Originally, Article 12 of the Dutch Code of Criminal Procedure was intended as a correction mechanism for the prosecution monopoly of the Public Prosecution Service. In a later stage, the private interest of complainants (or victims) became more central. This article argues that a third function now emerges: a valve function for social dissatisfaction. The social conflicts that underly the proceedings in these socially sensitive cases give rise to new democratic legitimacy problems. However, an appropriate normative framework that captures these new democratic demands has not yet been constructed. To this end, this article provides an alternative democratic vocabulary in order to bridge the gap between empirical and normative notions of legitimacy. By means of a historical and normative analysis, it will be argued that Article 12 has an important democratic potential within the characteristically autonomous Dutch system of criminal law. |
Search result: 343 articles
Article |
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Journal | Netherlands Journal of Legal Philosophy, Issue Pre-publications 2022 |
Keywords | Article 12-procedure, principle of opportunity, liberalism, judicial activism, democratic legitimacy |
Authors | Sophie Koning |
AbstractAuthor's information |
Article |
Opening an Absolute Majority A Typology of Motivations for Opening and Selecting Coalition Partners |
Journal | Politics of the Low Countries, Issue 1 2022 |
Keywords | negotiation, absolute majority, oversized coalition, motivations, local election |
Authors | Geoffrey Grandjean and Valentine Meens |
AbstractAuthor's information |
Following the municipal elections in the Walloon Region (Belgium) on 14 October 2018, 189 political groups won an absolute majority. Twenty-two of these decided not to exercise power alone, but favoured the formation of an oversized coalition by integrating a minority partner. The aim of this article is to identify the motivations behind the formation of a local coalition when one of the partners has an absolute majority. Semi-structured interviews with mayors and leaders of political groups in these municipalities make it possible to identify the motivations for, first, the choice to open and, second, the choice of a minority partner. By distinguishing between necessary and supporting motivations, this article shows that the search for greater representation is a necessary motivation for the choice to open, whereas personal affinities and memories of the past are necessary motivations for choosing minority partners. By prioritising motivations, this article shows that. |
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Journal | East European Yearbook on Human Rights, Issue 1 2021 |
Authors | Martin Fertmann and Matthias C. Kettemann |
AbstractAuthor's information |
Terms-of-service based actions against political and state actors as both key subjects and objects of political opinion formation have become a focal point of the ongoing debates over who should set and enforce the rules for speech on online platforms. |
Developments in European Law |
The PSPP Judgment of the German Federal Constitutional CourtThe Judge’s Theatre According to Karlsruhe |
Journal | Hungarian Yearbook of International Law and European Law, Issue 1 2021 |
Keywords | German Constitutional Court, basic law, ultra vires, European Central Bank, primacy of Union law |
Authors | Maria Kordeva |
AbstractAuthor's information |
The PSPP decision of 5 May 2020 rendered by the German Federal Constitutional Court (FCC) does not constitute a break with the earlier jurisprudence of the FCC elaborated since the Lisbon Treaty judgment of 30 June 2009. Even though qualifying the acts of the Union as ultra vires has been likened to a warlike act, one should beware of hasty conclusions and look closely at the analysis of the Second Senate to form a moderate opinion of this decision decried by European and national commentators. Should the PSPP judgment of the Federal Constitutional Court be classified as “much ado about nothing”, despite the procedure started by the European Commission, or, on the contrary, will the CJEU in the next months, sanction Germany for its obvious affront to and breach of the principle of the primacy of Union law? The (final?) power grab between the European and national courts remains to be seen. We can criticize the German FCC that it put the fundamental principles of the Union in danger. Yet, it is worth reflecting on the possible encroachment of competences by European institutions, because, in this case, the red line between monetary policy and economic policy is more than thin. |
Article |
Opposition in Times of COVID-19 – To Support or Not to Support? |
Journal | Politics of the Low Countries, Issue 2 2021 |
Keywords | minority government, rally-around-the-flag, COVID-19, mainstream parties, challenger parties, opposition, party goals |
