Showing papers in "Netherlands journal of legal philosophy in 2018"
TL;DR: The role of piracy in the development of universal jurisdiction has been investigated in this paper, where it is argued that piracy is a medieval creation, used by Bartolus, which must be understood in the wake of the Renaissance of the twelfth century and the increased interest for the study of Roman Law.
Abstract: Piracy holds a special place within the field of international law because of the universal jurisdiction that applies. This article reconsiders the role of piracy in the development of universal jurisdiction. While usually a connection is established between Cicero’s ‘enemy of all’ and modern conceptions of pirates, it is argued that ‘enemy of the human species’ or ‘enemy of humanity’ is a medieval creation, used by Bartolus, which must be understood in the wake of the Renaissance of the twelfth century and the increased interest for the study of Roman Law. The criminalization of the pirate in the late Middle Ages must be understood not only as a consequence of royal power claiming a monopoly of violence at sea. Both the Italian city-states and the Hanse may have preceded royal power in criminalizing pirates. All the while, political motives in doing so were never absent.
5 citations
TL;DR: The authors traces the evolution of the term "hostis generis humani" and offers an analysis that ties it more closely to ancient tyrants than to pirates, but defends the concept if it is restricted to fair trials.
Abstract: Trationally, the term “enemy of all humanity” (hostis generis humani) referred to pirates. In contemporary international criminal law, it refers to perpetrators of crimes against humanity and other core. This essay traces the evolution of the concept, and then offers an analysis that ties it more closely to ancient tyrants than to pirates. Some object that the label is dehumanizing, and justifies arbitrary killing of the “enemy of humanity.” The essay admits the danger, but defends the concept if it is restricted to fair trials. Rather than dehumanizing its target, calling the hostis generis humani to account in a court of law is a way of recognizing that radical evil can be committed by humans no different from any of us.
3 citations
TL;DR: In this article, the authors take up the question of whether there is such a thing as an enemy of all humanity, and whether a human being can be an adversary of all humans.
Abstract: Apart from pain and death and the natural forces that cause them, can there be such a thing as an enemy of all humanity? Can a human being be an enemy of all humanity? Or might it be that the ancient formula ‘enemy of all humanity’ (hostis generis humani) is – as Carl Schmitt warns in the epigraph – so dangerous that it is itself an enemy of all humanity? For that matter, what is ‘humanity’? These are questions I take up in this paper.
3 citations
TL;DR: The notion that a corporation should be able to vote is typically dismissed as "preposterous" as it contradicts the principle "integral to liberal democracy" that only human beings should vote as discussed by the authors.
Abstract: Corporations are regularly ascribed rights and duties, yet few believe they should have the right to participate and to vote in democratic elections. The notion that a corporation should be able to vote is typically dismissed as ‘preposterous’ as it contradicts the principle ‘integral to liberal democracy’ that only human beings should vote.1 This reply warrants the further, normative, question why only human beings should be able to vote in a democracy. But reasons grounded in normative considerations about democracy are parasitic on assumptions regarding the nature of the entities that can have democratic rights. And these are conceptual questions. The present analysis focuses on the conceptual issue and asks if the nature of corporations disqualifies them from being included in the demos.
2 citations
TL;DR: In this paper, the authors argue that results of empirical-legal research should not too easily or too quickly be translated into proposals for legal reform, but first become part of a hermeneutical discussion about norms and legal principles, specific to the normative quality of legal science itself.
Abstract: The central question in this article is whether an empirical-legal approach of victimhood and victim rights could offer a sufficient basis for proposals of legal reform of the legal system. In this article, we choose a normative-critical approach and raise some objections to the way in which part of such research is currently taking place in the Netherlands, on the basis of two examples of research in this field, one dealing with compelled apologies as a possible remedy within civil procedural law and the other with the victim’s right to be heard within the criminal legal procedure. In both cases, we argue, the strong focus on the measurable needs of victims can lead to a relatively instrumental view of the legal system. The legal system must then increasingly be tailored to the wishes and needs of victims. Within this legal-empirical, victim-oriented approach, there is little regard for the general normative principles of our present legal system, in which an equal and respectful treatment of each human being as a free and responsible legal subject is a central value. We argue that results of empirical-legal research should not too easily or too quickly be translated into proposals for legal reform, but first become part of a hermeneutical discussion about norms and legal principles, specific to the normative quality of legal science itself.
1 citations
TL;DR: In this article, the authors focus on the question of whether an offender has an obligation to feel guilty, and whether an emotional response, whether that be guilt feelings, shame or otherwise, is sincere.
Abstract: The stronger position of the victim has led to new dynamics within the criminal justice process, such as the victim’s statement of impact and alternative forms of dispute resolution such as victim-offender mediation. Within such a dynamic, the response from the offender becomes even more important. Ideal narratives of restorative justice refer to personal relevations brought on by the appeal on a human level, emotional admissions of guilt and tearful apologies. But many questions surround the topic of the emotional response of the offender, such as: could an offender have an obligation to feel guilty? Could there be further consequences to not providing the correct emotional response? To what extent can we be certain that an emotional response, whether that be guilt feelings, shame or otherwise, is sincere? Does it even matter whether or not the offender’s apology is sincere?
1 citations
TL;DR: In this paper, a veronderstelling met a niet-virtuele persoon is discussed, e.g., in chatrooms op the internet, in which a gesprekspartner verkeert daarbij in de veronder stelling met een nietvirtueel persoon to spreken.
Abstract: De laatste tijd wordt betrekkelijk veel aandacht besteed aan seksuele gedragingen met virtuele personen. Een virtuele persoon kan een grafisch object zijn, veelal gelijkend op een mens, of een schuilnaam die zich op internet tijdens gesprekken manifesteert.1 Dergelijke gesprekken vinden bijvoorbeeld plaats in chatrooms op internet. De ene gesprekspartner verkeert daarbij in de veronderstelling met een niet-virtuele persoon te spreken. Deze gesprekken kunnen (mede) een seksuele strekking hebben en/of zijn bedoeld die persoon over te halen om elkaar buiten het internet te ontmoeten teneinde (met elkaar) seksuele gedragingen te verrichten.