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Article

Access_open Philosophy and Law in Ancient Rome

Traces of Stoic Syllogisms and Ontology of Language in Proculus’s Jurisprudence

Journal Netherlands Journal of Legal Philosophy, Issue 1 2019
Keywords Stoicism, Roman Law, Theory of Language, Syllogisms, Classical Jurisprudence
Authors Pedro Savaget Nascimento
AbstractAuthor's information

    This paper uses Stoic theory of language to gain more insight into Roman lawyer Proculus’s legal opinions on the meaning and understanding of ambiguous testaments, wills and dowries. After summarizing Stoic theory of language, the paper discusses its reception in Roman jurisprudence and situates Proculus in a Stoic legal/philosophical context. The meat of the article lies in the re-examination of Proculus’s legal opinions on ambiguities in light of Stoic theory of language, through: (1) the analysis of a case demonstrating that Proculus’s embeddedness in Stoic doctrine went beyond his technical competence in propositional syllogisms, going into the territory of Stoic physical materialism and, (2) the investigation of four cases that reveal how his approach to problems of ambiguity in unilateral legal acts converges with the Stoic conception of the parallelism between speech and thought.


Pedro Savaget Nascimento
Pedro Savaget Nascimento holds a PhD in Law and Language from the University of Birmingham (UK) and currently works as Research Designer in Belo Horizonte (Brazil).
Article

Access_open Crimes Against Humanity and Hostes Generis Humani

Journal Netherlands Journal of Legal Philosophy, Issue 2 2018
Keywords hostis generis humani, Luban, crimes against humanity, political community, international criminal law
Authors Antony Duff
AbstractAuthor's information

    In ‘The Enemy of All Humanity’, David Luban provides an insightful and plausible account of the idea of the hostis generis humani (one that shows that the hostis need not be understood to be an outlaw), and of the distinctive character of the crimes against humanity that the hostis commits. However, I argue in this paper, his suggestion that the hostis is answerable to a moral community of humanity (in whose name the ICC must thus claim to speak) is not tenable. Once we recognize the intimate connection between criminal law and political community, we can see that the hostis should answer to the local, domestic political community in and against which he commits his crimes; and that the proper role of the International Criminal Court, acting in the name of the community of nations, is to provide a second-best substitute for such answering when the local polity cannot or will not hold him to account.


Antony Duff
Antony Duff is Professor Emeritus at the University of Stirling.
Article

Access_open Enemy of All Humanity

The Dehumanizing Effects of a Dangerous Concept

Journal Netherlands Journal of Legal Philosophy, Issue 2 2018
Keywords enemy of all humanity, hostis humani generis, piracy, international criminal law, Luban
Authors Marc de Wilde
AbstractAuthor's information

    In his contribution to this special issue, David Luban proposes to revive the age-old concept of ‘the enemy of all humanity.’ On his view, this concept supports the aims of international criminal justice by emphasizing that atrocity and persecution crimes are ‘radically evil’ and therefore ‘everyone’s business.’ Criticizing Luban’s proposal, this paper shows that in the past, the ‘enemy of all humanity’ concept has often served to establish parallel systems of justice, depriving these ‘enemies’ of their rights as suspects under criminal law and as lawful combatants under the laws of war. Thus, even if the ‘enemy of all humanity’ concept is used with the intention to bring today’s perpetrators of ‘radical evil’ to justice, it risks undermining, rather than protecting, the rule of law.


Marc de Wilde
Marc de Wilde is Professor of Jurisprudence at the University of Amsterdam.
Article

Access_open ‘God’s Friend, the Whole World’s Enemy’

Reconsidering the role of piracy in the development of universal jurisdiction.

Journal Netherlands Journal of Legal Philosophy, Issue 2 2018
Keywords Cicero, Augustine, Bartolus, piracy, universal jurisdiction
Authors Louis Sicking
AbstractAuthor's information

    Piracy holds a special place within the field of international law because of the universal jurisdiction that applies. This article reconsiders the role of piracy in the development of universal jurisdiction. While usually a connection is established between Cicero’s ‘enemy of all’ and modern conceptions of pirates, it is argued that ‘enemy of the human species’ or ‘enemy of humanity’ is a medieval creation, used by Bartolus, which must be understood in the wake of the Renaissance of the twelfth century and the increased interest for the study of Roman Law. The criminalization of the pirate in the late Middle Ages must be understood not only as a consequence of royal power claiming a monopoly of violence at sea. Both the Italian city-states and the Hanse may have preceded royal power in criminalizing pirates. All the while, political motives in doing so were never absent.


Louis Sicking
Louis Sicking is Aemilius Papinianus Professor of History of Public International Law at Vrije Universiteit Amsterdam and lecturer in medieval and early modern history at Universiteit Leiden.
Article

Access_open Personhood and legal status: reflections on the democratic rights of corporations

Journal Netherlands Journal of Legal Philosophy, Issue 1 2018
Keywords Corporations, democracy, legal personality, personhood, inclusion
Authors Ludvig Beckman
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    Corporations can have rights but whether they should also have democratic rights depends among other things on whether they are the kind of entities to which the democratic ideal applies. This paper distinguishes four different conceptions of “the person” that can have democratic rights. According to one view, the only necessary condition is legal personality, whereas according to the other three views, democratic inclusion is conditioned also by personhood in the natural sense of the term. Though it is uncontroversial that corporations can be legal persons, it is plausible to ascribe personhood in the natural sense to corporations only if personhood is conceptualized exclusively in terms of moral agency. The conclusion of the paper is that corporations can meet the necessary conditions for democratic inclusion but that it is not yet clear in democratic theory exactly what these conditions are.


