Search result: 67 articles

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Lukas van den Berge
Lukas van den Berge is assistent professor of legal theory at Utrecht University.
Article

Access_open Addressing Problems Instead of Diagnoses

Reimagining Liberalism Regarding Disability and Public Health

Journal Netherlands Journal of Legal Philosophy, Issue 1 2021
Keywords Vulerability Theory, Liberalism, Convention on the Rights of Persons with Disabilities (CRPD), Public Health, Capabilities Approach
Authors Erwin Dijkstra
AbstractAuthor's information

    The public health systems of liberal states systematically fail to meet the goals and obligations of the Convention on the Rights of Persons with Disabilities, which aims to facilitate full societal participation and independent life choices by all impaired persons, as well as the unburdening of their private caretakers. This failure does not stem from a lack of money or effort by governments and other societal institutions, but flaws in the anatomy of these systems. As these systems confine institutional assistance to the needs of persons with certain delineated disabilities, they neglect the needs of other persons, whose disabilities do not fit this mould. The responsibility for the latter group thus falls to their immediate social circle. These private caretakers are in turn seldom supported. To remedy this situation, I will present the alternative paradigm of vulnerability theory as the possible foundation for a more inclusive approach to public health.


Erwin Dijkstra
Erwin Dijkstra LLM MA is lecturer and researcher at the Department of Jurisprudence of the Leiden Law School of Leiden University.
Article

Access_open De gewetensbeslissing in Scholtens rechtsmethodologie

Journal Netherlands Journal of Legal Philosophy, Issue 1 2021
Keywords Geweten, feiten, Scholten, Kierkegaard, naastenliefde
Authors Jos Vleugel
AbstractAuthor's information

    The role that Paul Scholten assigns to conscience in his legal methodology still leads to heated discussions in literature after almost 100 years. Recognizing that in case law the conscience of the judge can be of decisive importance is apparently problematic. It would facilitate political court rulings, make judicial judgment uncontrollable and could be arbitrary for the parties to the legal dispute. Not only Scholten’s view on the role of conscience in judicial decision making is “a stumbling block”. At least as great is the fuss about his representation of conscience. Only Christian lawyers could identify with this. This article attempts to shed new light on the above points of criticism by drawing attention to the following aspects of Scholten’s legal methodology: the role of the facts in establishing the law, the nature of the legal judgment and finally the grounds on which conscience may be determined.


Jos Vleugel
Jos Vleugel is universitair docent staatsrecht aan de Universiteit Utrecht.
Article

Access_open Restraint as a Source of Judicial ‘Apoliticality’

A Functional Reconstruction

Journal Netherlands Journal of Legal Philosophy, Issue 2 2020
Keywords Urgenda, Miller v. Secretary of State, Norm of judicial apoliticality, Ronald Dworkin, Judicial restraint
Authors Maurits Helmich
AbstractAuthor's information

    Few legal theorists today would argue that the domain of law exists in isolation from other normative spheres governing society, notably from the domain of ‘politics’. Nevertheless, the implicit norm that judges should not act ‘politically’ remains influential and widespread in the debates surrounding controversial court cases. This article aims to square these two observations. Taking the Miller v. Secretary of State and Urgenda cases as illustrative case studies, the article demonstrates that what it means for judges to adjudicate cases ‘apolitically’ is itself a matter of controversy. In reflecting on their own constitutional role, courts are forced to take a stance on substantive questions of political philosophy. Nevertheless, that does not mean that the ‘norm of judicial apoliticality’ should therefore be rejected. The norm’s coherence lies in its intersocial function: its role in declaring certain modes of judicial interpretation and intervention legitimate (‘legal’/‘judicial’) or illegitimate (‘political’).


Maurits Helmich
Maurits Helmich is promovendus aan de afdeling Sociologie, Theorie en Methodologie van het Recht aan de Erasmus Universiteit Rotterdam.
Article

Access_open The Obligation of Judges to Uphold Rules of Positive Law and Possibly Conflicting Ethical Values in Context

The Case of Criminalization of Homelessness in Hungary

Journal Netherlands Journal of Legal Philosophy, Issue 2 2020
Keywords Judicial independence, Rule of law, Judicial ethics, Hungary, Criminalization of homelessness
Authors Petra Gyöngyi
AbstractAuthor's information

    This article examines the tension between the constitutional obligation of judges to uphold rules of positive law and possibly conflicting standards of conduct arising from professional-ethical values. The theoretical analysis will be illustrated by the case of Hungary, an EU member state experiencing rule of law challenges since 2010 and where the 2018-2019 criminalization of homelessness exemplifies the studied tension. Inspired by the theories of Philip Selznick and Martin Krygier, rule of law will be viewed as a value that requires progressive realization and context-specific implementation. By contextualizing the relevant Hungarian constitutional framework with the content of the judicial code of ethics and judicial practice, it will be shown how the legitimate space for Hungarian judges to distance themselves from legislation possibly in conflict with rule of law values is reduced. Theoretical suggestions for addressing such rule of law regressions will be made.


