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Artikel

Access_open Wat is juridisch interactionisme?

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 1 2014
Trefwoorden interactionism, Lon Fuller, interactional law, legal pluralism, concept of law
Auteurs Wibren van der Burg
SamenvattingAuteursinformatie

    Two phenomena that challenge theories of law in the beginning of the twenty-first century are the regulatory explosion and the emergence of horizontal and interactional forms of law. In this paper, I develop a theory that can address these two phenomena, namely legal interactionism, a theory inspired by the work of Fuller and Selznick. In a pluralist approach, legal interactionism recognizes both interactional law and enacted law, as well as other sources such as contract. We should aim for a pluralistic and gradual concept of law. Because of this pluralist and gradual character, legal interactionism can also do justice to global legal pluralism and to the dynamic intertwinement of health law and bioethics.


Wibren van der Burg
Wibren van der Burg is Professor of Legal Philosophy and Jurisprudence, Erasmus School of Law at the Erasmus University Rotterdam.
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.
Artikel

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

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 1 2014
Trefwoorden age discrimination, intergenerational justice, complete-life view, statistical discrimination, anti-discrimination law
Auteurs Axel Gosseries
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    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.
Artikel

Access_open The Right to Have Rights as the Right to Asylum

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 1 2014
Trefwoorden Arendt, asylum, refugeeship, right to have rights, statelessness de facto and de jure
Auteurs Nanda Oudejans
SamenvattingAuteursinformatie

    This article argues that the right to have rights, as launched by Hannah Arendt, is relative to refugee displacement and hence translates as a right to asylum. It takes issue with the dominant view that the public/private divide is the locus classicus of the meaning of this primordial right. A different direction of thought is proposed, proceeding from Arendt’s recovery of the spatiality of law. The unencompassibility of place in matters of rights, freedom and equality brings this right into view as a claim at the behest of those who have lost a legal place of their own. This also helps us to gain better understanding of Arendt’s rebuttal of the sharp-edged distinction between refugees and stateless persons and to discover the defiant potential of the right to have rights to illuminate the refugee’s claim to asylum as a claim to an own place where protection can be enjoyed again.


Nanda Oudejans
Nanda Oudejans is an independent researcher in philosophy of law and political philosophy.

    In this response to my five critics, I note the strength of the arguments in favour of treating the presumption of innocence as a narrow, legal presumption that operates only within the criminal process; but I then try to make clearer my reasons for talking of different presumptions of innocence (moral, rather than legal, presumptions) outside the criminal process, in other contexts in which issues of criminal guilt or innocence arise – presumptions that guide or are expressed in the conduct of the state’s officials towards its citizens, and of citizens towards each other. Once we look at these other contexts in which criminal guilt and innocence (of past and future crimes) are at stake, we can see the importance of civic trust as a practical attitude that citizens owe to each other; and the fruitfulness of examining the various normative roles that citizens may have to play in relation to the criminal law.


Antony Duff
Antony Duff holds the Russell M and Elizabeth M Bennett Chair in the University of Minnesota Law School, and is a Professor Emeritus of the Department of Philosophy, University of Stirling.
Artikel

Access_open The Meaning of the Presumption of Innocence for Pre-trial Detention

An Empirical Approach

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 3 2013
Trefwoorden pre-trial detention practice, presumption of guilt, incapacitation, presumption of innocence
Auteurs Lonneke Stevens
SamenvattingAuteursinformatie

    The presumption of innocence (PoI) is considered to be an important principle for regulating pre-trial detention. The idea is that pre-trial detention should be a last resort. However, pre-trial detention practice demonstrates that pre-trial detention does not function on the basis of a presumption of innocence but rather from a presumption of guilt and dangerousness. It must be concluded that, with regard to pre-trial detention, the PoI has a rather limited normative effect.


Lonneke Stevens
Lonneke Stevens is Associate Professor of Criminal Law and Criminal Procedure at VU University Amsterdam.
Artikel

Access_open Retributivist Arguments against Presuming Innocence

Answering to Duff

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 3 2013
Trefwoorden broad presumption of innocence, retributivism, punishment of innocents, vicarious liability of car owners, drink-driving tests of non-suspects
Auteurs Alwin A. van Dijk
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    Factors justifying not presuming innocence are generally incorporated into the Presumption of Innocence (PoI). A confusing discourse has resulted: numerous guilt-presuming acts are deemed consistent with the PoI. I argue for an unusually broad PoI: any act that might convey to a reasonable actor that he is not presumed innocent of a punishable offence constitutes a PoI interference. Thus, academic debate need only be about the question what PoI interferences are justifiable or unjustifiable. This question must be answered using pro- and anti-PoI values. I analyse three PoI interferences in relation to Duff’s retributivist punishment theory: presumptions of guilt, vicarious liability of car owners and coercing non-suspects into proving their sobriety. Retributivists tend to castigate such procedures based on their (supposed) consequentialist rationale. I argue, however, that they might also be justified on retributivist grounds. The retributivist anti-PoI duty to punish the guilty may be the worst enemy of innocents.


