Search result: 7 articles

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Year 2016 x
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 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.
Article

Access_open What Does it Mean to Justify Basic Rights?

Reply to Düwell, Newey, Rummens and Valentini

Journal Netherlands Journal of Legal Philosophy, Issue 3 2016
Authors Rainer Forst
AbstractAuthor's information

    In this paper, I reply to the four comments on my paper ‘The Justification of Basic Rights: A Discourse-Theoretical Approach’ given by Laura Valentini, Marcus Düwell, Stefan Rummens and Glen Newey.


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

Access_open Frankfurt Goes Kantian – But How Does It Work?

Journal Netherlands Journal of Legal Philosophy, Issue 3 2016
Keywords Human dignity, Transcendental arguments, Discourse ethics, Kantian ethics, Human rights
Authors Marcus Düwell
AbstractAuthor's information

    The paper discusses Forst’s discourse- theoretical adaption of the Kantian heritage. If Forst sees a Kantian concept of human dignity as the basis of his approach, he cannot rely on Habermas’ (quasi-)transcendental argument. It is furthermore questionable why Forst proposes that the content of human rights can only be determined in a procedural way. An alternative would be to determine the content from the normative starting point of human dignity.


Marcus Düwell
Marcus Düwell is professor of Philosophical Ethics and director of the Ethics Institute, Utrecht University.
Article

Access_open Two Sides of the Same Coin

Unpacking Rainer Forst’s Basic Right to Justification

Journal Netherlands Journal of Legal Philosophy, Issue 3 2016
Authors Stefan Rummens
AbstractAuthor's information

    This paper makes two comments on Rainer Forst’s keynote contribution. It argues, first, that three important distinctions introduced by Forst are, in fact, all different versions of the more primary distinction between the a priori reconstruction of basic rights by philosophers and the discursive construction of basic rights by citizens. It proposes, secondly, an alternative discourse-theoretical reconstruction which makes a distinction between the basic right to justification and the basic right to choose your own ends as two different but inseparable rights – two sides of the same coin – which jointly provide the moral ground for our basic rights as citizens.


Stefan Rummens
Stefan Rummens is professor of Moral Philosophy at the Institute of Philosophy of KU Leuven.

Leila Faghfouri Azar
Leila Faghfouri Azar (LL.M., M.A.) is a post-graduate candidate in Socio-Legal Studies at the University of Oxford, Faculty of Law.

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.
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