My article investigates the paradoxical dualism in Kelsen’s Pure Theory of Law, in which exists on the one hand a strict distinction and on the other hand a necessary relation between Is and Ought. I shall further try to answer the question whether Kelsen’s pure theory tacitly assumes in the conditions for validity of the positive legal order a basic value and underlying condition, namely, that of ‘social peace’. In order to answer that question, I will first sketch why Kelsen (...) actually differentiates Is and Ought and conceives of a relation between both categories. Then I will examine if and in what way the conditio tacita of social peace is implied in the conditions for legal validity. The concluding section will suggest what this implication possibly means for the valuation of the Pure Theory of Law and of its normative concept of the positive legal order. (shrink)

It is possible to write a Kelsenian ‘Legal-Philosophical Tractate’ – based on Kelsen’s Pure Theory of Law – after the example of Wittgenstein’s Tractatus Logico-Philosophicus. The following main and sub-propositions analogous to the main and sub-propositions of the Tractatus are a proof thereof and give an initial impetus to it: “May others come and do it better”. Unlike Wittgenstein’s Tractatus, that ends with the famous proposition 7 that one should be silent about what cannot be spoken, a Kelsenian Tractate would (...) not end with an analogous main proposition, but with two sub-propositions that show the (relative) value of both ‘the speaking’ and ‘the silence’ of positive law. (shrink)

Kritische bijdragen over ideologisch gekleurde vormen van westerse culturele antropologie.

This article paradoxically tries to come closer to an idea of justice with the help of the destructive — anything but nihilistic — criticism thereof by Hans Kelsen. It argues that his relativistic approach, in which this idea undergoes a metamorphosis to become a realisable value of a social order, brings us closer to an obvious and objective form of justice that is almost taken for granted. Just in our liberal and plural democracy this approach might prove to be of (...) more value than a transcendental theory that passes speculative judgements on the essence of absolute justice, about which we are unable to come to an agreement. (shrink)

In spite of his post-World War II works on international law, which seems more purely juridical, Hans Kelsen continues to put forward in his vast body of work an implicit – and sometimes even explicit – juridical objectivism and pacifism. Especially before and during the second World War he makes – by means of many moral-political writings – an effort for a more effective assurance of international peace. The fact that Kelsen regards the law as the pre-eminent means to achieve (...) the end of peace, is – in view of the tradition running from Hobbes to Kant – still not very innovating. But the primary and central role he assigns to the judiciary in order to guarantee international peace is on the other hand really original. To bring out Kelsen’s juridical objectivism and pacifism, I restrict myself in this article to his plea before and during the second World War for the judicial primacy in the international legal order. In that plea, which is spread over many writings and founded by several arguments, I distinguish however three main convincing arguments – namely an evolutionary, a technical and a moral-political argument – for the establishment of an international court with compulsory jurisdiction as the ‘guardian of international peace’. The fact that Kelsen’s original plea is still relevant to our times, is already evident from the post-World War II UN-system of peace-enforcement, which still functions little satisfactorily and of which the existing plans of reform go no further than strengthening the position of the Security Council, the current hardly effective ‘maintainer of world peace’. (shrink)

Research into Kelsen’s conception of judicial justice seems at first sight contradictory to his own Pure Theory of Law. Upon closer consideration this prima facie contradiction turns out to be only an appearance due to the paradoxical effect that is produced by Kelsen’s pure theory of law itself. By revealing three paradoxical effects of Kelsen’s work in this article, I try to show that research into a Kelsenian representation of judicial justice is not only possible but also meaningful. The first (...) paradox originates from Kelsen’s formalised and value-free concept of law, which unexpectedly confronts the judge with his moral responsibility for the material valuation of the law. Secondly, a paradox arises from Kelsen’s rationalised notion of relative justice, which in fact forces the judge to be absolutely convinced of the moral rightness of his judgement. The third paradox is a result of Kelsen’s idea of objectivised ‘social peace’, by which the judge just realises the subjective and irrational demands of justice. From my analysis of these three seeming contradictions in Kelsen’s pure theory of law emerges an apparent Kelsenian representation of judicial justice. Starting from his pure theory of law it should be possible to conceive of a ‘pure’ form of administration of law, which would stipulate social peace as a condition for the ‘purity’ of a judicial judgement. I even imagine that Kelsen considered peace as a conditio tacita for the validity of the whole legal order, just as he regarded the basic norm as conditio per quam and effectivity as conditio sine qua non for the validity of the legal order. In any case, according to Kelsen’s conception of judicial justice, social peace proves to be the implicit or tacit condition for a ‘pure’ judgement. With that this ‘pacifying jurisprudence’ can be understood as a surprising paragon of a ‘pure’ administration of justice, on the understanding that peace is not a sufficient but an obvious condition for a just administration of law. That this should also apply mutatis mutandis for Kelsen’s concept of the legal order as a whole will be made subject of further research. (shrink)

Hans Kelsen is renowned in the world of legal philosophy as one of the most important legal scholars of the 20th century and his most important work which brought him this renown, Pure Theory of Law, is therefore ‘world famous’. However, he is less well known as a legal pacifist and his main writings on law and peace, such as Peace through Law, are very rarely studied and almost never considered in relation to his Pure Theory of Law. Even the (...) more recent studies of Kelsen’s theory of democracy, which increased familiarity with Kelsen as an advocate of democracy and actually looked at his political work in the light of the Pure Theory of Law, contain almost no systematic or critical consideration of the value of peace, although both Kelsen’s legal theory and his theory of democracy at least give cause for this. Whereas other studies have already made the connection between the concepts of law and democracy in Kelsen’s work, this thesis concentrates on the concepts – also closely connected in his work – of law and peace. With this new approach this thesis hopes to contribute to a re-evaluation of Kelsen’s positivist legal philosophy by showing that the undervalued yet essential aspect of his legal pacifism can be understood as the tacit, ethical meaning of the Pure Theory of Law. (shrink)

