Search result: 25 articles

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Year 2010 x
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 Co-originality of Law and Democracy in the Moral Horizon of Modernity

Journal Netherlands Journal of Legal Philosophy, Issue 3 2010
Keywords co-originality, deliberative democracy, Habermas, Lefort, modernity
Authors Stefan Rummens
AbstractAuthor's information

    This paper argues that Neil Walker’s analysis of the complementary relationship between democracy and constitutionalism remains one-sided. It focuses only on the incompleteness of democracy and the democracy-realizing function of constitutionalism rather than also taking into account the reverse complementary and constitution-realizing function of democracy. In this paper, I defend a fuller account that takes into account this mutual complementarity between democracy and constitutionalism. Such an alternative approach is consequential for Walker’s argument in two respects. In terms of the general analysis of the relationship between democracy and constitutionalism, my adjusted approach leads to a defence of the Habermasian thesis of the co-originality of constitutionalism and democracy which is too quickly dismissed by Walker himself. A fuller appreciation of this co-originality suggests that the relationship between constitutionalism and democracy is perhaps, after all, more singularly complementary (as opposed to being both complementary and oppositional) than Walker recognizes. In terms of the more specific analysis of the impact of globalization, this adjusted approach tilts the argument in favour of the critics of current practices of postnational constitutionalism. Without complementary postnational democratic structures, this constitutionalism remains problematic and potentially oppressive.


Stefan Rummens
Stefan Rummens is Assistant Professor of Political Theory at the Institute for Management Research of the Radboud University Nijmegen, the Netherlands.
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.
Discussion

Access_open Democracy, Constitutionalism and the Question of Authority

Journal Netherlands Journal of Legal Philosophy, Issue 3 2010
Keywords international constitutionalism, democracy, international law, fragmentation, international politics
Authors Wouter G. Werner
AbstractAuthor's information

    This paper agrees with Walker on the existence of a tension between democracy and constitutionalism, but questions whether democracy and (international) constitutionalism necessarily depend on each other. While democracy needs constitutionalism on normative grounds, as an empirical matter it may also rest on alternative political structures. Moreover, it is questionable whether democracy is indeed the solution to the incompleteness of international constitutionalism. Traditional forms of democracy do not lend themselves well to transplantation to the international level and could even intensify some problems of international governance. Attempts to democratize international relations should be carried out prudentially, with due regard for possible counterproductive effects.


Wouter G. Werner
Wouter Werner is Professor of Public International Law at VU University, Amsterdam, the Netherlands.
Editorial

Access_open Presentation

Editors of this special issue

Journal Netherlands Journal of Legal Philosophy, Issue 3 2010
Authors Mireille Hildebrandt, Bart van Klink and Eric Tjong Tjin Tai
Author's information

Mireille Hildebrandt
Mireille Hildebrandt is Associate Professor of Jurisprudence at Erasmus University Rotterdam and senior researcher at the centre for Law Science Technology and Society Studies (LSTS), Vrije Universiteit Brussel.

Bart van Klink
Bart van Klink is Professor of Legal Methodology at VU University Amsterdam, the Netherlands.

Eric Tjong Tjin Tai
Eric Tjong Tjin Tai is Professor of Private Law at Tilburg University.
Article

Access_open Is de vrijheid van godsdienst in de moderne multiculturele samenleving nog een hanteerbaar recht?

Journal Netherlands Journal of Legal Philosophy, Issue 2 2010
Keywords freedom of religion, human rights, human dignity, traditional religion, unequal treatment
Authors Koo van der Wal
AbstractAuthor's information

