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Article

Access_open On the Humanity of the Enemy of Humanity

A Response to My Critics

Journal Netherlands Journal of Legal Philosophy, Issue 2 2018
Keywords hostis generis humani, humanity, International criminal justice, piracy
Authors David Luban
AbstractAuthor's information

    Antony Duff, Marc de Wilde, Louis Sicking, and Sofia Stok offer several criticisms of my “The Enemy of All Humanity,” but central to all of them is concern that labeling people hostis generis humani dehumanizes them, and invites murder or extrajudicial execution. In response I distinguish political, legal, and theoretical uses of the ancient label. I agree with the critics that the political use is toxic and the legal use is dispensable. However, the theoretical concept is crucial in international criminal law, which rests on the assumptions that the moral heinousness of core crimes makes them the business of all humanity. Furthermore, far from dehumanizing their perpetrators, calling them to account before the law recognizes that they are no different from the rest of humanity. This response also offers rejoinders to more specific objections raised by the critics.


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

    How best to account for moral quality in adjudication? This article proposes a six-pack of judicial virtues as part of a truly virtue-centred approach to adjudication. These virtues are presented as both constitutive and indispensible for realizing moral quality in adjudication. In addition, it will be argued that in order to honour the inherent relational dimension of adjudication a judge should not only possess these judicial virtues to a sufficient degree, he should also have the attitude of a civic friend. The Aristotelian concept of civic friendship will be proposed as an important complement to a virtue-ethical approach to adjudication.


Iris van Domselaar
Iris van Domselaar is Assistant Professor and Executive Director of the Amsterdam Centre on the Legal Professions (ACLP), Department of Law, University of Amsterdam.
Article

Access_open Introduction: Reciprocity and the Normativity of Legal Orders

Journal Netherlands Journal of Legal Philosophy, Issue 2 2014
Keywords reciprocity, normativity
Authors Prof. Dr. Hans Lindahl PhD and Bart van Klink
AbstractAuthor's information

    This contribution introduces the special issue, which contains a selection of the lectures delivered by key-note speakers during the Summer School organized by the editors in August, 2013, at the behest of the Section of Ethics & Practical Philosophy of the Dutch Research School of Philosophy (OZSW).


Prof. Dr. Hans Lindahl PhD
Hans Lindahl is Professor of Legal Philosophy at Tilburg University.

Bart van Klink
Bart van Klink is Professor of Legal Methodology at the VU University Amsterdam.
Article

Access_open The Normative Foundation of Legal Orders: A Balance Between Reciprocity and Mutuality

Journal Netherlands Journal of Legal Philosophy, Issue 2 2014
Keywords reciprocity, mutuality, social morality of duties, legal morality of rights, intergenerational justice
Authors Dorien Pessers PhD
AbstractAuthor's information

    Reciprocity seems to figure as a self-evident normative foundation of legal orders. Yet a clear understanding of the often opaque role that reciprocity plays in this regard demands drawing a conceptual distinction. This article views reciprocity as a social morality of duties, in opposition to mutuality, which concerns a legal morality of rights. In everyday life these two broad categories of human interaction interfere in a dynamic way. They need to be brought into an appropriate balance in legal orders, for the sake of justice. The practical relevance of this conceptual distinction is clarified by the debate about justice between present and future generations. I argue that this debate should be viewed as a debate about the terms of reciprocity rather than relations of mutuality. Acknowledging the deeply reciprocal nature of the relations between past, present and future generations would lead to a more convincing moral theory about intergenerational justice.


Dorien Pessers PhD
Dorien Pessers is Professor of the Legal and Theoretical Foundations of the Private Sphere at the VU University and at the University of Amsterdam. Her research focuses primarily on the theoretical foundations of the public and private spheres.
Article

Access_open ‘Down Freedom’s Main Line’

Journal Netherlands Journal of Legal Philosophy, Issue 3 2012
Keywords democracy, radical freedom, free market economy, consumerism, collective action
Authors Steven L. Winter
AbstractAuthor's information

    Two waves of democratization define the post-Cold War era of globalization. The first one saw democracies emerge in post-communist countries and post-Apartheid South Africa. The current wave began with the uprisings in the Middle East. The first focused on the formal institutions of the market and the liberal state, the second is participatory and rooted in collective action. The individualistic conception of freedom and democracy that underlies the first wave is false and fetishistic. The second wave shows democracy’s moral appeal is the commitment to equal participation in determining the terms and conditions of social life. Freedom, thus, requires collective action under conditions of equality, mutual recognition, and respect.


