (= Universitätsorganisationsgesetz, i.e. the University Organisations and Studies Act) of 1993 the Austrian universities have been increasingly seen to remodel themselves as independent »educational enterprises«. This progress based on the deregulation and decentralization of university procedural parameters reached its temporary culmination with the transformation of the universities into entities with complete independent legal status which took place in accordance with the UG (= Universitätsgesetz, i.e. Universities Act) of 2002. The abiding function of the state as a protector and furthermore, a financer of the universities has led to a relationship between the state, society and the universities based on academic achievement and responsibility. It must be added that the legislative intention of creating independent sites of academic research and teaching have increasingly been forced to take economic principles of commercial enterprise into consideration. The last step, up until now, in the intended all embracing »cultural change« within the universities came into being with the University Organisation Amendment Act of 2009 which contains a radical amendment to the legal situation which was valid until then. This change in the basic guidelines has played an essential part in the change of emphasis within the executive bodies of the universities, in a tendentious weakening of the democratically elected senate, an intensification of direct and indirect influence on the business of the university as well as to the relativization of the traditionally free university entrance in Austria. Developments that do not always seem to create an appropriate balance between academic freedom, state responsibility and social requirements.