Zoekresultaat: 45 artikelen

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    Indigenous claims have challenged a number of orthodoxies within state legal systems, one of them being the kinds of proof that can be admissible. In Canada, the focus has been on the admissibility and weight of oral traditions and histories. However, these novel forms are usually taken as alternative means of proving a set of facts that are not in themselves “cultural”, for example, the occupation by a group of people of an area of land that constitutes Aboriginal title. On this view, maps are a neutral technology for representing culturally different interests within those areas. Through Indigenous land use studies, claimants have been able to deploy the powerful symbolic capital of cartography to challenge dominant assumptions about “empty” land and the kinds of uses to which it can be put. There is a risk, though, that Indigenous understandings of land are captured or misrepresented by this technology, and that what appears neutral is in fact deeply implicated in the colonial project and occidental ideas of property. This paper will explore the possibilities for an alternative cartography suggested by digital technologies, by Indigenous artists, and by maps beyond the visual order.


Kirsten Anker Ph.D.
Associate Professor, McGill University Faculty of Law, Canada. Many thanks to the two anonymous reviewers for their frank and helpful feedback.

    Legal doctrinal scholarship engages with the problems of legal practice: it systematizes, comments on, evaluates and debates what goes on in law. These activities do not occur in a vacuum: they are embedded in scholarly traditions and theories. This paper discusses the role of the theoretical frameworks used in legal research and has two related aims. First, it aims to provide some practical conceptualizations and guidelines regarding theoretical and normative frameworks that are useful to understand and conduct legal research. Second, it aims to investigate the relationships between different kinds of normative frameworks and their relationship to empirical work. In the second part, an argument is made for a pragmatist understanding of the interplay between normative theorizing and empirical study. How do these work together in judgments about the state of the law?


Sanne Taekema
Erasmus School of Law, Rotterdam; taekema@law.eur.nl.
Artikel

Access_open The Justification of Basic Rights

A Discourse-Theoretical Approach

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 3 2016
Trefwoorden Basic rights, Right to justification, Discourse theory, Non-domination, Kant
Auteurs Professor Rainer Forst
SamenvattingAuteursinformatie

    In this paper, I suggest a discourse theory of basic legal rights that is superior to rival approaches, such as a will-based or an interest-based theory of rights. Basic rights are reciprocally and generally justifiable and binding claims on others (agents or institutions) that they should do (or refrain from doing) certain things determined by the content of these rights. We call these rights basic because they define the status of persons as full members of a normative order in such a way that they provide protection from severe forms of legal, political and social domination. The very ground of these rights is the status of persons as free and equal normative authorities within the order they are subject to. In other words, these rights are grounded in a fundamental moral right to justification.


Professor Rainer Forst
Rainer Forst is professor of Political Theory and Philosophy at the Goethe Universität, Frankfurt am Main.
Artikel

Access_open The Justification of Basic Rights

A Response to Forst

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 3 2016
Trefwoorden Basic rights, Justification, Kant
Auteurs Glen Newey PhD
SamenvattingAuteursinformatie

    This paper responds to Rainer Forst’s article ‘The Justification of Basic Rights’. I argue that Forst's main thesis is difficult to pin down, partly because it is formulated in significantly distinct ways at numerous points. I offer a possible formulation of the argument but note that this encapsulates a fallacy; I further argue that his inference of the basic rights seems to imply an over-moralisation of social life and that his argument does not distinguish rights with discretionary and non-discretionary content. Then I query Forst’s claim that a right to justification is a condition of engaging in justificatory discourse. This leads to the conclusion that what goes into the process of justification, including who figures in the discursive community, are irreducibly political questions, whose answers cannot be convincingly specified antecedently by a form of moral legislation. I argue that actual discursive processes allow for considerably more contingency and contextual variability than Forst’s construction acknowledges. This extends, as I suggest in conclusion, to the idea that content can be specified via the Kantian notion that acceptability requires the ‘containment’ of an actor's ends by another, such as an affected party.


Glen Newey PhD
Glen Newey is professor of Political Philosophy and Ethics at Leiden University.
Artikel

Access_open What Does it Mean to Justify Basic Rights?

