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Article

Access_open Mobile Individualism: The Subjectivity of EU Citizenship

Journal Netherlands Journal of Legal Philosophy, Issue 1 2019
Keywords Individualism, EU Citizenship, Depoliticisation, Mobile Individualism, Citizenship and Form of Life
Authors Aristel Skrbic
AbstractAuthor's information

    The central aim of this article is to analyse the manner in which the legal structure of EU citizenship subjectifies Union citizens. I begin by explicating Alexander Somek’s account of individualism as a concept which captures EU citizenship and propose to update his analysis by coining the notion of mobile individualism. By looking at a range of CJEU’s case law on EU citizenship through the lens of the purely internal rule and the transnational character of EU citizenship, I suggest that movement sits at the core of EU citizenship. In order to adequately capture this unique structure of citizenship, we need a concept of individualism which takes movement rather than depoliticisation as its central object of analysis. I propose that the notion of mobile individualism can best capture the subjectivity of a model EU citizen, a citizen who is a-political due to being mobile.


Aristel Skrbic
Aristel Skrbic is a PhD candidate and teaching and research assistant at the Institute of Philosophy at the KU Leuven.
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.
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.
Article

Access_open The substance of citizenship: is it rights all the way down?

Journal Netherlands Journal of Legal Philosophy, Issue 1 2018
Keywords Citizenship, Political Membership, Citizenship Rights
Authors Chiara Raucea
AbstractAuthor's information

    This paper examines how the distribution of social goods within a political community relates to decisions on membership boundaries. The author challenges two renowned accounts of such a relation: firstly, Walzer’s account according to which decisions on membership boundaries necessarily precede decisions on distribution; secondly, Benhabib’s account, according to which membership boundaries can be called into question on the basis of universalist claims. Departing from both accounts, the author concludes that actual changes in the pool of participants in practices of creation and exchange of social goods pressure a political community to redefine its distributive patterns and, accordingly, the boundaries of its formal political membership. This claim will be supported by the analysis of threshold cases decided by the EU Court of Justice, in which EU citizenship is invoked with the atypical purpose of granting rights to a specific group of non-formal members.


Chiara Raucea
Chiara Raucea is lecturer at Tilburg Law School. A longer version of her article is included in her doctoral dissertation Citizenship Inverted: From Rights To Status?, defended in December 2017 at Tilburg University.
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 A new interpretation of the modern two-pronged tests for insanity

Why legal insanity should not be a ‘status defense’

Journal Netherlands Journal of Legal Philosophy, Issue 1 2018
Keywords substantive criminal law, excuses, insanity defense, status defense
Authors Johannes Bijlsma
AbstractAuthor's information

    Michael Moore has argued that modern two-pronged tests for legal insanity are wrongheaded and that the insanity defense instead should be a ‘status defense’. If Moore is right, than the laws on insanity in most legal systems are wrong. This merits a critical examination of Moore’s critique and his alternative approach. In this paper I argue that Moore’s status approach to insanity is either under- or overinclusive. A new interpretation of the modern tests for insanity is elaborated that hinges on the existence of a legally relevant difference between the mentally disordered defendant and the ‘normal’ defendant. This interpretation avoids Moore’s criticism as well as the pitfalls of the status approach.


Johannes Bijlsma
Johannes Bijlsma is assistant professor of criminal law 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.

    This paper interprets the presumption of innocence as a conceptual antidote for sacrificial tendencies in criminal law. Using Girard’s philosophy of scapegoat mechanisms and sacrifice as hermeneutical framework, the consanguinity of legal and sacrificial order is explored. We argue that some legal concepts found in the ius commune’s criminal system (12th-18th century), like torture, infamy, or punishment for mere suspicion, are affiliated with scapegoat dynamics and operate, to some extent, in the spirit of sacrifice. By indicating how these concepts entail more or less flagrant breaches of our contemporary conception of due process molded by the presumption of innocence, an antithesis emerges between the presumption of innocence and sacrificial inclinations in criminal law. Furthermore, when facing fundamental threats like heresy, the ius commune’s due process could be suspended. What emerges in this state of exception allowing for swift and relentless repression, is elucidated as legal order’s sacrificial infrastructure.


Rafael Van Damme
Rafael Van Damme is PhD-student in philosophy.
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 Disaggregating Corporate Freedom of Religion

Journal Netherlands Journal of Legal Philosophy, Issue 3 2015
Keywords church autonomy, freedom of association, Jean Cohen, freedom of religion
Authors Sune Lægaard
AbstractAuthor's information

    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.


