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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
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    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.
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
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    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 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
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    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 ‘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
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    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 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
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    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 Globalization as a Factor in General Jurisprudence

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 2 2012
Trefwoorden general jurisprudence, globalization, global legal pluralism, legal positivism, analytical jurisprudence
Auteurs Sidney Richards
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    Globalization is commonly cited as an important factor in theorising legal phenomena in the contemporary world. Although many legal disciplines have sought to adapt their theories to globalization, progress has been comparatively modest within contemporary analytical jurisprudence. This paper aims to offer a survey of recent scholarship on legal theory and globalization and suggests various ways in which these writings are relevant to the project of jurisprudence. This paper argues, more specifically, that the dominant interpretation of globalization frames it as a particular form of legal pluralism. The resulting concept – global legal pluralism – comes in two broad varieties, depending on whether it emphasizes normative or institutional pluralism. This paper goes on to argue that these concepts coincide with two central themes of jurisprudence, namely its concern with normativity and institutionality. Finally, this paper reflects on the feasibility of constructing a ‘general’ and ‘descriptive’ jurisprudence in light of globalization.


Sidney Richards
Sidney Richards is Doctoral candidate in Law at Pembroke College at the University of Cambridge.
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
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    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 Constitutionalism and the Incompleteness of Democracy: An Iterative Relationship

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 3 2010
Trefwoorden constitutionalism, globalization, democracy, modernity, postnational
Auteurs Neil Walker
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    The complexity of the relationship between democracy and modern constitutionalism is revealed by treating democracy as an incomplete ideal. This refers both to the empirical incompleteness of democracy as unable to supply its own terms of application – the internal dimension – and to the normative incompleteness of democracy as guide to good government – the external dimension. Constitutionalism is a necessary response to democratic incompleteness – seeking to realize (the internal dimension) and to supplement and qualify democracy (the external dimension). How democratic incompleteness manifests itself, and how constitutionalism responds to incompleteness evolves and alters, revealing the relationship between constitutionalism and democracy as iterative. The paper concentrates on the iteration emerging from the current globalizing wave. The fact that states are no longer the exclusive sites of democratic authority compounds democratic incompleteness and complicates how constitutionalism responds. Nevertheless, the key role of constitutionalism in addressing the double incompleteness of democracy persists under globalization. This continuity reflects how the deep moral order of political modernity, in particular the emphasis on individualism, equality, collective agency and progress, remains constant while its institutional architecture, including the forms of its commitment to democracy, evolves. Constitutionalism, itself both a basic orientation and a set of design principles for that architecture, remains a necessary support for and supplement to democracy. Yet post-national constitutionalism, even more than its state-centred predecessor, remains contingent upon non-democratic considerations, so reinforcing constitutionalism’s normative and sociological vulnerability. This conclusion challenges two opposing understandings of the constitutionalism of the global age – that which indicts global constitutionalism because of its weakened democratic credentials and that which assumes that these weakened democratic credentials pose no problem for post-national constitutionalism, which may instead thrive through a heightened emphasis on non-democratic values.


Neil Walker
Neil Walker is Regius Professor of Public Law and the Law of Nature and Nations at the University of Edinburgh, United Kingdom.
Artikel

Access_open Law's 'Uncanniness': A Phenomenology of Legal Decisions

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 2 2008
Trefwoorden claim, contract, interest, character, making, binding, E-business, Europese gemeenschap, identiteit, leasing
Auteurs H. Lindahl

H. Lindahl
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