This article analyzes the debate between the proponents and opponents of artistic moral rights an... more This article analyzes the debate between the proponents and opponents of artistic moral rights and, more specifically, the right of integrity as recognized in the Berne Convention, with the aid of agonistic political theory. Envisaging art as a site of antagonistic struggle, the right of integrity is conceived of as a state-backed mandate to claim an inviolable place for artistic work, founded on a Romantic notion of authorship. The plea against the entrenchment of this right is considered a counter-hegemonic response that challenges this notion in favor of an unfettered development of art and its surrounding discourse. As such, this debate seems to revolve around a conflict of alleged interests: those of artists, of art's public, and of art itself. It is argued that insights into the discursive behavior of rights, and, by extension, into the effect of rights discourses on antagonistic struggle, are needed to foster this debate.
Considering that many philosophers ascribe an imaginary aspect to the grounding of moral judgment... more Considering that many philosophers ascribe an imaginary aspect to the grounding of moral judgment, this contribution explores how we, as moral agents, experience and make use of this imaginary aspect. If we are indeed imagining things when passing moral judgments, then how do we manage to rely on it and consider the outcomes true, or justified, or warranted, or however one may describe adherence to claims of practical normativity? To answer that question, this paper takes inspiration from the idea – notably advanced by Kendall Walton and Gregory Currie ̶ that imagination can be seen as the experience of a fictional reality due to our involvement in a so-called game of make-believe. This game is constituted by the interaction between active and passive players, the potential use of props, under the regime of certain rules and conventions. Using this pretense-perspective, this contribution conceives of the grounding of moral judgment as a type of linguistic performance directed at making others believe, or at least adhere to the idea that there is something ‘out there’ to make our judgment true, or justified, or warranted, etc. This reconstruction is finally used to gain a better understanding of the communicative and mental processes involved in the experience and use of the imaginary ground of moral judgment.
International Journal for the Semiotics of Law, 2018
Please click URL for full text.
Seeing that socio-legal theory has produced a number of compe... more Please click URL for full text.
Seeing that socio-legal theory has produced a number of compelling grand theories about law’s development as a body of knowledge, this contribution analyzes legal evolution on the micro-level of decision-making in concrete cases. To that end, law finding is reconstructed as a three stage process of reason-based rule-construction. Legal evolution is argued to stem from the argumentative jumps that are made in this process in order to use what is initially drawn from the body of legal knowledge in new cases. These jumps are justified by additional reasoning that plays a crucial role in that it brings new information to the law finding process. It is explained how this new information gets incorporated in the body of knowledge as a result of discursive maneuvers of legal practitioners.
Seeing that the role of opinio juris in the identification of customary international law is esse... more 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.
Seeing that political communities are often believed to have an imaginary constitutional basis, t... more Seeing that political communities are often believed to have an imaginary constitutional basis, this article raises the question how we -citizens of those communities -relate to this imaginary basis, and to the legitimacy it claims. As the answers already given tend to focus on the instrumental, here it is argued that insights from fiction theory can be used to shed new light on the mechanisms involved in our ability to adhere to the idea of there being an original (normative) foundation of the state. Drawing from Johan Huizinga and other play-oriented thinkers, the constitutional fiction is reconstructed as a social situation in which the existence and hegemony of a foundational normative framework is pretended to be the case. It is argued that our ability to adhere to this public form of pretense stems from the capacity to have separate spheres of consciousness: one to go along in the enacted world, and one to generate our own personal response to it. In the interaction between these two spheres of consciousness we develop our normative commitments and collective identity, while ascribing them to an imaginary constitution.
Starting from the premise that the normative foundation of legal systems is widely considered to ... more Starting from the premise that the normative foundation of legal systems is widely considered to be imaginary, this article addresses the question how actors in those systems are able to experience this fictional basis and consider it binding. As the answers already given in legal and political philosophy tend to be limited to instrumental explanations, it is argued that insights from aesthetic philosophy, and more specifically mimesis-theory, can help to gain a more profound understanding of both the nature of fictions and the human capacity to use them. Drawing from Kendall Walton’s work, fiction use is re-conceptualized as an interactive game of make-believe that has active and passive players, that involves the use of props, and that is governed by both constitutive and regulative rules. It is claimed that human beings are able to play and appreciate this game on the basis of a dual consciousness in which their minds are partly devoted to going along in the fiction of legal hegemony, and partly to having derivate experiences. Tentatively, it is argued that these derivate experiences form our main gratification, and hence the prime motive, for playing the game and accepting its outcomes.
