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Editorial

Access_open Solidarity and COVID-19: An Introduction

Journal Netherlands Journal of Legal Philosophy, Issue 2 2021
Authors Wouter Veraart, Lukas van den Berge and Antony Duff
Author's information

Wouter Veraart
Wouter Veraart is Professor of Legal Philosophy at the Vrije Universiteit Amsterdam.

Lukas van den Berge
Lukas van den Berge is Assistant Professor of Legal Theory at Utrecht University.

Antony Duff
Antony Duff is Emeritus Professor of Philosophy at the University of Stirling and Emeritus Professor of Law at the University of Minnesota.
Article

Access_open Justice and Coercion in the Pandemic

Journal Netherlands Journal of Legal Philosophy, Issue 2 2021
Keywords Justice as impartiality, Justice as mutual advantage, Solidarity, Coercion, Moral motivation
Authors Matt Matravers
AbstractAuthor's information

    Coercion plays two essential roles in theories of justice. First, in assuring those who comply with the demands of justice that they are not being exploited by others who do not do so. Second, in responding to, and managing, those who are unreasonable. With respect to the first, responses to the pandemic have potentially undermined this assurance. This is true in the distributions of vaccines internationally, and in some domestic contexts in which the rich and powerful have avoided public health guidance not to travel, to isolate, and so on. With respect to the second, the article considers whether those who refuse to be vaccinated are unreasonable, and if so, what follows for how they ought to be treated.


Matt Matravers
Matt Matravers is Professor of Law, University of York, York, UK.
Article

Access_open Populism, the Kingdom of Shadows, and the Challenge to Liberal Democracy

Journal Netherlands Journal of Legal Philosophy, Issue 2 2021
Keywords Populism, Liberal democracy, Political representation, Société du spectacle, Theatrocracy
Authors Massimo La Torre
AbstractAuthor's information

    Populism is a somehow intractable notion, since its reference is much too wide, comprising phenomena that are indeed in conflict between them, and moreover blurred, by being often used in an instrumental, polemical way. Such intractability is then radicalized through the two alternative approaches to populism, one that is more or less neutral, rooting in the political science tradition, and a second one, fully normative, though fed by political realism, founding as it does on a specific political theory and project. In the article an alternative view is proposed, that of populism as the politics that is congruent with the increasing role played by ‘screens’, icons, and images in social relationships and indeed in political representation. In this way populism is approached as the specific way politics is done within the context of a digitalized société du spectacle.


Massimo La Torre
Massimo La Torre is Professor of Philosophy of Law, ‘Magna Graecia’ University of Catanzaro, Italy, and Visiting Professor of European Law, University of Tallinn, Estonia.
Article

Access_open Living with Others in Pandemics

The State’s Duty to Protect, Individual Responsibility and Solidarity

Journal Netherlands Journal of Legal Philosophy, Issue 2 2021
Keywords SARS-CoV-2 pandemic, The state’s duty to protect, Duty to rescue, Responsibility, Solidarity
Authors Konstantinos A Papageorgiou
AbstractAuthor's information

    The article discusses a range of important normative questions raised by anti-COVID-19 measures and policies. Do governments have the right to impose such severe restrictions on individual freedom and furthermore do citizens have obligations vis-à-vis the state, others and themselves to accept such restrictions? I will argue that a democratic state may legitimately enforce publicly discussed, properly enacted and constitutionally tested laws and policies in order to protect its citizens from risks to life and limb. Even so, there is a natural limit, factual and normative, to what the state or a government can do in this respect. Citizens will also need to take it upon themselves not to harm and to protect others and in the context of a pandemic this means that endorsement of restrictions or other mandatory measures, notably vaccination, is not to be seen as a matter of personal preference concerning the supposedly inviolable sovereignty of one’s own body.