Ludvig Beckman
Ludvig Beckman is professor of political science at Stockholm University.
Article

Access_open Crisis in the Courtroom

The Discursive Conditions of Possibility for Ruptures in Legal Discourse

Journal Netherlands Journal of Legal Philosophy, Issue 1 2018
Keywords crisis discourse, rupture, counterterrorism, precautionary logic, risk
Authors Laura M. Henderson
AbstractAuthor's information

    This article addresses the conditions of possibility for the precautionary turn in legal discourse. Although the precautionary turn itself has been well-detailed in both legal and political discourse, insufficient attention has been paid to what made this shift possible. This article remedies this, starting by showing how the events of 9/11 were unable to be incorporated within current discursive structures. As a result, these discursive structures were dislocated and a new ‘crisis discourse’ emerged that succeeded in attributing meaning to the events of 9/11. By focusing on three important cases from three different jurisdictions evidencing the precautionary turn in legal discourse, this article shows that crisis discourse is indeed employed by the judiciary and that its logic made this precautionary approach to counterterrorism in the law possible. These events, now some 16 years ago, hold relevance for today’s continuing presence of crisis and crisis discourse.


Laura M. Henderson
Laura M. Henderson is a researcher at UGlobe, the Utrecht Centre for Global Challenges, at Utrecht University. She wrote this article as a Ph.D. candidate at the Vrije Universiteit Amsterdam.
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
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    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.
Opinion

Access_open Do We Want 'More or Fewer' Prosecutions of Opinions? The Geert Wilders Trial 2.0

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

Jogchum Vrielink
Jogchum Vrielink is a guest professor at the Centre interdisciplinaire de recherche en droit constitutionnel, Université Saint-Louis (Brussels) and at the Faculty of Canon Law, University of Leuven.
Article

Access_open The Erosion of Sovereignty

Journal Netherlands Journal of Legal Philosophy, Issue 2 2016
Keywords sovereignty, state, Léon Duguit, European Union, Eurozone
Authors Martin Loughlin
AbstractAuthor's information

    This article presents an account of sovereignty as a concept that signifies in jural terms the nature and quality of political relations within the modern state. It argues, first, that sovereignty is a politico-legal concept that expresses the autonomous nature of the state’s political power and its specific mode of operation in the form of law and, secondly, that many political scientists and lawyers present a skewed account by confusing sovereignty with governmental competence. After clarifying its meaning, the significance of contemporary governmental change is explained as one that, in certain respects, involves an erosion of sovereignty.


Martin Loughlin
Martin Loughlin is Professor of Public Law at the London School of Economics and Political Science and EURIAS Senior Fellow at the Freiburg Institute of Advanced Studies (FRIAS).
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 National Identity, Constitutional Identity, and Sovereignty in the EU

Journal Netherlands Journal of Legal Philosophy, Issue 2 2016
Keywords national identity, constitutional identity, EU law, constitutional courts, Court of Justice
Authors Elke Cloots
AbstractAuthor's information

    This article challenges the assumption, widespread in European constitutional discourse, that ‘national identity’ and ‘constitutional identity’ can be used interchangeably. First, this essay demonstrates that the conflation of the two terms lacks grounding in a sound theory of legal interpretation. Second, it submits that the requirements of respect for national and constitutional identity, as articulated in the EU Treaty and in the case law of certain constitutional courts, respectively, rest on different normative foundations: fundamental principles of political morality versus a claim to State sovereignty. Third, it is argued that the Treaty-makers had good reasons for writing into the EU Treaty a requirement of respect for the Member States’ national identities rather than the States’ sovereignty, or their constitutional identity.


Elke Cloots
Elke Cloots is post-doctoral researcher at the Centre for Government and Law, University of Hasselt.

    This paper provides a dialectical-historical description of the EU's constitutional discourse. It is argued that the early Community's member state blind principle of justice implied the notion of a European political community and led to the establishment of fair procedures for decision making. This coming of age of an encompassing European constitutional narrative of justice and fairness prompted the question of the demarcation between the political role of the European political community and that of member states' political communities. The answer proved to be subsidiarity. However, subsidiarity has introduced national conceptions of justice in the Union's constitutional discourse, at the risk of making European justice dependent on national conceptions of justice.


Dries Cools
Dries Cools works at the National Bank of Belgium and holds a Master of Laws and a Master in Philosophy of the KU Leuven and an LL.M. of Harvard Law School.

Marjoleine Zieck
Dr. Marjoleine Zieck is Professor of International Refugee Law at the Amsterdam Law School of the University of Amsterdam, and Professor of Public International Law at the Pakistan College of Law, Lahore.

