Search result: 23 articles

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Year 2012 x
Discussion

Access_open Who is ‘we’?

Journal Netherlands Journal of Legal Philosophy, Issue 3 2012
Keywords democracy, we, world, self-government, democratic impulse
Authors Evert van der Zweerde
AbstractAuthor's information

    Which human material forms the real basis of a democratic polity, i.e. of the preconditions of a ‘we’ that inhabits a ‘world’? How is a political ‘we’ related to the ‘we’ that is created by systemic processes of subjectivization? These questions presents themselves with new relevance in a ‘globalized’ world, in which democratic spurts and waves spread from other parts of the world to the West, and in which the liberal-democratic rule of law state appears to be undermining its own moral preconditions. The real task ahead is to find out what ‘we’ denotes politically.


Evert van der Zweerde
Evert van der Zweerde is Professor of Political Philosophy at Radboud University, Nijmegen.

Carel Smith
Carel Smith is Associate Professor of Legal Philosophy at Leiden University.

Derk Venema
Derk Venema is Assistant Professor of Legal Philosophy at Radboud University, Nijmegen.
Discussion

Access_open ‘We Are Also Here.’ Whose Revolution Will Democracy Be?

Journal Netherlands Journal of Legal Philosophy, Issue 3 2012
Keywords democracy, public sphere, civil society, Arab Spring, feminism
Authors Judith Vega
AbstractAuthor's information

    Steven Winter’s argument is premised on a sharp contrast of individualist and social revolutions. I elaborate my doubts about his argument on three accounts, involving feminist perspectives at various points. First, I take issue with Winter’s portrayal of liberal theory, redirecting the focus of his concern to economic libertarianism rather than liberalism, and arguing a more hospitable attitude to the Kantian pith in the theory of democracy. Secondly, I discuss his conceptualization of democracy, adding the conceptual distinction of civil society and public sphere. Thirdly, I question his normative notion of socially situated selves as having an intrinsic relation to social freedom. I moreover consult cultural history on the gendered symbolics of market and democracy to further problematize Winter’s take on either’s meaning for social freedom.


Judith Vega
Judith Vega is Lecturer in Social and Political Philosophy at the University of Groningen, the Netherlands.
Discussion

Access_open ‘Nothing Spells Freedom Like a Hooters Meal’

Journal Netherlands Journal of Legal Philosophy, Issue 3 2012
Keywords Enlightenment universalism, self-governance, freedom, moral point of view, political participation
Authors Ronald Tinnevelt
AbstractAuthor's information

    Winter’s criticism of the conventional account of freedom and democracy is best understood against the background of the history of Enlightenment critique. Winter claims that our current misunderstanding of freedom and self-governance is the result of the strict dichotomy between subject and object. This paper critically reconstructs Winter’s notion of freedom and self-governance which does not adequately address (a) the details of his anti-collectivist claim, and (b) the necessary conditions for the possibility of a moral point of view. This makes it difficult to determine how Winter can distinguish between freedom and lack of freedom, and to assess the limited or radical nature of his critique of Enlightenment universalism.


Ronald Tinnevelt
Ronald Tinnevelt is Associate Professor Philosophy of Law at Radboud University, Nijmegen.
Article

Access_open ‘Down Freedom’s Main Line’

Journal Netherlands Journal of Legal Philosophy, Issue 3 2012
Keywords democracy, radical freedom, free market economy, consumerism, collective action
Authors Steven L. Winter
AbstractAuthor's information

    Two waves of democratization define the post-Cold War era of globalization. The first one saw democracies emerge in post-communist countries and post-Apartheid South Africa. The current wave began with the uprisings in the Middle East. The first focused on the formal institutions of the market and the liberal state, the second is participatory and rooted in collective action. The individualistic conception of freedom and democracy that underlies the first wave is false and fetishistic. The second wave shows democracy’s moral appeal is the commitment to equal participation in determining the terms and conditions of social life. Freedom, thus, requires collective action under conditions of equality, mutual recognition, and respect.


