Search result: 77 articles

x
Discussion

Access_open ‘We Are Also Here.’ Whose Revolution Will Democracy Be?

Journal Netherlands Journal of Legal Philosophy, Issue 3 2012
Keywords democracy, public sphere, civil society, Arab Spring, feminism
Authors Judith Vega
AbstractAuthor's information

    Steven Winter’s argument is premised on a sharp contrast of individualist and social revolutions. I elaborate my doubts about his argument on three accounts, involving feminist perspectives at various points. First, I take issue with Winter’s portrayal of liberal theory, redirecting the focus of his concern to economic libertarianism rather than liberalism, and arguing a more hospitable attitude to the Kantian pith in the theory of democracy. Secondly, I discuss his conceptualization of democracy, adding the conceptual distinction of civil society and public sphere. Thirdly, I question his normative notion of socially situated selves as having an intrinsic relation to social freedom. I moreover consult cultural history on the gendered symbolics of market and democracy to further problematize Winter’s take on either’s meaning for social freedom.


Judith Vega
Judith Vega is Lecturer in Social and Political Philosophy at the University of Groningen, the Netherlands.
Article

Access_open ‘Down Freedom’s Main Line’

Journal Netherlands Journal of Legal Philosophy, Issue 3 2012
Keywords democracy, radical freedom, free market economy, consumerism, collective action
Authors Steven L. Winter
AbstractAuthor's information

    Two waves of democratization define the post-Cold War era of globalization. The first one saw democracies emerge in post-communist countries and post-Apartheid South Africa. The current wave began with the uprisings in the Middle East. The first focused on the formal institutions of the market and the liberal state, the second is participatory and rooted in collective action. The individualistic conception of freedom and democracy that underlies the first wave is false and fetishistic. The second wave shows democracy’s moral appeal is the commitment to equal participation in determining the terms and conditions of social life. Freedom, thus, requires collective action under conditions of equality, mutual recognition, and respect.


Steven L. Winter
Steven L. Winter is Walter S. Gibbs Professor of Constitutional Law at Wayne State University Law School, Detroit, Michigan.

    In this reply, Steven L. Winter adresses his critics.


Steven L. Winter
Discussion

Access_open Horizontal Effect Revisited

A Reply to Four Comments

Journal Netherlands Journal of Legal Philosophy, Issue 3 2011
Authors Gunther Teubner
Abstract

    In this concluding article, Gunther Teubner addresses his critics.


Gunther Teubner
Article

Access_open Transnational Fundamental Rights: Horizontal Effect?

Journal Netherlands Journal of Legal Philosophy, Issue 3 2011
Keywords fundamental rights, societal constitutionalism, inclusionary and exclusionary effects, anonymous matrix
Authors Gunther Teubner
AbstractAuthor's information

    Violations of human rights by transnational corporations and by other ‘private’ global actors raise problems that signal the limits of the traditional doctrine of ‘horizontal effects’. To overcome them, constitutional law doctrine needs to be complemented by perspectives from legal theory and sociology of law. This allows new answers to the following questions: What is the validity basis of human rights in transnational ‘private’ regimes – extraterritorial effect, colère public or external pressures on autonomous law making in global regimes? Do they result in protective duties of the states or in direct human rights obligations of private transnational actors? What does it mean to generalise state-directed human rights and to respecify them for different social spheres? Are societal human rights limited to ‘negative’ rights or is institutional imagination capable of developing ‘positive’ rights – rights of inclusion and participation in various social fields? Are societal human rights directed exclusively against corporate actors or can they be extended to counteract structural violence of anonymous social processes? Can such broadened perspectives of human rights be re-translated into the practice of public interest litigation?


