Both the concept of legal argumentation and the concept of the rule of law are contested and subj... more Both the concept of legal argumentation and the concept of the rule of law are contested and subject to irrationality objections. The present article refutes these objections by analysing the two concepts and focussing on their mutual relation. Based on a new account of the rule of dual-natured law, it elaborates in detail on how law’s dual nature play out in the various forms and problems of legal reasoning, allowing for a third theory of legal argumentation which integrates formal and material elements by means of optimization.
The primary aim of this paper is to defend the Lockean View-the view that a belief is epistemical... more The primary aim of this paper is to defend the Lockean View-the view that a belief is epistemically justified iff it is highly probable-against a new family of objections. According to these objections, broadly speaking, the Lockean View ought to be abandoned because it is incompatible with, or difficult to square with, our judgments surrounding certain legal cases. I distinguish and explore three different versions of these objections-The Conviction Argument, the Argument from Assertion and Practical Reasoning, and the Comparative Probabilities Argumentbut argue that none of them are successful. I also present some very general reasons for being pessimistic about the overall strategy of using legal considerations to evaluate epistemic theories; as we will see, there are good reasons to think that many of the considerations relevant to legal theorizing are ultimately irrelevant to epistemic theorizing.
According to Dick Swaab and Victor Lamme, both the will and the free will are illusions. Scientif... more According to Dick Swaab and Victor Lamme, both the will and the free will are illusions. Scientific research on the brain, they argue, showcases that we erroneously identify ourselves with the conscious mind and consider our decisions, at least in principle, to be the result of an act of deliberation. But it is, in fact, the brain that decides, whereas the conscious mind invents a reason in order to explain the choice that the brain has already made. This conclusion is based on the assumption, first, that the will is a mere construction of the mind, and, second, that the (free) will, therefore, is an illusion. That boils down to the idea that only brute facts of nature are true facts and everything else illusions. But this world not only consists of brute facts of nature (molecules, organisms), but also of facts that exist only because we believe them to exist (money, the UN, property). John Searle, in his book The Construction of Social Reality (1995) calls the latter facts "institutional facts". A piece of paper (a brute fact) is a 20 Euro bill, because of the institution of money. This worthless piece of paper becomes valuable only because the function to possess this value is assigned to them and we collectively accept this assigned function. Money is not the coins and paper bills (brute facts), but the collective behavior of people towards money. It exists because we believe it to exist. But does this mean that money (or the UN or property) is a mere illusion? An analysis of the juristic act (art. 3:33-35 BW) exhibits that the will is an institution as well. The assumption of art. 34 is that we must differentiate between a true will and an apparent will: I sometimes willed an action, but afterwards concluded that this couldn't have been my true will. The criterion to determine what my true will is, is the standard of reasonableness. My (legal) will, therefore, is not the mere inclination to do something, but the judgment that this inclination is also something I could reasonably have willed at the time of the declaration. This means, first, that the will is a construction (it is a judgment, not the inclination in the brain), and, second, not a private phenomenon, only knowable to myself, but an institutional fact (I will use the institution of reasonableness in order to assess whether or not my declaration expressed my true will). Only if we consider the Euro, the UN and property to be mere illusions, may we also call the (free) will an illusion. But to accept that option, is to wipe out the social world with its institutions of law, science and art, and to find us in a naked, nasty world of brute facts only. The mistake of Lamme and Swaab is a category-mistake: they fail to see that the (free) will does not belong to the category of biology, but that it belongs to the social world. The conclusion is: the (free) will exists! (This blog is a summarize of the Meijers Lecture, held January 8, 2013. Full text:)
The primary aim of this paper is to defend the Lockean View-the view that a belief is epistemical... more The primary aim of this paper is to defend the Lockean View-the view that a belief is epistemically justified iff it is highly probable-against a new family of objections. According to these objections, broadly speaking, the Lockean View ought to be abandoned because it is incompatible with, or difficult to square with, our judgments surrounding certain legal cases. I distinguish and explore three different versions of these objections-The Conviction Argument, the Argument from Assertion and Practical Reasoning, and the Comparative Probabilities Argumentbut argue that none of them are successful. I also present some very general reasons for being pessimistic about the overall strategy of using legal considerations to evaluate epistemic theories; as we will see, there are good reasons to think that many of the considerations relevant to legal theorizing are ultimately irrelevant to epistemic theorizing.
