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Article

Access_open ‘Cruel Men Can Do Kind Things and Kind Men Can Do Cruel Things’

Reconsidering the Enemy of Humanity in Contemporary International Criminal Trial Discourse

Journal Netherlands Journal of Legal Philosophy, Issue 2 2018
Keywords humanity, international criminal justice, opening statements, trial discourse, perpetrators
Authors Sofia Stolk
AbstractAuthor's information

    This article discusses empirical examples from international trial transcripts to see if and why there is a need to use the ‘enemy of all humanity’ label in contemporary international criminal justice discourse. It shows an absence of explicit uses of the concept and an ambiguous set of implicit references; the hosti generis humani concept is simultaneously too precise and too broad for ICJ discourse. Based on these findings, the article challenges David Luban’s suggestion that the term can be undone from its dehumanizing potential and used adequately in the ICJ context.


Sofia Stolk
Sofia Stolk is researcher at T.M.C. Asser Instituut/University of Amsterdam and research fellow at the Centre for the Politics of Transnational Law, Amsterdam.
Article

Access_open On the Humanity of the Enemy of Humanity

A Response to My Critics

Journal Netherlands Journal of Legal Philosophy, Issue 2 2018
Keywords hostis generis humani, humanity, International criminal justice, piracy
Authors David Luban
AbstractAuthor's information

    Antony Duff, Marc de Wilde, Louis Sicking, and Sofia Stok offer several criticisms of my “The Enemy of All Humanity,” but central to all of them is concern that labeling people hostis generis humani dehumanizes them, and invites murder or extrajudicial execution. In response I distinguish political, legal, and theoretical uses of the ancient label. I agree with the critics that the political use is toxic and the legal use is dispensable. However, the theoretical concept is crucial in international criminal law, which rests on the assumptions that the moral heinousness of core crimes makes them the business of all humanity. Furthermore, far from dehumanizing their perpetrators, calling them to account before the law recognizes that they are no different from the rest of humanity. This response also offers rejoinders to more specific objections raised by the critics.


David Luban
David Luban is University Professor in Law and Philosophy at Georgetown University.
Editorial

Access_open The Hostis Generis Humani: A Challenge to International Law

Journal Netherlands Journal of Legal Philosophy, Issue 2 2018
Keywords Luban, humanity, dehumanization, Radbruch, Arendt
Authors Luigi Corrias and Wouter Veraart
AbstractAuthor's information

    Introducing the special issue, we point out how the notion of an ‘enemy of all humanity’ challenges the very foundations of international (criminal) law. We also give an overview of the other contributions.


Luigi Corrias
Luigi Corrias is Assistant Professor of Legal Philosophy at the Vrije Universiteit Amsterdam.

Wouter Veraart
Wouter Veraart is Professor of Legal Philosophy at the Vrije Universiteit Amsterdam.
Article

Access_open Over verplichte excuses en spreekrecht

Wat is er mis met empirisch-juridisch onderzoek naar slachtoffers?

Journal Netherlands Journal of Legal Philosophy, Issue 2 2017
Keywords empirical legal studies, apologies, procedural justice, humiliation, victim rights
Authors Vincent Geeraets and Wouter Veraart
AbstractAuthor's information

    The central question in this article is whether an empirical-legal approach of victimhood and victim rights could offer a sufficient basis for proposals of legal reform of the legal system. In this article, we choose a normative-critical approach and raise some objections to the way in which part of such research is currently taking place in the Netherlands, on the basis of two examples of research in this field, one dealing with compelled apologies as a possible remedy within civil procedural law and the other with the victim’s right to be heard within the criminal legal procedure. In both cases, we argue, the strong focus on the measurable needs of victims can lead to a relatively instrumental view of the legal system. The legal system must then increasingly be tailored to the wishes and needs of victims. Within this legal-empirical, victim-oriented approach, there is little regard for the general normative principles of our present legal system, in which an equal and respectful treatment of each human being as a free and responsible legal subject is a central value. We argue that results of empirical-legal research should not too easily or too quickly be translated into proposals for legal reform, but first become part of a hermeneutical discussion about norms and legal principles, specific to the normative quality of legal science itself.


Vincent Geeraets
Vincent Geeraets is universitair docent aan de afdeling Rechtstheorie en rechtsgeschiedenis van de Vrije Universiteit Amsterdam.

Wouter Veraart
Wouter Veraart is hoogleraar rechtsfilosofie aan de Vrije Universiteit Amsterdam.

    Arend Soeteman, book review of Jan Smits, Omstreden rechtswetenschap, Over aard, methode en organisatie van de juridische discipline


Arend Soeteman
Arend Soeteman is professor of law at the Faculty of Law, VU University Amsterdam.
Article

Access_open Wetenschappelijke rechtsgeleerdheid

Commentaar op het preadvies van Carel Smith

Journal Netherlands Journal of Legal Philosophy, Issue 3 2009
Keywords law and hermeneutics, law and normativity, one right answer thesis, legal jurisprudence, legal doctrine
Authors Prof. dr. Arend Soeteman
AbstractAuthor's information

    This article is a comment on Carel Smith’s paper. Smith rightly argues that the study of law has a hermeneutic character. But his interpretation of legal hermeneutics includes the thesis that in hard cases there is no right or true legal decision. This seems to have negative implications for the scholarly character of the study of law: in hard cases any solution goes. This paper argues, against Smith, that the study of law defends right answers for hard cases. It is also normative in another sense: legal answers, in easy cases as well as in hard cases, always presuppose a normative interpretation of the legal sources. This contributes to the differences of opinion under lawyers. But it is no obstacle to the scholarly character of the study of law, as long as a rational debate about these legal answers and the underlying values and principles is possible. Smith’s rejection of the right answer thesis, however, prevents the possibility of such a rational debate.


Prof. dr. Arend Soeteman
Arend Soeteman is professor at the Faculty of Law, VU University Amsterdam.
Article

Access_open Over de wetenschappelijkheid van de rechtswetenschap

Journal Netherlands Journal of Legal Philosophy, Issue 3 2009
Keywords legal science, empirical science, law and astronomy, mathematical logic, game theory
Authors Mr. Boudewijn de Bruin
AbstractAuthor's information

    This article provides an outsider perspective on the scientificity of legal studies. First, I argue that the presence of controversies does not mean that legal studies lack the status of a genuine science. Astronomy, mathematics, and economics have their controversies, too. Second, I show that non-empirical, non-normative research is no less scientific than empirical research. This is illustrated by work in mathematical logic. Third, I demonstrate the same claim for non-empirical, normative research.Here the example is research on social contract theories by means of gametheoretic models.


Mr. Boudewijn de Bruin
Boudewijn de Bruin is assistant professor in the Faculty of Philosophy of the 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 Rechtseconomie tussen instrumentaliteit en normativiteit

Journal Netherlands Journal of Legal Philosophy, Issue 1 2008
Keywords invordering, levering, rechtspraak, betalingstermijn, betaling, krediet, verkoper, claim, tussenkomst, bank
Authors B. Velthoven

B. Velthoven
Article

Access_open Rechtswetenschap - disciplinair en interdisciplinair

Journal Netherlands Journal of Legal Philosophy, Issue 1 2005
Keywords model, constitutie, rechtsmacht, bewijsmateriaal, levering, statuut, noodzakelijkheid, bewijslast, overeenkomst, wettekst
Authors B. Roermund

B. Roermund
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