Gunther Teubner
Gunther Teubner is Professor of Private Law and Legal Sociology and Principal Investigator of the Excellence Cluster ‘The Formation of Normative Orders’ at the Goethe-University, Frankfurt/Main. He is also Professor at the International University College, Torino, Italy.
Discussion

Access_open Human Rights, and the Destructive Communications and Actions of Differentiated Society

Journal Netherlands Journal of Legal Philosophy, Issue 3 2011
Keywords communication, one-sided rationality, human rights, bare body and mind, inclusion, action, exclusion
Authors Wil Martens
AbstractAuthor's information

    This contribution raises two questions with regard to Teubner’s view on human rights. First and foremost, it asks how one might conceive of modern society as a threat to human beings. Attention is brought to bear on Teubner’s attempt to describe society as a matter of communication, and more specifically as a set of one-sided communication systems. In this regard, I scrutinise the attempt to describe the threat of society in terms of inclusion/exclusion and criticise the vacuity of the concept of inclusion. Secondly, it questions Teubner’s description of human beings that demand justice and protection by human rights. Are their demands about the bare existence of body and mind? Moreover, are these concerns identical to worries about the destruction of human presuppositions for the self-reproduction of functional social systems, as Teubner suggests? Against Teubner, I contend that human rights are actually about social human beings that ask for justice as acting beings, which claim does not coincide with presuppositions of societal subsystems.


Wil Martens
Wil Martens is Assistant Professor of Organisational Development and Senior Researcher at the Nijmegen School of Management at the Radboud University Nijmegen, the Netherlands.

Lyana Francot-Timmermans
Lyana Francot-Timmermans is Assistant Professor in Legal Theory at Utrecht University, the Netherlands.

Emilios Christodoulidis
Emilios Christodoulidis is Professor of Legal Theory at the University of Glasgow, United Kingdom.
Discussion

Access_open Against the ‘Pestilential Gods’

Teubner on Human Rights

Journal Netherlands Journal of Legal Philosophy, Issue 3 2011
Keywords semiosphera, paranomia, Drittwirkung, matrix argument
Authors Pasquale Femia
AbstractAuthor's information

    Examining the function of human rights in the semiosphere requires a strategy of differentiation: the dissolution of politics into political moments (politics, it is argued, is not a system, but a form of discourse); the distinction between discourse and communication; the concept of systemic paranomic functionings. Paranomia is a situation generated by the pathological closure of discourses, in which knowledge of valid and observed norms obscures power. Fundamental rights are the movement of communication, claims about redistributing powers, directed against paranomic functionings. Rethinking the debate about the third party effect implies that validity and coherence must be differentiated for the development of the ‘matrix argument’.


Pasquale Femia
Pasquale Femia is Professor of Private Law at the Faculty of Political Studies of the University of Naples II, Italy.
Discussion

Access_open The Destruction and Reconstruction of the Tower of Babel

A Comment to Gunther Teubner’s Plea for a ‘Common Law Constitution’

Journal Netherlands Journal of Legal Philosophy, Issue 3 2011
Keywords global society, constitutionalism, social systems theory, Teubner, law and order
Authors Bart van Klink
AbstractAuthor's information

    This article presents some critical comments concerning the conceptual, normative and institutional foundations of Teubner’s plea for a ‘common law constitution’. My comments question the desirability of the means chosen for attaining this objective as well as their efficacy. In particular, I have difficulties with the ambivalent role that is assigned to man, either as a person or as a human being; with the reduction of social problems to problems of communication; and, finally and most importantly, with the attempt to conceive of law and politics beyond established legal and political institutions, which in my view is doomed to fail. The conclusion offers some tentative suggestions for an alternative approach.