Constitutionalism is a typically modernist project in that it seeks to dictate social order by me... more Constitutionalism is a typically modernist project in that it seeks to dictate social order by means of institutional design. This project, however, fails in two ways. Empirically, constitutionalism is confronted with the fact that constitutions have limited control over their social environment. Epistemologically, constitutionalism has
great difficulty in finding a convincing foundational relation between abstract constitutional provisions and constitutional norms for concrete situations. On the basis of this poor
record, it is hard to comprehend how constitutionalism remains such an influential factor in our polity. This article tries to explain our adherence to the philosophy of constitutional ordering by analysing its function in constitutional discourse.
Dit artikel verkent de veelzijdige relatie tussen recht en burgerschap aan de hand van een aantal... more Dit artikel verkent de veelzijdige relatie tussen recht en burgerschap aan de hand van een aantal modaliteiten.
This book engages in the vivid debate about the role of national parliaments in the future Europe... more This book engages in the vivid debate about the role of national parliaments in the future European democracy. These parliaments are widely regarded to be essential in reducing the EU’s democratic deficit, but it remains unclear how their function should be organised. Attempts to arrive at a Union-wide regulation, for example in the constitutional treaty, have not resulted in a comprehensive regime based on a clear political philosophy. The purpose of this volume is to contribute to such a regime on the basis of a comparative analysis of scrutiny systems as they exist today. In this respect, the book proposes a ‘bottum-up’ approach to European constitutionalism, which means that the political systems of the Member States are considered to be the prime source of inspiration, the main input, to the process of establishing supranational norms.
This book engages in the vivid debate about the role of national parliaments in the future Europe... more This book engages in the vivid debate about the role of national parliaments in the future European democracy. These parliaments are widely regarded to be essential in reducing the EU's democratic defi cit, but it remains unclear how their function should be organised. Attempts to arrive at Union-wide regulation, for example in the constitutional treaty, have not resulted in a comprehensive regime based on a clear political philosophy. The purpose of this volume is to contribute to such a regime on the basis of a comparative analysis of scrutiny systems, as they exist today. In this respect, the book proposes a 'bottom-up' approach to European constitutionalism, which means that the political systems of the Member States are considered to be the prime source of inspiration, the main input, to the process of establishing supranational norms.
This article analyzes the debate between the proponents and opponents of artistic moral rights an... more This article analyzes the debate between the proponents and opponents of artistic moral rights and, more specifically, the right of integrity as recognized in the Berne Convention, with the aid of agonistic political theory. Envisaging art as a site of antagonistic struggle, the right of integrity is conceived of as a state-backed mandate to claim an inviolable place for artistic work, founded on a Romantic notion of authorship. The plea against the entrenchment of this right is considered a counter-hegemonic response that challenges this notion in favor of an unfettered development of art and its surrounding discourse. As such, this debate seems to revolve around a conflict of alleged interests: those of artists, of art's public, and of art itself. It is argued that insights into the discursive behavior of rights, and, by extension, into the effect of rights discourses on antagonistic struggle, are needed to foster this debate.
Considering that many philosophers ascribe an imaginary aspect to the grounding of moral judgment... more Considering that many philosophers ascribe an imaginary aspect to the grounding of moral judgment, this contribution explores how we, as moral agents, experience and make use of this imaginary aspect. If we are indeed imagining things when passing moral judgments, then how do we manage to rely on it and consider the outcomes true, or justified, or warranted, or however one may describe adherence to claims of practical normativity? To answer that question, this paper takes inspiration from the idea – notably advanced by Kendall Walton and Gregory Currie ̶ that imagination can be seen as the experience of a fictional reality due to our involvement in a so-called game of make-believe. This game is constituted by the interaction between active and passive players, the potential use of props, under the regime of certain rules and conventions. Using this pretense-perspective, this contribution conceives of the grounding of moral judgment as a type of linguistic performance directed at making others believe, or at least adhere to the idea that there is something ‘out there’ to make our judgment true, or justified, or warranted, etc. This reconstruction is finally used to gain a better understanding of the communicative and mental processes involved in the experience and use of the imaginary ground of moral judgment.
International Journal for the Semiotics of Law, 2018
Please click URL for full text.
Seeing that socio-legal theory has produced a number of compe... more Please click URL for full text.
Seeing that socio-legal theory has produced a number of compelling grand theories about law’s development as a body of knowledge, this contribution analyzes legal evolution on the micro-level of decision-making in concrete cases. To that end, law finding is reconstructed as a three stage process of reason-based rule-construction. Legal evolution is argued to stem from the argumentative jumps that are made in this process in order to use what is initially drawn from the body of legal knowledge in new cases. These jumps are justified by additional reasoning that plays a crucial role in that it brings new information to the law finding process. It is explained how this new information gets incorporated in the body of knowledge as a result of discursive maneuvers of legal practitioners.