Authors | Britt Vande Walle, Wouter Wolfs and Steven Van Hecke |
AbstractAuthor's information |
COVID-19 has hit many countries all over the world, and its impact on (party) politics has been undeniable. This crisis situation functions as an opportunity structure incentivising opposition forces to support the government. Not much is known about what drives opposition parties to (not) support the government in crisis situations. This article integrates the literature on rally-around-the-flag, political opportunity structures, party types and party goals. More specifically, we focus on the behaviour of opposition parties towards the government’s crisis response to the COVID-19 pandemic. We analyse whether and how the party type influences the position of the party vis-à-vis the governmental coalition, focusing on the case of Belgium. We categorise the seven opposition parties in Belgium as challenger or mainstream parties and explain their behaviour on the basis of policy-, office- or vote-seeking motives. Our analysis is based on party voting behaviour, elite interviews and an analysis of the main plenary debates. |
Opinie |
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Journal | Netherlands Journal of Legal Philosophy, Issue Pre-publications 2021 |
Keywords | Academische vrijheid, Onafhankelijkheid, Onpartijdigheid, Integriteit, Gedragscode |
Authors | Rob van Gestel |
Author's information |
Article |
Performing the COVID-19 Crisis in Flemish Populist Radical-Right DiscourseA Case Study of Vlaams Belang’s Coronablunderboek |
Journal | Politics of the Low Countries, Issue 2 2021 |
Keywords | populism, COVID-19, crisis, discourse |
Authors | Jens Meijen |
AbstractAuthor's information |
In June 2020, the Flemish populist radical right party Vlaams Belang (VB) published the Corona Blunder Book (CBB; Coronablunderboek in Dutch), detailing the government’s mistakes in handling the COVID-19 crisis. Populist parties can ‘perform’ crisis by emphasising the mistakes made by opponents (Moffitt, 2015) and may use a specifically populist discursive style, consisting largely of aggressive and sarcastic language (Brubaker, 2017). This paper takes the CBB as a case study in the populist performance of crisis and the populist style, finding that the book is, first, a clear example of populist ‘everyman’ stylistics and the performance of crisis, and, second, that VB uses the book to shift the COVID-19 crisis from a public health crisis to a crisis of governance, seeking to blame Belgium’s federal structure for the government’s alleged mismanagement of the COVID-19 pandemic and hence arguing for Flemish independence, one of the party’s main agenda points. |
Article |
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Journal | Netherlands Journal of Legal Philosophy, Issue 1 2021 |
Keywords | classicistisch politiek denken, constitutie, Van Hogendorp, Grondwet, politieke filosofie |
Authors | Alban Mik |
AbstractAuthor's information |
Gijsbert Karel van Hogendorp is the auctor intellectualis of the 1818 Dutch constitution. It was his sketch for a new constitution that was used as a starting point for the deliberations of its original drafting committee. Van Hogendorp justifies his constitution as a restoration of the Burgundian constitution that applied before the Dutch Republic. In recent literature Van Hogendorp’s restorational argument is presented as an invention of tradition. In this article an alternative explanation is presented, namely that it is part of a form of classicist political thought that was common during the ancien régime. Van Hogendorp describes his constitution as a moderate monarchy, in which the three principles of monarchy, aristocracy and democracy are properly balanced. And he mainly defends this mixed regime by pointing out that it is a restoration of the old Burgundian constitution of the Netherlands. This way of reasoning is, as will be shown, typically classicistic. |
Article |
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Journal | Netherlands Journal of Legal Philosophy, Issue 1 2021 |
Keywords | rechtsstaat, toegang tot het recht, sociale dimensie, Nicholas Barber, Pierre Bourdieu |
Authors | Nathalie Franziska Hendrika Schnabl |
AbstractAuthor's information |
This paper considers access to the rule of law as a requirement for the well-functioning of the rule of law in society. In most rule of law debates, access to the rule of law is not a topic of discussion because these scholars focus themselves solely on the legalistic dimension of the rule of law. Barber was the first to mention the social dimension explicitly but without a theoretical framework. Based on the three capitals of Bourdieu, this paper offers a framework to determine the elements of the social dimension. With these capitals, barriers to the access to the rule of law for individuals can be identified, and solutions can be offered. |
