Although Nussbaum’s “Capabilities Approach” (CA) clearly expresses a commitment to objectivity, this article argues that this commitment is rather ambiguous due to the conception of public reason it endorses. In particular, the CA cannot account for an objective justification of public reason, given certain characteristics of public reason. As a result, the CA jeopardizes the substantive aim it has set itself: to provide an objective justification for public choices regarding human capabilities and their specifications. |
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Journal | Netherlands Journal of Legal Philosophy, Issue 3 2009 |
Keywords | Martha Nussbaum, Capabilities Approach, moral epistemology, objectivity, residues of justice, Bernard Williams, political moralism |
Authors | Mr. Iris van Domselaar |
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Journal | Netherlands Journal of Legal Philosophy, Issue 3 2009 |
Keywords | legal theory, science, methodology, normativity, knowledge |
Authors | Prof. mr. Carel Smith |
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Propositions of law are based upon normative judgement. The interpretation and application of legal provisions rest upon a judgement that determines which weight must be attributed to some point of view or perspective. In this respect, legal theory has a normative character. Its normative character does not preclude legal theory from being a scientific discipline. The scientific character of legal theory is not located in the possibility of testing the correctness of its theories. Rather, legal theory owes it scientific character to the shared standards of production and evaluation of legal arguments: the grammar of justice. |
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Journal | Netherlands Journal of Legal Philosophy, Issue 2 2009 |
Keywords | responsibility, accountability, imputation, liability |
Authors | prof. Bert van Roermund and prof. Jan Vranken |
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Responsibility disappears into the background of private law as it deals with imputation of liability. Fitness to be held liable is determined by normative viewpoints different from moral ones, in particular by convictions on how society ought to be organized so as to avoid or end conflict between private citizens. Modes of discursive control are geared to making authoritative decisions in view of the same end, and corporate agency is created, restricted or enlarged to undercut or to impose individual liability. |
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Journal | Netherlands Journal of Legal Philosophy, Issue 2 2009 |
Keywords | collective criminal responsibility;, individual responsibility |
Authors | dr. Govert den Hartogh |
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This paper argues, against Pettit’s thesis about the incorporation of responsibility, that holding collective agents criminally responsible is necessarily either redundant or unfair: redundant if responsibility can be distributed without remainder over individual persons; unfair if it cannot. It should be the task of legal systems to create chains of individual criminal responsibility encompassing executives, officials, and members of corporate agents. |
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Journal | Netherlands Journal of Legal Philosophy, Issue 1 2009 |
Keywords | normative positivism, historic injustice, restitution of property rights, citation of foreign law, methodology debate |
Authors | Kees Quist and Wouter Veraart |
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This interview with Jeremy Waldron covers three topics. Firstly, we dealt with the methodology debate, that is, the discussion about how to proceed in analyzing the nature of law. Does the question ‘What is law?’ require a descriptive analysis of the concept of law or, rather, a normative exercise in political philosophy? Secondly, we spoke about the role of law in response to historic injustice, especially in relation to the restitution of property rights. On this topic Waldron vindicates the ‘supersession-thesis’, the idea that, due to changed circumstances and the passage of time, historic injustices become superseded. The third section of the interview is devoted to Waldron’s perspective on the citation of foreign law by national judges. |