The paper investigates arguments for the idea in recent American Supreme Court jurisprudence that freedom of religion should not simply be understood as an ordinary legal right within the framework of liberal constitutionalism but as an expression of deference by the state and its legal system to religion as a separate and independent jurisdiction with its own system of law over which religious groups are sovereign. I discuss the relationship between, on the one hand, ordinary rights of freedom of association and freedom of religion and, on the other hand, this idea of corporate freedom of religion, often called ‘church autonomy’. I argue that the arguments conflate different issues, elide important distinctions and equivocate over crucial terms. There is accordingly a need for disaggregation of the concerns raised under the heading of church autonomy. This significantly weakens the apparent case for church autonomy.

In dit artikel argumenteer ik dat er twee mogelijke invullingen zijn voor het principe van constituerende macht. De eerste mogelijkheid is deze van de klassieke basisveronderstelling van de constitutionele democratie, namelijk dat de gemeenschap zelf vorm kan en moet geven aan de fundamentele regels die die gemeenschap beheersen. Hans Lindahl maakt een interessante analyse van deze traditionele invulling, die ik kritisch zal benaderen. Lindahl heeft immers zelf scherpe kritiek op de invulling die Antonio Negri aan het concept constituerende macht geeft. Mijn interpretatie gaat er echter van uit dat Negri een fundamenteel andere inhoud geeft aan het principe van constituerende macht, waarbij constituerende macht niet alleen wordt losgemaakt van het constitutionalisme, maar meer algemeen van elk rechtssysteem en zelfs van elke vorm van finaliteit. Deze argumentatie werpt een nieuw licht op het debat rond Negri’s theorie van constituerende macht, waarin diens meest fundamentele uitgangspunt vaak over het hoofd wordt gezien.

International criminal courts have made an important contribution to the development of international criminal law. Through case law, the courts have fine-tuned and modernized outdated concepts of international crimes and liability theories. In studying this practice, scholars have so far focused on the judicial interpretation of statutory and customary rules, thereby paying little attention to the rules’ application in individual cases. In this article, I reveal the limitations of this approach and illustrate how insights from casuistry can advance international criminal law discourse. In particular, I use the example of genocide to show that casuistic case law analyses can help scholars clarify the meaning of the law and appraise the application of substantive legal concepts in individual cases. Based on these observations, I argue that scholars should complement their current research with studies into the casuistry of international criminal law.

In this article I discuss one of the latest reports on the practice of drone warfare, the UN SRCT Drone Inquiry. I use the report to illustrate some of the specific forms of legal politics that surround drone warfare today. In the first place, I focus on the tension between the capacity of drones to target more precisely and the never-ending critique that drone warfare victimizes civilian populations. Secondly, I focus on the call for more objective legal rules that can be found in many debates on drone warfare.

An alleged ‘return to religion’ in contemporary western politics (and science) prompted the Trustees of the Hans Kelsen Institut to posthumously publish Kelsen’s critique of the concept of ‘secular religion’ advanced by his early student Eric Voegelin. This paper identifies, firstly, what concept of transcendence is targeted by Kelsen, and argues that his analysis leaves scope for other conceptions. It does so in two steps: it summarizes the arguments against ‘secular religion’ (section 2) and it gives an account of the differences between Voegelin’s and Schmitt’s conception of transcendence – both under attack from Kelsen (section 3). It then submits an alternative account of the relationship between politics and religion in Modernity, building on the concept of a ‘civil religion’ as found in Rousseau’s Social Contract. Giving a Rousseauist slant to Claude Lefort’s analysis of political theology (section 4) it concludes that a thin concept of transcendence is part and parcel of every, in particular a democratic, account of politics. It should be a stronghold against any resurgence of religion that feeds on hypostatized transcendence. In closing (section 5), it is argued that two key concepts in Kelsen’s legal philosophy may well be understood as paradigms of thin transcendence, namely ‘the people’ and ‘the Grundnorm’.

