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Access_open De onschuld voorbij

Jeff McMahans Killing in War

Journal Netherlands Journal of Legal Philosophy, Issue 1 2011
Keywords just war, non-combatant immunity, self-defense
Authors Koos ten Bras and Thomas Mertens
AbstractAuthor's information

    Jeff McMahan, one of the leading contemporary writers on ‘just war thinking’, argues in the book under review, Killing in War, that one of the central tenets of the ‘ius in bello’, namely the moral equality of combatants, is both conceptually and morally untenable. This results from a reflection upon and a departure from two basic assumptions in Walzer’s work, namely the idea that war itself isn’t a relation between persons, but between political entities and their human instruments and the idea that the ‘ius ad bellum’ and ‘ius in bello’ are and should be kept distinct. This book merits serious reflection. However, the disadvantages of McMahan’s position are obvious. If the rights of combatants during war depend on the justice of their cause, the immunity of the civilians on the side of the supposed ‘unjust’ enemy is seriously endangered.


Koos ten Bras
Koos ten Bras is a recent university graduate from the Radboud University Nijmegen with a master degree in International & European Law, and a student in Philosophy of Law at the Radboud University Nijmegen.

Thomas Mertens
Thomas Mertens is Professor of Legal Philosophy at the Faculty of Law at Radboud University Nijmegen, and Professor of Human Rights and Human Responsibilities at the Institute of Philosophy at Leiden University.
Article

Access_open Legitimiteit, gemeenschap en rechtvaardigheid

Een kritiek op Dworkins verklaring voor legitimiteit

Journal Netherlands Journal of Legal Philosophy, Issue 1 2011
Keywords legitimacy, associative obligations, justice, community, Dworkin
Authors Thomas Decreus
AbstractAuthor's information

    In Law’s Empire Ronald Dworkin offers a specific answer to the age old question of political legitimacy. According to Dworkin, legitimacy originates in a ‘true community’ that is able to generate associative obligations among its members. In this article I illustrate how this answer contrasts with the moral and political principle of justice. The question remains how a conceptual link can be found between a community-based view on legitimacy and a more universal demand for justice. I try to answer this question by offering a close reading of Law’s Empire and other basic essays in Dworkin’s philosophy of law. In my attempt to solve this problem I propose an alternative view on community and legitimacy. In opposition to Dworkin I claim that legitimacy is prior to the community.


Thomas Decreus
Thomas Decreus is PhD student in political philosophy at the KULeuven Institute of Philosophy.

Jacques Thomassen
Jacques Thomassen is emeritus hoogleraar politicologie bij de Faculteit Management en Bestuur van de Universiteit Twente en Algemeen Secretaris van de Koninklijke Nederlandse Akademie van Wetenschappen (KNAW).
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