Article |
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Journal | Netherlands Journal of Legal Philosophy, Issue 1 2021 |
Keywords | Geweten, feiten, Scholten, Kierkegaard, naastenliefde |
Authors | Jos Vleugel |
AbstractAuthor's information |
The role that Paul Scholten assigns to conscience in his legal methodology still leads to heated discussions in literature after almost 100 years. Recognizing that in case law the conscience of the judge can be of decisive importance is apparently problematic. It would facilitate political court rulings, make judicial judgment uncontrollable and could be arbitrary for the parties to the legal dispute. Not only Scholten’s view on the role of conscience in judicial decision making is “a stumbling block”. At least as great is the fuss about his representation of conscience. Only Christian lawyers could identify with this. This article attempts to shed new light on the above points of criticism by drawing attention to the following aspects of Scholten’s legal methodology: the role of the facts in establishing the law, the nature of the legal judgment and finally the grounds on which conscience may be determined. |
Article |
Digital Equals PublicAssembly Meetings Under a Lockdown Regime |
Journal | European Journal of Law Reform, Issue 4 2020 |
Keywords | COVID-19 regulation, temporary legislation, sunset clauses, digitalization, digital democracy, local democracy, experimental legislation |
Authors | Lianne van Kalken and Evert Stamhuis |
AbstractAuthor's information |
In this article we examine the Dutch emergency legislation for local democracy. In response to the COVID-19 pandemic in the Netherlands, the Temporary Act for digital meetings for local/regional government tiers was enacted. The legislature introduced a system of digital debate and decision-making for municipal and provincial councils, the democratically elected assemblies at the local and regional levels. At the same time the Ministry of the Interior and Kingdom Relations set up an evaluation committee to monitor and evaluate the working of the local and provincial governments with this temporary legislation. |
Article |
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Journal | Politics of the Low Countries, Issue 3 2020 |
Keywords | Belgian politics, democratic reforms, elections, populist voters, representative democracy |
Authors | Lisa van Dijk, Thomas Legein, Jean-Benoit Pilet e.a. |
AbstractAuthor's information |
Recently, studies have burgeoned on the link between populism and demands for democratic reforms. In particular, scholars have been debating the link between populist citizens or voters and support for referendums. In this article, we examine voters of populist parties (Vlaams Belang (VB) and Parti du Travail de Belgique-Partij van de Arbeid (PTB-PVDA)) in Belgium in 2019 and we look at their attitudes towards various types of democratic reforms. We find that voters of populist parties differ from the non-populist electorate in their support for different kinds of reforms of representative democracy. Voters of VB and PTB-PVDA have in common stronger demands for limiting politicians’ prerogatives, for introducing binding referendums and for participatory budgeting. While Vlaams Belang voters are not significantly different from the non-populist electorate on advisory referendums, citizens’ forums or technocratic reform, PVDA-PTB voters seem more enthusiastic. |
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Journal | Politics of the Low Countries, Issue 3 2020 |
Keywords | Belgium, elections, emotions, voting behaviour |
Authors | Caroline Close and Emilie van Haute |
AbstractAuthor's information |
This article digs into the relationship between voters’ political resentment and their electoral choice in 2019 by focusing on the respondents’ emotions towards politics. Using the RepResent 2019 voter survey, eight emotions are analysed in their relation to voting behaviour: four negative (anger, bitterness, worry and fear) and four positive (hope, relief, joy and satisfaction). We confirm that voters’ emotional register is at least two-dimensional, with one positive and one negative dimension, opening the possibility for different combinations of emotions towards politics. We also find different emotional patterns across party choices, and more crucially, we uncover a significant effect of emotions (especially negative ones) on vote choice, even when controlling for other determinants. Finally, we look at the effect of election results on emotions and we observe a potential winner vs. loser effect with distinctive dynamics in Flanders and in Wallonia. |
Article |
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Journal | Netherlands Journal of Legal Philosophy, Issue 2 2020 |