    There are two fundamental problems with regard to the freedom of religion. The first concerns the content and scope of the right; the second, a possible unequal treatment between population groups. The first problem can only be dealt with by a preliminary analysis of the religious phenomenon, which precedes a legal definition. It turns out that there is a range of different types of religion, with on the one hand traditional forms of religion which are narrowly interwoven with the culture in question (all kinds of ‘cultural’ practices possessing a religious dimension), and on the other forms of religion which loosen to a considerable extent the ties between culture and religion. Evidently, the former types of religion cause problems in modern society. An additional problem is that freedom of religion as a modern basic right rests on a view of human being – including the idea of the inherent dignity and autonomy of the human person – which is at odds with the symbolic universe of traditional religion. The conclusion of the article is that in the modern pluralist society freedom of religion is on its way to becoming, or already has become, an unmanageable right. So the problems arising around this right (including that of unequal treatment) can only be solved in a pragmatic, not really satisfactory way. In that context, modern humanitarian standards should be observed in the implementation of the right of freedom of religion because fundamental human rights are connected with a specific concept of humanity.


Koo van der Wal
Koo van der Wal is emeritus professor of Philosophy at the University of Amsterdam and the Erasmus University Rotterdam.
Book Review

Access_open Marc de Wilde, Verwantschap in extremen

Politieke theologie bij Walter Benjamin en Carl Schmitt

Journal Netherlands Journal of Legal Philosophy, Issue 2 2010
Authors Jerker Spits
AbstractAuthor's information

    Jerker Spits, book review of Marc de Wilde, Verwantschap in extremen. Politieke theologie bij Walter Benjamin en Carl Schmitt


Jerker Spits
Jerker Spits, PhD at Leiden University, publications on German literature (Ernst Jünger, Thomas Bernhard, Martin Walser) and philosophy in Oxford German Studies, Monatshefte and Academische Boekengids.

    Bertjan Wolthuis’ book review of Luuk van Middelaar, De passage naar Europa. Geschiedenis van een begin


Bertjan Wolthuis
Bertjan Wolthuis is assistant professor at the Department of Legal Theory, VU University Amsterdam
Book Review

Access_open B.C. van Beers, Persoon en lichaam in het recht

Menselijke waardigheid en zelfbeschikking in het tijdperk van de medische biotechnologie

Journal Netherlands Journal of Legal Philosophy, Issue 2 2010
Authors Martin Buijsen
AbstractAuthor's information

    Martin Buijsen’s book review of B.C. van Beers, Persoon en lichaam in het recht. Menselijke waardigheid en zelfbeschikking in het tijdperk van de medische biotechnologie


Martin Buijsen
Martin Buijsen is professor of Health Law at Erasmus University Rotterdam, The Netherlands.
Book Review

Access_open Wilbert Mennings, Wouter Veraart en Pieter Edelman (red.), Voorlopig ben ik humanist

Teksten en voordrachten van Jan van Zijverden (1928-2003)

Journal Netherlands Journal of Legal Philosophy, Issue 2 2010
Authors Jaap Zwart and Femke Storm
AbstractAuthor's information

    Jaap Zwart and Femke Storm, book review of Wilbert Mennings, Wouter Veraart en Pieter Edelman (red.), Voorlopig ben ik humanist. Teksten en voordrachten van Jan van Zijverden (1928-2003)


Jaap Zwart
Jaap Zwart is lecturer at the Department of Legal Theory, VU University Amsterdam.

Femke Storm
Femke Storm is a law student at the VU University Amsterdam.
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.
Article

Access_open De droom van Beccaria

Over het strafrecht en de nodale veiligheidszorg

Journal Netherlands Journal of Legal Philosophy, Issue 2 2010
Keywords Beccaria, criminal law, nodal governance, social contract
Authors Klaas Rozemond
AbstractAuthor's information

    Les Johnston and Clifford Shearing argue in their book, Governing Security, that the state has lost its monopoly on the governance of security. Private security arrangements have formed a networked governance of security in which the criminal law of the state is just one of the many knots or ‘nodes’ of the security network. Johnston and Shearing consider On Crimes and Punishment, written by Cesare Beccaria in the 18th century, as the most important statement of the classical security program which has withered away in the networked governance of the risk society. This article critizes the way Johnston and Shearing analyze Beccaria’s social contract theory and it formulates a Beccarian theory of the criminal law and nodal governance which explains the causes of crime and the rise of nodal governance and defends the central role of the state in anchoring security arrangements based on private contracts and property rights.