Steven L. Winter
Steven L. Winter is Walter S. Gibbs Professor of Constitutional Law at Wayne State University Law School, Detroit, Michigan.
Discussion

Access_open Political Freedom after Economic Freefall and Democratic Revolt

Journal Netherlands Journal of Legal Philosophy, Issue 3 2012
Keywords globalisation, civic tradition, Enlightenment, free-market economy, autonomy
Authors Tinneke Beeckman
AbstractAuthor's information

    Can globalisation lead to more democracy? And if so, what concept of freedom lies at the basis of this development? The ideal of liberal freedom, supposedly exercised by the autonomous, rational individual is no longer tenable. Finding a new way of interpreting self-rule beyond self-interested choice has become a crucial aspect of regenerating democratic spirit. This paper formulates three comments on Winter’s paper. The first comment concerns the resemblance between the attitudes of consumers and voters. A second comment reflects on the positive heritage of the Enlightenment. A third comment focuses on the recent Tahrir Square protests and reflects on the republican civic tradition.


Tinneke Beeckman
Tinneke Beeckman is postdoctoral researcher at the Fund for Scientific Research, Flanders, University of Brussels.

    In this reply, Steven L. Winter adresses his critics.


Steven L. Winter
Article

Access_open De liberale canon: argumenten voor vrijheid

Journal Netherlands Journal of Legal Philosophy, Issue 2 2012
Keywords enforcement of morals, liberalism, liberty, political liberalism, Rawls
Authors Alex Bood
AbstractAuthor's information

    This article examines how a liberal public morality can be most successfully defended against perfectionism. First of all the five most important liberal arguments for freedom are taken from what is called the liberal canon: a number of characteristic works of John Locke, Immanuel Kant, John Stuart Mill, Isaiah Berlin, Joseph Raz, Ronald Dworkin, and John Rawls. These five arguments are identified as: social and political realism, respect for autonomy, fallibility of ideas, pluralism, and respect for reasonableness. Next, the persuasiveness of these arguments is assessed, starting with the argument of respect for reasonableness, which is at the heart of Rawls’s political liberalism. It is concluded that in itself this argument is not strong enough to persuade perfectionists. A powerful defence of a liberal public morality needs the other arguments for freedom as well. Finally, the paper outlines how these other arguments can strengthen the argument of respect for reasonableness in a coherent manner.


Alex Bood
Alex Bood is Research Manager at the Dutch Public Prosecution’s Office for Criminal Law Studies (WBOM).

Irina Baraliuc
Irina Baraliuc is a PhD researcher at the Research Group Law, Science, Technology & Society (LSTS) at the Vrije Universiteit Brussel.

Sari Depreeuw
Sari Depreeuw is a postdoctoral researcher at the Research Group Law, Science, Technology & Society (LSTS) at the Vrije Universiteit Brussel and an attorney-at-law at the Brussels bar.

Serge Gutwirth
Serge Gutwirth is Professor at the Faculty of Law and Criminology of the Vrije Universiteit Brussel and director of the Research Group Law, Science, Technology & Society (LSTS).

Thom Holterman
Thom Holterman has taught Constitutional Law at the Faculty of Law of the Erasmus University Rotterdam and is now an independent political scholar.

Jaap Hage
Jaap Hage holds the chair for Jurisprudence at the University of Maastricht.
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.

Geert Knigge
Geert Knigge is Advocate General in the Supreme Court of The Netherlands and professor in Criminal Law at the University of Groningen.