Bart van Klink
Bart van Klink is Professor of Legal Methodology at the Faculty of Law of the VU University Amsterdam, the Netherlands.
Article

Access_open Over de klassieke oorsprong van de rechten van de mens

Journal Netherlands Journal of Legal Philosophy, Issue 2 2011
Keywords human rights, natural law, perfectionism, Stoa, Cicero
Authors René Brouwer
AbstractAuthor's information

    In this article I reconstruct the contribution of some central Hellenistic political thinkers to a theory of human rights. Starting point is the traditional Stoic conception of the law of nature as a power in which only perfect human beings actively participate. In the 2nd century BC the Stoic Panaetius adjusted this traditional high-minded theory by also allowing for a lower level of human excellence. This second-rate human excellence can be achieved just by following ‘proper functions’, which are derived from ordinary human nature and can be laid down in rules. From here, it was only a small, yet decisive step – presumably to be attributed to one of Cicero’s teachers – to discard the highest level of human perfection altogether. This step, I argue, paved the way for an understanding of the rules of natural law in terms of human rights.


René Brouwer
René Brouwer is Lecturer in Legal Theory at the University of Utrecht.
Article

Access_open Constitutionalism and the Incompleteness of Democracy: An Iterative Relationship

Journal Netherlands Journal of Legal Philosophy, Issue 3 2010
Keywords constitutionalism, globalization, democracy, modernity, postnational
Authors Neil Walker
AbstractAuthor's information

    The complexity of the relationship between democracy and modern constitutionalism is revealed by treating democracy as an incomplete ideal. This refers both to the empirical incompleteness of democracy as unable to supply its own terms of application – the internal dimension – and to the normative incompleteness of democracy as guide to good government – the external dimension. Constitutionalism is a necessary response to democratic incompleteness – seeking to realize (the internal dimension) and to supplement and qualify democracy (the external dimension). How democratic incompleteness manifests itself, and how constitutionalism responds to incompleteness evolves and alters, revealing the relationship between constitutionalism and democracy as iterative. The paper concentrates on the iteration emerging from the current globalizing wave. The fact that states are no longer the exclusive sites of democratic authority compounds democratic incompleteness and complicates how constitutionalism responds. Nevertheless, the key role of constitutionalism in addressing the double incompleteness of democracy persists under globalization. This continuity reflects how the deep moral order of political modernity, in particular the emphasis on individualism, equality, collective agency and progress, remains constant while its institutional architecture, including the forms of its commitment to democracy, evolves. Constitutionalism, itself both a basic orientation and a set of design principles for that architecture, remains a necessary support for and supplement to democracy. Yet post-national constitutionalism, even more than its state-centred predecessor, remains contingent upon non-democratic considerations, so reinforcing constitutionalism’s normative and sociological vulnerability. This conclusion challenges two opposing understandings of the constitutionalism of the global age – that which indicts global constitutionalism because of its weakened democratic credentials and that which assumes that these weakened democratic credentials pose no problem for post-national constitutionalism, which may instead thrive through a heightened emphasis on non-democratic values.


Neil Walker
Neil Walker is Regius Professor of Public Law and the Law of Nature and Nations at the University of Edinburgh, United Kingdom.
Discussion

Access_open The Globalizing Turn in the Relationship Between Constitutionalism and Democracy

Some Reiterations from the Perspective of Constitutional Law

Journal Netherlands Journal of Legal Philosophy, Issue 3 2010
Keywords constitutional law, constitutionalism, historic constitutions, revolutionary constitutions, pouvoir constituant (irrelevance of)
Authors Leonard F.M. Besselink
AbstractAuthor's information

    This essay complements Walker’s essay with some historical and constitutional observations. It submits that Walker’s analysis is based to a large extent on reasoning derived from a particular continental European constitutional tradition. This creates certain problems of its own, that do not arise in a different constitutional tradition. This is not to say, however, that this invalidates his conclusions, but rather underpins them in an alternative manner.


