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Article

Access_open Racial Profiling and the Presumption of Innocence

Journal Netherlands Journal of Legal Philosophy, Issue 1 2014
Keywords racial profiling, stop-and-frisk, presumption of innocence, communicative theories of criminal law, social inequality and criminal law
Authors Peter DeAngelis
AbstractAuthor's information

    I argue that a compelling way to articulate what is wrong with racial profiling in policing is to view racial profiling as a violation of the presumption of innocence. I discuss the communicative nature of the presumption of innocence as an expression of social trust and a protection against the social condemnation of being undeservingly investigated, prosecuted, and convicted for committing a crime. I argue that, given its communicative dimension, failures to extend the presumption of innocence are an expression of disrespect. I take the New York Police Department’s stop-and-frisk policy as an example of racial profiling and argue that its use of race-based forms of suspicion as reasons for making stops is a violation of the presumption of innocence. I maintain that this systemic failure to extend the presumption of innocence to profiled groups reveals the essentially disrespectful nature of the NYPD policy.


Peter DeAngelis
Peter DeAngelis is Ph.D. Candidate in Philosophy at Villanova University.
Article

Access_open What Makes Age Discrimination Special? A Philosophical Look at the ECJ Case Law

Journal Netherlands Journal of Legal Philosophy, Issue 1 2014
Keywords age discrimination, intergenerational justice, complete-life view, statistical discrimination, anti-discrimination law
Authors Axel Gosseries
AbstractAuthor's information

    This paper provides an account of what makes age discrimination special, going through a set of possible justifications. In the end, it turns out that a full understanding of the specialness of age-based differential treatment requires that we consider together the ‘reliable proxy,’ the ‘complete-life neutrality,’ the ‘sequence efficiency’ and the ‘affirmative egalitarian’ accounts. Depending on the specific age criteria, all four accounts may apply or only some of them. This is the first key message of this paper. The second message of the paper has to do with the age group/birth cohort distinction. All measures that have a differential impact on different cohorts also tend to have a differential impact on various age groups during the transition. The paper points at the practical implications of anti-age-discrimination law for differential treatment between birth cohorts. The whole argument is confronted all along with ECJ cases.


Axel Gosseries
Axel Gosseries is a permanent research fellow at the Belgian FRS-FNRS and a Professor at the University of Louvain (UCL, Belgium) where he is based at the Hoover Chair in Economic and Social Ethics.

    In this response to my five critics, I note the strength of the arguments in favour of treating the presumption of innocence as a narrow, legal presumption that operates only within the criminal process; but I then try to make clearer my reasons for talking of different presumptions of innocence (moral, rather than legal, presumptions) outside the criminal process, in other contexts in which issues of criminal guilt or innocence arise – presumptions that guide or are expressed in the conduct of the state’s officials towards its citizens, and of citizens towards each other. Once we look at these other contexts in which criminal guilt and innocence (of past and future crimes) are at stake, we can see the importance of civic trust as a practical attitude that citizens owe to each other; and the fruitfulness of examining the various normative roles that citizens may have to play in relation to the criminal law.


Antony Duff
Antony Duff holds the Russell M and Elizabeth M Bennett Chair in the University of Minnesota Law School, and is a Professor Emeritus of the Department of Philosophy, University of Stirling.
Article

Access_open The Meaning of the Presumption of Innocence for Pre-trial Detention

An Empirical Approach

Journal Netherlands Journal of Legal Philosophy, Issue 3 2013
Keywords pre-trial detention practice, presumption of guilt, incapacitation, presumption of innocence
Authors Lonneke Stevens
AbstractAuthor's information

    The presumption of innocence (PoI) is considered to be an important principle for regulating pre-trial detention. The idea is that pre-trial detention should be a last resort. However, pre-trial detention practice demonstrates that pre-trial detention does not function on the basis of a presumption of innocence but rather from a presumption of guilt and dangerousness. It must be concluded that, with regard to pre-trial detention, the PoI has a rather limited normative effect.


Lonneke Stevens
Lonneke Stevens is Associate Professor of Criminal Law and Criminal Procedure at VU University Amsterdam.
Article

Access_open Presumption of Innocence Versus a Principle of Fairness

A Response to Duff

Journal Netherlands Journal of Legal Philosophy, Issue 3 2013
Keywords rules, principles, fairness, PoI
Authors Magnus Ulväng
AbstractAuthor's information

    In my response to Duff I focus mainly on the following two issues. Firstly, I examine what kind of a norm the presumption of innocence (PoI) really is and how it ontologically differs from other types of rules, principles, rationales, etc. My tentative conclusion is that a PoI does not suffice the requirement of being a dogmatic rule and, thus, has less weight than what Duff perhaps assumes.
    Secondly, I examine what role the concept of innocence plays in the debate on fundamental (moral and legal) principles and the underlying rationales of a criminal law system. Although I am sympathetic to much of what Duff purports in his plea for civic trust and a parsimonious use of criminal law, I am reluctant to believe that it is really a broader version of a PoI that warrants the kind of morally decent criminal law system that he suggests normatively ought to be. In my view, most of what Duff wants to ascribe to the PoI can be derived from a principle of fairness which, in my view, is already embedded in the fundamentals of criminal law doctrine.


