Few legal theorists today would argue that the domain of law exists in isolation from other normative spheres governing society, notably from the domain of ‘politics’. Nevertheless, the implicit norm that judges should not act ‘politically’ remains influential and widespread in the debates surrounding controversial court cases. This article aims to square these two observations. Taking the Miller v. Secretary of State and Urgenda cases as illustrative case studies, the article demonstrates that what it means for judges to adjudicate cases ‘apolitically’ is itself a matter of controversy. In reflecting on their own constitutional role, courts are forced to take a stance on substantive questions of political philosophy. Nevertheless, that does not mean that the ‘norm of judicial apoliticality’ should therefore be rejected. The norm’s coherence lies in its intersocial function: its role in declaring certain modes of judicial interpretation and intervention legitimate (‘legal’/‘judicial’) or illegitimate (‘political’).

‘Illiberal’ is an adjective that is commonly used by scholars. For example, they might speak of ‘illiberal cultures’, ‘illiberal groups’, ‘illiberal states’, ‘illiberal democracies’, ‘illiberal beliefs’, and ‘illiberal practices’. Yet despite its widespread usage, no in-depth discussions exist of exactly what it means for someone or something to be illiberal, or might mean. This article fills this lacuna by providing a conceptual analysis of the term ‘illiberal practices’, which I argue is basic in that other bearers of the property of being illiberal can be understood by reference to it. Specifically, I identify five ways in which a practice can be illiberal based on the different ways in which this term is employed within both scholarly and political discourses. The main value of this disaggregation lies in the fact that it helps to prevent confusions that arise when people use the adjective ‘illiberal’ in different ways, as is not uncommon.

Socio-political concepts are not singularities. They are, instead, complex and evolving contextures. An awareness of the latter and of what we need to do when we handle concepts opens up space for the resolution of political disagreements and multiplies opportunities for constructive dialogue and understanding. In this article, I argue that the concepts-as-contextures perspective can unravel conceptual connectivity and interweaving, and I substantiate this by examining the ‘contexture’ of liberty. I show that the different, and seemingly contested, definitions of liberty are the product of mixed articulations and the development of associative discursive links within a contexture.

Ever since it was published in 2015, the judgment of the The Hague court in the so-called Urgenda-case, and the subsequent decisions of the appellate and cassation courts confirming it, have been met with repeated and vivid critiques. By recognizing the necessity of the reduction in greenhouse gas emissions, and furthermore imposing a certain reduction level on the Dutch state, the judgments in the cases at hand gave rise to many questions concerning the position of the judiciary in the matter, and in Dutch society as a whole. This article attempts in the first place to situate the positions of the different actors intervening in the Urgenda-case within a legal-theoretical framework. The contribution subsequently explores the strategic possibilities that an alternative understanding of law could offer to the judges, focusing specifically on the use of legal instruments stemming from international law, brought into the reasoning of the national judge.

The central aim of this article is to analyse the manner in which the legal structure of EU citizenship subjectifies Union citizens. I begin by explicating Alexander Somek’s account of individualism as a concept which captures EU citizenship and propose to update his analysis by coining the notion of mobile individualism. By looking at a range of CJEU’s case law on EU citizenship through the lens of the purely internal rule and the transnational character of EU citizenship, I suggest that movement sits at the core of EU citizenship. In order to adequately capture this unique structure of citizenship, we need a concept of individualism which takes movement rather than depoliticisation as its central object of analysis. I propose that the notion of mobile individualism can best capture the subjectivity of a model EU citizen, a citizen who is a-political due to being mobile.

This paper examines how the distribution of social goods within a political community relates to decisions on membership boundaries. The author challenges two renowned accounts of such a relation: firstly, Walzer’s account according to which decisions on membership boundaries necessarily precede decisions on distribution; secondly, Benhabib’s account, according to which membership boundaries can be called into question on the basis of universalist claims. Departing from both accounts, the author concludes that actual changes in the pool of participants in practices of creation and exchange of social goods pressure a political community to redefine its distributive patterns and, accordingly, the boundaries of its formal political membership. This claim will be supported by the analysis of threshold cases decided by the EU Court of Justice, in which EU citizenship is invoked with the atypical purpose of granting rights to a specific group of non-formal members.

This article addresses the conditions of possibility for the precautionary turn in legal discourse. Although the precautionary turn itself has been well-detailed in both legal and political discourse, insufficient attention has been paid to what made this shift possible. This article remedies this, starting by showing how the events of 9/11 were unable to be incorporated within current discursive structures. As a result, these discursive structures were dislocated and a new ‘crisis discourse’ emerged that succeeded in attributing meaning to the events of 9/11. By focusing on three important cases from three different jurisdictions evidencing the precautionary turn in legal discourse, this article shows that crisis discourse is indeed employed by the judiciary and that its logic made this precautionary approach to counterterrorism in the law possible. These events, now some 16 years ago, hold relevance for today’s continuing presence of crisis and crisis discourse.

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.

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.

In dit artikel argumenteer ik dat er twee mogelijke invullingen zijn voor het principe van constituerende macht. De eerste mogelijkheid is deze van de klassieke basisveronderstelling van de constitutionele democratie, namelijk dat de gemeenschap zelf vorm kan en moet geven aan de fundamentele regels die die gemeenschap beheersen. Hans Lindahl maakt een interessante analyse van deze traditionele invulling, die ik kritisch zal benaderen. Lindahl heeft immers zelf scherpe kritiek op de invulling die Antonio Negri aan het concept constituerende macht geeft. Mijn interpretatie gaat er echter van uit dat Negri een fundamenteel andere inhoud geeft aan het principe van constituerende macht, waarbij constituerende macht niet alleen wordt losgemaakt van het constitutionalisme, maar meer algemeen van elk rechtssysteem en zelfs van elke vorm van finaliteit. Deze argumentatie werpt een nieuw licht op het debat rond Negri’s theorie van constituerende macht, waarin diens meest fundamentele uitgangspunt vaak over het hoofd wordt gezien.

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’.

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.