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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.

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).
Discussion

Access_open Horizontal Effect Revisited

A Reply to Four Comments

Journal Netherlands Journal of Legal Philosophy, Issue 3 2011
Authors Gunther Teubner
Abstract

    In this concluding article, Gunther Teubner addresses his critics.


Gunther Teubner
Discussion

Access_open Hybrid Constitutionalism, Fundamental Rights and the State

A Response to Gunther Teubner

Journal Netherlands Journal of Legal Philosophy, Issue 3 2011
Keywords societal constitutionalism, Gunther Teubner, system theory, fundamental rights
Authors Gert Verschraegen
AbstractAuthor's information

    This contribution explores how much state is necessary to make societal constitutionalism work. I first ask why the idea of a global societal constitutionalism ‘beyond the state-and-politics’ might be viewed as a significant and controversial, but nonetheless justified innovation. In the second part I discuss what Teubner calls ‘the inclusionary effects of fundamental rights’. I argue that Teubner underplays the mediating role of the state in guaranteeing inclusion or access, and in a way presupposes well-functioning states in the background. In areas of limited statehood there is a problem of enforcing fundamental rights law. It is an open question whether, and under which conditions, constitutional norms within particular global social spheres can provide enough counter-weight when state constitutional norms are lacking.


Gert Verschraegen
Gert Verschraegen is Assistant Professor of Theoretical Sociology at the University of Antwerp, Belgium.
Discussion

Access_open Human Rights, and the Destructive Communications and Actions of Differentiated Society

Journal Netherlands Journal of Legal Philosophy, Issue 3 2011
Keywords communication, one-sided rationality, human rights, bare body and mind, inclusion, action, exclusion
Authors Wil Martens
AbstractAuthor's information

    This contribution raises two questions with regard to Teubner’s view on human rights. First and foremost, it asks how one might conceive of modern society as a threat to human beings. Attention is brought to bear on Teubner’s attempt to describe society as a matter of communication, and more specifically as a set of one-sided communication systems. In this regard, I scrutinise the attempt to describe the threat of society in terms of inclusion/exclusion and criticise the vacuity of the concept of inclusion. Secondly, it questions Teubner’s description of human beings that demand justice and protection by human rights. Are their demands about the bare existence of body and mind? Moreover, are these concerns identical to worries about the destruction of human presuppositions for the self-reproduction of functional social systems, as Teubner suggests? Against Teubner, I contend that human rights are actually about social human beings that ask for justice as acting beings, which claim does not coincide with presuppositions of societal subsystems.


Wil Martens
Wil Martens is Assistant Professor of Organisational Development and Senior Researcher at the Nijmegen School of Management at the Radboud University Nijmegen, the Netherlands.
Discussion

Access_open Against the ‘Pestilential Gods’

Teubner on Human Rights

Journal Netherlands Journal of Legal Philosophy, Issue 3 2011
Keywords semiosphera, paranomia, Drittwirkung, matrix argument
Authors Pasquale Femia
AbstractAuthor's information

    Examining the function of human rights in the semiosphere requires a strategy of differentiation: the dissolution of politics into political moments (politics, it is argued, is not a system, but a form of discourse); the distinction between discourse and communication; the concept of systemic paranomic functionings. Paranomia is a situation generated by the pathological closure of discourses, in which knowledge of valid and observed norms obscures power. Fundamental rights are the movement of communication, claims about redistributing powers, directed against paranomic functionings. Rethinking the debate about the third party effect implies that validity and coherence must be differentiated for the development of the ‘matrix argument’.


Pasquale Femia
Pasquale Femia is Professor of Private Law at the Faculty of Political Studies of the University of Naples II, Italy.
Discussion

Access_open The Destruction and Reconstruction of the Tower of Babel

A Comment to Gunther Teubner’s Plea for a ‘Common Law Constitution’

Journal Netherlands Journal of Legal Philosophy, Issue 3 2011
Keywords global society, constitutionalism, social systems theory, Teubner, law and order
Authors Bart van Klink
AbstractAuthor's information

    This article presents some critical comments concerning the conceptual, normative and institutional foundations of Teubner’s plea for a ‘common law constitution’. My comments question the desirability of the means chosen for attaining this objective as well as their efficacy. In particular, I have difficulties with the ambivalent role that is assigned to man, either as a person or as a human being; with the reduction of social problems to problems of communication; and, finally and most importantly, with the attempt to conceive of law and politics beyond established legal and political institutions, which in my view is doomed to fail. The conclusion offers some tentative suggestions for an alternative approach.


Bart van Klink
Bart van Klink is Professor of Legal Methodology at the Faculty of Law of the VU University Amsterdam, the Netherlands.
Discussion

Access_open Plugging the Legitimacy Gap? The Ubiquity of Human Rights and the Rhetoric of Global Constitutionalism

Journal Netherlands Journal of Legal Philosophy, Issue 3 2010
Keywords global constitutionalism, legitimacy, human rights, Neil Walker, post-state democracy
Authors Morag Goodwin
AbstractAuthor's information

    This paper approaches Walker’s work from the perspective of the ubiquity of human rights language within the rhetoric of global constitutionalism. Building on Walker’s description of the relationship between constitutionalism and democracy, what I wish to suggest is that the spread of human rights discourse is intimately connected with attempts to apply constitutional discourse beyond the state. By highlighting the way in which human rights have become place-takers for political legitimacy in discussions of international constitutionalism, the paper is intended to challenge Walker to state his own position more forcefully and to develop further his insight concerning the irresolvable tension in the iterative relationship between constitutionalism and democracy.


Morag Goodwin
Morag Goodwin is Assistant Professor of Law and Development at the Tilburg Institute for Law, Technology and Society at Tilburg Law School, the Netherlands.
Discussion

Access_open The Globalizing Turn in the Relationship Between Constitutionalism and Democracy

Some Reiterations from the Perspective of Constitutional Law

Journal Netherlands Journal of Legal Philosophy, Issue 3 2010
Keywords constitutional law, constitutionalism, historic constitutions, revolutionary constitutions, pouvoir constituant (irrelevance of)
Authors Leonard F.M. Besselink
AbstractAuthor's information

    This essay complements Walker’s essay with some historical and constitutional observations. It submits that Walker’s analysis is based to a large extent on reasoning derived from a particular continental European constitutional tradition. This creates certain problems of its own, that do not arise in a different constitutional tradition. This is not to say, however, that this invalidates his conclusions, but rather underpins them in an alternative manner.


Leonard F.M. Besselink
Leonard Besselink is Professor of European Constitutional Law in the Faculty of Law of the University of Utrecht, the Netherlands.
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