The aim of this dissertation is twofolded. Firstly, it defines judicial activism as actions of the judiciary in which they exceed their authority to rule against written legislation or the spirit...Show moreThe aim of this dissertation is twofolded. Firstly, it defines judicial activism as actions of the judiciary in which they exceed their authority to rule against written legislation or the spirit of the law. Secondly, this form of Judicial Activism cannot be allowed, because it would harm legal certainty and diminish the legitimacy of the judiciary and lead to unclarity on fundamental principles. Furthermore, Judicial Activism is not the solution for the problem of unjust laws.Show less
This thesis sets out to delve into literature's capacity for edification, specifically for the phenomenon known as legal alienation. Through a wide array of literary texts by authors such as Kafka,...Show moreThis thesis sets out to delve into literature's capacity for edification, specifically for the phenomenon known as legal alienation. Through a wide array of literary texts by authors such as Kafka, Camus, and Dostoevsky, we illustrate the concept of legal alienation. We then examine the unique connection between law and literature to see the way in which literature is particularly well-equipped for illuminating legal issues such as legal alienation. And finally, through a close look at Nussbaum we see the way in which literature stimulates our moral imagination, thereby allowing us keen insights into fraught moral issues.Show less
Within the Dutch liberal democracy, a political as well as fundamental tension can be felt between the liberal democracy and Islam. One of the legal examples that can be offered in relation to the...Show moreWithin the Dutch liberal democracy, a political as well as fundamental tension can be felt between the liberal democracy and Islam. One of the legal examples that can be offered in relation to the tension between the liberal democracy and Islam, is the “Temporary Law on Counterterrorism Administrative Measures". This temporary law was put into place in order to fight threats of (Muslim) terrorism, by making it possible to (among other administrative measures) restrict the freedom of movement of a person through an area ban and / or travel ban based on the possible threat they can become, given their religious beliefs and actions (the fear of radicalisation). The question is where to draw the line between protecting society in relation to national security and restricting one’s freedom, based on religious beliefs that go against (some of) the principles of the liberal democracy. The main question of this thesis will therefore be the following: Is it justified for a liberal democracy to enforce administrative sanctions upon its citizens, based on their religious identity? In discussing the place of religion (and religious identity) within the liberal democracy, I will focus on four different approaches: the communitarian consensus, state neutrality, the human nature approach and the overlapping consensus approach. I will argue that none of these approaches offer a justified answer to how Salafi citizens can coexist peacefully with others while living according to the principles of liberal democracy. I will argue, however, that the inability of the Salafi identity to coexist with the ideals of the liberal democracy, does not necessarily justify state interference (by enforcing sanctions upon the Salafi citizens). It is important to look at the actions that follow from ones identity, in order to judge if state interference is justified. Following the three groups identified by Wiktorowicz in his “Anatomy of the Salafi Movement”, I will argue that the state is not allowed to act against purists, the state can use administrative measures to restrict politicos and is allowed to use both administrative as well as criminal measures against jihadis.Show less
Value in nature has often been studied from two perspectives, either externally or internally. Schools of intrinsic value like deep ecology have been found extreme in the past, their implications...Show moreValue in nature has often been studied from two perspectives, either externally or internally. Schools of intrinsic value like deep ecology have been found extreme in the past, their implications undesirable to humans. External perspectives like anthropocentric value judgements, for example ecosystem-service arguments, or considerations of intergenerational justice have become increasingly common and well researched. However, this thesis starts from the observation that anthropocentric value based morality does little to protect ecosystems for their own sake. Instead, it merely focuses on those parts that either appeal, service, or otherwise are useful to humans. It is especially this perception of ecosystems that lies at the root of current and past exploitation of the ecosystem. The result is nearly irreversible damage to the ecosystem. This thesis argues for pro tanto moral rights for the ecosystem, on the basis of interest-based moral considerability. I will show that previous arguments for or against the moral considerability of nature lack sufficient knowledge of ecological processes. If ecological processes are properly understood, the ecosystem can be said to have an interest. This interest, or wellbeing, is the striving towards homeostasis. This means that the ecosystem has moral considerability and is a moral patient. It is therefore eligible for moral rights. These rights-relations occur between moral agents and moral patient when there is contact. This will be explained through developing the Contact-Theory.Show less
