Daniel Thürer, Ius communicandi – Communicatio iuris, in: Rolf Sethe/Andreas Heine-mann/Reto M. Hilty/Peter Nobel/Roger Zäch (eds.), Festschrift für Rolf H. Weber, pp. 647–651 (Berne 2011).
Background
Daniel Thürer’s text was written for the commemorative volume with the title «Kommunikation», published in 2011 in honour of Professor Rolf H. Weber. Information and communications law has played an important role in Weber’s career, mainly during the past 15 years (cf. Weber, 1.3/2.1/4.2/4.4). Therefore, the commemorative volume focuses – amongst others – on this subject. The voluminous book of 980 pages contains texts from different fields (e.g. legal practice and legal policy). The commemorative volume is divided into (1) individuals and businesses, (2) markets, (3) states and (4) media. Daniel Thürer’s text discusses the «ius communicandi – communicatio iuris» in the field of states.
Daniel Thürer honours Rolf H. Weber as the author of pioneering texts in the field of information and communications law. Therefore, Thürer’s text describes information and communications law from an observer’s perspective and starts with a (German) quote from Max Frisch, a famous Swiss playwrighter and novelist. Frisch wrote two lectures that were given in English in early November 1981 at the City College of New York. Both lectures describe the work and the instrument of self-assessment and self-discovery. In 2008, the lectures appeared in German as «Schwarzes Quadrat» (translated: Black Square). The quote mentioned below is about the need to communicate:
«One wants to be heard. One would like to know if one is different from all the others. One gives off signals to find out if we understand one another. One calls out in fright of being alone in the jungle of what cannot be said. We thirst not for honours, but for a partnership. We break the public silence about our desires and our terrors: In the act of writing, we confess ourselves even when we don’t write about ourselves. We expose ourselves in order to make a beginning.»
In the main part of the text, Daniel Thürer discusses the «ius communicationis» on the basis of international law and of nation states’ law, as well as the «communicatio iuris» as such.
Daniel Thürer is an emeritus professor of public international, European and Swiss public and administrative law at the University of Zurich. Thürer received his legal education at the Universities of Zurich, St. Gallen, Geneva, Cambridge, the Max Planck Institute of Public International Law and Comparative Public Law (Heidelberg) and Harvard Law School. He was director of the Institute of International Law and Comparative Constitutional Law and is a board member of the European Institute of the University of Zurich.
Summary
In his contribution Daniel Thürer starts by discussing the «ius communicationis» on the basis of international law. Referring to Rolf H. Weber, he outlines that – in view of new phenomena such as Internet governance – traditional functions and structures of international law must be reconsidered. In addition, the question arises whether references to even more traditional legal doctrines could be made. Therefore, the so-called «ius gentium» should be the centre of interest. The principle of ius gentium was developed in Roman law and had an influence on the concept of Roman law for many years. The ius gentium was the foundation for the doctrines of general principles of law as a source of international law. Thereby, Thürer names important pioneers in this field, for example, Francisco de Vitoria, Alberico Gentili, Hugo Grotius and Francisco Suárez.
Thürer deepens the text of Francisco De Vitoria, which focuses on relations between nations and individuals. In a world of different cultures, the unity of «societas gentium» must be ensured; he underlines the primacy of law. Thürer emphasises the fact that Alberico Gentili, Hugo Grotius and Francisco Suárez (also) put weight on the paradigm of a fundamental unity of humankind. According to Suárez, this assessment is based on the thought of «societas ac communicatio». Consequently, the statements and thoughts of the mentioned pioneers were farsighted and already well developed.
In a further section, Daniel Thürer analyses the «ius communicationis» on the basis of nation states’ law. Thereby, Thürer’s text concludes that the right to communicate is an integral part of the mentioned legal frameworks. He mainly refers to the doctrines concerning constitutional revisions. Since the beginning of constitutional law as a science, the question of a limited or unlimited revision of the constitution has been immensely debated; in this context, Thürer discusses the different constitutional concepts of Germany and Switzerland.
In Germany, there are legal rules in the basic law of the Federal Republic of Germany that are not changeable. For example, article 79 para. 3 states that amendments to the basic law affecting the division of the Federation into «Länder», their participation in the legislative process, or the principles laid down in articles 1 (human dignity – human rights – legally binding force of basic rights) and 20 (protection of the natural foundations of life and animals) shall be unchangeable. In contrast to the German legal situation, all constitutional rules in Switzerland can – in principle – be revised. However, if a constitutional initiative fails to comply with the requirements of consistency of form or of subject matter, or if it infringes mandatory provisions of international law, the parliament shall declare it completely or partially invalid. As a consequence, discussions are often held about the question of whether constitutional barriers in a direct democracy exist or not.
In the third and last section, Thürer discusses the «communicatio iuris»; this part concerns the relationship between modern communication channels, normativity and their social implications. Therefore, electronic media and the creation of so-called «digital commons» need to be debated. In view of the new opportunities of sharing and dividing, Thürer defines the whole digitisation process as an (possibly) epochal phenomenon. Referring to Jeremy Rifkin, a famous American economic and social theorist, Thürer develops a new type of collective sense of responsibility. According to Rifkin, «the Internet is transforming the world into a giant global and public square where literally billions of people can connect, collaborate and create value together simultaneously and in real time». He concludes that a «distributed, collaborative, non-hierarchical society can’t help but be a more empathic one». Thürer states that Rifkin’s vision of society is based on a human image that focuses on sharing.
These new forms of communications could create more adventuresome and less materialistic ways of life. If there is more cultural diversity and shared knowledge, respect and sympathy could be established. Therefore, Thürer raises the question of whether the modern forms of communications lead to a more open and democratic society. He immediately gives the answer to his own question: perhaps. However, Thürer states that in a world of global digital commons the «ius communicationis» and the «communicatio iuris» are essential for a vibrating and vital society.
The above-mentioned topics are becoming increasingly relevant; the implications of the so-called «sharing economy» are now widely debated in the public and research is beginning to more deeply analyse this phenomenon.