Zoekresultaat: 62 artikelen

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Artikel

“The production of law”: Law in action in the everyday and the juridical consequences of juridification

Tijdschrift Recht der Werkelijkheid, Aflevering 3 2016
Trefwoorden juridification, production of space, law in action, local bye-laws
Auteurs dr. mr. Danielle Chevalier
SamenvattingAuteursinformatie

    In an increasingly diversifying society, public space is the quintessential social realm1x Lofland 1998. where members of that diverse society meet each other. Thus space is shared, whilst norms regarding that space are not always shared. Of rivalling norms, some are codified into formal law, in a process Habermas called juridification. Early Habermas regarded juridification a negative process, ‘colonizing the lifeworld’. Later Habermas argued juridification a viable pillar for conviviality in diversity. The shift in Habermas’ perspective invites the question how law works in action. In this article a frame is offered to scrutinize the working of law in action in public space, by applying the conceptual triad of spatial thinker Lefebvre to understand how law is “produced”. It argues that how law is perceived in action is pivotal to understanding how law works in action. Moreover, it discusses the possible ramifications of the perception of law in action for how the legal system as a whole is perceived.

Noten

  • 1 Lofland 1998.


dr. mr. Danielle Chevalier
Danielle Chevalier is a lecturer and research fellow at the University of Amsterdam, affiliated to both the Bonger Institute for Criminology and the Amsterdam School for Social Science Research. Her academic works focuses on the intersection of the legal and the spatial, positioned within the frames of urban sociology, criminology and legal sociology. More specifically she researches legal interventions in the urban realm through qualitative methods, and publishes both on law in action and research methods. Her current project centers on the development of the concept 'emotional ownership of public space'.
Artikel

Opinio juris as epistème: A constructivist approach to the use of contested concepts in legal doctrine

Tijdschrift Recht der Werkelijkheid, Aflevering 3 2016
Trefwoorden Opinio juris, Interpretive concepts, Customary law, Constructivism, Pierre Bourdieu, Peter Berger & Thomas Luckmann
Auteurs Associate Professor Olaf Tans
SamenvattingAuteursinformatie

    Seeing that the role of opinio juris in the identification of customary international law is essentially contested, this contribution seeks to explain how this concept plays a fruitful role in legal doctrine despite of, or perhaps even due to, this essential contestedness. To that effect the paper adopts a constructivist perspective, primarily drawing from Bourdieu’s theory of practice and Berger & Luckmann’s ideas about institutionalization. In this perspective, contested concepts such as opinio juris are conceived of as multifaceted tools of knowledge production in the hands of members of epistemic communities.


Associate Professor Olaf Tans
Olaf Tans works as legal philosopher and political scientist at Amsterdam University College and the Centre for the Politics of Transnational Law. His contribution to this special issue is part of a research line focusing on the social construction of normativity in legal doctrine. He has also published about constitutionalism, citizenship, democracy, and most recently (e.g. in Ratio Juris and Law & Literature) about the use of foundational narratives in public deliberation and law-finding.
Boekbespreking

Soft-drugs, morality and law in Late Modernity

Tijdschrift Recht der Werkelijkheid, Aflevering 2 2016
Trefwoorden review-essay, proefschrift Chevallier, blow-verbod, symbolic crusade, culture of control
Auteurs Thaddeus Müller
Auteursinformatie

Thaddeus Müller
Thaddeus Müller is senior onderzoeker bij de Law School, Lancaster University (criminology). Hij is gespecialiseerd in kwalitatieve methoden en zijn belangstelling gaat uit naar de sociale constructie van perspectieven op veiligheid in publieke ruimten, in het bijzonder in multi-culturele buurten. Een ander thema dat zijn belangstelling heeft is de constructie en ontwikkeling van het softdrugs-beleid in Nederland en over de grenzen. Thaddeus Müller heeft ook gepubliceerd over andere thema’s, met name over de marginalisering van etnische jongeren in de laat-moderniteit, vooral in de context van het strafrechtstelsel, academische fraude (gerelateerd aan de organisatie van academische instellingen), met name de Diederik Stapel-zaak en over Rock en Roll, in het bijzonder Lou Reed.