Petra Gyöngyi
Petra Gyöngyi is postdoctoral fellow aan de University of Oslo.
Article

Access_open Religie op het werk?

Over positieve en negatieve godsdienstvrijheid bij private ondernemingen en tendensondernemingen

Journal Netherlands Journal of Legal Philosophy, Issue 1 2020
Authors Leni Franken and François Levrau
AbstractAuthor's information

    In this article we elaborate on the place of religion in the workplace. Does the individual freedom of religion imply that employers must always accommodate the religious claims of employees or can they boast a number of arguments allowing them to legitimately limit that freedom? And, conversely, do employers not also have a right to freedom of religion and a right to formulate certain religious expectations for their employees? In this contribution, we deal with these and related questions from a legal-philosophical perspective. The overall aim is to illustrate the extent to which univocal answers are jeopardized because of conceptual ambiguities. We first make a normative distinction between two strategies (i.e. difference-blind approach and difference-sensitive approach) and subsequently illustrate and elaborate on how and why these strategies can lead to different outcomes in legal cases. We illustrate the extent to which a contextual and proportional analysis can be a way out in theoretical and practical conundrums.


Leni Franken
Leni Franken is senior researcher and teaching assistant at the University of Antwerp.

François Levrau
François Levrau is senior researcher and teaching assistant at the University of Antwerp.

Dascha Düring
Dascha Düring is postdoctoral research fellow, Nanyang Technological University (Singapore).
Article

Access_open Enemy of All Humanity

The Dehumanizing Effects of a Dangerous Concept

Journal Netherlands Journal of Legal Philosophy, Issue 2 2018
Keywords enemy of all humanity, hostis humani generis, piracy, international criminal law, Luban
Authors Marc de Wilde
AbstractAuthor's information

    In his contribution to this special issue, David Luban proposes to revive the age-old concept of ‘the enemy of all humanity.’ On his view, this concept supports the aims of international criminal justice by emphasizing that atrocity and persecution crimes are ‘radically evil’ and therefore ‘everyone’s business.’ Criticizing Luban’s proposal, this paper shows that in the past, the ‘enemy of all humanity’ concept has often served to establish parallel systems of justice, depriving these ‘enemies’ of their rights as suspects under criminal law and as lawful combatants under the laws of war. Thus, even if the ‘enemy of all humanity’ concept is used with the intention to bring today’s perpetrators of ‘radical evil’ to justice, it risks undermining, rather than protecting, the rule of law.


Marc de Wilde
Marc de Wilde is Professor of Jurisprudence at the University of Amsterdam.
Article

Access_open ‘God’s Friend, the Whole World’s Enemy’

Reconsidering the role of piracy in the development of universal jurisdiction.

Journal Netherlands Journal of Legal Philosophy, Issue 2 2018
Keywords Cicero, Augustine, Bartolus, piracy, universal jurisdiction
Authors Louis Sicking
AbstractAuthor's information

    Piracy holds a special place within the field of international law because of the universal jurisdiction that applies. This article reconsiders the role of piracy in the development of universal jurisdiction. While usually a connection is established between Cicero’s ‘enemy of all’ and modern conceptions of pirates, it is argued that ‘enemy of the human species’ or ‘enemy of humanity’ is a medieval creation, used by Bartolus, which must be understood in the wake of the Renaissance of the twelfth century and the increased interest for the study of Roman Law. The criminalization of the pirate in the late Middle Ages must be understood not only as a consequence of royal power claiming a monopoly of violence at sea. Both the Italian city-states and the Hanse may have preceded royal power in criminalizing pirates. All the while, political motives in doing so were never absent.


Louis Sicking
Louis Sicking is Aemilius Papinianus Professor of History of Public International Law at Vrije Universiteit Amsterdam and lecturer in medieval and early modern history at Universiteit Leiden.
Article

Access_open The Enemy of All Humanity

Journal Netherlands Journal of Legal Philosophy, Issue 2 2018
Keywords hostis generis humani, piracy, crimes against humanity, universal jurisdiction, radical evil
Authors David Luban
AbstractAuthor's information

    Trationally, the term “enemy of all humanity” (hostis generis humani) referred to pirates. In contemporary international criminal law, it refers to perpetrators of crimes against humanity and other core. This essay traces the evolution of the concept, and then offers an analysis that ties it more closely to ancient tyrants than to pirates. Some object that the label is dehumanizing, and justifies arbitrary killing of the “enemy of humanity.” The essay admits the danger, but defends the concept if it is restricted to fair trials. Rather than dehumanizing its target, calling the hostis generis humani to account in a court of law is a way of recognizing that radical evil can be committed by humans no different from any of us.