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

Femke Storm
Femke Storm studied Law and Psychology at VU University Amsterdam.
Article

Access_open Globalization as a Factor in General Jurisprudence

Journal Netherlands Journal of Legal Philosophy, Issue 2 2012
Keywords general jurisprudence, globalization, global legal pluralism, legal positivism, analytical jurisprudence
Authors Sidney Richards
AbstractAuthor's information

    Globalization is commonly cited as an important factor in theorising legal phenomena in the contemporary world. Although many legal disciplines have sought to adapt their theories to globalization, progress has been comparatively modest within contemporary analytical jurisprudence. This paper aims to offer a survey of recent scholarship on legal theory and globalization and suggests various ways in which these writings are relevant to the project of jurisprudence. This paper argues, more specifically, that the dominant interpretation of globalization frames it as a particular form of legal pluralism. The resulting concept – global legal pluralism – comes in two broad varieties, depending on whether it emphasizes normative or institutional pluralism. This paper goes on to argue that these concepts coincide with two central themes of jurisprudence, namely its concern with normativity and institutionality. Finally, this paper reflects on the feasibility of constructing a ‘general’ and ‘descriptive’ jurisprudence in light of globalization.


Sidney Richards
Sidney Richards is Doctoral candidate in Law at Pembroke College at the University of Cambridge.
Miscellaneous

Access_open Strafrecht en liberalisme

Ontwikkelingen rond strafrecht waarover liberalen zich zorgen zouden moeten maken

Journal Netherlands Journal of Legal Philosophy, Issue 1 2012
Authors Anne Ruth Mackor
Author's information

Anne Ruth Mackor
Anne Ruth Mackor is Professor of Professional Ethics, in particular of legal professions, at the Faculty of Law and Socrates Professor of Professional Ethics at the Faculties of Theology and Philosophy at the University of Groningen.

Mireille Hildebrandt
Article

Access_open De Drittwirkung van grondrechten

Retorisch curiosum of vaandel van een paradigmatische omwenteling in ons rechtsbestel?

Journal Netherlands Journal of Legal Philosophy, Issue 1 2012
Keywords Drittwirkung, horizontal effect of human rights, constitutionalisation of private law
Authors Stefan Somers
AbstractAuthor's information

    This article discusses whether the horizontal effect of human rights marks a new paradigm in legal systems or is merely a new style in legal rhetoric. In doing so, much attention is paid to the differences between direct and indirect horizontal effect. Departing from social contract theory the article explains that the protection of human right values in horizontal relations is an essential feature of modern constitutionalism. It also analyses whether these values in horizontal relations should be protected by private law or by human rights. This question is looked at from a substantial, a methodological and an institutional perspective. In the end, because of institutional power balancing, the article argues in favor of an indirect horizontal effect of human rights.


Stefan Somers
Stefan Somers is a researcher at the Department of Interdisciplinary Studies at the VUB (Free University of Brussels) and prepares a PhD on the relationship between human rights and tort law.

Irawan Sewandono
Irawan Sewandono is a lecturer at the Open University (Dutch constitutional and administrative law) and has been a law clerck at the Central Appeals Board (social benefits) and civil servant in the Justice Ministery (legislative department).
Article

Access_open Arbeidsplicht, rechtvaardigheid en de grondslagen van het socialezekerheidsrecht

Journal Netherlands Journal of Legal Philosophy, Issue 1 2012
Keywords John Rawls, Stuart White, compulsory labor, reciprocity, social law
Authors Anja Eleveld
AbstractAuthor's information

    The author argues that normative questions in social law are in need of a more philosophical approach. This is particularly true for the evaluation of Work-first arrangements. She proposes to evaluate workfare policies from the perspective of the reciprocity principle as it is deployed in the work of the liberal egalitarians John Rawls and Stuart White. While Rawls’ interpretation of the reciprocity principle seems to be at odds with Dutch jurisprudence on workfare policies, which allows for Work-first arrangements within the boundaries that are set by article 4 of the European Convention on Human Rights (a prohibition on compulsory labor), White’s approach rather encourages work obligations for welfare recipients, on the condition that citizens acquire individual drawing rights on collective participation funds.


Anja Eleveld
Anja Eleveld is a PhD student at the Social Law Department of Leiden University, where she participates in the research program ‘Reform of social security’.
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