Anyone who is an expert in the interior of the law often loses sight from the outside on the social character, the historical roots and the political changeability of the jurisdiction. For Marietta Auer, winner of the Gottfried Wilhelm Leibniz Prize 2022, the change between the inside and the outside perspective forms the basis of her scientific work. The professor of private law and legal philosophy at the University of Giessen, who is also a studied sociologist and philosopher, was appointed director of the Max Planck Institute for Legal History in Frankfurt last year. It is thanks to Marietta Auer, who is setting up a department there that focuses on intellectual,social and scientific approaches to fundamental problems of law are brought up. This includes, for example, the question of how, in the face of increasing environmental degradation, the right to property, which puts private property in the foreground, can be reconciled with the idea that there are common goods such as natural biodiversity.
Marietta Auer is also immune to the company blindness of German legal scholarship because, in addition to her doctorate at Munich's Ludwig Maximilians University, she also acquired a second at Harvard Law School. This allows her a comparative look at the strengths and weaknesses of the German legal culture compared to the tradition of common law, which in the course of globalization, thanks to the free choice of law, is becoming increasingly important in this country too. Marietta Auer's research on the logic and systematics of private law sheds a bright light on the self-image of society and the changes to which it is subject. The question of how the tension between the development of the individual and the duties and constraints of social collectives is reflected in the legal system,forms a common thread in their scientific work. The historical foundation and the philosophical reflection give her analyzes of the political present an unusual depth of focus.
For Auer, the self-responsible subject forms the elementary reference point of society and the legal system.
With Kant, she sees in him the bearer of autonomy, but also of the moral judgment that sets limits to this autonomy.
The trust in the freedom of its citizens, which includes their self-restraint, separates the liberal from the paternalistic state.
The autonomous individual is gutted
Auer notes critically that this dividing line has become blurred in the modern welfare state. She locates the concept of libertarian paternalism, according to which it is legitimate to manipulate citizens in such a way that they make decisions that are supposed to be in their own interests - which they just fail to recognize - in the gray area between democratically legitimized welfare and authority paternalism. Marietta Auer sees an even deeper threat to individual freedom in the consequences of digitization, when algorithms sort individuals into data groups according to purchasing power, consumption profiles or behavioral patterns. If the individual is "dissolved" into a combination of statistically determined properties and behaviors,does this not only determine its social chances from creditworthiness to the search for accommodation - it also makes the individual obsolete as an elementary legal figure. Because not predictable collectives, but indivisible, equal and free subjects, as bearers of legal capacity, form the core of the moral-political self-image in societies that see themselves in the tradition of the Enlightenment.
Auer makes it clear that the danger of discrimination and the violation of data protection rights associated with digitization and the platform economy is only the most visible aspect of a change that has a deeper impact because, with the concept of the autonomous individual, it is creeping away from a central concept of law. This also applies to the accountability of decisions and actions, because the algorithms not only make customers or recipients of social services disappear as individuals, but also those politically, economically or administratively responsible. But if wrong decisions caused digitally can no longer be attributed to a human subject, they only appear as inevitable consequences of objective mechanisms.The libertarian paternalism of the welfare state finds its market economy counterpart in what Auer calls the “curated worlds of supply” of the digital economy. They do not abolish freedom, but transform it into a passively consumable object.
While digitization is eroding the normative status of the self-determined subject for real people, there are at the same time efforts to extend it to digital systems.
Impressed by the concept of the "autonomous system", legal theorists consider whether artificial intelligence and software agents should be viewed as quasi-persons who could thus also be held liable for damage caused by them.
Auer recognizes neither a legal liability necessity nor a theoretical justification for such a personification of digital machines that are neither morally addressable nor capable of making decisions.
Despite their name, “autonomous systems” will probably have to do without them for a long time to come.