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

Carel Smith
Carel Smith is philosopher of law and associate professor at Leiden Law School.
Article

Access_open Personhood and legal status: reflections on the democratic rights of corporations

Journal Netherlands Journal of Legal Philosophy, Issue 1 2018
Keywords Corporations, democracy, legal personality, personhood, inclusion
Authors Ludvig Beckman
AbstractAuthor's information

    Corporations can have rights but whether they should also have democratic rights depends among other things on whether they are the kind of entities to which the democratic ideal applies. This paper distinguishes four different conceptions of “the person” that can have democratic rights. According to one view, the only necessary condition is legal personality, whereas according to the other three views, democratic inclusion is conditioned also by personhood in the natural sense of the term. Though it is uncontroversial that corporations can be legal persons, it is plausible to ascribe personhood in the natural sense to corporations only if personhood is conceptualized exclusively in terms of moral agency. The conclusion of the paper is that corporations can meet the necessary conditions for democratic inclusion but that it is not yet clear in democratic theory exactly what these conditions are.


Ludvig Beckman
Ludvig Beckman is professor of political science at Stockholm University.
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 The Justification of Basic Rights

A Discourse-Theoretical Approach

Journal Netherlands Journal of Legal Philosophy, Issue 3 2016
Keywords Basic rights, Right to justification, Discourse theory, Non-domination, Kant
Authors Rainer Forst
AbstractAuthor's information

    In this paper, I suggest a discourse theory of basic legal rights that is superior to rival approaches, such as a will-based or an interest-based theory of rights. Basic rights are reciprocally and generally justifiable and binding claims on others (agents or institutions) that they should do (or refrain from doing) certain things determined by the content of these rights. We call these rights basic because they define the status of persons as full members of a normative order in such a way that they provide protection from severe forms of legal, political and social domination. The very ground of these rights is the status of persons as free and equal normative authorities within the order they are subject to. In other words, these rights are grounded in a fundamental moral right to justification.


Rainer Forst
Rainer Forst is professor of Political Theory and Philosophy at the Goethe Universität, Frankfurt am Main.

Marjoleine Zieck
Dr. Marjoleine Zieck is Professor of International Refugee Law at the Amsterdam Law School of the University of Amsterdam, and Professor of Public International Law at the Pakistan College of Law, Lahore.
Article

Access_open Religious Sovereignty and Group Exemptions

A Response to Jean Cohen

Journal Netherlands Journal of Legal Philosophy, Issue 3 2015
Keywords democracy, exemptions, group rights, religious institutionalism
Authors Jonathan Seglow
AbstractAuthor's information

    This response concurs with Cohen’s critique of the Hobby Lobby and Hosanna-Tabor cases but investigates whether religious accommodation might sometimes be justified in the case of institutions and groups (not just individuals). It suggests that exemptions for associations that are recruited to advance state purposes (e.g., in welfare or education) may be more justifiable than where private associations seek to maintain illiberal – for example, discriminatory – rules in line with their religious ethos. Non-democratic associations with a strong religious ethos might in principle enjoy permissible accommodation on the grounds that its members acquiesced to that ethos by joining the association, but only if other conditions are met. Democratic associations with a religious ethos have in principle a stronger claim for accommodation; in practice, however, few religious associations are internally democratic, especially where they seek to preserve illiberal internal rules.


Jonathan Seglow
Jonathan Seglow is Reader in Political Theory in the Department of Politics and International Relations at Royal Holloway, University of London.
Article

Access_open Freedom of Religion, Inc.: Whose Sovereignty?

Journal Netherlands Journal of Legal Philosophy, Issue 3 2015
Keywords accommodation, freedom of religion, political theology, liberalism, liberty of conscience
Authors Jean L. Cohen
AbstractAuthor's information

    This article focuses on an expansive conception of religious freedom propagated by a vocal group of American legal scholars – jurisdictional pluralists – often working with well-funded conservative foundations and influencing accommodation decisions throughout the US. I show that the proliferation of ‘accommodation’ claims in the name of church autonomy and religious conscience entailing exemption from civil regulation and anti-discrimination laws required by justice have a deep structure that has little to do with fairness or inclusion or liberal pluralism. Instead they are tantamount to sovereignty claims, involving powers and immunities for the religious, implicitly referring to another, higher law and sovereign than the constitution or the people. The twenty-first century version of older pluralist ‘freedom of religion’ discourses also rejects the comprehensive jurisdiction and scope of public, civil law – this time challenging the ‘monistic sovereignty’ of the democratic constitutional state. I argue that the jurisdictional pluralist approach to religious freedom challenges liberal democratic constitutionalism at its core and should be resisted wherever it arises.


Jean L. Cohen
Jean L. Cohen is the Nell and Herbert M. Singer Professor of Political Thought and Contemporary Civilization at the Department of Political Science of Columbia University (New York) and will be the Emile Noel Fellow at the Jean Monet Center of the NYU Law School from January till June 2016.
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.
Article

Access_open The Casuistry of International Criminal Law: Exploring A New Field of Research

Journal Netherlands Journal of Legal Philosophy, Issue 2 2015
Keywords international criminal law, judicial reasoning, casuistry, genocide
Authors Marjolein Cupido
AbstractAuthor's information

    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.


Marjolein Cupido
Marjolein Cupido is Assistant Professor at the Department of Criminal Law at VU University Amsterdam and fellow of the Center for International Criminal Justice.
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