Klaas Rozemond
Klaas Rozemond is associate professor at the Department of Criminal Law, Faculty of Law, VU University Amsterdam.

    “Het waren mijn genen, edelachtbare, niet ik” kopte NRC Handelsblad van donderdag 5 november 2009.1xFolkert Jensma, “Het waren mijn genen, edelachtbare, niet ik”, NRC Handelsblad, 5 november 2009. Het artikel bericht over een Italiaanse rechtszaak waarin in hoger beroep de straf die aan een moordenaar werd opgelegd, werd verlaagd van twaalf naar negen jaar. De raadsheer nam deze beslissing, aldus de verslaggever, nadat twee neurowetenschappers van de universiteiten van Pisa en Padua op een hersenscan onregelmatigheden hadden aangetoond en bovendien afwijkingen waren gevonden in het MAOA-gen, dat ook wel bekendstaat als het ‘agressiegen’.

Noten

  • 1 Folkert Jensma, “Het waren mijn genen, edelachtbare, niet ik”, NRC Handelsblad, 5 november 2009.


Anne Ruth Mackor
Anne Ruth Mackor is professor of professional ethics, in particular of the legal professions, at the Faculty of Law of Groningen, and Socrates professor of professional ethics at the Faculties of Philosophy and Theology of Groningen.

    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.

    Peter van Schilfgaarde, book review of Amartya Sen, The Idea of Justice


Peter van Schilfgaarde
Peter van Schilfgaarde is emeritus professor of corporate law at the law faculties of Utrecht University and the University of Groningen and currently publishes in the field of legal theory.

    Thom Holterman, book review of Jacques Langlois, Misère du droit.


Thom Holterman
Thom Holterman is Doctor of Laws and lives in Urciers, France.
Article

Access_open Paul Scholten en Herman Dooyeweerd: het gesprek dat nooit plaatsvond

Journal Netherlands Journal of Legal Philosophy, Issue 1 2010
Keywords Scholten, Dooyeweerd, legal principles, legal reasoning, religion
Authors Bas Hengstmengel
AbstractAuthor's information

    The legal scholars Paul Scholten (1875-1946) and Herman Dooyeweerd (1894-1977) had much in common. The most significant agreement is their emphasis on the influence of a (religious) worldview on legal scholarship and practice. Unfortunately, they never met to discuss the similarities and differences of their jurisprudential ideas. In this article I try to reconstruct this conversation which never took place. Scholten’s legal thought is specifically oriented to the practice and difficulties of judging. Dooyeweerd above all was a philosopher whose specific philosophy of the modal aspects of reality is the basis for his thinking about the law. Both scholars emphasized the importance of legal principles. They also identified several fundamental legal categories and concepts. However, their methodology is different. The way religion and morality influence their legal thought is also different. A discussion of the contemporary relevance of their work completes the paper.


Bas Hengstmengel
Bas Hengstmengel is a PhD-candidate at Erasmus School of Law, Rotterdam. He writes a dissertation on procedural justice.
Miscellaneous

Access_open Everything we do is tentative. An interview with Prof. Frederick Schauer

Journal Netherlands Journal of Legal Philosophy, Issue 1 2010
Keywords Schauer, rule priority, legal principles, legal positivism, generality
Authors Bo Zhao
AbstractAuthor's information

    Professor Schauer covers many topics in this interview. On a general note, the interview covers themes pertaining to his experience in engaging with legal philosophy as a trained lawyer; his views on the present and the future of legal philosophy and how we shall cope with its development; his new book Thinking like a Lawyer; the role of legal philosophers in law and society; and some sincere suggestions to young legal philosophers. It also covers more specific topics, including discussions about his insistence on rule priority; differences between legal principles and rules; his opinion of legal positivism; and the pros and cons of analytical tools like spectrum, continuum and generality.


Bo Zhao
Bo Zhao is a post-doc researcher at the History Department, Faculty of Arts, and the Legal Theory Department, Faculty of Law, University of Groningen.
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