Konstantinos A Papageorgiou
Konstantinos A Papageorgiou is Professor of the Philosophy of Law at the National and Kapodistrian University of Athens, School of Law.
Article

Access_open Suffering from Vulnerability

On the Relation Between Law, Contingency and Solidarity

Journal Netherlands Journal of Legal Philosophy, Issue 2 2021
Keywords Vulnerability, Contingency, Freedom and Anxiety, Solidarity, Legal concept of inclusion
Authors Benno Zabel
AbstractAuthor's information

    The COVID-19 crisis has produced or amplified disruptive processes in societies. This article wants to argue for the fact that we understand the meaning of the COVID-19 crisis only if we relate it to the fundamental vulnerability of modern life and the awareness of vulnerability of whole societies. Vulnerability in modernity are expressions of a reality of freedom that is to some extent considered contingent and therefore unsecured. It is true that law is understood today as the protective power of freedom. The thesis of the article, however, boils down to the fact that the COVID-19 crisis has resulted in a new way of thinking about the protection of freedom. This also means that the principle of solidarity must be assigned a new social role. Individual and societal vulnerability refer thereafter to an interconnectedness, dependency, and a future perspective of freedom margins that, in addition to the moral one, can also indicate a need for legal protection. In this respect, law has not only a function of delimitation, but also one of inclusion.


Benno Zabel
Benno Zabel is Professor of Criminal Law and Philosophy of Law at the University of Bonn.
Article

Access_open What does it mean to be ‘illiberal’?

Journal Netherlands Journal of Legal Philosophy, Issue 1 2021
Keywords Liberalism, Illiberalism, Illiberal practices, Extremism, Discrimination
Authors Bouke de Vries
AbstractAuthor's information

    ‘Illiberal’ is an adjective that is commonly used by scholars. For example, they might speak of ‘illiberal cultures’, ‘illiberal groups’, ‘illiberal states’, ‘illiberal democracies’, ‘illiberal beliefs’, and ‘illiberal practices’. Yet despite its widespread usage, no in-depth discussions exist of exactly what it means for someone or something to be illiberal, or might mean. This article fills this lacuna by providing a conceptual analysis of the term ‘illiberal practices’, which I argue is basic in that other bearers of the property of being illiberal can be understood by reference to it. Specifically, I identify five ways in which a practice can be illiberal based on the different ways in which this term is employed within both scholarly and political discourses. The main value of this disaggregation lies in the fact that it helps to prevent confusions that arise when people use the adjective ‘illiberal’ in different ways, as is not uncommon.


Bouke de Vries
Bouke de Vries is a postdoctoral research fellow at Umeå University and the KU Leuven.
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 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.
Book Review

Access_open Lukas van den Berge, Bestuursrecht tussen autonomie en verhouding. Naar een relationeel bestuursrecht

Journal Netherlands Journal of Legal Philosophy, Issue 1 2019
Keywords autonoom bestuursrecht, relationeel bestuursrecht, wederkerige rechtsbetrekking, publiekrecht, privaatrecht
Authors Richard Neerhof
Author's information

Richard Neerhof
Richard Neerhof is hoogleraar bestuursrecht, in het bijzonder normalisatie, certificatie en accreditatie, aan de Vrije Universiteit Amsterdam.
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 Sincere Apologies

The Importance of the Offender’s Guilt Feelings

Journal Netherlands Journal of Legal Philosophy, Issue 2 2017
Keywords Sincerity of emotions, Guilt, Feelings, Apology, Offender
Authors Margreet Luth-Morgan
AbstractAuthor's information

    This paper discusses the meaning and the importance of emotions, in particular the sincere guilt feelings of the offender. It is argued that the emotion of guilt reveals important information about the offender’s values and normative position. In the remainder of the paper, special consideration is awarded to the argument concerning ritual apologies, which might contain value even when insincere. This argument is rejected, on two grounds: 1. if the apology ritual does not aim for sincere guilt feelings, then the use of the symbol of apology is not fitting; and 2. if the apology ritual does aim for sincere guilt, then an insincere apology devalues the sincere expression.


Margreet Luth-Morgan
Margreet Luth-Morgan is universitair docent aan Erasmus School of Law, sectie Sociologie, Theorie en Methodologie, Rotterdam.
Article

Access_open Dworkin’s Rights Conception of the Rule of Law in Criminal Law

Should Criminal Law be Extensively Interpreted in Order to Protect Victims’ Rights?

