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Article

Access_open Restraint as a Source of Judicial ‘Apoliticality’

A Functional Reconstruction

Journal Netherlands Journal of Legal Philosophy, Issue 2 2020
Keywords Urgenda, Miller v. Secretary of State, Norm of judicial apoliticality, Ronald Dworkin, Judicial restraint
Authors Maurits Helmich
AbstractAuthor's information

    Few legal theorists today would argue that the domain of law exists in isolation from other normative spheres governing society, notably from the domain of ‘politics’. Nevertheless, the implicit norm that judges should not act ‘politically’ remains influential and widespread in the debates surrounding controversial court cases. This article aims to square these two observations. Taking the Miller v. Secretary of State and Urgenda cases as illustrative case studies, the article demonstrates that what it means for judges to adjudicate cases ‘apolitically’ is itself a matter of controversy. In reflecting on their own constitutional role, courts are forced to take a stance on substantive questions of political philosophy. Nevertheless, that does not mean that the ‘norm of judicial apoliticality’ should therefore be rejected. The norm’s coherence lies in its intersocial function: its role in declaring certain modes of judicial interpretation and intervention legitimate (‘legal’/‘judicial’) or illegitimate (‘political’).


Maurits Helmich
Maurits Helmich is promovendus aan de afdeling Sociologie, Theorie en Methodologie van het Recht aan de Erasmus Universiteit Rotterdam.
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 What does it mean to be ‘illiberal’?

Journal Netherlands Journal of Legal Philosophy, Issue Pre-publications 2020
Keywords Liberalism, Illiberalism, Illiberal practices, Extremism, Discrimination
Authors Bouke de Vries
AbstractAuthor's information

    ‘Illiberal’ is an adjective that is commonly used by scholars. For example, they might speak of ‘illiberal cultures’, ‘illiberal groups’, ‘illiberal states’, ‘illiberal democracies’, ‘illiberal beliefs’, and ‘illiberal practices’. Yet despite its widespread usage, no in-depth discussions exist of exactly what it means for someone or something to be illiberal, or might mean. This article fills this lacuna by providing a conceptual analysis of the term ‘illiberal practices’, which I argue is basic in that other bearers of the property of being illiberal can be understood by reference to it. Specifically, I identify five ways in which a practice can be illiberal based on the different ways in which this term is employed within both scholarly and political discourses. The main value of this disaggregation lies in the fact that it helps to prevent confusions that arise when people use the adjective ‘illiberal’ in different ways, as is not uncommon.


Bouke de Vries
Bouke de Vries is a postdoctoral research fellow at Umeå University and the KU Leuven.
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.
Article

Access_open Sincere Apologies

The Importance of the Offender’s Guilt Feelings

Journal Netherlands Journal of Legal Philosophy, Issue 2 2017
Keywords Sincerity of emotions, Guilt, Feelings, Apology, Offender
Authors Margreet Luth-Morgan
AbstractAuthor's information

    This paper discusses the meaning and the importance of emotions, in particular the sincere guilt feelings of the offender. It is argued that the emotion of guilt reveals important information about the offender’s values and normative position. In the remainder of the paper, special consideration is awarded to the argument concerning ritual apologies, which might contain value even when insincere. This argument is rejected, on two grounds: 1. if the apology ritual does not aim for sincere guilt feelings, then the use of the symbol of apology is not fitting; and 2. if the apology ritual does aim for sincere guilt, then an insincere apology devalues the sincere expression.


Margreet Luth-Morgan
Margreet Luth-Morgan is universitair docent aan Erasmus School of Law, sectie Sociologie, Theorie en Methodologie, Rotterdam.
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
AbstractAuthor's information

    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.
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

Raf Geenens
Raf Geenens is Assistant Professor of Ethics and Legal Philosophy at the Institute of Philosophy, University of Leuven.

Nora Timmermans
Nora Timmermans is PhD Research Fellow of the Research Foundation - Flanders (FWO) at the Centre for Ethics, Social and Political Philosophy, 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 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 ‘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.
Article

Access_open The Justification of Basic Rights

A Discourse-Theoretical Approach

Journal Netherlands Journal of Legal Philosophy, Issue 3 2016
Keywords Basic rights, Right to justification, Discourse theory, Non-domination, Kant
Authors Rainer Forst
AbstractAuthor's information

    In this paper, I suggest a discourse theory of basic legal rights that is superior to rival approaches, such as a will-based or an interest-based theory of rights. Basic rights are reciprocally and generally justifiable and binding claims on others (agents or institutions) that they should do (or refrain from doing) certain things determined by the content of these rights. We call these rights basic because they define the status of persons as full members of a normative order in such a way that they provide protection from severe forms of legal, political and social domination. The very ground of these rights is the status of persons as free and equal normative authorities within the order they are subject to. In other words, these rights are grounded in a fundamental moral right to justification.


