Showing papers in "Netherlands journal of legal philosophy in 2016"

Rainer Forst: The Justification of Basic Rights

Abstract: This article is the introduction of the special issue with the same name, which centers around the key note paper of Rainer Forst, "The Justification of Basic Rights. A Discourse-Theorethical Approach".

The erosion of sovereignty

Abstract: Many of the assumptions underpinning the modern system of nation-states are now being placed in question. Increased global flows of capital, intensified networks of social interaction, and the emergence of transnational regulatory regimes on a significant scale are affecting the ability of national governments to regulate their economic conditions and improve their citizens’ well-being. The effects of economic, technological and cultural change are having significant impacts on the activity of governing, the cumulative effect of which is experienced as a diminution in the efficacy of those levers of command and control that have been a common feature of the modern nation-state settlement. These developments have generated a great deal of policy analysis and scholarly examination.

National Identity, Constitutional Identity, and Sovereignty in the EU

Abstract: It is commonplace in European constitutional practice and theory to use the terms ‘national identity’ and ‘constitutional identity’ interchangeably. On the one hand, several Advocates General to the European Court of Justice have employed the concept of ‘constitutional identity’ to delineate what is protected under Article 4(2) TEU, even though, strictly speaking that Treaty provision refers to the Member States’ national identities, inherent in their fundamental structures.1 On the other hand, certain domestic constitutional courts which present themselves as the ultimate defenders of the identity of their constitution have pointed to Article 4(2) TEU to legitimate their assumed power to review secondary EU law against their constitutional identity.2 Against this background, it should not be a

‘Should the People Decide?’ Referendums in a Post-Sovereign Age, the Scottish and Catalonian Cases

Abstract: On 18 September 2014, Scottish citizens voted 55%-45% to stay in the United Kingdom. The turnout of 84.65% was the highest for any UK electoral event since the introduction of universal suffrage.1 This process has brought into vogue the referendum as a mode of settling issues of nationalism. It has been watched keenly in other countries such as Canada, Belgium and Spain. In this paper, I address the connection between the referendum as a decision-making device and sub-state nationalism. It is certainly the case that when sub-state nationalists wish to assert constitutional claims, in particular the most fundamental claim to statehood itself they invariably turn to the referendum, and indeed the referendum is becoming an ever more prominent aspect of sub-state nationalist politics.

E pluribus unum? The Manifold Meanings of Sovereignty

Abstract: Few concepts are of such perennial interest to legal and political thought as the concept of sovereignty. The idea of sovereignty has been – and continues to be – a cornerstone in the constitutional structures of our world. And in combination with the prefix ‘popular’ it is a staple of the discourse of democracy. In the last years, however, the concept has received a high number of death warrants and even the occasional ‘requiem’.1 Yet for now, the concept simply refuses to leave the stage. The death warrants even vivify the debate, thereby confirming the tenacity and importance of the idea of sovereignty.2 Every reflection on the demise of sovereignty it seems demonstrates just how deep the idea of sovereignty is woven into the fabric of our political and legal world.

Do We Want 'More or Fewer' Prosecutions of Opinions? The Geert Wilders Trial 2.0

Abstract: What exactly had Wilders said, to merit prosecution? The trial concerned two sets of remarks made in The Hague around the time of the Dutch municipal elections in 2014. Firstly, during a campaign visit to a suburb of The Hague on 12 March 2014, Wilders said that a vote for his party would amount to a vote for ‘a safer and more social city, with less expenses and, if possible, fewer Moroccans’. A week later, on the eve of the elections, Wilders asked a café filled with supporters whether they wanted ‘more or fewer Moroccans’. The crowd chanted, ‘Fewer, fewer, fewer!’ to which Wilders responded: ‘Well, then we’ll arrange that’.

Power and Principle in Constitutional Law

Abstract: Is sovereignty relevant to modern government? This is a question of great theoretical interest as well as of great practical interest. The current debates on the future of the European Union after the British referendum have touched on issues of sovereignty. Many people in the United Kingdom are worried, for example, about what they perceive to be an incursion into sovereignty by European institutions and believe that a withdrawal from the EU will restore sovereignty. This is what Prime Minister Theresa May said at a speech to the Conservative Party Conference in September 2016. She promised that leaving the EU would make the United Kingdom once again a fully ‘sovereign’ state. Does it make sense to speak of sovereignty in this way? Or is the ideal of absolute self-government a mirage? Can the idea of sovereignty carry the political burden placed upon it?