Leonard F.M. Besselink
Leonard Besselink is Professor of European Constitutional Law in the Faculty of Law of the University of Utrecht, the Netherlands.
Discussion

Access_open Constitutionalism and the Incompleteness of Democracy

A Reply to Four Critics

Journal Netherlands Journal of Legal Philosophy, Issue 3 2010
Keywords constitutionalism, globalization, democracy, modernity, postnational
Authors Neil Walker
AbstractAuthor's information

    This reply to critics reinforces and further develops a number of conclusions of the original paper. First, it answers the charge that it is biased in its discussion of the relative standing of constitutionalism and democracy today, tending to take the authority of the former for granted and concentrating its critical attention unduly on the incompleteness of democracy, by arguing that contemporary constitutionalism is deeply dependent upon democracy. Secondly, it reiterates and extends the claim of the original paper that the idea and practice of democracy is unable to supply its own resources in the development of just forms of political organization. Thirdly, it defends its key understanding of the overall relationship between democracy and constitutionalism as a ‘double relationship’, involving both mutual support and mutual tension. A fourth and last point is concerned to demonstrate how the deeper philosophical concerns raised by the author about the shifting relationship between democracy and constitutionalism and the conceptual reframing they prompt are important not just as an explanatory and evaluative window on an evolving configuration of political relations but also as an expression of that evolution, and to indicate how this new conceptual frame might condition how we approach the question of a democracy-sensitive institutional architecture for the global age.


Neil Walker
Neil Walker is Regius Professor of Public Law and the Law of Nature and Nations at the University of Edinburgh, United Kingdom.
Discussion

Access_open Democracy, Constitutionalism and the Question of Authority

Journal Netherlands Journal of Legal Philosophy, Issue 3 2010
Keywords international constitutionalism, democracy, international law, fragmentation, international politics
Authors Wouter G. Werner
AbstractAuthor's information

    This paper agrees with Walker on the existence of a tension between democracy and constitutionalism, but questions whether democracy and (international) constitutionalism necessarily depend on each other. While democracy needs constitutionalism on normative grounds, as an empirical matter it may also rest on alternative political structures. Moreover, it is questionable whether democracy is indeed the solution to the incompleteness of international constitutionalism. Traditional forms of democracy do not lend themselves well to transplantation to the international level and could even intensify some problems of international governance. Attempts to democratize international relations should be carried out prudentially, with due regard for possible counterproductive effects.


Wouter G. Werner
Wouter Werner is Professor of Public International Law at VU University, Amsterdam, the Netherlands.
Miscellaneous

Access_open Everything we do is tentative. An interview with Prof. Frederick Schauer

Journal Netherlands Journal of Legal Philosophy, Issue 1 2010
Keywords Schauer, rule priority, legal principles, legal positivism, generality
Authors Bo Zhao
AbstractAuthor's information

    Professor Schauer covers many topics in this interview. On a general note, the interview covers themes pertaining to his experience in engaging with legal philosophy as a trained lawyer; his views on the present and the future of legal philosophy and how we shall cope with its development; his new book Thinking like a Lawyer; the role of legal philosophers in law and society; and some sincere suggestions to young legal philosophers. It also covers more specific topics, including discussions about his insistence on rule priority; differences between legal principles and rules; his opinion of legal positivism; and the pros and cons of analytical tools like spectrum, continuum and generality.


Bo Zhao
Bo Zhao is a post-doc researcher at the History Department, Faculty of Arts, and the Legal Theory Department, Faculty of Law, University of Groningen.
Article

Access_open Het normatieve karakter van de rechtswetenschap: recht als oordeel

Journal Netherlands Journal of Legal Philosophy, Issue 3 2009
Keywords legal theory, science, methodology, normativity, knowledge
Authors Prof. mr. Carel Smith
AbstractAuthor's information

    Propositions of law are based upon normative judgement. The interpretation and application of legal provisions rest upon a judgement that determines which weight must be attributed to some point of view or perspective. In this respect, legal theory has a normative character. Its normative character does not preclude legal theory from being a scientific discipline. The scientific character of legal theory is not located in the possibility of testing the correctness of its theories. Rather, legal theory owes it scientific character to the shared standards of production and evaluation of legal arguments: the grammar of justice.


