Zoekresultaat: 9 artikelen

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Jaar 2016 x
Artikel

Access_open E pluribus unum? The Manifold Meanings of Sovereignty

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 2 2016
Trefwoorden political sovereignty, power, legislative sovereignty, constitutive power, external sovereignty
Auteurs Raf Geenens
SamenvattingAuteursinformatie

    This article investigates and classifies the different meanings of the term sovereignty. What exactly do we try to convey when using the words “sovereign” or “sovereignty”? I will argue that, when saying that X is sovereign, we can mean five different things: it can mean that X holds the capacity to force everyone into obedience, that X makes the laws, that the legal and political order is created by X, that X holds the competence to alter the basic norms of our legal and political order, or that X is independently active on the international stage. These different usages of the term are of course related, but they are distinct and cannot be fully reduced to one another.


Raf Geenens
Raf Geenens is an assistant professor of Ethics and Legal Philosophy at the Institute of Philosophy, University of Leuven.
Artikel

Amerikaans rechtsrealisme en empirisch-juridisch onderzoek

Tijdschrift Justitiële verkenningen, Aflevering 6 2016
Trefwoorden American Legal Realism, Empirical Legal Studies, New Deal Policy, Research program, Lakatos
Auteurs Prof. dr. F.L. Leeuw
SamenvattingAuteursinformatie

    The American Legal Realism movement, which originated in the beginning of the twentieth century and was active until the Fifties, can be seen as one of the founders of current Empirical Legal Studies because of the importance it attached to social scientific knowledge on behavior of – for instance – judges and others involved in the judiciary. The author sketches several characteristics of Legal Realism at that time. Exploring their range of thought he also examines whether Legal Realism’s studies can be seen as a research program. The recent emergence of New Legal Realism in the US and elsewhere leads to the question what characterizes this (re)new(al) movement. Finally it is argued that American Legal Realism especially contributed to scientific progress by posing new questions, changing focus and by stressing the importance of empirical evidence.


Prof. dr. F.L. Leeuw
Prof. dr. Frans Leeuw is directeur van het Wetenschappelijk Onderzoek- en Documentatiecentrum van het ministerie van Veiligheid en Justitie en daarnaast hoogleraar Recht, openbaar bestuur en sociaal-wetenschappelijk onderzoek aan de Universiteit Maastricht.
Artikel

The precaution controversy: an analysis through the lens of Ulrich Beck and Michel Foucault

Tijdschrift Recht der Werkelijkheid, Aflevering 3 2016
Trefwoorden Precautionary principle, risk society, governmentality, risk governance, environmental law
Auteurs Tobias Arnoldussen
SamenvattingAuteursinformatie

    According to the precautionary principle lack of scientific evidence for the existence of a certain (environmental) risk should not be a reason not to take preventative policy measures. The precautionary principle had a stormy career in International environmental law and made its mark on many treaties, including the Treaty on the Functioning of the European Union (TFEU). However it remains controversial. Proponents see it as the necessary legal curb to keep the dangerous tendencies of industrial production and technology in check. Opponents regard it with suspicion. They fear it will lead to a decrease in freedom and fear the powers to intervene that it grants the state. In this article the principle is reviewed from the perspectives of Ulrich Beck’s ‘reflexive modernisation’ and Michel Foucault’s notion of governmentality. It is argued that from Beck’s perspective the precautionary principle is the result of a learning process in which mankind gradually comes to adopt a reflexive attitude to the risks modernity has given rise to. It represents the wish to devise more inclusive and democratic policies on risks and environmental hazards. From the perspective of Michel Foucault however, the principle is part and parcel of neo-liberal tendencies of responsibilisation. Risk management and prudency are devolved to the public in an attempt to minimise risk taking, while at the same time optimising production. Moreover, it grants legitimacy to state intervention if the public does not live up to the responsibilities foisted on it. Both perspectives are at odds, but represent different sides of the same coin and might learn from each other concerns.


Tobias Arnoldussen
Tobias Arnoldussen is a socio-legal scholar affiliated with the University of Amsterdam Law School and the PPLE honours college. Next to lecturing on a variety of subjects, he focusses on interdisciplinary legal research into the possibilities of law to deal with contemporary social problems.
Artikel

Opinio juris as epistème: A constructivist approach to the use of contested concepts in legal doctrine

Tijdschrift Recht der Werkelijkheid, Aflevering 3 2016
Trefwoorden Opinio juris, Interpretive concepts, Customary law, Constructivism, Pierre Bourdieu, Peter Berger & Thomas Luckmann
Auteurs Associate Professor Olaf Tans
SamenvattingAuteursinformatie

    Seeing that the role of opinio juris in the identification of customary international law is essentially contested, this contribution seeks to explain how this concept plays a fruitful role in legal doctrine despite of, or perhaps even due to, this essential contestedness. To that effect the paper adopts a constructivist perspective, primarily drawing from Bourdieu’s theory of practice and Berger & Luckmann’s ideas about institutionalization. In this perspective, contested concepts such as opinio juris are conceived of as multifaceted tools of knowledge production in the hands of members of epistemic communities.


