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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
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    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.

    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 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 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.
Artikel

Access_open Transnational Fundamental Rights: Horizontal Effect?

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 3 2011
Trefwoorden fundamental rights, societal constitutionalism, inclusionary and exclusionary effects, anonymous matrix
Auteurs Gunther Teubner
SamenvattingAuteursinformatie

    Violations of human rights by transnational corporations and by other ‘private’ global actors raise problems that signal the limits of the traditional doctrine of ‘horizontal effects’. To overcome them, constitutional law doctrine needs to be complemented by perspectives from legal theory and sociology of law. This allows new answers to the following questions: What is the validity basis of human rights in transnational ‘private’ regimes – extraterritorial effect, colère public or external pressures on autonomous law making in global regimes? Do they result in protective duties of the states or in direct human rights obligations of private transnational actors? What does it mean to generalise state-directed human rights and to respecify them for different social spheres? Are societal human rights limited to ‘negative’ rights or is institutional imagination capable of developing ‘positive’ rights – rights of inclusion and participation in various social fields? Are societal human rights directed exclusively against corporate actors or can they be extended to counteract structural violence of anonymous social processes? Can such broadened perspectives of human rights be re-translated into the practice of public interest litigation?


Gunther Teubner
Gunther Teubner is Professor of Private Law and Legal Sociology and Principal Investigator of the Excellence Cluster ‘The Formation of Normative Orders’ at the Goethe-University, Frankfurt/Main. He is also Professor at the International University College, Torino, Italy.
Artikel

Access_open Respecting Differences by Idealised Language

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 3 2006
Trefwoorden switch, observer, houdstervennootschap
Auteurs L. Huppes-Cluysenaer

L. Huppes-Cluysenaer
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