    This paper interprets the presumption of innocence as a conceptual antidote for sacrificial tendencies in criminal law. Using Girard’s philosophy of scapegoat mechanisms and sacrifice as hermeneutical framework, the consanguinity of legal and sacrificial order is explored. We argue that some legal concepts found in the ius commune’s criminal system (12th-18th century), like torture, infamy, or punishment for mere suspicion, are affiliated with scapegoat dynamics and operate, to some extent, in the spirit of sacrifice. By indicating how these concepts entail more or less flagrant breaches of our contemporary conception of due process molded by the presumption of innocence, an antithesis emerges between the presumption of innocence and sacrificial inclinations in criminal law. Furthermore, when facing fundamental threats like heresy, the ius commune’s due process could be suspended. What emerges in this state of exception allowing for swift and relentless repression, is elucidated as legal order’s sacrificial infrastructure.


Rafael Van Damme
Rafael Van Damme is PhD-student in philosophy.
Artikel

Access_open Institutional Religious Accommodation in the US and Europe

Comparative Reflections from a Liberal Perspective

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 3 2015
Trefwoorden European jurisprudence, freedom of religion, religious-based associations, religious accommodation
Auteurs Patrick Loobuyck
SamenvattingAuteursinformatie

    Jean Cohen argues that recent US Supreme Court decisions about institutional accommodation are problematic. She rightly points out that justice and the liberal concept of freedom of consciousness cannot do the work in Hobby Lobby and Hosanna-Tabor: what does the work is a medieval political-theological conception of church immunity and sovereignty. The first part of this commentary sketches how the autonomy of churches and religious associations can be considered from a liberal perspective, avoiding the pitfall of the medieval idea of libertas ecclesiae based on church immunity and sovereignty. The second part discusses the European jurisprudence about institutional accommodation claims and concludes that until now the European Court of Human Rights is more nuanced and its decisions are more in line with liberalism than the US Jurisprudence.


Patrick Loobuyck
Patrick Loobuyck is Associate Professor of Religion and Worldviews at the Centre Pieter Gillis of the University of Antwerp and Guest Professor of Political Philosophy at Ghent University.
Artikel

Access_open Freedom of Religion, Inc.: Whose Sovereignty?

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 3 2015
Trefwoorden accommodation, freedom of religion, political theology, liberalism, liberty of conscience
Auteurs Jean L. Cohen
SamenvattingAuteursinformatie

    This article focuses on an expansive conception of religious freedom propagated by a vocal group of American legal scholars – jurisdictional pluralists – often working with well-funded conservative foundations and influencing accommodation decisions throughout the US. I show that the proliferation of ‘accommodation’ claims in the name of church autonomy and religious conscience entailing exemption from civil regulation and anti-discrimination laws required by justice have a deep structure that has little to do with fairness or inclusion or liberal pluralism. Instead they are tantamount to sovereignty claims, involving powers and immunities for the religious, implicitly referring to another, higher law and sovereign than the constitution or the people. The twenty-first century version of older pluralist ‘freedom of religion’ discourses also rejects the comprehensive jurisdiction and scope of public, civil law – this time challenging the ‘monistic sovereignty’ of the democratic constitutional state. I argue that the jurisdictional pluralist approach to religious freedom challenges liberal democratic constitutionalism at its core and should be resisted wherever it arises.


Jean L. Cohen
Jean L. Cohen is the Nell and Herbert M. Singer Professor of Political Thought and Contemporary Civilization at the Department of Political Science of Columbia University (New York) and will be the Emile Noel Fellow at the Jean Monet Center of the NYU Law School from January till June 2016.
Artikel

Access_open Kelsen, Secular Religion, and the Problem of Transcendence

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 2 2015
Trefwoorden Kelsen, secular religion, Voegelin, Schmitt, transcendence
Auteurs professor Bert van Roermund
SamenvattingAuteursinformatie

    An alleged ‘return to religion’ in contemporary western politics (and science) prompted the Trustees of the Hans Kelsen Institut to posthumously publish Kelsen’s critique of the concept of ‘secular religion’ advanced by his early student Eric Voegelin. This paper identifies, firstly, what concept of transcendence is targeted by Kelsen, and argues that his analysis leaves scope for other conceptions. It does so in two steps: it summarizes the arguments against ‘secular religion’ (section 2) and it gives an account of the differences between Voegelin’s and Schmitt’s conception of transcendence – both under attack from Kelsen (section 3). It then submits an alternative account of the relationship between politics and religion in Modernity, building on the concept of a ‘civil religion’ as found in Rousseau’s Social Contract. Giving a Rousseauist slant to Claude Lefort’s analysis of political theology (section 4) it concludes that a thin concept of transcendence is part and parcel of every, in particular a democratic, account of politics. It should be a stronghold against any resurgence of religion that feeds on hypostatized transcendence. In closing (section 5), it is argued that two key concepts in Kelsen’s legal philosophy may well be understood as paradigms of thin transcendence, namely ‘the people’ and ‘the Grundnorm’.


professor Bert van Roermund
Bert van Roermund is professor (em.) of philosophy at Tilburg Law School and international correspondent of the Hans Kelsen Institute in Vienna.