According to Dick Swaab and Victor Lamme, both the will and the free will are illusions. Scientif... more According to Dick Swaab and Victor Lamme, both the will and the free will are illusions. Scientific research on the brain, they argue, showcases that we erroneously identify ourselves with the conscious mind and consider our decisions, at least in principle, to be the result of an act of deliberation. But it is, in fact, the brain that decides, whereas the conscious mind invents a reason in order to explain the choice that the brain has already made. This conclusion is based on the assumption, first, that the will is a mere construction of the mind, and, second, that the (free) will, therefore, is an illusion. That boils down to the idea that only brute facts of nature are true facts and everything else illusions. But this world not only consists of brute facts of nature (molecules, organisms), but also of facts that exist only because we believe them to exist (money, the UN, property). John Searle, in his book The Construction of Social Reality (1995) calls the latter facts "institutional facts". A piece of paper (a brute fact) is a 20 Euro bill, because of the institution of money. This worthless piece of paper becomes valuable only because the function to possess this value is assigned to them and we collectively accept this assigned function. Money is not the coins and paper bills (brute facts), but the collective behavior of people towards money. It exists because we believe it to exist. But does this mean that money (or the UN or property) is a mere illusion? An analysis of the juristic act (art. 3:33-35 BW) exhibits that the will is an institution as well. The assumption of art. 34 is that we must differentiate between a true will and an apparent will: I sometimes willed an action, but afterwards concluded that this couldn't have been my true will. The criterion to determine what my true will is, is the standard of reasonableness. My (legal) will, therefore, is not the mere inclination to do something, but the judgment that this inclination is also something I could reasonably have willed at the time of the declaration. This means, first, that the will is a construction (it is a judgment, not the inclination in the brain), and, second, not a private phenomenon, only knowable to myself, but an institutional fact (I will use the institution of reasonableness in order to assess whether or not my declaration expressed my true will). Only if we consider the Euro, the UN and property to be mere illusions, may we also call the (free) will an illusion. But to accept that option, is to wipe out the social world with its institutions of law, science and art, and to find us in a naked, nasty world of brute facts only. The mistake of Lamme and Swaab is a category-mistake: they fail to see that the (free) will does not belong to the category of biology, but that it belongs to the social world. The conclusion is: the (free) will exists! (This blog is a summarize of the Meijers Lecture, held January 8, 2013. Full text:)
Both the concept of legal argumentation and the concept of the rule of law are contested and subj... more Both the concept of legal argumentation and the concept of the rule of law are contested and subject to irrationality objections. The present article refutes these objections by analysing the two concepts and focussing on their mutual relation. Based on a new account of the rule of dual-natured law, it elaborates in detail on how law’s dual nature play out in the various forms and problems of legal reasoning, allowing for a third theory of legal argumentation which integrates formal and material elements by means of optimization.
In recent years, social scientists have turned their critical lens on the historical roots and co... more In recent years, social scientists have turned their critical lens on the historical roots and contours of their disciplines, including their politics and practices, epistemologies and methods, institutionalization and professionalization, national development and colonial expansion, globalization and local contestations, and public presence and role in society. The Social Sciences in the Looking Glass offers current social scientific perspectives on this reflexive moment. Examining sociology, anthropology, philosophy, political science, legal theory, and religious studies, the volume’s contributors outline the present transformations of the social sciences, explore their connections with critical humanities, analyze the challenges of alternate paradigms, and interrogate recent endeavors to move beyond the human. Throughout, the authors, who belong to half a dozen disciplines, trace how the social sciences are thoroughly entangled in the social facts they analyze and are key to help...
Er bestaat een wijdverbreid misverstand, waarbij men gebrek aan precisie gelijkstelt met onwetens... more Er bestaat een wijdverbreid misverstand, waarbij men gebrek aan precisie gelijkstelt met onwetenschappelijkheid. Deze opvatting kan vermoedelijk worden teruggevoerd op het befaamde falsificatiecriterium van Karl Popper. Krachtens het falsificatiecriterium is een meteorologische theorie die niet verder komt dan voorspellingen met een kans op neerslag van 50% voor de komende drie dagen, onweerlegbaar en dus onwetenschappelijk. Onweerlegbaarheid is volgens Popper geen kenmerk van de deugdelijkheid van de theorie, maar van onwetenschappelijkheid.1 Barendrecht heeft deze gedachte uitgewerkt voor het recht en het gebruik van open normen in het privaatrecht bekritiseerd, omdat, enigszins gechargeerd gezegd, iedere toepassing verenigbaar is met de betreffende open norm. Een levendige illustratie van deze stelling vormt het Wrongful Birth-arrest, waarin volgens Stolker negen antwoorden zijn gegeven zonder dat competente juristen in staat zijn om met zekerheid vast te stellen welke van die an...
