Netherlands Journal of Legal Philosophy

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Issue Pre-publications, 2018 Expand all abstracts

Access_open A new interpretation of the modern two-pronged tests for insanity

Why legal insanity should not be a ‘status defense’

Authors Dr. Johannes Bijlsma

    Michael Moore has argued that modern two-pronged tests for legal insanity are wrongheaded and that the insanity defense instead should be a ‘status defense’. If Moore is right, than the laws on insanity in most legal systems are wrong. This merits a critical examination of Moore’s critique and his alternative approach. In this paper I argue that Moore’s status approach to insanity is either under- or overinclusive. A new interpretation of the modern tests for insanity is elaborated that hinges on the existence of a legally relevant difference between the mentally disordered defendant and the ‘normal’ defendant. This interpretation avoids Moore’s criticism as well as the pitfalls of the status approach.

Dr. Johannes Bijlsma

Dr. Carel Smith

Gustavo Arosemena Ph.D
Book Review

Access_open A.M. Waltermann, ‘Sovereignties’

Keywords Sovereignty, people, rule of recognition, H.L.A. Hart
Authors Dr. Bertjan Wolthuis
AbstractAuthor's information

    ‘Sovereignties’ provides clear insights in various aspects of sovereignty, but Waltermann’s approach hides certain issues from view.

Dr. Bertjan Wolthuis
Bertjan Wolthuis is universitair docent. Hij werkt op de afdeling Rechtstheorie & Rechtsgeschiedenis van de faculteit der Rechtsgeleerdheid van de Vrije Universiteit.

Access_open Crisis in the Courtroom

The Discursive Conditions of Possibility for Ruptures in Legal Discourse

Keywords crisis discourse, rupture, counterterrorism, precautionary logic, risk
Authors Laura M. Henderson LL.M
AbstractAuthor's information

    This article addresses the conditions of possibility for the precautionary turn in legal discourse. Although the precautionary turn itself has been well-detailed in both legal and political discourse, insufficient attention has been paid to what made this shift possible. This article remedies this, starting by showing how the events of 9/11 were unable to be incorporated within current discursive structures. As a result, these discursive structures were dislocated and a new ‘crisis discourse’ emerged that succeeded in attributing meaning to the events of 9/11. By focusing on three important cases from three different jurisdictions evidencing the precautionary turn in legal discourse, this article shows that crisis discourse is indeed employed by the judiciary and that its logic made this precautionary approach to counterterrorism in the law possible. These events, now some 16 years ago, hold relevance for today’s continuing presence of crisis and crisis discourse.

Laura M. Henderson LL.M
Laura M. Henderson is a researcher at UGlobe, the Utrecht Centre for Global Challenges, at Utrecht University. She wrote this article as a Ph.D. candidate at the Vrije Universiteit Amsterdam.

Citation format

Would you like to cite a publication in the Netherlands Journal of Legal Philosophy? You could do this in the following way:

Christoph Kletzer, ‘Absolute Positivism’, NJLP 2013/2 p. 87-99