    This paper raises two methodological questions from a philosophical perspective: (i) what is involved in a functionalist approach to law and (ii) what should be the focus of such an approach? To answer these questions, I will take two steps with both. To begin with, I argue that Pettit’s view on functionalist approaches may be made relevant for law; functionalist accounts target a virtual mechanism that explains why a system will be resilient under changes in either the system or its environment. Secondly, I make a distinction between two interpretations of his key-concept ‘resilience’, one in mechanical, the other in teleological terms. With regard to the second question I will take two steps as well. I argue why it does not make sense to ascribe wide functions to law, followed by a plea for a limited view on the function of law. This limited view is based on a teleological understanding of the law’s resilience. I argue that these two modes are interrelated in ways that are relevant for the interdisciplinary study of law.


Bert van Roermund

    In the course of it short existence, Socio-legal studies (SLS) in the Anglo-Saxon world has burgeoned into a rich and variegated field. Reviewing it is therefore a challenging task. I begin with some general reflections and an outline of recent developments. Although these indicate an extremely vibrant field, concerns have been expressed for the future. In my discussion of these, I argue that our analysis of SLS needs to be historicised since the emergence of SLS is connected to processes of social modernization and democratization. The erosion of these processes by neo-liberal discourses and policies is the background to a discussion of my own research into the impact of the cuts to civil legal aid in England and Wales. This leads me to conclude that the fundamental dissonance between neo-liberal rationality and social science may portend a difficult future, in particular for empirical work; however, I note too that other developments such as the ongoing juridification of society and new social media may make continued SL engagement irresistible.


Hilary Sommerlad
Hilary Sommerlad is professor of Law and Research Director of the Centre for Professional Legal Education and Research, University of Birmingham, and Fellow of the Academy of Social Sciences. Dr. Sommerlad’s research interests are access to justice, the cultural practices of the professional workplace and diversity. She is Articles Editor of Legal Ethics, and serves on the editorial boards of the Journal of Law and Society and the International Journal of the Legal Profession.
Artikel

Access_open The Experience of Legal Injustice

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 3 2014
Trefwoorden legal injustice, legal subject, law and morality, Fuller, Arendt
Auteurs Wouter Veraart
SamenvattingAuteursinformatie

    This paper shows that Fuller and Arendt converge on a different point than the point Rundle focuses on. What Fuller and Arendt seem to share in their legal thoughts is not so much an interest in the experience of law-as-such (the interaction between responsible agency and law as a complex institution), but rather an interest in the junction of law and injustice. By not sufficiently focusing on the experience of legal injustice, Rundle overlooks an important point of divergence between Arendt and Fuller. In particular, Arendt differs from Fuller in her conviction that ‘injustice in a legal form’ is an integral part of modern legal systems.


Wouter Veraart
Wouter Veraart is Professor of Legal Philosophy and Director of Research at the Free University Amsterdam; w.j.veraart@vu.nl.
Artikel

Access_open Reply

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 3 2014
Trefwoorden Fuller, Arendt, normativism, methodology, the rule of law
Auteurs Kristen Rundle
SamenvattingAuteursinformatie

    Author’s reply to four commentaries on ‘Legal Subjects and Juridical Persons: Developing Public Legal Theory through Fuller and Arendt.’


Kristen Rundle
Kristen Rundle is Senior Lecturer of Law at the University of New South Wales; k.rundle@unsw.edu.au
Artikel

Access_open Fuller and Arendt: A Happy Marriage? Comment on Rundle

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 3 2014
Trefwoorden Fuller, Arendt, Radbruch, legal certainty
Auteurs Thomas Mertens
SamenvattingAuteursinformatie

    In her paper, Rundle seeks to develop a normative legal theory that is distinctively public. Building on her book, Forms Liberate, she seeks to bring Fuller’s legal theory into conversation with Arendt’s political theory. In this comment, I present some hesitations with regard to the fruitfulness of this conversation. It concludes with the suggestion to explore how Radbruch’s ‘idea of law’ could be fruitful for the overall jurisprudential project Rundle seeks to develop in her work.