According to Bertrand Russell, freedom in general may be defined as the absence of obstacles to t... more According to Bertrand Russell, freedom in general may be defined as the absence of obstacles to the realization of desires.1 The stoics, by contrast, hold that freedom is secured not by the fulfilling of desires, but by their removal.2 For them, freedom is a peaceful state of mind (apatheia) and opposed to a life dominated by passions. A different conception of freedom appeared when President Roosevelt delivered his State of the Union address in 1941, and proposed a world order founded upon the Four Freedoms: freedom of speech, freedom of worship, freedom from want, and freedom from fear. That kind of world, he asserted, ‘is the very antithesis of the so-called “new order” of tyranny which the dictators seek to create with the crash of a bomb.’3 George Orwell, in the intended preface to the UK edition of Animal Farm, contrasts freedom with censorship: ‘If liberty means anything at all, it means telling people what they do not want to hear.’4 The concept of freedom, it seems, needs t...
According to Dick Swaab and Victor Lamme, both the will and the free will are illusions. Scientif... more According to Dick Swaab and Victor Lamme, both the will and the free will are illusions. Scientific research on the brain, they argue, showcases that we erroneously identify ourselves with the conscious mind and consider our decisions, at least in principle, to be the result of an act of deliberation. But it is, in fact, the brain that decides, whereas the conscious mind invents a reason in order to explain the choice that the brain has already made.
Vorig jaar oktober verscheen in het NJB een interessante bijdrage van Wibren van den Burg, waarin... more Vorig jaar oktober verscheen in het NJB een interessante bijdrage van Wibren van den Burg, waarin hij het NWO-systeem van onderzoekssubsidies, met de daar‐ bij behorende controleen selectieprocedures, op grond van een (economische) kosten-batenanalyse verwerpt.1 Ik formuleer zijn conclusie overigens ruimer dan hijzelf doet. Hij heeft zich in zijn onderzoek beperkt tot slechts één subsidievorm, de NWO-Onderzoekstalentsubsidie. Zijn conclusie is dan ook bescheidener en luidt dat de faculteiten een goede selectie van kandidaten tegen beduidend lagere kosten kunnen uitvoeren, zodat NWO er verstandig aan doet de Onderzoeks‐ talentsubsidie af te schaffen en het budget te geven aan de faculteiten. Maar Van den Burgs achterliggende vraag betreft het NWO-systeem van onderzoeksubsi‐ dies als zodanig: de vraag of de voordelen die de controleen selectieprocedures van NWO zouden hebben, de kosten van de overhead die dit systeem meebrengt, wel rechtvaardigen. Nu dit volgens Van den Burg voor de O...
The Dutch legal system is part of the legal systems of “civil law” employed in Continental Europe... more The Dutch legal system is part of the legal systems of “civil law” employed in Continental Europe, which are all indebted to the French judicial system. The Dutch judicial system, therefore, exhibits some of the characteristics of the French model. If we confine the comparison to the highest courts in the country, as Lasser does in his book Judicial Deliberations, the similarities revolve around, among other things, the Court’s duties and procedures. With regard to the Court’s duty: like the Court de cassation, the Dutch Supreme Court judges whether the law has been violated by lower courts by determining the proper meaning and mode of application of legal rules. In this respect, the Supreme Court acts, as it were, as bouche de la loi, mouthpiece of the law, for the Court determines how the law – that is: how statutes and treaties – are to be read and applied. This famous quote of Montesquieu – the judge as mouthpiece of the law – is, by the way, not to be understood as the expressi...