Alwin A. van Dijk
Alwin A. van Dijk is Assistant Professor of Criminal Law at the University of Groningen.
Artikel

Access_open There is Only One Presumption of Innocence

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 3 2013
Trefwoorden burden of proof, German law, procedural rights, pretrial detention
Auteurs Thomas Weigend
SamenvattingAuteursinformatie

    Antony Duff proposes a comprehensive concept of the presumption of innocence, covering the period before, during and after a criminal process, both in an official (state vs. individual) and a non-official, civic sense. By that broad usage, the concept of presumption of innocence is getting blurred and risks losing its contours. I therefore suggest to keep separate matters separate. The presumption of innocence in the narrow sense that I suggest applies only where there exists a suspicion that an individual has committed a criminal offence. The important function of the presumption of innocence in that situation is to prevent an over-extension of state power against the individual under suspicion before that suspicion has been confirmed to be true beyond a reasonable doubt. A general presumption that all people abide by the law at all times is neither warranted nor necessary. It is not warranted because experience tells us that many people break some laws sometimes. And it is not necessary because a system of civil liberties is sufficient to protect us against official or social overreach based on a suspicion that we may commit crimes.


Thomas Weigend
Thomas Weigend is Professor of Criminal Law at the University of Cologne.
Artikel

Access_open Presumption of Innocence Versus a Principle of Fairness

A Response to Duff

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 3 2013
Trefwoorden rules, principles, fairness, PoI
Auteurs Magnus Ulväng
SamenvattingAuteursinformatie

    In my response to Duff I focus mainly on the following two issues. Firstly, I examine what kind of a norm the presumption of innocence (PoI) really is and how it ontologically differs from other types of rules, principles, rationales, etc. My tentative conclusion is that a PoI does not suffice the requirement of being a dogmatic rule and, thus, has less weight than what Duff perhaps assumes.
    Secondly, I examine what role the concept of innocence plays in the debate on fundamental (moral and legal) principles and the underlying rationales of a criminal law system. Although I am sympathetic to much of what Duff purports in his plea for civic trust and a parsimonious use of criminal law, I am reluctant to believe that it is really a broader version of a PoI that warrants the kind of morally decent criminal law system that he suggests normatively ought to be. In my view, most of what Duff wants to ascribe to the PoI can be derived from a principle of fairness which, in my view, is already embedded in the fundamentals of criminal law doctrine.


Magnus Ulväng
Magnus Ulväng is Professor of Criminal Law at Uppsala University.
Artikel

Access_open On Presuming Innocence

Is Duff’s Civic Trust Principle in Line with Current Law, Particularly the European Convention on Human Rights?

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 3 2013
Trefwoorden Presumption of innocence, Art. 6(2) ECHR, Duff’s civic trust
Auteurs Geert Knigge
SamenvattingAuteursinformatie

    Duff sets out to present, not theoretical concepts, but ‘real’ principles that underlie positive law. This paper examines whether Duff’s analysis really reflects current law. To that end, this paper analyses the case law of the European Court on Human Rights. As far as his preposition that there are many presumptions of innocence is concerned, Duff seems to be right. In the case law of the European Court different presumptions can be discerned, with different rationales. However, these presumptions are a far cry from the trust principle Duff advocates. Indeed, a principle that prescribes trust cannot be found in the Court’s case law. There might be a unifying principle but if so this principle is about respect for human dignity rather than trust. This analysis serves as a basis for criticism. It is argued that the approach Duff proposes is in tension with the Court’s case law in several respects.


Geert Knigge
Geert Knigge is Advocate General of the Supreme Court of the Netherlands and Professor of Criminal Law at the University of Groningen.

    This paper explores the roles that the presumption of innocence (PoI) can play beyond the criminal trial, in other dealings that citizens may have with the criminal law and its officials. It grounds the PoI in a wider notion of the civic trust that citizens owe each other, and that the state owes its citizens: by attending to the roles that citizens may find themselves playing in relation to the criminal law (such roles as suspect, defendant, convicted offender and ‘ex-offender’), we can see both how a PoI protects us, beyond the confines of the trial, against various kinds of coercion, and how that PoI is modified or qualified as we acquire certain roles. To develop and illustrate this argument, I pay particular attention to the roles of defendant (both during the trial and while awaiting trial) and of ‘ex-offender,’ and to the duties that such roles bring with them.