Thomas Mertens
Thomas Mertens is Professor of Philosophy of Law at Radboud University Nijmegen; t.mertens@jur.ru.nl
Artikel

Access_open Political Jurisprudence or Institutional Normativism? Maintaining the Difference Between Arendt and Fuller

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 3 2014
Trefwoorden Arendt, Fuller, Hobbes, political jurisprudence, political freedom, authority, legality
Auteurs Michael Wilkinson
SamenvattingAuteursinformatie

    Can jurisprudence fruitfully pursue a synthesis of Arendt’s political theory and Fuller’s normative legal philosophy? Might their ideas of the juridical person and the legal subject be aligned as a result of a shared concern for the value of legality, specifically of an institutional complex which is structured through the stability and predictability of the rule of law? It is doubtful that Arendt's concern for the phenomena of plurality, political freedom and action can usefully be brought into line with Fuller's normativist focus on legality, subjectivity and the inner morality of law. This doubt is explored by juxtaposing Arendt's theory of action and her remarks on the revolution, foundation and augmentation of power and authority with Fuller's philosophy that, however critical of its positivist adversaries, remains ultimately tied to a Hobbesian tradition which views authority and power in abstract, hierarchical and individualist terms.


Michael Wilkinson
Michael Wilkinson is Associate Professor of Law at the London School of Economics; m.wilkinson@lse.ac.uk
Artikel

Access_open Legal Subjects and Juridical Persons: Developing Public Legal Theory through Fuller and Arendt

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 3 2014
Trefwoorden Fuller, Arendt, legal subject, juridical person, public rule of law theory
Auteurs Kristen Rundle
SamenvattingAuteursinformatie

    The ‘public’ character of the kind of rule of law theorizing with which Lon Fuller was engaged is signalled especially in his attention to the very notion of being a ’legal subject’ at all. This point is central to the aim of this paper to explore the animating commitments, of substance and method alike, of a particular direction of legal theorizing: one which commences its inquiry from an assessment of conditions of personhood within a public legal frame. Opening up this inquiry to resources beyond Fuller, the paper makes a novel move in its consideration of how the political theorist Hannah Arendt’s reflections on the ‘juridical person’ might aid a legal theoretical enterprise of this kind.


Kristen Rundle
Kristen Rundle is Senior Lecturer of Law at the University of New South Wales; k.rundle@unsw.edu.au

    Introduction to this special issue of NJLP.


Morag Goodwin
Morag Goodwin is Associate Professor of International Law at Tilburg University; m.e.a.goodwin@uvt.nl.

Michiel Besters
Michiel Besters is a Ph.D. researcher in Legal Philosophy at Tilburg University; m.besters@uvt.nl.

Rudolf Rijgersberg
Rudolf Rijgersberg is Assistant Professor of Foundation and Methods of Law at Maastricht University; rudolf.rijgersberg@maastrichtuniversity.nl.
Artikel

Access_open Lawyers Doing Philosophy

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 3 2014
Trefwoorden human agency, legal doctrine, command theory of law, Fuller, Arendt
Auteurs Pauline Westerman
SamenvattingAuteursinformatie

    Rundle criticizes the command conception of law by means of Fuller’s and Arendt’s concept of human agency. However, neither of these two authors derive law from human agency, as Rundle seems to think. Instead they stress that personhood can only be attributed to physical human beings on the basis of law. Moreover, their theories cannot be understood as answers to Rundle’s question – whatever that may be – but as answers to their own questions and concerns. In the case of Arendt and Fuller, these concerns were so different that the enterprise to reconcile them seems futile. Rundle’s approach can be understood as the attempt to deal with philosophy as if it were legal doctrine.


Pauline Westerman
Pauline Westerman is Professor of Philosophy of Law at the University of Groningen; p.c.westerman@rug.nl
Hoofdartikel

The Challenge of Empirical Method to Labour Law Theory and Practice

Tijdschrift Arbeidsrechtelijke Annotaties, Aflevering 3 2014
Trefwoorden Empirical research, Shaping of labour law, Methodology
Auteurs Simon F. Deakin
SamenvattingAuteursinformatie

    The aim of the paper is to consider the significance for labour law theory and practice of empirical research into the operation and effects of this branch of law. It will be argued that empirical research has an important role to play in the methodology of labour law, even if it is ancillary, much of the time, to doctrinal approaches. Secondly, and relatedly, the paper will address the historical role of empirical research in the shaping of labour law as a field distinct from both private law and public law, and, in particular, as transcending the categories of property and contract that were inherited from the individualist private law of the nineteenth century. The third and last theme of the paper is that of the role of empirical research in addressing contemporary issues of labour law doctrine and policy.