Reply to Düwell, Newey, Rummens and Valentini

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 3 2016
Auteurs Professor Rainer Forst
SamenvattingAuteursinformatie

    In this paper, I reply to the four comments on my paper ‘The Justification of Basic Rights: A Discourse-Theoretical Approach’ given by Laura Valentini, Marcus Düwell, Stefan Rummens and Glen Newey.


Professor Rainer Forst
Professor of Political Theory and Philosophy at the Goethe Universität, Frankfurt am Main.
Artikel

Access_open Frankfurt Goes Kantian – But How Does It Work?

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 3 2016
Trefwoorden Human dignity, Transcendental arguments, Discourse ethics, Kantian ethics, Human rights
Auteurs Prof. Dr. Marcus Düwell
SamenvattingAuteursinformatie

    The paper discusses Forst’s discourse- theoretical adaption of the Kantian heritage. If Forst sees a Kantian concept of human dignity as the basis of his approach, he cannot rely on Habermas’ (quasi-)transcendental argument. It is furthermore questionable why Forst proposes that the content of human rights can only be determined in a procedural way. An alternative would be to determine the content from the normative starting point of human dignity.


Prof. Dr. Marcus Düwell
Marcus Düwell is professor of Philosophical Ethics and director of the Ethics Institute, Utrecht University.
Artikel

Access_open Two Sides of the Same Coin

Unpacking Rainer Forst’s Basic Right to Justification

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 3 2016
Auteurs Stefan Rummens
SamenvattingAuteursinformatie

    This paper makes two comments on Rainer Forst’s keynote contribution. It argues, first, that three important distinctions introduced by Forst are, in fact, all different versions of the more primary distinction between the a priori reconstruction of basic rights by philosophers and the discursive construction of basic rights by citizens. It proposes, secondly, an alternative discourse-theoretical reconstruction which makes a distinction between the basic right to justification and the basic right to choose your own ends as two different but inseparable rights – two sides of the same coin – which jointly provide the moral ground for our basic rights as citizens.


Stefan Rummens
Stefan Rummens is professor of Moral Philosophy at the Institute of Philosophy of KU Leuven.
Article

Access_open Harmony, Law and Criminal Reconciliation in China: A Historical Perspective

Tijdschrift Erasmus Law Review, Aflevering 1 2016
Trefwoorden Criminal reconciliation, Confucianism, decentralisation, centralisation
Auteurs Wei Pei
SamenvattingAuteursinformatie

    In 2012, China revised its Criminal Procedure Law (2012 CPL). One of the major changes is its official approval of the use of victim-offender reconciliation, or ‘criminal reconciliation’ in certain public prosecution cases. This change, on the one hand, echoes the Confucian doctrine that favours harmonious inter-personal relationships and mediation, while, on the other hand, it deviates from the direction of legal reforms dating from the 1970s through the late 1990s. Questions have emerged concerning not only the cause of this change in legal norms but also the proper position of criminal reconciliation in the current criminal justice system in China. The answers to these questions largely rely on understanding the role of traditional informal dispute resolution as well as its interaction with legal norms. Criminal reconciliation in ancient China functioned as a means to centralise imperial power by decentralizing decentralising its administration. Abolishing or enabling such a mechanism in law is merely a small part of the government’s strategy to react to political or social crises and to maintain social stability. However, its actual effect depends on the vitality of Confucianism, which in turn relies on the economic foundation and corresponding structure of society.


Wei Pei
Wei Pei, Ph.D., is an Associate Professor at the Beihang School of Law in the Beihang University.

    In this article I develop a political realist notion of public reason. It may be thought that a notion of public reason is simply incompatible with the position of the political realist. But this article claims that a realist notion of public reason, different from the familiar political liberal idea of public reason, can be reconstructed from ancient texts on rhetoric and dialectic, particularly Aristotle's. The specification of this notion helps us understand the differences between contemporary liberal and realist positions.