    In her reply to critics, Jean Cohen responds to some of the main criticisms and remarks raised by the respondents.


Professor Jean L. Cohen
Jean L. Cohen is the Nell and Herbert M. Singer Professor of Political Thought and Contemporary Civilization at the Department of Political Science of Columbia University (New York) and will be the Emile Noel Fellow at the Jean Monet Center of the NYU Law School from January till June 2016.
Article

Access_open Institutional Religious Accommodation in the US and Europe

Comparative Reflections from a Liberal Perspective

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.


Patrick Loobuyck
Patrick Loobuyck is Associate Professor of Religion and Worldviews at the Centre Pieter Gillis of the University of Antwerp and Guest Professor of Political Philosophy at Ghent University.
Article

Access_open Religious Sovereignty and Group Exemptions

A Response to Jean Cohen

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.


Jonathan Seglow
Jonathan Seglow is Reader in Political Theory in the Department of Politics and International Relations at Royal Holloway, University of London.
Article

Access_open Freedom of Religion, Inc.: Whose Sovereignty?

Journal Netherlands Journal of Legal Philosophy, Issue 3 2015
Keywords accommodation, freedom of religion, political theology, liberalism, liberty of conscience
Authors Jean L. Cohen
AbstractAuthor's information

    This article focuses on an expansive conception of religious freedom propagated by a vocal group of American legal scholars – jurisdictional pluralists – often working with well-funded conservative foundations and influencing accommodation decisions throughout the US. I show that the proliferation of ‘accommodation’ claims in the name of church autonomy and religious conscience entailing exemption from civil regulation and anti-discrimination laws required by justice have a deep structure that has little to do with fairness or inclusion or liberal pluralism. Instead they are tantamount to sovereignty claims, involving powers and immunities for the religious, implicitly referring to another, higher law and sovereign than the constitution or the people. The twenty-first century version of older pluralist ‘freedom of religion’ discourses also rejects the comprehensive jurisdiction and scope of public, civil law – this time challenging the ‘monistic sovereignty’ of the democratic constitutional state. I argue that the jurisdictional pluralist approach to religious freedom challenges liberal democratic constitutionalism at its core and should be resisted wherever it arises.


Jean L. Cohen
Jean L. Cohen is the Nell and Herbert M. Singer Professor of Political Thought and Contemporary Civilization at the Department of Political Science of Columbia University (New York) and will be the Emile Noel Fellow at the Jean Monet Center of the NYU Law School from January till June 2016.
Article

Access_open The Casuistry of International Criminal Law: Exploring A New Field of Research

Journal Netherlands Journal of Legal Philosophy, Issue 2 2015
Keywords international criminal law, judicial reasoning, casuistry, genocide
Authors Marjolein Cupido
AbstractAuthor's information

    International criminal courts have made an important contribution to the development of international criminal law. Through case law, the courts have fine-tuned and modernized outdated concepts of international crimes and liability theories. In studying this practice, scholars have so far focused on the judicial interpretation of statutory and customary rules, thereby paying little attention to the rules’ application in individual cases. In this article, I reveal the limitations of this approach and illustrate how insights from casuistry can advance international criminal law discourse. In particular, I use the example of genocide to show that casuistic case law analyses can help scholars clarify the meaning of the law and appraise the application of substantive legal concepts in individual cases. Based on these observations, I argue that scholars should complement their current research with studies into the casuistry of international criminal law.


Marjolein Cupido
Marjolein Cupido is Assistant Professor at the Department of Criminal Law at VU University Amsterdam and fellow of the Center for International Criminal Justice.
Discussion

Access_open Drones, Targeted Killings and the Politics of Law

Journal Netherlands Journal of Legal Philosophy, Issue 2 2015
Keywords drone warfare, politics of international law, humanitarian law, targeted killing
Authors Wouter G. Werner
AbstractAuthor's information

    In this article I discuss one of the latest reports on the practice of drone warfare, the UN SRCT Drone Inquiry. I use the report to illustrate some of the specific forms of legal politics that surround drone warfare today. In the first place, I focus on the tension between the capacity of drones to target more precisely and the never-ending critique that drone warfare victimizes civilian populations. Secondly, I focus on the call for more objective legal rules that can be found in many debates on drone warfare.


Wouter G. Werner
Wouter G. Werner is co-founder of the Centre for the Politics of Transnational Law, VU University Amsterdam.

    The article considers the role of the liberal public-private divide in protecting religious minorities against national-majoritarian assault. It links the defence of the public-private divide to liberal neutrality and argues that it rests on two distinct propositions: that the distinction between the ’public sphere’ and the ’private sphere’ is a meaningful way to cognize and structure modern pluralistic societies; and that there is a meaningful way to distinguish what is or ought to be ‘public’ from what is or ought to be ‘private.’ While the latter proposition cannot be defended on grounds of liberal neutrality, the former proposition provides the institutional framework for conducting liberal politics by enabling the negotiation of the public and the private between national majorities and religious minorities as members of the same political community.


Daniel Augenstein
Daniel Augenstein is Associate Professor at the Department of European and International Public Law at Tilburg University.
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