Antony Duff
Antony Duff holds the Russell M and Elizabeth M Bennett Chair in the University of Minnesota Law School, and is a Professor Emeritus of the Department of Philosophy, University of Stirling.
Artikel

Access_open Private law and ethical life

Honneth on legal freedom and its pathologies

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 2 2013
Trefwoorden Honneth, Hegel, social freedom, legal freedom, law, pathologies
Auteurs Jan Ph. Broekhuizen
SamenvattingAuteursinformatie

    In Das Recht der Freiheit Axel Honneth develops his concept of social freedom. In this article I discuss Honneth’s project and critique one of its crucial aspects: Honneth’s views on the disruptive role of legal freedom in our society and its dependent relation to the sphere of social freedom. I argue that in his attempt in Das Recht der Freiheit to reactualize Hegel’s discourse on the realization of freedom for our time, Honneth risks mistranslating Hegel’s discourse of ‘right’ by denying the sphere of legal relations a constitutive role for true freedom, and that because of this Honneth’s own theory of social freedom suffers: it becomes less clear whether it can still offer helpful insights into the proper place of legal freedom in our society.


Jan Ph. Broekhuizen
Jan Broekhuizen is an attorney (advocaat) in Amsterdam and a deputy judge at the Court of Appeals in Den Bosch (the Netherlands). He holds degrees in both law and philosophy.
Artikel

Access_open Rechtspraak en waarheid in Aischylos’ Oresteia en Yael Farbers Molora

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 2 2013
Trefwoorden Oresteia, tragedy, conflict resolution, truth and reconciliation commission, restorative justice
Auteurs Lukas van den Berge
SamenvattingAuteursinformatie

    This article explores the themes of injustice and dehumanization in Aeschylus’ Oresteia and Yael Farber’s Molora, in which the story of the Oresteia is dramatized against the backdrop of post-apartheid South Africa. It is argued that both plays depict wrongdoers and victims alike as social outcasts. Thus, they can both be described with Paul Ricoeur as ‘sketches of a man,’ not being able to live up to their full human potential. Borrowing from Ricoeur’s legal philosophy, it is then explained how public trials and hearings help them to reintegrate into society, in which they can regain their full humanity.


Lukas van den Berge
Lukas van den Berge is researcher at the Montaigne Centre for Judicial Administration and Conflict Resolution of Utrecht University (the Netherlands), where he prepares a dissertation on the theory of administrative procedural law.
Artikel

Access_open Absolute Positivism

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 2 2013
Trefwoorden jurisprudence, legal positivism, Hans Kelsen, pure theory of law
Auteurs Christoph Kletzer
SamenvattingAuteursinformatie

    The paper argues that we miss the point and strength of Kelsen’s Pure Theory of Law if we take it to drive a middle way between reductionism and moralism. Rather conversely, the Pure Theory is a radical theory. It tries to overcome the opposition between reductionism and moralism by making clear that both opponents rest on the same ill-conceived convictions about legal validity. Both take it that the law cannot be normative by itself. In contrast, the Pure Theory tries to find a new approach to the understanding of law that takes seriously the constitutive functions of law. It tries to understand the validity of law as resting in law itself. As such it is an attempt to find a philosophically satisfactory formulation of what can be called absolute positivism.


Christoph Kletzer
Christoph Kletzer is a Senior Lecturer at the Dickson Poon School of Law at King’s College in London.
Artikel

Access_open ‘God hath given the world to men in common’

Grenzen aan privé-eigendom in geval van nood en verspilling in het middeleeuwse en vroegmoderne natuurrecht

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 1 2013
Trefwoorden natural law, property, rights of the poor, extreme necessity, necessitas urgens et evidens
Auteurs Marc de Wilde
SamenvattingAuteursinformatie

    This article examines what limitations to private property John Locke recognizes to protect the rights of the poor. As has been pointed out in the literature, Locke’s ideas on the limitations to private property have been influenced by medieval discussions about the rights of the poor and the principle of extreme necessity. Confirming this interpretation, the article shows that Locke borrows the distinction between ‘ordinary need’ and ‘evident and urgent necessity’ from Thomas Aquinas. Taking position in a debate among Grotius and Pufendorf, Locke argues that the poor have a natural right to the ‘surplus’ of somebody else’s possessions, and that this right becomes legally enforceable in case of ‘evident and urgent necessity.’


Marc de Wilde
Marc de Wilde is Professor of Legal Theory at the University of Amsterdam.
Artikel

Access_open Juridical Acts and the Gap between Is and Ought

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 1 2013
Trefwoorden naturalistic fallacy, duty, obligation, is/ought, contract, promise
Auteurs Jaap Hage
SamenvattingAuteursinformatie

    This article addresses the possibility of deriving ought from is. To that purpose it casts doubt on the very distinction between is and ought; distinguishes between duties, obligations, being obligated and owing to do something; revitalises Searle’s famous derivation of ought from is by replacing promises with contracts; and discusses some of the traditional objections against this derivation. The conclusions are that it is not problematic at all to ‘derive’ the existence of obligations from solely is-premises, and that it is not very problematic to ‘derive’ an ought from the existence of an obligation. The quotes around ‘derive’ signal that the nature of derivation also plays a role in this discussion.