Rainer Forst
Rainer Forst is professor of Political Theory and Philosophy at the Goethe Universität, Frankfurt am Main.
Article

Access_open The Justification of Basic Rights

A Response to Forst

Journal Netherlands Journal of Legal Philosophy, Issue 3 2016
Keywords Basic rights, Justification, Kant
Authors Glen Newey
AbstractAuthor's information

    This paper responds to Rainer Forst’s article ‘The Justification of Basic Rights’. I argue that Forst's main thesis is difficult to pin down, partly because it is formulated in significantly distinct ways at numerous points. I offer a possible formulation of the argument but note that this encapsulates a fallacy; I further argue that his inference of the basic rights seems to imply an over-moralisation of social life and that his argument does not distinguish rights with discretionary and non-discretionary content. Then I query Forst’s claim that a right to justification is a condition of engaging in justificatory discourse. This leads to the conclusion that what goes into the process of justification, including who figures in the discursive community, are irreducibly political questions, whose answers cannot be convincingly specified antecedently by a form of moral legislation. I argue that actual discursive processes allow for considerably more contingency and contextual variability than Forst’s construction acknowledges. This extends, as I suggest in conclusion, to the idea that content can be specified via the Kantian notion that acceptability requires the ‘containment’ of an actor's ends by another, such as an affected party.


Glen Newey
Glen Newey is professor of Political Philosophy and Ethics at Leiden University.
Editorial

Access_open Rainer Forst: The Justification of Basic Rights

Journal Netherlands Journal of Legal Philosophy, Issue 3 2016
Authors Bertjan Wolthuis, Elaine Mak and Lisette ten Haaf
Author's information

Bertjan Wolthuis
Bertjan Wolthuis is assistant professor at the Department of Legal Theory and Legal History, Vrije Universiteit Amsterdam

Elaine Mak
Elaine Mak is professor of Jurisprudence at the Institute of Constitutional, Administrative Law and Legal Theory, Utrecht University

Lisette ten Haaf
Lisette ten Haaf is PhD candidate at the Department of Legal Theory and Legal History, Vrije Universiteit Amsterdam
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.
Article

Access_open What Does it Mean to Justify Basic Rights?

Reply to Düwell, Newey, Rummens and Valentini

Journal Netherlands Journal of Legal Philosophy, Issue 3 2016
Authors Rainer Forst
AbstractAuthor's information

    In this paper, I reply to the four comments on my paper ‘The Justification of Basic Rights: A Discourse-Theoretical Approach’ given by Laura Valentini, Marcus Düwell, Stefan Rummens and Glen Newey.


Rainer Forst
Professor of Political Theory and Philosophy at the Goethe Universität, Frankfurt am Main.
Article

Access_open Frankfurt Goes Kantian – But How Does It Work?

Journal Netherlands Journal of Legal Philosophy, Issue 3 2016
Keywords Human dignity, Transcendental arguments, Discourse ethics, Kantian ethics, Human rights
Authors Marcus Düwell
AbstractAuthor's information

    The paper discusses Forst’s discourse- theoretical adaption of the Kantian heritage. If Forst sees a Kantian concept of human dignity as the basis of his approach, he cannot rely on Habermas’ (quasi-)transcendental argument. It is furthermore questionable why Forst proposes that the content of human rights can only be determined in a procedural way. An alternative would be to determine the content from the normative starting point of human dignity.


Marcus Düwell
Marcus Düwell is professor of Philosophical Ethics and director of the Ethics Institute, Utrecht University.
Article

Access_open Two Sides of the Same Coin

Unpacking Rainer Forst’s Basic Right to Justification

Journal Netherlands Journal of Legal Philosophy, Issue 3 2016
Authors Stefan Rummens
AbstractAuthor's information

    This paper makes two comments on Rainer Forst’s keynote contribution. It argues, first, that three important distinctions introduced by Forst are, in fact, all different versions of the more primary distinction between the a priori reconstruction of basic rights by philosophers and the discursive construction of basic rights by citizens. It proposes, secondly, an alternative discourse-theoretical reconstruction which makes a distinction between the basic right to justification and the basic right to choose your own ends as two different but inseparable rights – two sides of the same coin – which jointly provide the moral ground for our basic rights as citizens.


Stefan Rummens
Stefan Rummens is professor of Moral Philosophy at the Institute of Philosophy of KU Leuven.
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