On the Justification of Basic Rights

Abstract: In recent years, there has been much debate about the justification of basic moral rights. These rights set standards that any socio-legal system must honour in order to count as morally acceptable. The challenge, for those who find the idea of basic rights compelling, is to offer an account of where these rights come from. More precisely stated, the challenge is to explain by virtue of what members of a socio-legal system possess these rights.

Frankfurt Goes Kantian – But How Does It Work?

Abstract: Rainer Forst gives discourse theory a turn in which the Kantian heritage is more strongly emphasized than with earlier authors of the so-called Frankfurt School, such as Adorno, Habermas or Honneth. Adorno’s relationship to Kant has always been ambivalent. On the one hand, he criticized Kant quite superficially for being un-historical, bourgeois or un-dialectical. On the other hand, there are numerous alliances between both authors on a deeper level. Thus, it will be difficult to make sense of Adorno’s criticisms of modern societies in Minima Moralia1 without some concept of morality in the Kantian tradition. Or Adorno’s ambivalent take on his‐ tory: on the one hand his writings seem to be driven by the conviction of the Dia‐ lectic of Enlightenment that history fails right from the beginning – which seems to presuppose metaphysical knowledge about the course of history. On the other hand, we find views about Utopia and reconciliation – particular in the Aesthetic Theory2 – where Adorno embodies an attitude regarding history which is more methodologically aligned with the Kantian critical project than with Hegelian knowledge about history.

The Presumption of Innocence: an Antidote for Sacrificial Venom? Patterns of Girard’s ‘Primitive’ Sacred in Late Medieval and Early Modern Criminal Law

Abstract: The presumption of innocence is regarded as the cornerstone of due process. It moulds the law of criminal procedure and as such rejoices almost universal acclaim.1 Appreciating the value of this principle in the contemporary world could be enhanced by examining legal systems whose procedural law is not, or not to the same extent, informed – in the Aristotelian sense – by the presumption of innocence.

The European Refugee Crisis from a Vantage Point of View

Abstract: Europe is confronted with what is invariably referred to as a ‘crisis’: an ongoing influx of refugees mainly but not exclusively from Syria. Although the root cause of flight – the brutal Syrian civil war – rages already for five years, Europe appears to have been caught by surprise as a result of which individual states resort to taking unilateral measures with a view to stemming the flow. A rather popular measure appears to be the hasty erection of fences. The fall of the Berlin wall, long a symbol of a profound division within Europe, has been forgotten and new grim divisions are created: this time not to prevent people from leaving but to prevent them from entering and accessing protection. Barbed wire fences and walls have been erected within a very short time between Hungary and Serbia, Hungary and Croatia, Greece and Macedonia, Croatia and Slovenia, Bulgaria and Turkey, and Greece and Turkey.1 Other unilateral measures include the recently adopted Danish law that allows the seizure of assets (money and valuables exceeding 1300 euro) from incoming refugees,2 and the quotum set by Austria regarding the maximum number of refugees who may apply for asylum: 127,500 refugees within four years (i.e., 37,000 per year).3

A European Account of Justice: Under Pressure of Subsidiarity?

Abstract: The Juncker Commission and the Greek crisis On 16th December, 2014, the newly elected European Commission, headed by the former Luxembourg Prime Minister Jean-Claude Juncker, presented its work programme for 2015.1 The Commission’s agenda for 2015 had been trimmed down to 23 new proposals, whereas 80 pending policy proposals had been with‐ drawn in line with the principle of ‘political discontinuity’.2 Europe was to be big in the big things and small in the small things.3 One of the big things the Com‐ mission would focus on is the so-called Juncker plan, a €315 billion investment plan for the EU to put the lacklustre European economy back on track. With four former prime ministers and four former deputy prime ministers among its mem‐ bers, the new Commission, ‘voted into office’,4 claimed to have heard the com‐ plaints from member state capitals: the Juncker Commission would withdraw from petty over-regulation and do what it should do: re-ignite the economy. That was the new talk of the town in Brussels.