Magnus Ulväng
Magnus Ulväng is Professor of Criminal Law at Uppsala University.

    This paper explores the roles that the presumption of innocence (PoI) can play beyond the criminal trial, in other dealings that citizens may have with the criminal law and its officials. It grounds the PoI in a wider notion of the civic trust that citizens owe each other, and that the state owes its citizens: by attending to the roles that citizens may find themselves playing in relation to the criminal law (such roles as suspect, defendant, convicted offender and ‘ex-offender’), we can see both how a PoI protects us, beyond the confines of the trial, against various kinds of coercion, and how that PoI is modified or qualified as we acquire certain roles. To develop and illustrate this argument, I pay particular attention to the roles of defendant (both during the trial and while awaiting trial) and of ‘ex-offender,’ and to the duties that such roles bring with them.


Antony Duff
Antony Duff holds the Russell M and Elizabeth M Bennett Chair in the University of Minnesota Law School, and is a Professor Emeritus of the Department of Philosophy, University of Stirling.
Article

Access_open Absolute Positivism

Journal Netherlands Journal of Legal Philosophy, Issue 2 2013
Keywords jurisprudence, legal positivism, Hans Kelsen, pure theory of law
Authors Christoph Kletzer
AbstractAuthor's information

    The paper argues that we miss the point and strength of Kelsen’s Pure Theory of Law if we take it to drive a middle way between reductionism and moralism. Rather conversely, the Pure Theory is a radical theory. It tries to overcome the opposition between reductionism and moralism by making clear that both opponents rest on the same ill-conceived convictions about legal validity. Both take it that the law cannot be normative by itself. In contrast, the Pure Theory tries to find a new approach to the understanding of law that takes seriously the constitutive functions of law. It tries to understand the validity of law as resting in law itself. As such it is an attempt to find a philosophically satisfactory formulation of what can be called absolute positivism.


Christoph Kletzer
Christoph Kletzer is a Senior Lecturer at the Dickson Poon School of Law at King’s College in London.
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.
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.
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.
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 ‘Wat is waarheid?’ De rol van deskundigen bij waarheidsvinding in de strafrechtspraak

Journal Netherlands Journal of Legal Philosophy, Issue 1 2010
Keywords Legitimation durch Verfahren, criminal law, expert-witnesses, truth, reliability of evidence
Authors Anne Ruth Mackor
AbstractAuthor's information

    Huls has argued that the idea that judges are truth-finders is misleading. In the first part of the paper I put his claim to the test. Against Huls I argue that the aim of procedures in criminal lawsuits is not only to guarantee binding decisions but also to help to find the truth. In the second part of the paper I investigate the role expert-witnesses play in truth-finding. Cleiren and Loth have argued that experts fail to understand the differences between legal and scientific ways of truth-finding. It turns out that Cleiren does not offer an argument for her claim and that Loth’s claim fails too, since it confuses coherence as truth and coherence as epistemic justification. I conclude that legal scholars, rather than experts, fail to understand the nature of legal and scientific truth-finding.


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.
Article

Access_open Slapende rechters, dwalende rechtspsychologen en het hypothetische karakter van feitelijke oordelen

Journal Netherlands Journal of Legal Philosophy, Issue 1 2010
Keywords psychology of law, criminal law, miscarriages of justice, hypothetical reasoning
Authors Klaas Rozemond
AbstractAuthor's information

    In their book De slapende rechter (The sleeping judge) Dutch legal psychologists W.A. Wagenaar, H. Israëls and P.J. van Koppen claim that Dutch judges wrongfully convict suspects in certain cases because these judges generally fail to understand the way hypothetical reasoning works in relation to empirical evidence. This article argues that Wagenaar, Israëls and Van Koppen are basically right in their claim that reasoning on evidence in criminal cases should have the form of hypothetical reasoning. However, they fail to apply this form of reasoning to their own analysis of Dutch criminal cases and the causes of wrongful convictions. Therefore, their conclusion that a form of revision of convictions outside of the criminal law system should be introduced does not meet their own methodological standards.


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

Access_open Nussbaum’s Capabilities Approach: In Need of a Moral Epistemology?

Journal Netherlands Journal of Legal Philosophy, Issue 3 2009
Keywords Martha Nussbaum, Capabilities Approach, moral epistemology, objectivity, residues of justice, Bernard Williams, political moralism
Authors Mr. Iris van Domselaar
AbstractAuthor's information

    Although Nussbaum’s “Capabilities Approach” (CA) clearly expresses a commitment to objectivity, this article argues that this commitment is rather ambiguous due to the conception of public reason it endorses. In particular, the CA cannot account for an objective justification of public reason, given certain characteristics of public reason. As a result, the CA jeopardizes the substantive aim it has set itself: to provide an objective justification for public choices regarding human capabilities and their specifications.