Keywords | Freedom of speech, Separation of powers, Criminal law, Hate speech, Legal certainty |
Authors | Jip Stam |
AbstractAuthor's information |
This article contains a critical review of the provisions in the Dutch penal code regarding group defamation and hate speech. It is argued that not only these provisions themselves but also their application by the Dutch supreme court, constitutes a problem for the legitimacy and functioning of representative democracy. This is due to the tendency of the supreme court to employ special constraints for offensive, hateful or discriminatory speech by politicians. Because such a special constraint is not provided or even implied by the legislator, the jurisprudence of the supreme court is likely to end up in judicial overreach and therefore constitutes a potential – if not actual – breach in the separation of powers. In order to forestall these consequences, the protection of particularly political speech should be improved, primarily by a revision of the articles 137c and 137d of the Dutch penal code or the extension of parliamentary immunity. |
Article |
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Journal | Netherlands Journal of Legal Philosophy, Issue 2 2020 |
Authors | Ronald Janse |
AbstractAuthor's information |
Een rechtsstaat is gebaseerd op zelfbinding van de overheid aan het recht. Deze zelfbinding moet verankerd zijn in regels die onder meer de onafhankelijkheid van de rechterlijke macht vastleggen. De ontwikkelingen in Polen en elders tonen echter aan dat juridische regels van zelfbinding geen blokkades maar verkeersdrempels zijn op de weg naar despotisch bestuur. Een rechtsstaat vereist vooral een cultuur van zelfbinding. De conceptualisering van deze rechtsstaatcultuur staat nog in de kinderschoenen. |
Editorial |
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Journal | Netherlands Journal of Legal Philosophy, Issue 2 2020 |
Authors | Elaine Mak, Anne Ruth Mackor and Iris van Domselaar |
Author's information |
Article |
Getting Party Activists on Local ListsHow Dutch Local Party Branches Perform Their Recruitment Function |
Journal | Politics of the Low Countries, Issue 2 2020 |
Keywords | municipal politics, political parties, candidate lists, local party branches, recruitment |
Authors | Simon Otjes, Marcel Boogers and Gerrit Voerman |
AbstractAuthor's information |
This article examines what explains the performance of Dutch local party branches in the recruitment of candidates for municipal councils. Fielding a list of candidates is the most basic function of political parties. In the Netherlands, party branches are under pressure from the low number of party members. To analyse how branches fulfil their role in recruitment, we employ our own survey of the secretaries of party branches held in the run-up to the 2018 municipal election. We find that party membership drives the successful fulfilment of the recruitment function but that, more than the absolute number of members, the crucial factors are how these party members cooperate, the number of active members and the development of this number. |
Article |
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Journal | Politics of the Low Countries, Issue 2 2020 |
Authors | Bram Wauters, Simon Otjes and Emilie van Haute |
Author's information |
Article |
Between Party Democracy and Citizen DemocracyExplaining Attitudes of Flemish Local Chairs Towards Democratic Innovations |
Journal | Politics of the Low Countries, Issue 2 2020 |
Keywords | democratic innovations, citizen participation, local politics, Flanders, Belgium |
Authors | Didier Caluwaerts, Anna Kern, Min Reuchamps e.a. |
AbstractAuthor's information |
As a response to the perceived legitimacy crisis that threatens modern democracies, local government has increasingly become a laboratory for democratic renewal and citizen participation. This article studies whether and why local party chairs support democratic innovations fostering more citizen participation. More specifically, we analyse the relative weight of ideas, interests and institutions in explaining their support for citizen-centred democracy. Based on the Belgian Local Chairs Survey in 2018 (albeit restricting our analysis to Flanders), the central finding is that ideas matter more than interests and institutions. Ideology is alive and kicking with regard to democratic innovation, with socialist and ecologist parties and populist parties being most supportive of participatory arrangements. By contrast, interests and institutions play, at this stage, a minor role in explaining support for participatory innovations. |
Book Review |
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Journal | Netherlands Journal of Legal Philosophy, Issue 1 2020 |
Authors | Irawan Sewandono |
Author's information |