Journal Netherlands Journal of Legal Philosophy, Issue 2 2017
Keywords Klaas Rozemond, Ronald M. Dworkin, Legality in criminal law, Rights conception of the rule of law, Legal certainty
Authors Briain Jansen
AbstractAuthor's information

    The extensive interpretation of criminal law to the detriment of the defendant in criminal law is often problematized in doctrinal theory. Extensive interpretation is then argued to be problematic in the light of important ideals such as democracy and legal certainty in criminal law. In the Dutch discussion of this issue, Klaas Rozemond has argued that sometimes extensive interpretation is mandated by the rule of law in order to protect the rights of victims. Rozemond grounds his argument on a reading of Dworkin’s distinction between the rule-book and the rights conception of the rule of law. In this article, I argue that Dworkin’s rights conception, properly considered, does not necessarily mandate the imposition of criminal law or its extensive interpretation in court in order to protect victims’ rights.


Briain Jansen
Briain Jansen is als promovendus rechtstheorie verbonden aan de Erasmus Universiteit Rotterdam.
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.

François Levrau
Dr. François Levrau studeerde klinische psychologie en moraalfilosofie en promoveerde in de sociale wetenschappen aan de Universiteit van Antwerpen.
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 ‘Should the People Decide?’ Referendums in a Post-Sovereign Age, the Scottish and Catalonian Cases

Journal Netherlands Journal of Legal Philosophy, Issue 2 2016
Keywords sub-state nationalism, referendums, sovereignty, deliberative democracy, Scottish referendum
Authors Stephen Tierney
AbstractAuthor's information

    This article uses the rise of referendum democracy to highlight the tenacity of modern nationalism in Western Europe. The proliferation of direct democracy around the world raises important questions about the health of representative democracy. The paper offers a theoretical re-evaluation of the role of the referendum, using the 2014 referendum on Scottish independence to challenge some of the traditional democratic criticisms of popular democracy. The final part of the paper addresses the specific application of referendums in the context of sub-state nationalism, addressing what might be called `the demos question'. This question was addressed by the Supreme Court in Canada in the Quebec Secession Reference but has also been brought to the fore by the Scottish reference and the unresolved issue of self-determination in Catalonia.


Stephen Tierney
Stephen Tierney is Professor of Constitutional Theory at the University of Edinburgh and Director of the Edinburgh Centre for Constitutional Law.
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 The Justification of Basic Rights

A Response to Forst

Journal Netherlands Journal of Legal Philosophy, Issue 3 2016
Keywords Basic rights, Justification, Kant
Authors Glen Newey
AbstractAuthor's information

    This paper responds to Rainer Forst’s article ‘The Justification of Basic Rights’. I argue that Forst's main thesis is difficult to pin down, partly because it is formulated in significantly distinct ways at numerous points. I offer a possible formulation of the argument but note that this encapsulates a fallacy; I further argue that his inference of the basic rights seems to imply an over-moralisation of social life and that his argument does not distinguish rights with discretionary and non-discretionary content. Then I query Forst’s claim that a right to justification is a condition of engaging in justificatory discourse. This leads to the conclusion that what goes into the process of justification, including who figures in the discursive community, are irreducibly political questions, whose answers cannot be convincingly specified antecedently by a form of moral legislation. I argue that actual discursive processes allow for considerably more contingency and contextual variability than Forst’s construction acknowledges. This extends, as I suggest in conclusion, to the idea that content can be specified via the Kantian notion that acceptability requires the ‘containment’ of an actor's ends by another, such as an affected party.


Glen Newey
Glen Newey is professor of Political Philosophy and Ethics at Leiden University.
Article

Access_open On the Justification of Basic Rights

Journal Netherlands Journal of Legal Philosophy, Issue 3 2016
Keywords Basic rights, Right to justification, Discourse theory, Considered judgements, Philosophical methodology
Authors Laura Valentini
AbstractAuthor's information

    In his thought-provoking article, Rainer Forst develops a discourse-theoretical approach to the justification of basic rights, and argues that it is superior to interest-based and autonomy-based views. I cast doubt on the superiority of the discourse-theoretical approach. I suggest that, on reflection, the approach suffers from the same difficulties that Forst believes undermine rival views. My discussion raises broader questions about what desiderata a good justification of basic rights should satisfy.


Laura Valentini
Laura Valentini is associate professor of Political Science at the London School of Economics and Political Science.
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