This thesis investigates Habermas's approach to the role of religious reasons in public deliberation. A critique of Habermas's theory is developed along three lines. First, it is argued that...Show moreThis thesis investigates Habermas's approach to the role of religious reasons in public deliberation. A critique of Habermas's theory is developed along three lines. First, it is argued that Habermas's work oversimplifies religious reasons by treating 'religious reasons as a singular phenomenon. Thereby, Habermas underplaying the diversity of ways people practice religion. Second, this thesis argues that the translation of religious reasons to the language of public administration might prove harder than Habermas presents it. Third, Habermas's claim to have developed a 'postmetaphysical' theory fails to convince, as Habermas makes fundamental metaphysical assumptions. This undermines the neutral character of his account of religion in the public sphere. This thesis suggests an alternative approach may be available in the literature: instead of distinguishing between religious and non-religious reasons, we should distinguish authoritarian and non-authoritarian reasons. This preserves the deliberative spirit of Habermas's project, while more accurately filtering out the modes of reasoning that are unhelpful for advancing constructive deliberation.Show less
This thesis analyses the authority of international law from the perspective of international legal positivism. The traditional approach that takes the state’s will as the foundation of...Show moreThis thesis analyses the authority of international law from the perspective of international legal positivism. The traditional approach that takes the state’s will as the foundation of international law is problematic as it results in the voluntarist dilemma. For international law to have objective power, a state should be incapable of escaping its authority by its own will even though this will is what constituted international law in the first place. The incompatibility of this would mean that international law’s authority is actually based on a ‘special’ will that is external to the wills of states. Georg Jellinek devised a theory of international law that supposedly accounts for international law’s objective authority while maintaining the state’s will as its foundation. His theory is built on what he calls “the normative force of the factual”, but falls short as it cannot withstand Hume’s law. Herbert Hart’s theory of law is more promising as it leaves the state’s will out of the equation and focuses on legal practice to understand the necessary features of a legal system. International law, however, is “law” but not a legal system. This thesis challenges Hart’s understanding of international law as “law” and argues that there is an international legal system consisting of primary and secondary rules.Show less
In deze scriptie wordt aan de hand van de Urgenda-uitspraak van de rechtbank Den Haag het verschijnsel van de ‘politieke beslissing’ geïntroduceerd. Bij een zogenaamde politieke beslissing neemt de...Show moreIn deze scriptie wordt aan de hand van de Urgenda-uitspraak van de rechtbank Den Haag het verschijnsel van de ‘politieke beslissing’ geïntroduceerd. Bij een zogenaamde politieke beslissing neemt de rechter een beslissing waarbij de eigen politieke voorkeur leidend wordt geacht. Dergelijke beslissingen worden bekritiseerd. Aan de hand van de politieke filosofie en rechtsfilosofie van de Duitse filosoof Carl Schmitt wordt in deze scriptie echter betoogd dat iedere beslissing – in meer of mindere mate – een politieke dimensie kent. Het onderkennen van deze dimensie is essentieel alvorens een zinvolle discussie gevoerd kan worden over de politieke beslissing van de rechter. Deze scriptie poogt het startpunt te zijn van een dergelijke discussie.Show less
Since the beginning of the 1980s, much debate in the jurisprudential literature on freedom of speech has been about the (alleged) right to produce and publish pornography. Law professor and...Show moreSince the beginning of the 1980s, much debate in the jurisprudential literature on freedom of speech has been about the (alleged) right to produce and publish pornography. Law professor and feminist Catherine A. MacKinnon produced an interesting argument to justify censorship: pornography itself silences women (and we are allowed to silence silencing speech). This thesis seeks to investigate this normative defence of the 'silencing of the silencing', particular in the form promulgated by Rae Langton from the 1990s on. It argues that Langton and other feminists are right to conclude that free speech implies more than a mere 'right to locution' -- there must also be a right to be heard. Yet, it puts into question the premise that that fact alone could justify a censorship. That usually constitutes an offence against the spirit of autonomy, one of the main reasons to accept free speech in the first place.Show less