Prof. mr. Carel Smith
Carel Smith is associate professor at the Department of Metajuridica, Faculty of Law, Leiden University.
Article

Access_open Corporate Responsibility Revisited

Journal Netherlands Journal of Legal Philosophy, Issue 2 2009
Keywords individual responsibility, collective responsibility, legal liability, responsibility and politics
Authors prof. Philip Pettit
Abstract

    This paper responds to four commentaries on “Responsibility Incorporated”, restating, revising, and expanding on existing work. In particular, it looks again at a set of issues related primarily to responsibility at the individual level; it reconsiders responsibility at the corporate level; it examines the connection of this discussion to issues of responsibility in law and politics.


prof. Philip Pettit
Hoofdartikel

Access_open Responsibility Incorporated

Journal Netherlands Journal of Legal Philosophy, Issue 2 2009
Keywords corporate agency, corporate responsibility, collective responsibility
Authors prof. Philip Pettit
AbstractAuthor's information

    Incorporated groups include businesses, universities, churches and the like. Organized to act as single centers of agency, they also routinely satisfy the three conditions that make an agent fit to be held responsible: they face significant choices, can recognize the relative value of different options, and are able to choose in sensitivity to such values. But is it redundant to hold a corporate agent responsible for something, when certain members are also held responsible for the individual parts they play? No it is not, for it is often possible for a corporate entity to be fully fit to be held responsible, when this is not true of the individual members; they may be able to make excuses that are not available at the corporate level. Does the case made for corporate responsibility extend to unincorporated collectivities like nations or religions? Not strictly but it does explain why it may be sensible to treat those collectivities as if they had corporate responsibility in certain domains.


prof. Philip Pettit
Philip Pettit is the Laurence S. Rockefeller University Professor of Politics and Human Values at Princeton University.
Article

Access_open Morality Incorporated? Some Peculiarities of Legal Thinking

Journal Netherlands Journal of Legal Philosophy, Issue 2 2009
Keywords responsibility, accountability, imputation, liability
Authors prof. Bert van Roermund and prof. Jan Vranken
AbstractAuthor's information

    Responsibility disappears into the background of private law as it deals with imputation of liability. Fitness to be held liable is determined by normative viewpoints different from moral ones, in particular by convictions on how society ought to be organized so as to avoid or end conflict between private citizens. Modes of discursive control are geared to making authoritative decisions in view of the same end, and corporate agency is created, restricted or enlarged to undercut or to impose individual liability.


prof. Bert van Roermund
Bert Van Roermund is Professor of Philosophy at the Department of Philosophy of Tilburg University.

prof. Jan Vranken
Jan Vranken is Professor of Private Law at the Faculty of Law of Tilburg University and former Advocate General at the Dutch Supreme Court.
Article

Access_open ‘The Soviet Union did not have a legal system’

An interview with Jeremy Waldron on the methodology debate, historic injustice and the citation of foreign law

Journal Netherlands Journal of Legal Philosophy, Issue 1 2009
Keywords normative positivism, historic injustice, restitution of property rights, citation of foreign law, methodology debate
Authors Kees Quist and Wouter Veraart
AbstractAuthor's information

    This interview with Jeremy Waldron covers three topics. Firstly, we dealt with the methodology debate, that is, the discussion about how to proceed in analyzing the nature of law. Does the question ‘What is law?’ require a descriptive analysis of the concept of law or, rather, a normative exercise in political philosophy? Secondly, we spoke about the role of law in response to historic injustice, especially in relation to the restitution of property rights. On this topic Waldron vindicates the ‘supersession-thesis’, the idea that, due to changed circumstances and the passage of time, historic injustices become superseded. The third section of the interview is devoted to Waldron’s perspective on the citation of foreign law by national judges.


Kees Quist
Kees Quist is junior lecturer and PhD fellow at Utrecht Law School.

Wouter Veraart
Wouter Veraart is professor of Legal Philosophy at the VU University Amsterdam.
Showing 41 - 60 of 77 found texts
1 3
You can search full text for articles by entering your search term in the search field. If you click the search button the search results will be shown on a fresh page where the search results can be narrowed down by category or year.