Bertjan Wolthuis
Bertjan Wolthuis is Assistant Professor of Legal Theory at Vrije Universiteit Amsterdam.
Artikel

Access_open John Braithwaite

Tijdschrift Tijdschrift over Cultuur & Criminaliteit, Aflevering 2 2015
Trefwoorden John Braithwaite, reintegrative shaming, responsive regulation, science of science
Auteurs Prof. dr. em. Lode Walgrave
SamenvattingAuteursinformatie

    In this interview, Lode Walgrave talks to John Braithwaite, one of the most cited white collar crime scholars and best known for his ‘reintegrative shaming’, which added the crucial moral-emotional and ethical dimensions to the body of work on crime and crime control. John Braithwaite tells about his major publications and developments in his intellectual endeavour: the role of shaming and its importance in restorative justice, dominion, responsive regulation, and also his recent project on peacebuilding. Braithwaite’s career and political involvement are discussed throughout the interview, as well as his critical view with regards to the fragmentation of social sciences (including criminology).


Prof. dr. em. Lode Walgrave
Prof. dr. em. Lode Walgrave is emeritus professor aan de Katholieke Universiteit Leuven (België). Hij publiceerde vooral over jeugdcriminologie en herstelrecht. In 2008 ontving hij de European Criminology Award.

    Those who talk can be heard. Those who are allowed to talk may be listened to. This study is an attempt to give legal voice to those who cannot talk or are usually not listened to: children. This study is about the attention given to their interests, the best interests of the child. When these interests are immersed in a minority context, children may be overlooked for different reasons, including discriminatory attitudes or prejudice regarding their families. Law and its interpretation must be changed in order to include the difference. This study discusses the best interests of the child principle with special attention to its legal relevance in cases where lesbians, gays, bisexual and transgender (LGBT) are, or want to be, parents. The authoritative source for the interpretation of the principle is the United Nations (UN) Convention on the Rights of the Child (CRC). The analysis focuses on the European Court of Human Rights (ECtHR) and its case law. The study aims to explore the Court’s approach to the best interest of the child and identify whether the principle is being consistently applied in cases involving LGBT families, given the fact that sexual orientation and gender identity are still sensitive issues in Europe. This is done by comparing these cases to cases lodged by applicants who were not identified as an LGBT person. The margin of appreciation doctrine and the lack of European consensus on sexual minorities’ rights are confronted with the urgent paramount consideration that has to be given to children’s best interests. The analysis explores whether there is room for detecting a possible Court’s biased approach towards the concept of the best interests of the child. This study challenges the Court’s decisions in the sense that the focus should not only be at the LGBT parents’ rights to private and family life, but also at the interests of their daughters and sons. This is an attempt to call upon the ECtHR and all states not only to actively fight discrimination against LGBT persons, but, ultimately, to stop interpreting the concept of the best interests of the child in an arguably biased way, and to consider the principle’s legal value in any decision, regardless of their parents’ sexual orientation, gender identity or any other distinction.


Mr. Gabriel Alves de Faria
Gabriel Alves de Faria is a Brazilian lawyer, LGBTI activist and human rights specialist who holds a Law degree from the Federal University of Espirito Santo and a European Master’s Degree in Human Rights and Democratisation (E. MA/EIUC - Utrecht University). Among other legal and social experiences in the human rights field, Gabriel has worked as a researcher in comparative sexual orientation Law at Leiden University and most recently as a Fellow and consultant lawyer at the LGBTI Rapporteurship of the Inter-American Commission on Human Rights in Washington, DC. His latest project is a documentary on the situation of LGBTI persons in Southeast Asia.
Discussie

Legalism and the Anthropology of Law

Tijdschrift Recht der Werkelijkheid, Aflevering 1 2015
Trefwoorden anthropology, legalism, text, history
Auteurs Fernanda Pirie
Auteursinformatie

Fernanda Pirie
Fernanda Pirie is Associate Professor of Socio-Legal Studies at the University of Oxford. She is author of The Anthropology of Law (OUP, 2013) and Peace and Conflict in Ladakh (Brill 2007). She has co-edited volumes with Keebet von Benda-Beckmann (on order and disorder), with Toni Huber (on social order in Tibet), with Martijn van Beek (on modern Ladakh), and with Judith Scheele (on legalism, justice, and community).
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 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
Article

Access_open The First World War and Constitutional Law for the Netherlands Indies

Tijdschrift Erasmus Law Review, Aflevering 2 2014
Trefwoorden Commission of Inquiry, constitutional law for the Netherlands Indies, Dutch colonial thinking, ethical policy, First World War, November promises, People’s Council
Auteurs Nick Efthymiou Ph.D.
SamenvattingAuteursinformatie

    In the nineteenth and part of the twentieth century, the Kingdom of the Netherlands had colonies both in the West Indies and in the East Indies. This article will focus on the Dutch colonies in the East Indies, i.e., the Netherlands Indies – present-day Indonesia, and will discuss whether the First World War had an impact on the constitutional law for the Netherlands Indies.


