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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 Reciprocity: a fragile equilibrium

Journal Netherlands Journal of Legal Philosophy, Issue 2 2014
Keywords reciprocity, exchange theory, natural law theory, dyadic relations, corrective justice
Authors Prof. dr. Pauline Westerman PhD
AbstractAuthor's information

    Reciprocity may serve to explain or to justify law. In its latter capacity, which is the topic of this article, reciprocity is commonly turned into a highly idealized notion, as either a balance between two free and equal parties or as the possibility of communication tout court. Both ideals lack empirical reference. If sociological and anthropological literature on forms of exchange is taken into account, it should be acknowledged that reciprocal relations are easy to destabilize. The dynamics of exchange invites exclusion and inequality. For this reason reciprocity should not be presupposed as the normative underpinning of law; instead, law should be presupposed in order to turn reciprocity into a desirable ideal.


Prof. dr. Pauline Westerman PhD
Pauline Westerman is Professor in Philosophy of Law at the University of Groningen and member of staff at the Academy for Legislation in the Hague. She is editor of The Theory and Practice of Legislation, a journal published by Hart, Oxford. She writes mainly on legal methodology and legislation, especially on alternative forms of legislation. For more information as well as publications, see her personal website: <www.paulinewesterman.nl>.
Article

Access_open What Makes Age Discrimination Special? A Philosophical Look at the ECJ Case Law

Journal Netherlands Journal of Legal Philosophy, Issue 1 2014
Keywords age discrimination, intergenerational justice, complete-life view, statistical discrimination, anti-discrimination law
Authors Axel Gosseries
AbstractAuthor's information

    This paper provides an account of what makes age discrimination special, going through a set of possible justifications. In the end, it turns out that a full understanding of the specialness of age-based differential treatment requires that we consider together the ‘reliable proxy,’ the ‘complete-life neutrality,’ the ‘sequence efficiency’ and the ‘affirmative egalitarian’ accounts. Depending on the specific age criteria, all four accounts may apply or only some of them. This is the first key message of this paper. The second message of the paper has to do with the age group/birth cohort distinction. All measures that have a differential impact on different cohorts also tend to have a differential impact on various age groups during the transition. The paper points at the practical implications of anti-age-discrimination law for differential treatment between birth cohorts. The whole argument is confronted all along with ECJ cases.


Axel Gosseries
Axel Gosseries is a permanent research fellow at the Belgian FRS-FNRS and a Professor at the University of Louvain (UCL, Belgium) where he is based at the Hoover Chair in Economic and Social Ethics.
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