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Tijdschrift Netherlands Journal of Legal Philosophy x
Artikel

Access_open What does it mean to be ‘illiberal’?

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering Pre-publications 2020
Trefwoorden Liberalism, Illiberalism, Illiberal practices, Extremism, Discrimination
Auteurs Bouke de Vries
SamenvattingAuteursinformatie

    ‘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.


Bouke de Vries
Bouke de Vries is a postdoctoral research fellow at Umeå University and the KU Leuven.
Artikel

Access_open Enemy of All Humanity

The Dehumanizing Effects of a Dangerous Concept

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 2 2018
Trefwoorden enemy of all humanity, hostis humani generis, piracy, international criminal law, Luban
Auteurs Marc de Wilde
SamenvattingAuteursinformatie

    In his contribution to this special issue, David Luban proposes to revive the age-old concept of ‘the enemy of all humanity.’ On his view, this concept supports the aims of international criminal justice by emphasizing that atrocity and persecution crimes are ‘radically evil’ and therefore ‘everyone’s business.’ Criticizing Luban’s proposal, this paper shows that in the past, the ‘enemy of all humanity’ concept has often served to establish parallel systems of justice, depriving these ‘enemies’ of their rights as suspects under criminal law and as lawful combatants under the laws of war. Thus, even if the ‘enemy of all humanity’ concept is used with the intention to bring today’s perpetrators of ‘radical evil’ to justice, it risks undermining, rather than protecting, the rule of law.


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

Access_open Crisis in the Courtroom

The Discursive Conditions of Possibility for Ruptures in Legal Discourse

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 1 2018
Trefwoorden crisis discourse, rupture, counterterrorism, precautionary logic, risk
Auteurs Laura M. Henderson
SamenvattingAuteursinformatie

    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.


Laura M. Henderson
Laura M. Henderson is a researcher at UGlobe, the Utrecht Centre for Global Challenges, at Utrecht University. She wrote this article as a Ph.D. candidate at the Vrije Universiteit Amsterdam.

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 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 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
SamenvattingAuteursinformatie

    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.

    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.
Discussie

Access_open Political Freedom after Economic Freefall and Democratic Revolt

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 3 2012
Trefwoorden globalisation, civic tradition, Enlightenment, free-market economy, autonomy
Auteurs Tinneke Beeckman
SamenvattingAuteursinformatie

    Can globalisation lead to more democracy? And if so, what concept of freedom lies at the basis of this development? The ideal of liberal freedom, supposedly exercised by the autonomous, rational individual is no longer tenable. Finding a new way of interpreting self-rule beyond self-interested choice has become a crucial aspect of regenerating democratic spirit. This paper formulates three comments on Winter’s paper. The first comment concerns the resemblance between the attitudes of consumers and voters. A second comment reflects on the positive heritage of the Enlightenment. A third comment focuses on the recent Tahrir Square protests and reflects on the republican civic tradition.


Tinneke Beeckman
Tinneke Beeckman is postdoctoral researcher at the Fund for Scientific Research, Flanders, University of Brussels.
Discussie

Access_open Hybrid Constitutionalism, Fundamental Rights and the State

A Response to Gunther Teubner

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 3 2011
Trefwoorden societal constitutionalism, Gunther Teubner, system theory, fundamental rights
Auteurs Gert Verschraegen
SamenvattingAuteursinformatie

    This contribution explores how much state is necessary to make societal constitutionalism work. I first ask why the idea of a global societal constitutionalism ‘beyond the state-and-politics’ might be viewed as a significant and controversial, but nonetheless justified innovation. In the second part I discuss what Teubner calls ‘the inclusionary effects of fundamental rights’. I argue that Teubner underplays the mediating role of the state in guaranteeing inclusion or access, and in a way presupposes well-functioning states in the background. In areas of limited statehood there is a problem of enforcing fundamental rights law. It is an open question whether, and under which conditions, constitutional norms within particular global social spheres can provide enough counter-weight when state constitutional norms are lacking.


Gert Verschraegen
Gert Verschraegen is Assistant Professor of Theoretical Sociology at the University of Antwerp, Belgium.
Artikel

Access_open Collective Criminal Responsibility: Unfair or Redundant

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 2 2009
Trefwoorden collective criminal responsibility;, individual responsibility
Auteurs dr. Govert den Hartogh
SamenvattingAuteursinformatie

    This paper argues, against Pettit’s thesis about the incorporation of responsibility, that holding collective agents criminally responsible is necessarily either redundant or unfair: redundant if responsibility can be distributed without remainder over individual persons; unfair if it cannot. It should be the task of legal systems to create chains of individual criminal responsibility encompassing executives, officials, and members of corporate agents.


dr. Govert den Hartogh
Govert den Hartogh is Professor of Ethics at the Department of Philosophy of the University of Amsterdam.
Artikel

Access_open 'The True Spirit of Toleration': Edmund Burke on Establishment and Tolerance

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 3 2008
Trefwoorden contract, leasing, interest, model, verzoekschrift, concern, E-business, service, settlement, bear
Auteurs M. Blois

M. Blois
Artikel

Access_open Form and function in discrete legal units and in a legal system as a whole: Preadvies Vereniging voor Wijsbegeerte van het Recht, vergadering van 3 juni 2005

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 1 2005
Trefwoorden arrangement, contract, identiteit, kind, amfetamine, claim, leasing, making, bear, elektronisch geld
Auteurs R.S. Summers

R.S. Summers
Interface Showing Amount
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