Legal hermeneutics carries the hallmark of a genuine scientific paradigm. It is the locus of prof... more Legal hermeneutics carries the hallmark of a genuine scientific paradigm. It is the locus of professional commitment, that is, a generally accepted view about the nature of legal adjudication. But as any genuine paradigm, legal hermeneutics also eludes the production of its full interpretation or rationalisation. Although most lawyers and legal scholars feel compelled to employ some standard set of methods, this consensus does not imply an underlying body of rules and assumptions that fully accounts for legal praxis and legal research. The paradigm of legal hermeneutics, flourishing on the level of legal praxis, is itself a subject of different schools of thought. This article explores different theories of law, sparked off by philosophical and legal hermeneutics. It argues that some of the weaknesses of hermeneutics are remedied by speech act theory. It discusses the increasing scientific interest in the role of metaphor in human thought and emphasises the import of the study of legal metaphor, which is inseparable from culture and tradition, for the study of law.
Both the concept of legal argumentation and the concept of the rule of law are contested and subj... more Both the concept of legal argumentation and the concept of the rule of law are contested and subject to irrationality objections. The present article refutes these objections by analysing the two concepts and focussing on their mutual relation. Based on a new account of the rule of dual-natured law, it elaborates in detail on how law’s dual nature play out in the various forms and problems of legal reasoning, allowing for a third theory of legal argumentation which integrates formal and material elements by means of optimization.
The primary aim of this paper is to defend the Lockean View-the view that a belief is epistemical... more The primary aim of this paper is to defend the Lockean View-the view that a belief is epistemically justified iff it is highly probable-against a new family of objections. According to these objections, broadly speaking, the Lockean View ought to be abandoned because it is incompatible with, or difficult to square with, our judgments surrounding certain legal cases. I distinguish and explore three different versions of these objections-The Conviction Argument, the Argument from Assertion and Practical Reasoning, and the Comparative Probabilities Argumentbut argue that none of them are successful. I also present some very general reasons for being pessimistic about the overall strategy of using legal considerations to evaluate epistemic theories; as we will see, there are good reasons to think that many of the considerations relevant to legal theorizing are ultimately irrelevant to epistemic theorizing.
According to Dick Swaab and Victor Lamme, both the will and the free will are illusions. Scientif... more According to Dick Swaab and Victor Lamme, both the will and the free will are illusions. Scientific research on the brain, they argue, showcases that we erroneously identify ourselves with the conscious mind and consider our decisions, at least in principle, to be the result of an act of deliberation. But it is, in fact, the brain that decides, whereas the conscious mind invents a reason in order to explain the choice that the brain has already made. This conclusion is based on the assumption, first, that the will is a mere construction of the mind, and, second, that the (free) will, therefore, is an illusion. That boils down to the idea that only brute facts of nature are true facts and everything else illusions. But this world not only consists of brute facts of nature (molecules, organisms), but also of facts that exist only because we believe them to exist (money, the UN, property). John Searle, in his book The Construction of Social Reality (1995) calls the latter facts "institutional facts". A piece of paper (a brute fact) is a 20 Euro bill, because of the institution of money. This worthless piece of paper becomes valuable only because the function to possess this value is assigned to them and we collectively accept this assigned function. Money is not the coins and paper bills (brute facts), but the collective behavior of people towards money. It exists because we believe it to exist. But does this mean that money (or the UN or property) is a mere illusion? An analysis of the juristic act (art. 3:33-35 BW) exhibits that the will is an institution as well. The assumption of art. 34 is that we must differentiate between a true will and an apparent will: I sometimes willed an action, but afterwards concluded that this couldn't have been my true will. The criterion to determine what my true will is, is the standard of reasonableness. My (legal) will, therefore, is not the mere inclination to do something, but the judgment that this inclination is also something I could reasonably have willed at the time of the declaration. This means, first, that the will is a construction (it is a judgment, not the inclination in the brain), and, second, not a private phenomenon, only knowable to myself, but an institutional fact (I will use the institution of reasonableness in order to assess whether or not my declaration expressed my true will). Only if we consider the Euro, the UN and property to be mere illusions, may we also call the (free) will an illusion. But to accept that option, is to wipe out the social world with its institutions of law, science and art, and to find us in a naked, nasty world of brute facts only. The mistake of Lamme and Swaab is a category-mistake: they fail to see that the (free) will does not belong to the category of biology, but that it belongs to the social world. The conclusion is: the (free) will exists! (This blog is a summarize of the Meijers Lecture, held January 8, 2013. Full text:)
The primary aim of this paper is to defend the Lockean View-the view that a belief is epistemical... more The primary aim of this paper is to defend the Lockean View-the view that a belief is epistemically justified iff it is highly probable-against a new family of objections. According to these objections, broadly speaking, the Lockean View ought to be abandoned because it is incompatible with, or difficult to square with, our judgments surrounding certain legal cases. I distinguish and explore three different versions of these objections-The Conviction Argument, the Argument from Assertion and Practical Reasoning, and the Comparative Probabilities Argumentbut argue that none of them are successful. I also present some very general reasons for being pessimistic about the overall strategy of using legal considerations to evaluate epistemic theories; as we will see, there are good reasons to think that many of the considerations relevant to legal theorizing are ultimately irrelevant to epistemic theorizing.