Nick Efthymiou Ph.D.
Nick Efthymiou is lecturer at the Erasmus School of Law, Erasmus University of Rotterdam.
Artikel

Access_open Liberalism and Societal Integration: In Defence of Reciprocity and Constructive Pluralism

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 2 2014
Trefwoorden societal integration, liberalism, conflict, constructive pluralism, citizenship, national communities
Auteurs Dora Kostakopoulou PhD
SamenvattingAuteursinformatie

    Communities can only be dynamic and projective, that is, oriented towards new and better forms of cooperation, if they bring together diverse people in a common, and hopefully more equal, socio-political life and in welfare. The latter requires not only back-stretched connections, that is, the involvement of co-nationals and naturalized persons, but also forward-starched connections, that is, the involvement of citizens in waiting. Societal integration is an unhelpful notion and liberal democratic polities would benefit from reflecting critically on civic integration policies and extending the norm of reciprocity beyond its assigned liberal national limits. Reciprocity can only be a comprehensive norm in democratic societies - and not an eclectic one, that is, either co-national or co-ethnic.


Dora Kostakopoulou PhD
Dora Kostakopoulou is currently Professor of European Union Law, European Integration and Public Policy at Warwick University. Her research interests include European public law, free movement of persons and European Union citizenship, the area of freedom, security and justice, migration law and politics, citizenship, multiculturalism and integration, democracy and legitimacy in the EU, law and global governance, political theory and constructivism, and, fairly recently, equality law.
Artikel

Access_open The Public Conscience of the Law

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 2 2014
Trefwoorden Hobbes, reciprocity, rule of Law, conscience, legality, liberty
Auteurs David Dyzenhaus PhD
SamenvattingAuteursinformatie

    I focus on Hobbes’s claim that the law is ’the publique Conscience, by which [the individual] (…) hath already undertaken to be guided.’ This claim is not authoritarian once it is set in the context of his complex account, which involves three different relationships of reciprocity: the contractarian idea that individuals in the state of nature agree with one another to institute a sovereign whose prescriptions they shall regard as binding; the vertical, reciprocal relationship between ruler and ruled; and the horizontal relationship between individuals in the civil condition, made possible by the existence of the sovereign who through enacting laws dictates the terms of interaction between his subjects. The interaction of these three relationships has the result that subjects relate to each other on terms that reflect their status as free and equal individuals who find that the law enables them to pursue their own conceptions of the good.


David Dyzenhaus PhD
David Dyzenhaus is a Professor of Law and Philosophy at the University of Toronto, and a Fellow of the Royal Society of Canada. His books include Hard Cases in Wicked Legal Systems: South African Law in the Perspective of Legal Philosophy (now in its second edition) and Legality and Legitimacy: Carl Schmitt, Hans Kelsen, and Hermann Heller in Weimar.

Dr. Bertjan Wolthuis PhD
Artikel

From graffiti to pixação

Urban protest in Brazil

Tijdschrift Tijdschrift over Cultuur & Criminaliteit, Aflevering 2 2014
Trefwoorden Brazilian graffiti, pichação, pixação, criminalization, resistance
Auteurs Paula Gil Larruscahim
SamenvattingAuteursinformatie

    This paper explores the hypothesis that the process of rupture in Brazilian graffiti writer’s subculture resulting in different groups - pichadores, pixadores and grafiteiros - took place in two different, though complementary, stages. The first stage is the commodification of graffiti by successive media campaigns and its penal control by the state. The second stage - which may be considered as a side effect of the first one - consists of the emergence of a new transgressive pixação movement. Instead of merely writing or tagging their signatures and messages on the walls of the city, they claim the freedom of usage of the urban space and contest the importance that property has in the late modernity context.


Paula Gil Larruscahim
Paula Gil Larruscahim is promovenda binnen het Erasmus Mundus Doctoral Programme on Cultural and Global Criminology aan de Universiteit Utrecht en de University of Kent: www.dcgc.eu.
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