Steven L. Winter
Steven L. Winter is Walter S. Gibbs Professor of Constitutional Law at Wayne State University Law School, Detroit, Michigan.

    In this reply, Steven L. Winter adresses his critics.


Steven L. Winter
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 Transnational Fundamental Rights: Horizontal Effect?

Journal Netherlands Journal of Legal Philosophy, Issue 3 2011
Keywords fundamental rights, societal constitutionalism, inclusionary and exclusionary effects, anonymous matrix
Authors Gunther Teubner
AbstractAuthor's information

    Violations of human rights by transnational corporations and by other ‘private’ global actors raise problems that signal the limits of the traditional doctrine of ‘horizontal effects’. To overcome them, constitutional law doctrine needs to be complemented by perspectives from legal theory and sociology of law. This allows new answers to the following questions: What is the validity basis of human rights in transnational ‘private’ regimes – extraterritorial effect, colère public or external pressures on autonomous law making in global regimes? Do they result in protective duties of the states or in direct human rights obligations of private transnational actors? What does it mean to generalise state-directed human rights and to respecify them for different social spheres? Are societal human rights limited to ‘negative’ rights or is institutional imagination capable of developing ‘positive’ rights – rights of inclusion and participation in various social fields? Are societal human rights directed exclusively against corporate actors or can they be extended to counteract structural violence of anonymous social processes? Can such broadened perspectives of human rights be re-translated into the practice of public interest litigation?


Gunther Teubner
Gunther Teubner is Professor of Private Law and Legal Sociology and Principal Investigator of the Excellence Cluster ‘The Formation of Normative Orders’ at the Goethe-University, Frankfurt/Main. He is also Professor at the International University College, Torino, Italy.
Article

Access_open Law in the twilight of environmental Armageddon

A response to Han Somsen

Journal Netherlands Journal of Legal Philosophy, Issue 1 2011
Keywords environmental catastrophe, legitimacy, geo-engineering, phenomenology
Authors Luigi Corrias
AbstractAuthor's information

    This paper argues that Somsen’s article, though brave in approach and daring in ideas, suffers from some fundamental flaws. First of all, it remains unclear how Somsen conceptualises the relationship between legitimacy and effectiveness, and what this means for his position towards the argument of a state of exception. Secondly, a plea for regulation by code has serious consequences for the claim to attain justice. Finally, geo-engineering poses some profound difficulties, both because of its consequences and because of its presuppositions.


Luigi Corrias
Luigi Corrias is Assistant Professor of Legal Philosophy at VU University, Amsterdam, the Netherlands.
Article

Access_open When regulators mean business

Regulation in the shadow of environmental Armageddon

Journal Netherlands Journal of Legal Philosophy, Issue 1 2011
Keywords ecological catastrophe, regulatory legitimacy, regulatory effectiveness, geo-engineering
Authors Han Somsen
AbstractAuthor's information

    This article considers the question how knowledge of an impending ecological catastrophe is likely to impact on regulatory legitimacy and regulatory effectiveness. If the ultimate aim to safeguard meaningful human life on earth is in acute danger, this is likely to translate into zero tolerance towards non-compliance with environmental rules designed to avert catastrophe. This, in turn, will persuade regulators to employ normative technologies that do not engage with the moral reason of regulatees at all, but leave no option but to comply. In addition, regulators may turn to panoptic surveillance techniques that allow no breaches of rules to remain undetected. Finally, it is argued that if and to the extent that impending ecological catastrophe marks the end of maintaining the status quo as a plausible policy goal, regulators will be more sympathetic towards potentially apocalyptic technologies that carry greater promise for future gain than otherwise would be the case.


Han Somsen
Han Somsen is Professor of Regulation & Technology at the Tilburg Institute for Law, Technology and Society, and Dean of Research of Tilburg Law School.
Article

Access_open Techno-regulation and law: rule, exception or state of exception?