Seeing that the role of opinio juris in the identification of customary international law is esse... more 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.
Seeing that political communities are often believed to have an imaginary constitutional basis, t... more Seeing that political communities are often believed to have an imaginary constitutional basis, this article raises the question how we -citizens of those communities -relate to this imaginary basis, and to the legitimacy it claims. As the answers already given tend to focus on the instrumental, here it is argued that insights from fiction theory can be used to shed new light on the mechanisms involved in our ability to adhere to the idea of there being an original (normative) foundation of the state. Drawing from Johan Huizinga and other play-oriented thinkers, the constitutional fiction is reconstructed as a social situation in which the existence and hegemony of a foundational normative framework is pretended to be the case. It is argued that our ability to adhere to this public form of pretense stems from the capacity to have separate spheres of consciousness: one to go along in the enacted world, and one to generate our own personal response to it. In the interaction between these two spheres of consciousness we develop our normative commitments and collective identity, while ascribing them to an imaginary constitution.
Starting from the premise that the normative foundation of legal systems is widely considered to ... more Starting from the premise that the normative foundation of legal systems is widely considered to be imaginary, this article addresses the question how actors in those systems are able to experience this fictional basis and consider it binding. As the answers already given in legal and political philosophy tend to be limited to instrumental explanations, it is argued that insights from aesthetic philosophy, and more specifically mimesis-theory, can help to gain a more profound understanding of both the nature of fictions and the human capacity to use them. Drawing from Kendall Walton’s work, fiction use is re-conceptualized as an interactive game of make-believe that has active and passive players, that involves the use of props, and that is governed by both constitutive and regulative rules. It is claimed that human beings are able to play and appreciate this game on the basis of a dual consciousness in which their minds are partly devoted to going along in the fiction of legal hegemony, and partly to having derivate experiences. Tentatively, it is argued that these derivate experiences form our main gratification, and hence the prime motive, for playing the game and accepting its outcomes.
Constitutionalism is a typically modernist project in that it seeks to dictate social order by me... more Constitutionalism is a typically modernist project in that it seeks to dictate social order by means of institutional design. This project, however, fails in two ways. Empirically, constitutionalism is confronted with the fact that constitutions have limited control over their social environment. Epistemologically, constitutionalism has
great difficulty in finding a convincing foundational relation between abstract constitutional provisions and constitutional norms for concrete situations. On the basis of this poor
record, it is hard to comprehend how constitutionalism remains such an influential factor in our polity. This article tries to explain our adherence to the philosophy of constitutional ordering by analysing its function in constitutional discourse.
Dit artikel verkent de veelzijdige relatie tussen recht en burgerschap aan de hand van een aantal... more Dit artikel verkent de veelzijdige relatie tussen recht en burgerschap aan de hand van een aantal modaliteiten.
This book engages in the vivid debate about the role of national parliaments in the future Europe... more This book engages in the vivid debate about the role of national parliaments in the future European democracy. These parliaments are widely regarded to be essential in reducing the EU’s democratic deficit, but it remains unclear how their function should be organised. Attempts to arrive at a Union-wide regulation, for example in the constitutional treaty, have not resulted in a comprehensive regime based on a clear political philosophy. The purpose of this volume is to contribute to such a regime on the basis of a comparative analysis of scrutiny systems as they exist today. In this respect, the book proposes a ‘bottum-up’ approach to European constitutionalism, which means that the political systems of the Member States are considered to be the prime source of inspiration, the main input, to the process of establishing supranational norms.
This book engages in the vivid debate about the role of national parliaments in the future Europe... more This book engages in the vivid debate about the role of national parliaments in the future European democracy. These parliaments are widely regarded to be essential in reducing the EU's democratic defi cit, but it remains unclear how their function should be organised. Attempts to arrive at Union-wide regulation, for example in the constitutional treaty, have not resulted in a comprehensive regime based on a clear political philosophy. The purpose of this volume is to contribute to such a regime on the basis of a comparative analysis of scrutiny systems, as they exist today. In this respect, the book proposes a 'bottom-up' approach to European constitutionalism, which means that the political systems of the Member States are considered to be the prime source of inspiration, the main input, to the process of establishing supranational norms.