Sune Lægaard
Sune Lægaard is Associate Professor in Practical Philosophy at Roskilde University, Denmark.
Discussion

Access_open Drones, Targeted Killings and the Politics of Law

Journal Netherlands Journal of Legal Philosophy, Issue 2 2015
Keywords drone warfare, politics of international law, humanitarian law, targeted killing
Authors Wouter G. Werner
AbstractAuthor's information

    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.


Wouter G. Werner
Wouter G. Werner is co-founder of the Centre for the Politics of Transnational Law, VU University Amsterdam.

    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.


Jasper Doomen
Jasper Doomen is verbonden als docent/onderzoeker aan de afdeling Encyclopedie van de Rechtswetenschap van de Faculteit Rechtsgeleerdheid, Universiteit Leiden.

Mirjam van Schaik
Mirjam van Schaik is verbonden als docent/onderzoeker aan de afdeling Encyclopedie van de Rechtswetenschap van de Faculteit Rechtsgeleerdheid, Universiteit Leiden.

    Introduction to this special issue of NJLP.


Morag Goodwin
Morag Goodwin is Associate Professor of International Law at Tilburg University; m.e.a.goodwin@uvt.nl.

Michiel Besters
Michiel Besters is a Ph.D. researcher in Legal Philosophy at Tilburg University; m.besters@uvt.nl.

Rudolf Rijgersberg
Rudolf Rijgersberg is Assistant Professor of Foundation and Methods of Law at Maastricht University; rudolf.rijgersberg@maastrichtuniversity.nl.
Article

Access_open Idealized versus Real-Life Reciprocity: How to Strike the Balance?

Journal Netherlands Journal of Legal Philosophy, Issue 2 2014
Keywords norm of reciprocity, moral obligation, gift exchange, hospitality, intergenerational relations
Authors Mrs. Aafke Elisabeth Komter PhD
AbstractAuthor's information

    Rawls’s ’idealized’ notion of reciprocity is compared with the ’real-life’ concept of reciprocity as it has been developed in social scientific theory. The two perspectives appear to differ significantly as concerns dimensions related to equality, human motivation, the temporal aspects of reciprocity, and the supposed mental origin of reciprocity. Whereas norms of obligation and feelings of moral indebtedness are constitutive for reciprocity in real-life encounters, equality, freedom and rationality are the basis for reciprocity in the hypothetical world of the ’conjectural account’. Rather than being fundamentally incompatible, the idealized and the real-life perspectives on reciprocity seem to apply to different spheres of social life, the first requiring greater formality and universality than the second, which allows for more variation and particularities.


Mrs. Aafke Elisabeth Komter PhD
Aafke Komter is Emeritus Professor of Social Sciences and a Visiting Researcher at the Department of Sociology of the Erasmus University of Rotterdam. She has published many articles on (family) solidarity, reciprocity and the social and cultural meaning of the exchange of gifts.
Article

Access_open Racial Profiling and the Presumption of Innocence

Journal Netherlands Journal of Legal Philosophy, Issue 1 2014
Keywords racial profiling, stop-and-frisk, presumption of innocence, communicative theories of criminal law, social inequality and criminal law
Authors Peter DeAngelis
AbstractAuthor's information

    I argue that a compelling way to articulate what is wrong with racial profiling in policing is to view racial profiling as a violation of the presumption of innocence. I discuss the communicative nature of the presumption of innocence as an expression of social trust and a protection against the social condemnation of being undeservingly investigated, prosecuted, and convicted for committing a crime. I argue that, given its communicative dimension, failures to extend the presumption of innocence are an expression of disrespect. I take the New York Police Department’s stop-and-frisk policy as an example of racial profiling and argue that its use of race-based forms of suspicion as reasons for making stops is a violation of the presumption of innocence. I maintain that this systemic failure to extend the presumption of innocence to profiled groups reveals the essentially disrespectful nature of the NYPD policy.


Peter DeAngelis
Peter DeAngelis is Ph.D. Candidate in Philosophy at Villanova University.
Article

Access_open The Collapse of the Rule of Law

The Messina Earthquake and the State of Exception

Journal Netherlands Journal of Legal Philosophy, Issue 2 2012
Keywords Messina, earthquake, state of exception, rule of law, progress
Authors Massimo La Torre
AbstractAuthor's information

    Messina, a Sicilian town, was devasteted by an earthquake in1908. It was an hecatomb. Stricken through this unfathomable disgrace Messina’s institutions and civil society collapsed and a sort of wild natural state replaced the rule of law. In this situation there was a first intervention of the Russian Czarist navy who came to help but immediately enforced cruel emergency measures. The Italian army followed and there was a formal declaration of an ‘emergency situation.’ Around this event and the several exceptional measures taken by the government a debate took place about the legality of those exceptional measures. The article tries to reconstruct the historical context and the content of that debate and in a broader perspective thematizes how law (and morality) could be brought to meet the breaking of normality and ordinary life by an unexpected and catastrophic event.