According to Dick Swaab and Victor Lamme, both the will and the free will are illusions. Scientif... more According to Dick Swaab and Victor Lamme, both the will and the free will are illusions. Scientific research on the brain, they argue, showcases that we erroneously identify ourselves with the conscious mind and consider our decisions, at least in principle, to be the result of an act of deliberation. But it is, in fact, the brain that decides, whereas the conscious mind invents a reason in order to explain the choice that the brain has already made. This conclusion is based on the assumption, first, that the will is a mere construction of the mind, and, second, that the (free) will, therefore, is an illusion. That boils down to the idea that only brute facts of nature are true facts and everything else illusions. But this world not only consists of brute facts of nature (molecules, organisms), but also of facts that exist only because we believe them to exist (money, the UN, property). John Searle, in his book The Construction of Social Reality (1995) calls the latter facts "institutional facts". A piece of paper (a brute fact) is a 20 Euro bill, because of the institution of money. This worthless piece of paper becomes valuable only because the function to possess this value is assigned to them and we collectively accept this assigned function. Money is not the coins and paper bills (brute facts), but the collective behavior of people towards money. It exists because we believe it to exist. But does this mean that money (or the UN or property) is a mere illusion? An analysis of the juristic act (art. 3:33-35 BW) exhibits that the will is an institution as well. The assumption of art. 34 is that we must differentiate between a true will and an apparent will: I sometimes willed an action, but afterwards concluded that this couldn't have been my true will. The criterion to determine what my true will is, is the standard of reasonableness. My (legal) will, therefore, is not the mere inclination to do something, but the judgment that this inclination is also something I could reasonably have willed at the time of the declaration. This means, first, that the will is a construction (it is a judgment, not the inclination in the brain), and, second, not a private phenomenon, only knowable to myself, but an institutional fact (I will use the institution of reasonableness in order to assess whether or not my declaration expressed my true will). Only if we consider the Euro, the UN and property to be mere illusions, may we also call the (free) will an illusion. But to accept that option, is to wipe out the social world with its institutions of law, science and art, and to find us in a naked, nasty world of brute facts only. The mistake of Lamme and Swaab is a category-mistake: they fail to see that the (free) will does not belong to the category of biology, but that it belongs to the social world. The conclusion is: the (free) will exists! (This blog is a summarize of the Meijers Lecture, held January 8, 2013. Full text:)
Both the concept of legal argumentation and the concept of the rule of law are contested and subj... more Both the concept of legal argumentation and the concept of the rule of law are contested and subject to irrationality objections. The present article refutes these objections by analysing the two concepts and focussing on their mutual relation. Based on a new account of the rule of dual-natured law, it elaborates in detail on how law’s dual nature play out in the various forms and problems of legal reasoning, allowing for a third theory of legal argumentation which integrates formal and material elements by means of optimization.
In recent years, social scientists have turned their critical lens on the historical roots and co... more In recent years, social scientists have turned their critical lens on the historical roots and contours of their disciplines, including their politics and practices, epistemologies and methods, institutionalization and professionalization, national development and colonial expansion, globalization and local contestations, and public presence and role in society. The Social Sciences in the Looking Glass offers current social scientific perspectives on this reflexive moment. Examining sociology, anthropology, philosophy, political science, legal theory, and religious studies, the volume’s contributors outline the present transformations of the social sciences, explore their connections with critical humanities, analyze the challenges of alternate paradigms, and interrogate recent endeavors to move beyond the human. Throughout, the authors, who belong to half a dozen disciplines, trace how the social sciences are thoroughly entangled in the social facts they analyze and are key to help...