A comment to Han Somsen and Luigi Corrias

Journal Netherlands Journal of Legal Philosophy, Issue 2 2011
Keywords code, citizenship, trans-generational justice, agency, ethics and politics
Authors Oliver W. Lembcke
AbstractAuthor's information

    Luigi Corrias challenged Han Somsen’s plea for an effective regulation in the wake of an impending ecological catastrophe. This article takes up some of the arguments that have been exchanged: First, the paper criticises Corrias’s call for an ‘eco-logos’ as an ethical evasion of the political dimension that regulations aiming at a radical policy change necessarily entail. Secondly, it disputes the assumption that Somsen’s argument invites the notion of Carl Schmitt’s state of exception. Thirdly, the paper discusses the possible effects that code law might have on the concepts of agency (lack of autonomy) and citizenship (loss of justice).


Oliver W. Lembcke
Oliver W. Lembcke is Associate Professor of Political Theory at the Friedrich Schiller University in Jena.
Discussion

Access_open Democracy, Constitutionalism and the Question of Authority

Journal Netherlands Journal of Legal Philosophy, Issue 3 2010
Keywords international constitutionalism, democracy, international law, fragmentation, international politics
Authors Wouter G. Werner
AbstractAuthor's information

    This paper agrees with Walker on the existence of a tension between democracy and constitutionalism, but questions whether democracy and (international) constitutionalism necessarily depend on each other. While democracy needs constitutionalism on normative grounds, as an empirical matter it may also rest on alternative political structures. Moreover, it is questionable whether democracy is indeed the solution to the incompleteness of international constitutionalism. Traditional forms of democracy do not lend themselves well to transplantation to the international level and could even intensify some problems of international governance. Attempts to democratize international relations should be carried out prudentially, with due regard for possible counterproductive effects.


Wouter G. Werner
Wouter Werner is Professor of Public International Law at VU University, Amsterdam, the Netherlands.
Miscellaneous

Access_open Everything we do is tentative. An interview with Prof. Frederick Schauer

Journal Netherlands Journal of Legal Philosophy, Issue 1 2010
Keywords Schauer, rule priority, legal principles, legal positivism, generality
Authors Bo Zhao
AbstractAuthor's information

    Professor Schauer covers many topics in this interview. On a general note, the interview covers themes pertaining to his experience in engaging with legal philosophy as a trained lawyer; his views on the present and the future of legal philosophy and how we shall cope with its development; his new book Thinking like a Lawyer; the role of legal philosophers in law and society; and some sincere suggestions to young legal philosophers. It also covers more specific topics, including discussions about his insistence on rule priority; differences between legal principles and rules; his opinion of legal positivism; and the pros and cons of analytical tools like spectrum, continuum and generality.


Bo Zhao
Bo Zhao is a post-doc researcher at the History Department, Faculty of Arts, and the Legal Theory Department, Faculty of Law, University of Groningen.
Hoofdartikel

Access_open Responsibility Incorporated

Journal Netherlands Journal of Legal Philosophy, Issue 2 2009
Keywords corporate agency, corporate responsibility, collective responsibility
Authors prof. Philip Pettit
AbstractAuthor's information

    Incorporated groups include businesses, universities, churches and the like. Organized to act as single centers of agency, they also routinely satisfy the three conditions that make an agent fit to be held responsible: they face significant choices, can recognize the relative value of different options, and are able to choose in sensitivity to such values. But is it redundant to hold a corporate agent responsible for something, when certain members are also held responsible for the individual parts they play? No it is not, for it is often possible for a corporate entity to be fully fit to be held responsible, when this is not true of the individual members; they may be able to make excuses that are not available at the corporate level. Does the case made for corporate responsibility extend to unincorporated collectivities like nations or religions? Not strictly but it does explain why it may be sensible to treat those collectivities as if they had corporate responsibility in certain domains.


prof. Philip Pettit
Philip Pettit is the Laurence S. Rockefeller University Professor of Politics and Human Values at Princeton University.
Article

Access_open Interview met Duncan Kennedy

Journal Netherlands Journal of Legal Philosophy, Issue 3 2004
Keywords kind, contract, gift, arrangement, leasing, observer, as low as reasonably achievable, elektronisch geld, interest, machine
Authors P. Westerman

P. Westerman
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