Associate Professor Olaf Tans
Olaf Tans works as legal philosopher and political scientist at Amsterdam University College and the Centre for the Politics of Transnational Law. His contribution to this special issue is part of a research line focusing on the social construction of normativity in legal doctrine. He has also published about constitutionalism, citizenship, democracy, and most recently (e.g. in Ratio Juris and Law & Literature) about the use of foundational narratives in public deliberation and law-finding.
Article

Access_open A Law and Economics Approach to Norms in Transnational Commercial Transactions: Incorporation and Internalisation

Tijdschrift Erasmus Law Review, Aflevering 1 2016
Trefwoorden Incorporation and internalisation, transnational commercial transactions, transnational commercial norms
Auteurs Bo Yuan
SamenvattingAuteursinformatie

    In today’s global economy, a noticeable trend is that the traditional state-law-centred legal framework is increasingly challenged by self-regulatory private orders. Commercial norms, commercial arbitration and social sanctions at the international level have become important alternatives to national laws, national courts and legal sanctions at the national level. Consisting of transnational commercial norms, both codified and uncodified, and legal norms, both national and international, a plural regime for the governance of transnational commercial transactions has emerged and developed in the past few decades. This article explores the interaction between various kinds of norms in this regime, identifies the effects of this interaction on the governance of transnational commercial transactions and shows the challenges to this interaction at the current stage. The central argument of this article is that the interaction between social and legal norms, namely incorporation and internalisation, and the three effects derived from incorporation and internalisation, namely systematisation, harmonisation and compliance enhancement, are evident at both the national and international levels. In particular, the emergence of codified transnational commercial norms that are positioned in the middle of the continuum between national legal norms and uncodified transnational commercial norms has brought changes to the interaction within the international dimension. Although the development of codified transnational commercial norms faces several challenges at the moment, it can be expected that these norms will play an increasingly important role in the future governance of transnational commercial transactions.


Bo Yuan
Bo Yuan is a Ph.D. candidate at the Erasmus University Rotterdam, Department of Law and Economics.

    In this article I develop a political realist notion of public reason. It may be thought that a notion of public reason is simply incompatible with the position of the political realist. But this article claims that a realist notion of public reason, different from the familiar political liberal idea of public reason, can be reconstructed from ancient texts on rhetoric and dialectic, particularly Aristotle's. The specification of this notion helps us understand the differences between contemporary liberal and realist positions.


Bertjan Wolthuis
Bertjan Wolthuis is Assistant Professor of Legal Theory at Vrije Universiteit Amsterdam.

    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.


Rafael Van Damme
Rafael Van Damme is PhD-student in philosophy.
Artikel

Becker’s theory on crime and punishment, a useful guide for law enforcement policy in The Netherlands?

Tijdschrift Recht der Werkelijkheid, Aflevering 1 2016
Trefwoorden Economics of crime, law enforcement policy, Gary Becker
Auteurs Ben van Velthoven en Peter van Wijck
SamenvattingAuteursinformatie

    Becker’s theory on crime and punishment provides guidelines for designing an optimal law enforcement policy. In designing such a policy the costs of law enforcement should be traded-off against the benefits that originate in deterring criminal acts. We investigate whether law enforcement policy in the Netherlands is consistent with this guidelines. Since policy makers are not very precise on the goals of law enforcement policy and hardly anything is known about the effectiveness and efficiency of instruments, it turns out to be impossible to say whether law enforcement policy actually contributes to social welfare. This is not necessarily problematic if, in line with the efficient law hypothesis, law enforcement automatically converges to an efficient outcome. Furthermore, Becker’s theory appears to miss a crucial element by not taking account of existing preferences for retribution. If utility is derived from seeing that justice is done, this should be included in the welfare criterion. Assuming policy makers prefer welfare enhancing law enforcement, they would be well-advised to start systematically collecting information on the effectiveness and efficiency of instruments of law enforcement policy.


Ben van Velthoven
Ben van Velthoven is universitair hoofddocent Rechtseconomie aan de Faculteit der Rechtsgeleerdheid van de Universiteit Leiden.

Peter van Wijck
Peter van Wijck is universitair hoofddocent Rechtseconomie aan de Faculteit der Rechtsgeleerdheid van de Universiteit Leiden.

    In the theory, legislation and practice of regulation and conduct of administrative procedures, trends towards the concept of good administration can be detected at both supra- and national levels. Based on normative and comparative-legal analyses of Slovene (1999), Croatian (2009) and the EP Resolution (2013) administrative procedure acts (APAs), the article identifies user-oriented institutions that pursue the principles of good administration. Furthermore, it examines acceleration and braking mechanisms that influence the duration of procedures (e.g. setting and shortening time limits, positive fiction, preclusions, and enforcement of procedural errors, broader participation of affected parties, legal protection). Timely and efficient decision-making viewed as a human right with balanced protection of public and private legal interests is in fact crucial for achieving good administration. Hence, in conclusion, the authors propose selected changes de lege ferenda for the reregulation of APAs in Slovenia and beyond, in support of less excessive length of procedures.


Tina Sever

Polonca Kovac
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