The article discusses the tension between social solidarity and religious freedom as demonstrated by the refusal of the ultra-Orthodox sects in Israel to comply with COVID-19 regulations. The article provides a detailed description of the refusal to comply with the regulations restricting mass prayer services in synagogues and studying Torah in the yeshivas, thus interfering with the ultra-Orthodox religious life. The article suggests possible explanations for that refusal, based on either religious beliefs or a socio-political claim to autonomy, and discusses whether the polity should be willing to tolerate such a refusal on the basis of the cultural defence. The article concludes that despite the drastic restrictions on religious life caused by the social distancing regulations, and the special importance of freedom of religion, reducing the pandemic’s spread called for awarding priority to solidarity over religious freedom, and the enforcement of social solidarity legal duties – the social distancing regulations – on all. |
Search result: 52 articles
The search results will be filtered on:Journal Netherlands Journal of Legal Philosophy x
Article |
|
Journal | Netherlands Journal of Legal Philosophy, Issue 2 2021 |
Keywords | Social solidarity, COVID-19, Religious freedom, Cultural defence, Ultra-Orthodox sects in Israel |
Authors | Miriam Gur-Arye and Sharon Shakargy |
AbstractAuthor's information |
Article |
|
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. |
Article |
|
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. |
Article |
|
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’). |
Article |
|
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. |
Article |
|
Journal | Netherlands Journal of Legal Philosophy, Issue 1 2020 |
Keywords | national identity, historical narratives, universal values, equal citizenship |
Authors | Tamar de Waal |
AbstractAuthor's information |
Increasingly often, it is stated that the universal values underpinning Western liberal democracies are a product of a ‘Judeo-Christian’ tradition. This article explores the legitimacy of this claim from the perspective of liberal-democratic theory. It argues that state-endorsed claims about the historical roots of liberal-democratic values are problematic (1) if they are promoted as though they are above democratic scrutiny and (2) if they insinuate that citizens who belong to a particular (majority) culture remain the ‘cultural owners’ of the core values underpinning the state. More pragmatically, the paper suggests that the claim carries the risk of failing to facilitate all citizens becoming or remaining committed to nurturing fundamental rights and a shared society based on norms of democratic equality. |
Article |
|
Journal | Netherlands Journal of Legal Philosophy, Issue 1 2020 |
Keywords | organ donation, ethics of organ donation, symbolic nature of the human body, ethics and ritual, symbolic legislation theory |
Authors | Herman De Dijn |
AbstractAuthor's information |
In countries like Belgium and The Netherlands, there seems to be overwhelming public acceptance of transplantation and organ donation. Yet, paradoxically, part of the public refuses post-mortal donation of their own organs or of those of family members. It is customary within the transplantation context to accept the refusal of organ donation by family members “in order to accommodate their feelings”. I argue that this attitude does not take seriously what is really behind the refusal of donation by (at least some) family members. My hypothesis is that even in very secularized societies, this refusal is determined by cultural-symbolic attitudes vis-à-vis the (dead) human body (and some of its parts). The blind spot for this reality, both in the practice of and discussions around organ donation, prevents understanding of what is producing the paradox mentioned. |
Article |
|
Journal | Netherlands Journal of Legal Philosophy, Issue 1 2020 |
Keywords | Concepts, Contextualism, Essentially Contested Concepts, Legal Theory, Freedom |
Authors | Dora Kostakopoulou |
AbstractAuthor's information |
Socio-political concepts are not singularities. They are, instead, complex and evolving contextures. An awareness of the latter and of what we need to do when we handle concepts opens up space for the resolution of political disagreements and multiplies opportunities for constructive dialogue and understanding. In this article, I argue that the concepts-as-contextures perspective can unravel conceptual connectivity and interweaving, and I substantiate this by examining the ‘contexture’ of liberty. I show that the different, and seemingly contested, definitions of liberty are the product of mixed articulations and the development of associative discursive links within a contexture. |
Opinion |
|
Journal | Netherlands Journal of Legal Philosophy, Issue 1 2018 |
Authors | Lukas van den Berge |
Author's information |
Article |
|
Journal | Netherlands Journal of Legal Philosophy, Issue 2 2017 |
Keywords | rechtsfilosofie, politiek proces, onverdraagzaamheid, Wilders II |
Authors | Bert van Roermund |
AbstractAuthor's information |