Plato en de Sofisten: een spiegel voor deze tijd., 2019
Naar aanleiding van Thierry Baudet’s overwinningsspeech
na afloop van de verkiezingen in maart 20... more Naar aanleiding van Thierry Baudet’s overwinningsspeech na afloop van de verkiezingen in maart 2019, probeert deze bijdrage grip te krijgen op de veelgehoorde kritiek op de populistische stijl van politiek bedrijven, aan de hand van Plato’s bespiegelingen over de rol van mythes in de publieke sfeer. De filosoof was kritisch over het populaire gebruik van verhalen door bijvoorbeeld de dichters van zijn tijd, maar maakte zelf veel gebruik van de verhaalvorm in zijn zoektocht naar de waarheid c.q. het goede. Het roept de vraag op wanneer de politieke mythe zuiver en wanneer onzuiver wordt gebruikt, een vraag waar Plato wel een abstract maar geen concreet antwoord op geeft. Zijn genuanceerde blik op de mythe maakt wel duidelijk dat het populisme zich niet onderscheidt door een gebrek aan respect voor de feiten, want dat geldt voor de ervaring van het politieke in het algemeen. Ook kan de klassieke denker ons leren dat we alleen een positie kunnen bepalen in de mêlee van beelden en verhalen waar wij tegenwoordig mee te maken hebben, door de filosofische confrontatie met de verbeeldingswereld aan te gaan.
Bespreking van: Bastiaan Rijpkema, René Cuperus, Paul Cliteur, Wat te doen met Anti-Democratische... more Bespreking van: Bastiaan Rijpkema, René Cuperus, Paul Cliteur, Wat te doen met Anti-Democratische Partijen? De Oratie van George van den Bergh uit 1936 (Amsterdam: Elsevier Boeken, 2014).
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Papers by Olaf Tans
Seeing that socio-legal theory has produced a number of compelling grand theories about law’s development as a body of knowledge, this contribution analyzes legal evolution on the micro-level of decision-making in concrete cases. To that end, law finding is reconstructed as a three stage process of reason-based rule-construction. Legal evolution is argued to stem from the argumentative jumps that are made in this process in order to use what is initially drawn from the body of legal knowledge in new cases. These jumps are justified by additional reasoning that plays a crucial role in that it brings new information to the law finding process. It is explained how this new information gets incorporated in the body of knowledge as a result of discursive maneuvers of legal practitioners.
great difficulty in finding a convincing foundational relation between abstract constitutional provisions and constitutional norms for concrete situations. On the basis of this poor
record, it is hard to comprehend how constitutionalism remains such an influential factor in our polity. This article tries to explain our adherence to the philosophy of constitutional ordering by analysing its function in constitutional discourse.
Books by Olaf Tans
Chapters by Olaf Tans
Seeing that socio-legal theory has produced a number of compelling grand theories about law’s development as a body of knowledge, this contribution analyzes legal evolution on the micro-level of decision-making in concrete cases. To that end, law finding is reconstructed as a three stage process of reason-based rule-construction. Legal evolution is argued to stem from the argumentative jumps that are made in this process in order to use what is initially drawn from the body of legal knowledge in new cases. These jumps are justified by additional reasoning that plays a crucial role in that it brings new information to the law finding process. It is explained how this new information gets incorporated in the body of knowledge as a result of discursive maneuvers of legal practitioners.
great difficulty in finding a convincing foundational relation between abstract constitutional provisions and constitutional norms for concrete situations. On the basis of this poor
record, it is hard to comprehend how constitutionalism remains such an influential factor in our polity. This article tries to explain our adherence to the philosophy of constitutional ordering by analysing its function in constitutional discourse.
na afloop van de verkiezingen in maart 2019, probeert deze
bijdrage grip te krijgen op de veelgehoorde kritiek op de
populistische stijl van politiek bedrijven, aan de hand van
Plato’s bespiegelingen over de rol van mythes in de publieke
sfeer. De filosoof was kritisch over het populaire gebruik
van verhalen door bijvoorbeeld de dichters van zijn
tijd, maar maakte zelf veel gebruik van de verhaalvorm in
zijn zoektocht naar de waarheid c.q. het goede. Het roept
de vraag op wanneer de politieke mythe zuiver en wanneer
onzuiver wordt gebruikt, een vraag waar Plato wel
een abstract maar geen concreet antwoord op geeft. Zijn
genuanceerde blik op de mythe maakt wel duidelijk dat
het populisme zich niet onderscheidt door een gebrek aan
respect voor de feiten, want dat geldt voor de ervaring van
het politieke in het algemeen. Ook kan de klassieke denker
ons leren dat we alleen een positie kunnen bepalen in de
mêlee van beelden en verhalen waar wij tegenwoordig mee
te maken hebben, door de filosofische confrontatie met de
verbeeldingswereld aan te gaan.