Jaap Hage
Jaap Hage holds the chair for Jurisprudence at Maastricht University.
Artikel

Access_open Recht als human condition

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 1 2013
Trefwoorden homo faber, homo agens, human condition, participatory judgment, law-linked justice, existence-linked justice
Auteurs Peter van Schilfgaarde
SamenvattingAuteursinformatie

    This paper concentrates on the dynamic tension between law as it is ‘made’ by legal professionals, functioning as homo faber, and law as it is experienced by citizens, functioning as homo agens. In between those two worlds, law develops as a human condition, a term borrowed from Hannah Arendt. It is argued that, in regard to law development and administration of justice, the function of homo agens should have priority over the function of homo faber. The two basic faculties that connect the two worlds are judgment and speech. This leads to further thoughts on the character of judgment as ‘participatory judgment,’ the function of ‘middle terms’ in legal language and the concept of ‘shared responsibility.’


Peter van Schilfgaarde
Peter van Schilfgaarde is an Attorney at Law at the Supreme Court of The Netherlands in The Hague and former Professor of Corporate Law at the Universities of Groningen and Utrecht.
Artikel

Access_open ‘Down Freedom’s Main Line’

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 3 2012
Trefwoorden democracy, radical freedom, free market economy, consumerism, collective action
Auteurs Steven L. Winter
SamenvattingAuteursinformatie

    Two waves of democratization define the post-Cold War era of globalization. The first one saw democracies emerge in post-communist countries and post-Apartheid South Africa. The current wave began with the uprisings in the Middle East. The first focused on the formal institutions of the market and the liberal state, the second is participatory and rooted in collective action. The individualistic conception of freedom and democracy that underlies the first wave is false and fetishistic. The second wave shows democracy’s moral appeal is the commitment to equal participation in determining the terms and conditions of social life. Freedom, thus, requires collective action under conditions of equality, mutual recognition, and respect.


Steven L. Winter
Steven L. Winter is Walter S. Gibbs Professor of Constitutional Law at Wayne State University Law School, Detroit, Michigan.
Artikel

Access_open De liberale canon: argumenten voor vrijheid

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 2 2012
Trefwoorden enforcement of morals, liberalism, liberty, political liberalism, Rawls
Auteurs Alex Bood
SamenvattingAuteursinformatie

    This article examines how a liberal public morality can be most successfully defended against perfectionism. First of all the five most important liberal arguments for freedom are taken from what is called the liberal canon: a number of characteristic works of John Locke, Immanuel Kant, John Stuart Mill, Isaiah Berlin, Joseph Raz, Ronald Dworkin, and John Rawls. These five arguments are identified as: social and political realism, respect for autonomy, fallibility of ideas, pluralism, and respect for reasonableness. Next, the persuasiveness of these arguments is assessed, starting with the argument of respect for reasonableness, which is at the heart of Rawls’s political liberalism. It is concluded that in itself this argument is not strong enough to persuade perfectionists. A powerful defence of a liberal public morality needs the other arguments for freedom as well. Finally, the paper outlines how these other arguments can strengthen the argument of respect for reasonableness in a coherent manner.


Alex Bood
Alex Bood is Research Manager at the Dutch Public Prosecution’s Office for Criminal Law Studies (WBOM).
Artikel

Access_open The Collapse of the Rule of Law

The Messina Earthquake and the State of Exception

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 2 2012
Trefwoorden Messina, earthquake, state of exception, rule of law, progress
Auteurs Massimo La Torre
SamenvattingAuteursinformatie

    Messina, a Sicilian town, was devasteted by an earthquake in1908. It was an hecatomb. Stricken through this unfathomable disgrace Messina’s institutions and civil society collapsed and a sort of wild natural state replaced the rule of law. In this situation there was a first intervention of the Russian Czarist navy who came to help but immediately enforced cruel emergency measures. The Italian army followed and there was a formal declaration of an ‘emergency situation.’ Around this event and the several exceptional measures taken by the government a debate took place about the legality of those exceptional measures. The article tries to reconstruct the historical context and the content of that debate and in a broader perspective thematizes how law (and morality) could be brought to meet the breaking of normality and ordinary life by an unexpected and catastrophic event.


Massimo La Torre
Massimo La Torre is Professor of Legal Philosophy at the University of Catanzaro in Italy and visiting Professor of Law at the University of Hull in England.
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