Naar aanleiding van het optreden van Paul Cliteur in het Wilders II-proces rijst de vraag hoe de inzet van een rechtsgang zich verhoudt tot de eigen aard van de filosofie. Aan de ene kant vertolkt filosofie precies dat register van waarheid dat in het recht aan de orde is. Aan de andere kant is die vertolking zo oneindig open dat ze strijdt met het gesloten karakter van het recht als een proces dat conflicten moet beëindigen door gezagvolle beslissingen. Socrates’ optreden in zijn eigen proces toont aan: de slechtste dienst die de filosofie het recht kan bewijzen, is het verlengstuk te worden van het positieve recht en zich bij voorbaat beschikbaar te stellen als een vindplaats van argumenten wanneer de juridische argumenten op zijn. De slotparagraaf argumenteert dat Cliteur deze socratische les terzijde legt. Als gevolg daarvan geeft hij een geforceerde lezing van het Felter-arrest en mist hij de kern van het begrip ‘onverdraagzaamheid’. |
Opinion |
|
Journal | Netherlands Journal of Legal Philosophy, Issue 2 2016 |
Keywords | Geert Wilders, hate speech, freedom of opinion, District Court of The Hague, conviction |
Authors | Jogchum Vrielink |
Author's information |
Article |
|
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. |
Article |
|
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. |
Article |
|
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. |
Book Review |
|
Journal | Netherlands Journal of Legal Philosophy, Issue 1 2016 |
Authors | Tamar de Waal |
Author's information |
Article |
|
Journal | Netherlands Journal of Legal Philosophy, Issue 3 2015 |
Keywords | Hobby Lobby, Hosanna-Tabor, tolerance-leaning liberalism, equality-leaning liberalism |
Authors | Roland Pierik |
AbstractAuthor's information |
This paper is largely an endorsement and a further elaboration of Cohen’s critical discussion of the Hobby Lobby and Hosanna-Tabor cases and the conceptual overstretch of religious freedom they embody. I disagree with Cohen, however, on the proper interpretation of this debate. Cohen construes the ominous Court cases as an anti-liberal attack on the liberal state order. My main thesis is that the root of this dispute can be traced back to a fault line within liberalism between a more tolerance-leaning and a more equality-leaning tradition. I argue that the ominous cases are instances of the tolerance-leaning tradition in liberalism, which once was characteristic of the liberal tradition. Still, I agree with Cohen that this tradition should be rejected because it reverts to an obsolete interpretation of religious freedom that defends unwarranted privileges for certain groups that are out of sync with the egalitarian underpinnings of contemporary liberal political orders. |
Article |
|
Journal | Netherlands Journal of Legal Philosophy, Issue 3 2015 |
Authors | Professor Jean L. Cohen |
AbstractAuthor's information |
In her reply to critics, Jean Cohen responds to some of the main criticisms and remarks raised by the respondents. |
Editorial |
|
Journal | Netherlands Journal of Legal Philosophy, Issue 3 2015 |
Authors | Stefan Rummens and Roland Pierik |
Author's information |
Article |
|
Journal | Netherlands Journal of Legal Philosophy, Issue 3 2015 |
Keywords | European jurisprudence, freedom of religion, religious-based associations, religious accommodation |
Authors | Patrick Loobuyck |
AbstractAuthor's information |
Jean Cohen argues that recent US Supreme Court decisions about institutional accommodation are problematic. She rightly points out that justice and the liberal concept of freedom of consciousness cannot do the work in Hobby Lobby and Hosanna-Tabor: what does the work is a medieval political-theological conception of church immunity and sovereignty. The first part of this commentary sketches how the autonomy of churches and religious associations can be considered from a liberal perspective, avoiding the pitfall of the medieval idea of libertas ecclesiae based on church immunity and sovereignty. The second part discusses the European jurisprudence about institutional accommodation claims and concludes that until now the European Court of Human Rights is more nuanced and its decisions are more in line with liberalism than the US Jurisprudence. |
Article |
|
Journal | Netherlands Journal of Legal Philosophy, Issue 3 2015 |
Keywords | democracy, exemptions, group rights, religious institutionalism |
Authors | Jonathan Seglow |
AbstractAuthor's information |
This response concurs with Cohen’s critique of the Hobby Lobby and Hosanna-Tabor cases but investigates whether religious accommodation might sometimes be justified in the case of institutions and groups (not just individuals). It suggests that exemptions for associations that are recruited to advance state purposes (e.g., in welfare or education) may be more justifiable than where private associations seek to maintain illiberal – for example, discriminatory – rules in line with their religious ethos. Non-democratic associations with a strong religious ethos might in principle enjoy permissible accommodation on the grounds that its members acquiesced to that ethos by joining the association, but only if other conditions are met. Democratic associations with a religious ethos have in principle a stronger claim for accommodation; in practice, however, few religious associations are internally democratic, especially where they seek to preserve illiberal internal rules. |