In this thesis I critically review Corey Brettschneider's value theory of democracy as a potential solution to the tension between democratic procedures and liberal rights and, thereby, also as an...Show moreIn this thesis I critically review Corey Brettschneider's value theory of democracy as a potential solution to the tension between democratic procedures and liberal rights and, thereby, also as an instrument to criticize illiberal democracies. I first discuss procedural and substantive interpretations of democracy, followed by an analysis and critique of Brettschneider’s democratic theory. I argue that Brettschneider does not succeed in grounding liberal rights in the core values of democracy and, thus, that Brettschneider fails in his attempt to reconcile procedural and substantive dimensions of democracy. I conclude that the only plausible ground for substantive rights in democracy is based in a procedural reading of democracy, which, to a certain extent, can function as an argument against illiberal democracies.Show less
This paper seeks to clarify the concept of revenge pornography. Existing laws concerning revenge pornography are analysed and sorted into four separate categories, after which a definition of ...Show moreThis paper seeks to clarify the concept of revenge pornography. Existing laws concerning revenge pornography are analysed and sorted into four separate categories, after which a definition of (consensual) pornography is set out against definitions of four types of nonconsensual pornography, among which a definition of revenge pornography. This is followed by an analysis of the reasons for the lack of appropriate laws against revenge pornography and considers degrees of privacy. The discussion of the harms for victims will be followed by the identification of three kinds of wrongs and the identification of three kinds of perpetrators.Show less
In this thesis I defend the recent ruling of the Hoge Raad that determined that free speech can be restricted when statements are contrary to democratic principles. Equal respect for dignity is one...Show moreIn this thesis I defend the recent ruling of the Hoge Raad that determined that free speech can be restricted when statements are contrary to democratic principles. Equal respect for dignity is one of those important democratic principles, therefore I focus on the principle dignity and its relation to freedom of speech. Dignity commands recognition respect which means recognizing the equal authority and accountability of people. I argue that statements without any free speech interests can be restricted. Statements that contain valuable and harmful aspects can be restricted when the harm upstages the value. This is when the statement harms the essence of dignity and negates the relational aspect of freedom of speech.Show less
Intuitively, anarchism and republicanism are miles apart. This essay shows that they are more connected then often thought. It sketches the republican tradition and places the anarchistic...Show moreIntuitively, anarchism and republicanism are miles apart. This essay shows that they are more connected then often thought. It sketches the republican tradition and places the anarchistic philosophy of Proudhon in a republican light. It shows the similarities between Proudhon’s anarchism and republicanism by examining republican themes in the work of Proudhon. Themes like rule of law, separation of powers and decentralization. It will show that Proudhon’s system of anarchy is a viable form of state that deserves its place in the republican tradition. When viewed as a viable form of state, it will also find its way into the mixed constitution.Show less
How should we think about causation in the law? Traditionally, the law distinguishes two kinds of criteria for legal causation. First, there are criteria to establish cause in fact. These criteria...Show moreHow should we think about causation in the law? Traditionally, the law distinguishes two kinds of criteria for legal causation. First, there are criteria to establish cause in fact. These criteria are applied to determine whether there is a factual causal connection between the agent’s behavior and another event. Second, there are criteria to establish the adequate cause. These criteria are applied to determine whether a cause in fact is a salient cause for the law. I argue that the criteria for cause in fact are insufficiently specified in traditional legal theory. The criteria for cause in fact are implicitly contrastive, but lack an account of the admissibility of the contrasts. I develop distinct accounts of the admissibility of the contrasts for tort law and criminal law, and argue that rather than ask whether the effect would still have occurred in the absence of the defendant’s behavior, the law requires us to ask whether lawful behavior by either the defendant alone or by all agents involved, as specified by the plaintiff or prosecutor, would have prevented the effect from occurring. It follows that legal relevance considerations determine the contrasts underlying the criteria for cause in fact and that the cause in fact/adequate cause distinction in the law cannot hold. Furthermore, I argue that the traditional criteria for adequate cause should limit legal responsibility for some outcomes of the contrastive causal analysis, but do not play a role in this analysis. Therefore, the traditional criteria for adequate cause should not be considered part of the concept of legal causation.Show less
