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Editorial

Access_open Where Were the Law Schools?

On Legal Education as Training for Justice and the Rule of Law (Against the ‘Dark Sides of Legality’)

Journal Netherlands Journal of Legal Philosophy, Issue 1 2021
Authors Iris van Domselaar
Author's information

Iris van Domselaar
Iris van Domselaar is associate professor in legal philosophy and legal ethics at the Amsterdam Law School, University of Amsterdam.

Gijs van Maanen
Gijs van Maanen is PhD researcher at Tilburg Law School.
Article

Access_open The Obligation of Judges to Uphold Rules of Positive Law and Possibly Conflicting Ethical Values in Context

The Case of Criminalization of Homelessness in Hungary

Journal Netherlands Journal of Legal Philosophy, Issue 2 2020
Keywords Judicial independence, Rule of law, Judicial ethics, Hungary, Criminalization of homelessness
Authors Petra Gyöngyi
AbstractAuthor's information

    This article examines the tension between the constitutional obligation of judges to uphold rules of positive law and possibly conflicting standards of conduct arising from professional-ethical values. The theoretical analysis will be illustrated by the case of Hungary, an EU member state experiencing rule of law challenges since 2010 and where the 2018-2019 criminalization of homelessness exemplifies the studied tension. Inspired by the theories of Philip Selznick and Martin Krygier, rule of law will be viewed as a value that requires progressive realization and context-specific implementation. By contextualizing the relevant Hungarian constitutional framework with the content of the judicial code of ethics and judicial practice, it will be shown how the legitimate space for Hungarian judges to distance themselves from legislation possibly in conflict with rule of law values is reduced. Theoretical suggestions for addressing such rule of law regressions will be made.


Petra Gyöngyi
Petra Gyöngyi is postdoctoral fellow aan de University of Oslo.
Article

Access_open Legal and Political Concepts as Contextures

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.


Dora Kostakopoulou
Dora Kostakopoulou is a member of the Scientific Committee of the Fundamental Rights Agency of the EU and Professor of European Union Law, European Integration and Public Policy at Warwick University.
Discussion

Access_open Europe Kidnapped

Spanish Voices on Citizenship and Exile

Journal Netherlands Journal of Legal Philosophy, Issue 1 2019
Keywords migration, exile, citizenship, Europe, Spanish civil war
Authors Massimo La Torre
AbstractAuthor's information

    Exile and migration are once more central issues in the contemporary European predicament. This short article intends to discuss these questions elaborating on the ideas of two Spanish authors, a novelist, Max Aub, and a philosopher, María Zambrano, both marked by the tragic events of civil war and forced expatriation. Exile and migration in their existential perspective are meant as a prologue to the vindication of citizenship.


Massimo La Torre
Massimo La Torre is Professor of Legal Philosophy, Magna Græcia University of Catanzaro (Italy).
Article

Access_open The Enemy of All Humanity

Journal Netherlands Journal of Legal Philosophy, Issue 2 2018
Keywords hostis generis humani, piracy, crimes against humanity, universal jurisdiction, radical evil
Authors David Luban
AbstractAuthor's information

    Trationally, the term “enemy of all humanity” (hostis generis humani) referred to pirates. In contemporary international criminal law, it refers to perpetrators of crimes against humanity and other core. This essay traces the evolution of the concept, and then offers an analysis that ties it more closely to ancient tyrants than to pirates. Some object that the label is dehumanizing, and justifies arbitrary killing of the “enemy of humanity.” The essay admits the danger, but defends the concept if it is restricted to fair trials. Rather than dehumanizing its target, calling the hostis generis humani to account in a court of law is a way of recognizing that radical evil can be committed by humans no different from any of us.


David Luban
David Luban is University Professor in Law and Philosophy at Georgetown University.

Lukas van den Berge
Lukas van den Berge is assistant professor of legal theory at the Erasmus University Rotterdam.
Article

Access_open The Demos as a Plural Subject

Journal Netherlands Journal of Legal Philosophy, Issue 1 2017
Keywords democracy, demos, normativity, Margaret Gilbert, joint commitment
Authors Bas Leijssenaar
AbstractAuthor's information

    Existing conceptualizations of the demos fail to treat issues of composition and performativity consistently. Recent literature suggests that both aspects are required in a satisfactory account of the demos. An analysis of this literature suggests several desiderata that such an account must meet. I approach the definition of demos with a conceptual framework derived from Margaret Gilbert’s plural subject theory of social groups. I propose an account of demos as a plural subject, constituted by joint commitment. This account offers an improved and consistent understanding of normativity, composition, agency, and cohesion of demos.