Simon F. Deakin
Simon F. Deakin is prof. of law at the University of Cambridge.
Artikel

Access_open Racial Profiling and the Presumption of Innocence

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 1 2014
Trefwoorden racial profiling, stop-and-frisk, presumption of innocence, communicative theories of criminal law, social inequality and criminal law
Auteurs Peter DeAngelis
SamenvattingAuteursinformatie

    I argue that a compelling way to articulate what is wrong with racial profiling in policing is to view racial profiling as a violation of the presumption of innocence. I discuss the communicative nature of the presumption of innocence as an expression of social trust and a protection against the social condemnation of being undeservingly investigated, prosecuted, and convicted for committing a crime. I argue that, given its communicative dimension, failures to extend the presumption of innocence are an expression of disrespect. I take the New York Police Department’s stop-and-frisk policy as an example of racial profiling and argue that its use of race-based forms of suspicion as reasons for making stops is a violation of the presumption of innocence. I maintain that this systemic failure to extend the presumption of innocence to profiled groups reveals the essentially disrespectful nature of the NYPD policy.


Peter DeAngelis
Peter DeAngelis is Ph.D. Candidate in Philosophy at Villanova University.

    Legal position of a known donor constitutes an ongoing challenge. Known donors are often willing to play a role in the child’s life. Their wishes range from scarce involvement to aspiring legal parentage. Therefore three persons may wish for parental role. This is not catered for in the current laws allowing only for two legal parents. Several studies show how lesbian mothers and a donor ’devise new definitions of parenthood’ extending ’beyond the existing normative framework’. However, the diversity in the roles of the donors suggests a split of parental rights between three persons rather than three traditional legal parents. In this article I will discuss three jurisdictions (Quebec, Sweden and the Netherlands), allowing co-mother to become legal parent other than by a step-parent adoption. I will examine whether these jurisdictions attempt to accommodate specific needs of lesbian families by splitting up parentage ’package’ between the duo-mothers and the donor.


Prof. mr. Masha Antokolskaia Ph.D.
Masha Antokolskaia is professor of Private Law (in particular, Personal Status and Family Law) at the VU University Amsterdam. She is a member of the Commission on European Family Law (CEFL) and a board member of the International Society of Family Law. She is author of a diverse range of monographs and articles written in Dutch, English and Russian. Her main research areas are: European comparative Family Law and Dutch Family Law, with particular regard to the law relating to relationships, parentage and divorce.
Article

Access_open How Law Manifests Itself in Australian Aboriginal Art

Tijdschrift Erasmus Law Review, Aflevering 3/4 2013
Trefwoorden legal pluralism, native title, reconciliation, indigenous people of Australia, Aboriginal art
Auteurs Dr. Agnes T.M. Dr. Schreiner
SamenvattingAuteursinformatie

    The article How Law Manifests Itself in Australian Aboriginal Art will discuss two events at the Aboriginal Art Museum Utrecht from the perspective of a meeting between two artistic and legal cultures. The first event, on the art and law of the Spinifex people, will prove to be of a private law nature, whilst the second event, on the art and law of the Wik People, will show characteristics of international public law. This legal anthropological contribution may frustrate a pluralistic perspective with regard to the coexistence of Western law and Aboriginal law on the one hand and of Utrecht's Modern Art Museum and the presented Aboriginal Art on the other. It will show instead the self-evidence of art and law presented and their intertwined connection for the Aboriginal or indigenous peoples of Australia.


Dr. Agnes T.M. Dr. Schreiner
Agnes T.M. Schreiner studied Law and is Lecturer on several themes of the General Jurisprudence at the Law Faculty, University of Amsterdam, The Netherlands. Within the Masterprogram European Private law she teaches the course Anthropology of European Private Law. She received her Ph.D. in 1990. She has specialized in a series of subjects: Law & Media, Law & Arts, Law & Rituals, Law & Culture, Law & Semiotics and Law & Social Sciences.
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