I will argue that it is possible to give a neutral or antiperfectionist legitimation for state support for religion, which I consider a perfectionist good that is not in the common interest. I will argue that state support for perfectionist goods (and thus also for religion) can, in some circumstances and under certain conditions, be allowed as a second-best option in order to guarantee an adequate range of valuable options to choose among - and this range of options is a necessary condition for autonomy. Subsequently, I will argue that the bottom line - which is also the limit - for support is a sufficient range of valuable options. Furthermore, I will argue that state support for religion is only allowed if there is a democratic consensus about the value of that particular perfectionist good. Finally, I will claim that state support for religion is only allowed under certain conditions.

The article considers the role of the liberal public-private divide in protecting religious minorities against national-majoritarian assault. It links the defence of the public-private divide to liberal neutrality and argues that it rests on two distinct propositions: that the distinction between the ’public sphere’ and the ’private sphere’ is a meaningful way to cognize and structure modern pluralistic societies; and that there is a meaningful way to distinguish what is or ought to be ‘public’ from what is or ought to be ‘private.’ While the latter proposition cannot be defended on grounds of liberal neutrality, the former proposition provides the institutional framework for conducting liberal politics by enabling the negotiation of the public and the private between national majorities and religious minorities as members of the same political community.

How best to account for moral quality in adjudication? This article proposes a six-pack of judicial virtues as part of a truly virtue-centred approach to adjudication. These virtues are presented as both constitutive and indispensible for realizing moral quality in adjudication. In addition, it will be argued that in order to honour the inherent relational dimension of adjudication a judge should not only possess these judicial virtues to a sufficient degree, he should also have the attitude of a civic friend. The Aristotelian concept of civic friendship will be proposed as an important complement to a virtue-ethical approach to adjudication.

In this article, we inquire the merits of criminalizing blasphemy. We argue that religious views do not warrant a separate treatment compared to nonreligious ones. In addition, freedom of speech must be balanced against the interest of those who may be aggrieved by blasphemous remarks. We conclude that penalizing blasphemy is undesirable. It is fortunate, in that light, that acts of blasphemy have recently been decriminalized in The Netherlands by removing blasphemy as an offense from the Criminal Code. Still, other provisions appear to leave enough room to reach the same result, making the removal a possibly virtually aesthetic change. In the international context, it would be regrettable for The Netherlands to forgo the opportunity to take a leading role.

This paper shows that Fuller and Arendt converge on a different point than the point Rundle focuses on. What Fuller and Arendt seem to share in their legal thoughts is not so much an interest in the experience of law-as-such (the interaction between responsible agency and law as a complex institution), but rather an interest in the junction of law and injustice. By not sufficiently focusing on the experience of legal injustice, Rundle overlooks an important point of divergence between Arendt and Fuller. In particular, Arendt differs from Fuller in her conviction that ‘injustice in a legal form’ is an integral part of modern legal systems.

Author’s reply to four commentaries on ‘Legal Subjects and Juridical Persons: Developing Public Legal Theory through Fuller and Arendt.’

In her paper, Rundle seeks to develop a normative legal theory that is distinctively public. Building on her book, Forms Liberate, she seeks to bring Fuller’s legal theory into conversation with Arendt’s political theory. In this comment, I present some hesitations with regard to the fruitfulness of this conversation. It concludes with the suggestion to explore how Radbruch’s ‘idea of law’ could be fruitful for the overall jurisprudential project Rundle seeks to develop in her work.

Can jurisprudence fruitfully pursue a synthesis of Arendt’s political theory and Fuller’s normative legal philosophy? Might their ideas of the juridical person and the legal subject be aligned as a result of a shared concern for the value of legality, specifically of an institutional complex which is structured through the stability and predictability of the rule of law? It is doubtful that Arendt's concern for the phenomena of plurality, political freedom and action can usefully be brought into line with Fuller's normativist focus on legality, subjectivity and the inner morality of law. This doubt is explored by juxtaposing Arendt's theory of action and her remarks on the revolution, foundation and augmentation of power and authority with Fuller's philosophy that, however critical of its positivist adversaries, remains ultimately tied to a Hobbesian tradition which views authority and power in abstract, hierarchical and individualist terms.