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Article

Access_open The Demos as a Plural Subject

Journal Netherlands Journal of Legal Philosophy, Issue 1 2017
Keywords democracy, demos, normativity, Margaret Gilbert, joint commitment
Authors Bas Leijssenaar
AbstractAuthor's information

    Existing conceptualizations of the demos fail to treat issues of composition and performativity consistently. Recent literature suggests that both aspects are required in a satisfactory account of the demos. An analysis of this literature suggests several desiderata that such an account must meet. I approach the definition of demos with a conceptual framework derived from Margaret Gilbert’s plural subject theory of social groups. I propose an account of demos as a plural subject, constituted by joint commitment. This account offers an improved and consistent understanding of normativity, composition, agency, and cohesion of demos.


Bas Leijssenaar
Bas Leijssenaar is PhD-candidate at the Institute of Philosophy, Centre for Social and Political Philosophy of the University of Leuven.

Raf Geenens
Raf Geenens is Assistant Professor of Ethics and Legal Philosophy at the Institute of Philosophy, University of Leuven.

Nora Timmermans
Nora Timmermans is PhD Research Fellow of the Research Foundation - Flanders (FWO) at the Centre for Ethics, Social and Political Philosophy, University of Leuven.
Article

Access_open The Erosion of Sovereignty

Journal Netherlands Journal of Legal Philosophy, Issue 2 2016
Keywords sovereignty, state, Léon Duguit, European Union, Eurozone
Authors Martin Loughlin
AbstractAuthor's information

    This article presents an account of sovereignty as a concept that signifies in jural terms the nature and quality of political relations within the modern state. It argues, first, that sovereignty is a politico-legal concept that expresses the autonomous nature of the state’s political power and its specific mode of operation in the form of law and, secondly, that many political scientists and lawyers present a skewed account by confusing sovereignty with governmental competence. After clarifying its meaning, the significance of contemporary governmental change is explained as one that, in certain respects, involves an erosion of sovereignty.


Martin Loughlin
Martin Loughlin is Professor of Public Law at the London School of Economics and Political Science and EURIAS Senior Fellow at the Freiburg Institute of Advanced Studies (FRIAS).
Article

Access_open E pluribus unum? The Manifold Meanings of Sovereignty

Journal Netherlands Journal of Legal Philosophy, Issue 2 2016
Keywords political sovereignty, power, legislative sovereignty, constitutive power, external sovereignty
Authors Raf Geenens
AbstractAuthor's information

    This article investigates and classifies the different meanings of the term sovereignty. What exactly do we try to convey when using the words “sovereign” or “sovereignty”? I will argue that, when saying that X is sovereign, we can mean five different things: it can mean that X holds the capacity to force everyone into obedience, that X makes the laws, that the legal and political order is created by X, that X holds the competence to alter the basic norms of our legal and political order, or that X is independently active on the international stage. These different usages of the term are of course related, but they are distinct and cannot be fully reduced to one another.


Raf Geenens
Raf Geenens is an assistant professor of Ethics and Legal Philosophy at the Institute of Philosophy, University of Leuven.
Article

Access_open Power and Principle in Constitutional Law

Journal Netherlands Journal of Legal Philosophy, Issue 2 2016
Keywords sovereignty, constitutional law, positivism, constructivism, common law
Authors Pavlos Eleftheriadis
AbstractAuthor's information

    Legal and sociological theories of sovereignty disagree about the role of legal and social matters in grounding state power. This paper defends a constructivist view, according to which the constitution is a judgment of practical reason. The paper argues that a constitution sets out a comprehensive institutional architecture of social life in terms of principles and official roles that are necessary for any legitimate scheme of social cooperation to exist. It follows that legal and sociological theories of sovereignty capture only part of the truth of sovereignty. Legal reasoning engages with political power, but it is not determined by it. There is no causal chain between power and validity, as suggested by the legal positivists. The relation between power and law is interpretive, not causal. It follows that the circularity of law and the constitution, namely the fact that the law makes the constitution and the constitution makes the law, is not a vicious circle. It is part of an ordinary process of deliberation.


Pavlos Eleftheriadis
Pavlos Eleftheriadis is Associate Professor of Law and Fellow in Law at Mansfield College, University of Oxford.
Article

Access_open Terug naar het begin: Een onderzoek naar het principe van constituerende macht

Journal Netherlands Journal of Legal Philosophy, Issue 2 2015
Keywords constituent power, legitimacy, representation, collective action, ontology
Authors Nora Timmermans Ph.D.
AbstractAuthor's information

    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.


Nora Timmermans Ph.D.
Nora Timmermans is Master in Philosophy and currently a Ph.D. Student.

    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.


Daniel Augenstein
Daniel Augenstein is Associate Professor at the Department of European and International Public Law at Tilburg University.
Article

Access_open Political Jurisprudence or Institutional Normativism? Maintaining the Difference Between Arendt and Fuller

Journal Netherlands Journal of Legal Philosophy, Issue 3 2014
Keywords Arendt, Fuller, Hobbes, political jurisprudence, political freedom, authority, legality
Authors Michael Wilkinson
AbstractAuthor's information

    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.