Mr. Iris van Domselaar
Iris van Domselaar is a Ph.D-student and lecturer at the Department of General Jurisprudence, Faculty of Law, University of Amsterdam. The subject of her thesis is “Residues of Justice and Tragic Legal Choice in a Liberal Rule of Law”.
Article

Access_open Het normatieve karakter van de rechtswetenschap: recht als oordeel

Journal Netherlands Journal of Legal Philosophy, Issue 3 2009
Keywords legal theory, science, methodology, normativity, knowledge
Authors Prof. mr. Carel Smith
AbstractAuthor's information

    Propositions of law are based upon normative judgement. The interpretation and application of legal provisions rest upon a judgement that determines which weight must be attributed to some point of view or perspective. In this respect, legal theory has a normative character. Its normative character does not preclude legal theory from being a scientific discipline. The scientific character of legal theory is not located in the possibility of testing the correctness of its theories. Rather, legal theory owes it scientific character to the shared standards of production and evaluation of legal arguments: the grammar of justice.


Prof. mr. Carel Smith
Carel Smith is associate professor at the Department of Metajuridica, Faculty of Law, Leiden University.
Article

Access_open Morality Incorporated? Some Peculiarities of Legal Thinking

Journal Netherlands Journal of Legal Philosophy, Issue 2 2009
Keywords responsibility, accountability, imputation, liability
Authors prof. Bert van Roermund and prof. Jan Vranken
AbstractAuthor's information

    Responsibility disappears into the background of private law as it deals with imputation of liability. Fitness to be held liable is determined by normative viewpoints different from moral ones, in particular by convictions on how society ought to be organized so as to avoid or end conflict between private citizens. Modes of discursive control are geared to making authoritative decisions in view of the same end, and corporate agency is created, restricted or enlarged to undercut or to impose individual liability.


prof. Bert van Roermund
Bert Van Roermund is Professor of Philosophy at the Department of Philosophy of Tilburg University.

prof. Jan Vranken
Jan Vranken is Professor of Private Law at the Faculty of Law of Tilburg University and former Advocate General at the Dutch Supreme Court.
Article

Access_open Collective Criminal Responsibility: Unfair or Redundant

Journal Netherlands Journal of Legal Philosophy, Issue 2 2009
Keywords collective criminal responsibility;, individual responsibility
Authors dr. Govert den Hartogh
AbstractAuthor's information

    This paper argues, against Pettit’s thesis about the incorporation of responsibility, that holding collective agents criminally responsible is necessarily either redundant or unfair: redundant if responsibility can be distributed without remainder over individual persons; unfair if it cannot. It should be the task of legal systems to create chains of individual criminal responsibility encompassing executives, officials, and members of corporate agents.


dr. Govert den Hartogh
Govert den Hartogh is Professor of Ethics at the Department of Philosophy of the University of Amsterdam.
Article

Access_open ‘The Soviet Union did not have a legal system’

An interview with Jeremy Waldron on the methodology debate, historic injustice and the citation of foreign law

Journal Netherlands Journal of Legal Philosophy, Issue 1 2009
Keywords normative positivism, historic injustice, restitution of property rights, citation of foreign law, methodology debate
Authors Kees Quist and Wouter Veraart
AbstractAuthor's information

    This interview with Jeremy Waldron covers three topics. Firstly, we dealt with the methodology debate, that is, the discussion about how to proceed in analyzing the nature of law. Does the question ‘What is law?’ require a descriptive analysis of the concept of law or, rather, a normative exercise in political philosophy? Secondly, we spoke about the role of law in response to historic injustice, especially in relation to the restitution of property rights. On this topic Waldron vindicates the ‘supersession-thesis’, the idea that, due to changed circumstances and the passage of time, historic injustices become superseded. The third section of the interview is devoted to Waldron’s perspective on the citation of foreign law by national judges.


Kees Quist
Kees Quist is junior lecturer and PhD fellow at Utrecht Law School.

Wouter Veraart
Wouter Veraart is professor of Legal Philosophy at the VU University Amsterdam.
Article

Access_open Sharia - A Flexible Notion

Journal Netherlands Journal of Legal Philosophy, Issue 3 2006
Keywords claim, model, bank, bear, E-business, handelsnaam, interest, internet, kind, rechtsstaat
Authors M. Berger

M. Berger
Article

Access_open Form and function in discrete legal units and in a legal system as a whole: Preadvies Vereniging voor Wijsbegeerte van het Recht, vergadering van 3 juni 2005

Journal Netherlands Journal of Legal Philosophy, Issue 1 2005
Keywords arrangement, contract, identiteit, kind, amfetamine, claim, leasing, making, bear, elektronisch geld
Authors R.S. Summers

R.S. Summers
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