ABSTRACT Amartya Sen’s capability approach is often used in disability research as a normative framework for describing and evaluating the well-being of people with disabilities. Nevertheless, recently, the possibility of going beyond description to the use of the capability approach as an explanatory tool has been raised. However, to allow the use of the capability approach in this way requires grounding it in an appropriate research paradigm. In this paper, critical realism is adopted for this purpose. It is argued that (...) critical realism can provide the ontology needed to justify finding explanations for the way that people with disabilities achieve their valued capabilities. The assumption here is that there are real, emergent structures and mechanisms that underlie empirical capabilities; and that these structures and mechanisms are related to people’s agency, as described by critical realism’s conception of the relationship between structure and agency. (shrink)

My main purpose in this article is to establish the meaning of a ‘good death’ when death is self-chosen. I will take as my point of departure the new notion of ‘self-euthanasia’ and the corresponding practice that has evolved in the Netherlands in recent years. Both physician-euthanasia and self-euthanasia refer to an ideal process of a good death, the first being ultimately the physician's responsibility, while the second is definitely the responsibility of the individual choosing to die. However, if we (...) also accept the existence of a fundamental moral difference between ending another person's life and ending your own life, and if we accept this moral difference to be also relevant to the normatively laden good death, then this difference represents a strong reason for preferring self-euthanasia to physician-euthanasia. (shrink)

There has been a time in my teaching career that I used to cite in my introductory classes ‘Moral Philosophy’ from Erica Jong's Fear of Flying . The situation leading up to the quote is that the main character, Isadora, is asked a sexual favour by her brother in law, Pierre. Her answer and the subsequent dialogue read then as follows: ‘I can't’ , I said. ‘Come on,’ Pierre said, ‘I'll teach you.’ ‘I didn't mean that … I meant that (...) I can't; morally , I can…’. (shrink)

For further development of organic agriculture, it will become increasingly essential to integrate experienced innovative practitioners in research projects. The characteristics of this process of co-learning have been transformed into a research approach, theoretically conceptualized as “experiential science” (Baars 2007 , Baars and Baars 2007 ). The approach integrates social sciences, natural sciences, and human sciences. It is derived from action research and belongs to the wider field of transdiscliplinary research. In a dialogue-based culture of equality and mutual exchange the (...) principal of a “bottom-up” experiential learning process can be stimulated and fully reflective. It provides an opportunity to develop organic agriculture as multiple best-practices based on transdisciplinary projects, cases studies, and case series. The aim of the article is to describe the methodological characteristics and the theoretical and practical potential of experiential science for research in and development of organic farming. Three characteristic projects are outlined to illustrate the main elements of the methodology: the retrospective reflection on intuitive and experiential knowledge held by farmers; the knowledge derived from on-farm experimentation; the exchange of knowledge and experiences between farming pioneers within a “masterclass” setting. The study concludes that experiential science offers an important philosophical reconciliation process whereby a synthesis of different approaches to research becomes possible in solving real-life problems: quantitative and qualitative, subjective and objective, reductionistic and holistic, practice and science. Recognizing that there are multiple elements contributing to the process of acquiring knowledge, experiential science draws on a broad field of scientific methods thereby integrating the hermeneutic approach of social sciences and the Humanities with the established methods of contemporary natural science. (shrink)

Logicians treat assertions as true, believed or merely hypothesized sentences. The reasoner who uses them, however, is the sole referee who can validate their truth, their aptness to describe an actual situation, their strength (as beliefs) or the relevance of their use in the current logical context. Moreover, the reasoner actively counts on these factors, as part of the reasoning process itself, and should normally be capable, when asked to do so, to assign consistently relative strengths to the assertions used. (...) The paper assumes, first, that assertions have -each- an associated, measurable strength, and that, second, this strength has significant -and measurable- effects on the truth of the sentences, the validity of the conclusion and the soundness of the reasoning. The concepts and formulas required for this are explored, and a semantics and proof theory for a sentential calculus of assertions are proposed as a natural extension of ordinary two-valued reasoning. The resulting theory, though reminiscent of Probability,is autonomous, self-contained and of a purely logical nature. (shrink)

Theorie en de praktijk, geënt op filosofieën en mediatatie-methoden uit Zen-kloosters en Hindoe-ashrams.

Inleiding tot de fenomenologische methode van werkelijkheidsbenadering.

Miracle narratives are an essential part of nearly all religious traditions. The importance of miracles also applies to Christianity. The Gospels record thirty-five miracles that Jesus is said to have performed, including twenty-three miraculous healings and nine nature miracles (for example, stilling a storm and turning water into wine). At the heart of Christian faith lies the story of Jesus' resurrection from the dead. However, the factuality of these events has been increasingly problematised, especially since the period of the Enlightenment. (...) In this study, it is argued that the current debate between science-oriented critics of miracles and their religious opponents focuses predominantly on the question of factuality and evidence at the loss of the religious meaning of miracles. The suggestion that science and religion would be opposite approaches is denied in a proposal of a balanced hermeneutical approach of miracles that does justice to scientific findings, religious texts and experience. (shrink)

Cultuurfilosofisch essay over onze verhouding tot de natuur.