Bas Leijssenaar
Bas Leijssenaar is PhD-candidate at the Institute of Philosophy, Centre for Social and Political Philosophy of the University of Leuven.
Article

Access_open Belgium and Democratic Constitution-Making: Prospects for the Future?

Journal Netherlands Journal of Legal Philosophy, Issue 1 2017
Keywords constitutional change, democracy, participation, Belgium
Authors Ronald Van Crombrugge
Abstract

    How constitutions are changed – and more importantly: how they should be changed – is the subject of ongoing debate. There seems to be a growing consensus, however, that in order for a constitution to be considered legitimate it is required that it was created through a democratic process. This growing consensus stands in sharp contrast with the Belgian experience of constitutional change as an essentially elite-led process that takes place behind closed doors. This article seeks to explore the possibilities for more democratic forms of constitutional change in Belgium. It does so by evaluating and comparing two examples of democratic constitution-making, namely the constitution-making processes In South Africa (1996) and Iceland (2012). On the basis of these two examples, several concrete suggestions will be made, which are not only relevant for the Belgian case but can be applied more broadly to other countries as well.


Ronald Van Crombrugge

Marieke Borren
Dr. Marieke Borren werkte tot voor kort als postdoctoraal onderzoeker aan de faculteit filosofie van de Universiteit van Pretoria, Zuid-Afrika. Op dit moment is ze UD filosofie aan de Open Universiteit en UD gender en postcolonial studies aan de Universiteit Utrecht.
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 E pluribus unum? The Manifold Meanings of Sovereignty

Journal Netherlands Journal of Legal Philosophy, Issue 2 2016
Keywords political sovereignty, power, legislative sovereignty, constitutive power, external sovereignty
Authors Raf Geenens
AbstractAuthor's information

    This article investigates and classifies the different meanings of the term sovereignty. What exactly do we try to convey when using the words “sovereign” or “sovereignty”? I will argue that, when saying that X is sovereign, we can mean five different things: it can mean that X holds the capacity to force everyone into obedience, that X makes the laws, that the legal and political order is created by X, that X holds the competence to alter the basic norms of our legal and political order, or that X is independently active on the international stage. These different usages of the term are of course related, but they are distinct and cannot be fully reduced to one another.


Raf Geenens
Raf Geenens is an assistant professor of Ethics and Legal Philosophy at the Institute of Philosophy, University of Leuven.
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.
Article

Access_open On the Justification of Basic Rights

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.


Laura Valentini
Laura Valentini is associate professor of Political Science at the London School of Economics and Political Science.

    In this article I develop a political realist notion of public reason. It may be thought that a notion of public reason is simply incompatible with the position of the political realist. But this article claims that a realist notion of public reason, different from the familiar political liberal idea of public reason, can be reconstructed from ancient texts on rhetoric and dialectic, particularly Aristotle's. The specification of this notion helps us understand the differences between contemporary liberal and realist positions.


Bertjan Wolthuis
Bertjan Wolthuis is Assistant Professor of Legal Theory at Vrije Universiteit Amsterdam.

    This paper interprets the presumption of innocence as a conceptual antidote for sacrificial tendencies in criminal law. Using Girard’s philosophy of scapegoat mechanisms and sacrifice as hermeneutical framework, the consanguinity of legal and sacrificial order is explored. We argue that some legal concepts found in the ius commune’s criminal system (12th-18th century), like torture, infamy, or punishment for mere suspicion, are affiliated with scapegoat dynamics and operate, to some extent, in the spirit of sacrifice. By indicating how these concepts entail more or less flagrant breaches of our contemporary conception of due process molded by the presumption of innocence, an antithesis emerges between the presumption of innocence and sacrificial inclinations in criminal law. Furthermore, when facing fundamental threats like heresy, the ius commune’s due process could be suspended. What emerges in this state of exception allowing for swift and relentless repression, is elucidated as legal order’s sacrificial infrastructure.


Rafael Van Damme
Rafael Van Damme is PhD-student in philosophy.

    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.
Article

Access_open Religion Ain’t Sacrosanct

How to Fight Obsolete Accounts of Religious Freedom

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.


Roland Pierik
Roland Pierik is Associate Professor of Legal Philosophy at the University of Amsterdam Law School.

    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.

Stefan Rummens
Stefan Rummens is Professor of Moral Philosophy at the Institute of Philosophy of the KU Leuven, Belgium.

Roland Pierik
Roland Pierik is Associate Professor of Legal Philosophy at the University of Amsterdam Law School.
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