Massimo La Torre
Massimo La Torre is Professor of Legal Philosophy at the University of Catanzaro in Italy and visiting Professor of Law at the University of Hull in England.
Article

Access_open Hoe neutraal is kerkfinanciering?

Kritische analyse van het Belgische erkennings- en ondersteuningsbeleid

Journal Netherlands Journal of Legal Philosophy, Issue 1 2012
Keywords liberalism, neutrality, church-state policy, (anti)perfectionism, Belgium
Authors Leni Franken and Patrick Loobuyck
AbstractAuthor's information

    In this article, the authors explore how active state support for religions and worldviews could be in accordance with the principle of liberal neutrality. They focus on the Belgian church-state policy because this policy is characterised by an explicit and extended form of active support for recognised worldviews. If this policy is in accordance with liberal neutrality, some other, weaker forms of state support for religions and worldviews may also be in accordance with this neutrality principle. In the light of these considerations, the authors make some suggestions about possible ways to bring the Belgian church-state policy more in accordance with liberal neutrality.


Leni Franken
Leni Franken is a researcher at the Centre Pieter Gillis of the University of Antwerp, where she prepares a PhD on church, state and neutrality.

Patrick Loobuyck
Patrick Loobuyck is Associate Professor at the Centre Pieter Gillis of the University of Antwerp and guest professor at the Department of Philosophy and Moral Science at Ghent University.
Miscellaneous

Access_open De onschuld voorbij

Jeff McMahans Killing in War

Journal Netherlands Journal of Legal Philosophy, Issue 1 2011
Keywords just war, non-combatant immunity, self-defense
Authors Koos ten Bras and Thomas Mertens
AbstractAuthor's information

    Jeff McMahan, one of the leading contemporary writers on ‘just war thinking’, argues in the book under review, Killing in War, that one of the central tenets of the ‘ius in bello’, namely the moral equality of combatants, is both conceptually and morally untenable. This results from a reflection upon and a departure from two basic assumptions in Walzer’s work, namely the idea that war itself isn’t a relation between persons, but between political entities and their human instruments and the idea that the ‘ius ad bellum’ and ‘ius in bello’ are and should be kept distinct. This book merits serious reflection. However, the disadvantages of McMahan’s position are obvious. If the rights of combatants during war depend on the justice of their cause, the immunity of the civilians on the side of the supposed ‘unjust’ enemy is seriously endangered.


Koos ten Bras
Koos ten Bras is a recent university graduate from the Radboud University Nijmegen with a master degree in International & European Law, and a student in Philosophy of Law at the Radboud University Nijmegen.

Thomas Mertens
Thomas Mertens is Professor of Legal Philosophy at the Faculty of Law at Radboud University Nijmegen, and Professor of Human Rights and Human Responsibilities at the Institute of Philosophy at Leiden University.
Article

Access_open Constitutionele toetsing in een democratie zonder volk

Een kelseniaanse rechtvaardiging voor het Europees Hof van Justitie

Journal Netherlands Journal of Legal Philosophy, Issue 2 2010
Keywords Kelsen, Democracy, Legitimacy, European Union, European Court of Justice
Authors Quoc Loc Hong
AbstractAuthor's information

    This article draws on Hans Kelsen’s theory of democracy to argue that, contrary to conventional wisdom, there is nothing fundamentally wrong with the democratic legitimacy of either the European Union (EU) or the European Court of Justice (ECJ). The legitimacy problems from which the EU in general and the ECJ in particular are alleged to suffer seem to result mainly from our rigid adherence to the outdated conception of democracy as popular self-legislation. Because we tend to approach the Union’s political and judicial practice from the perspective of this democracy conception, we are not able to observe what is blindingly obvious, that is, the viability and persistence of both this mega-leviathan and the highest court thereof. It is, therefore, imperative that we modernize and adjust our conception of democracy in order to comprehend the new reality to which these bodies have given rise, rather than to call for ‘reforms’ in a futile attempt to bring this reality into accordance with our ancient preconceptions about what democratic governance ought to be. Kelsen is the democratic theorist whose work has enabled us to venture into that direction.


Quoc Loc Hong
Quoc Loc Hong was a FWO Postdoctoral Fellow from 2007 to 2009 at the University of Antwerp. He is currently an independent researcher.
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