Michael Wilkinson
Michael Wilkinson is Associate Professor of Law at the London School of Economics; m.wilkinson@lse.ac.uk
Article

Access_open Legal Subjects and Juridical Persons: Developing Public Legal Theory through Fuller and Arendt

Journal Netherlands Journal of Legal Philosophy, Issue 3 2014
Keywords Fuller, Arendt, legal subject, juridical person, public rule of law theory
Authors Kristen Rundle
AbstractAuthor's information

    The ‘public’ character of the kind of rule of law theorizing with which Lon Fuller was engaged is signalled especially in his attention to the very notion of being a ’legal subject’ at all. This point is central to the aim of this paper to explore the animating commitments, of substance and method alike, of a particular direction of legal theorizing: one which commences its inquiry from an assessment of conditions of personhood within a public legal frame. Opening up this inquiry to resources beyond Fuller, the paper makes a novel move in its consideration of how the political theorist Hannah Arendt’s reflections on the ‘juridical person’ might aid a legal theoretical enterprise of this kind.


Kristen Rundle
Kristen Rundle is Senior Lecturer of Law at the University of New South Wales; k.rundle@unsw.edu.au
Discussion

Access_open Political Freedom after Economic Freefall and Democratic Revolt

Journal Netherlands Journal of Legal Philosophy, Issue 3 2012
Keywords globalisation, civic tradition, Enlightenment, free-market economy, autonomy
Authors Tinneke Beeckman
AbstractAuthor's information

    Can globalisation lead to more democracy? And if so, what concept of freedom lies at the basis of this development? The ideal of liberal freedom, supposedly exercised by the autonomous, rational individual is no longer tenable. Finding a new way of interpreting self-rule beyond self-interested choice has become a crucial aspect of regenerating democratic spirit. This paper formulates three comments on Winter’s paper. The first comment concerns the resemblance between the attitudes of consumers and voters. A second comment reflects on the positive heritage of the Enlightenment. A third comment focuses on the recent Tahrir Square protests and reflects on the republican civic tradition.


Tinneke Beeckman
Tinneke Beeckman is postdoctoral researcher at the Fund for Scientific Research, Flanders, University of Brussels.
Discussion

Access_open Hybrid Constitutionalism, Fundamental Rights and the State

A Response to Gunther Teubner

Journal Netherlands Journal of Legal Philosophy, Issue 3 2011
Keywords societal constitutionalism, Gunther Teubner, system theory, fundamental rights
Authors Gert Verschraegen
AbstractAuthor's information

    This contribution explores how much state is necessary to make societal constitutionalism work. I first ask why the idea of a global societal constitutionalism ‘beyond the state-and-politics’ might be viewed as a significant and controversial, but nonetheless justified innovation. In the second part I discuss what Teubner calls ‘the inclusionary effects of fundamental rights’. I argue that Teubner underplays the mediating role of the state in guaranteeing inclusion or access, and in a way presupposes well-functioning states in the background. In areas of limited statehood there is a problem of enforcing fundamental rights law. It is an open question whether, and under which conditions, constitutional norms within particular global social spheres can provide enough counter-weight when state constitutional norms are lacking.


Gert Verschraegen
Gert Verschraegen is Assistant Professor of Theoretical Sociology at the University of Antwerp, Belgium.
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 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 Plugging the Legitimacy Gap? The Ubiquity of Human Rights and the Rhetoric of Global Constitutionalism

Journal Netherlands Journal of Legal Philosophy, Issue 3 2010
Keywords global constitutionalism, legitimacy, human rights, Neil Walker, post-state democracy
Authors Morag Goodwin
AbstractAuthor's information

    This paper approaches Walker’s work from the perspective of the ubiquity of human rights language within the rhetoric of global constitutionalism. Building on Walker’s description of the relationship between constitutionalism and democracy, what I wish to suggest is that the spread of human rights discourse is intimately connected with attempts to apply constitutional discourse beyond the state. By highlighting the way in which human rights have become place-takers for political legitimacy in discussions of international constitutionalism, the paper is intended to challenge Walker to state his own position more forcefully and to develop further his insight concerning the irresolvable tension in the iterative relationship between constitutionalism and democracy.


Morag Goodwin
Morag Goodwin is Assistant Professor of Law and Development at the Tilburg Institute for Law, Technology and Society at Tilburg Law School, the Netherlands.
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.
Article

Access_open Law's 'Uncanniness': A Phenomenology of Legal Decisions

Journal Netherlands Journal of Legal Philosophy, Issue 2 2008
Keywords claim, contract, interest, character, making, binding, E-business, Europese gemeenschap, identiteit, leasing
Authors H. Lindahl

H. Lindahl
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