Er bestaat een wijdverbreid misverstand, waarbij men gebrek aan precisie gelijkstelt met onwetens... more Er bestaat een wijdverbreid misverstand, waarbij men gebrek aan precisie gelijkstelt met onwetenschappelijkheid. Deze opvatting kan vermoedelijk worden teruggevoerd op het befaamde falsificatiecriterium van Karl Popper. Krachtens het falsificatiecriterium is een meteorologische theorie die niet verder komt dan voorspellingen met een kans op neerslag van 50% voor de komende drie dagen, onweerlegbaar en dus onwetenschappelijk. Onweerlegbaarheid is volgens Popper geen kenmerk van de deugdelijkheid van de theorie, maar van onwetenschappelijkheid.1 Barendrecht heeft deze gedachte uitgewerkt voor het recht en het gebruik van open normen in het privaatrecht bekritiseerd, omdat, enigszins gechargeerd gezegd, iedere toepassing verenigbaar is met de betreffende open norm. Een levendige illustratie van deze stelling vormt het Wrongful Birth-arrest, waarin volgens Stolker negen antwoorden zijn gegeven zonder dat competente juristen in staat zijn om met zekerheid vast te stellen welke van die an...
According to Bertrand Russell, freedom in general may be defined as the absence of obstacles to t... more According to Bertrand Russell, freedom in general may be defined as the absence of obstacles to the realization of desires.1 The stoics, by contrast, hold that freedom is secured not by the fulfilling of desires, but by their removal.2 For them, freedom is a peaceful state of mind (apatheia) and opposed to a life dominated by passions. A different conception of freedom appeared when President Roosevelt delivered his State of the Union address in 1941, and proposed a world order founded upon the Four Freedoms: freedom of speech, freedom of worship, freedom from want, and freedom from fear. That kind of world, he asserted, ‘is the very antithesis of the so-called “new order” of tyranny which the dictators seek to create with the crash of a bomb.’3 George Orwell, in the intended preface to the UK edition of Animal Farm, contrasts freedom with censorship: ‘If liberty means anything at all, it means telling people what they do not want to hear.’4 The concept of freedom, it seems, needs t...
According to Dick Swaab and Victor Lamme, both the will and the free will are illusions. Scientif... more According to Dick Swaab and Victor Lamme, both the will and the free will are illusions. Scientific research on the brain, they argue, showcases that we erroneously identify ourselves with the conscious mind and consider our decisions, at least in principle, to be the result of an act of deliberation. But it is, in fact, the brain that decides, whereas the conscious mind invents a reason in order to explain the choice that the brain has already made.
Vorig jaar oktober verscheen in het NJB een interessante bijdrage van Wibren van den Burg, waarin... more Vorig jaar oktober verscheen in het NJB een interessante bijdrage van Wibren van den Burg, waarin hij het NWO-systeem van onderzoekssubsidies, met de daar‐ bij behorende controleen selectieprocedures, op grond van een (economische) kosten-batenanalyse verwerpt.1 Ik formuleer zijn conclusie overigens ruimer dan hijzelf doet. Hij heeft zich in zijn onderzoek beperkt tot slechts één subsidievorm, de NWO-Onderzoekstalentsubsidie. Zijn conclusie is dan ook bescheidener en luidt dat de faculteiten een goede selectie van kandidaten tegen beduidend lagere kosten kunnen uitvoeren, zodat NWO er verstandig aan doet de Onderzoeks‐ talentsubsidie af te schaffen en het budget te geven aan de faculteiten. Maar Van den Burgs achterliggende vraag betreft het NWO-systeem van onderzoeksubsi‐ dies als zodanig: de vraag of de voordelen die de controleen selectieprocedures van NWO zouden hebben, de kosten van de overhead die dit systeem meebrengt, wel rechtvaardigen. Nu dit volgens Van den Burg voor de O...
The Dutch legal system is part of the legal systems of “civil law” employed in Continental Europe... more The Dutch legal system is part of the legal systems of “civil law” employed in Continental Europe, which are all indebted to the French judicial system. The Dutch judicial system, therefore, exhibits some of the characteristics of the French model. If we confine the comparison to the highest courts in the country, as Lasser does in his book Judicial Deliberations, the similarities revolve around, among other things, the Court’s duties and procedures. With regard to the Court’s duty: like the Court de cassation, the Dutch Supreme Court judges whether the law has been violated by lower courts by determining the proper meaning and mode of application of legal rules. In this respect, the Supreme Court acts, as it were, as bouche de la loi, mouthpiece of the law, for the Court determines how the law – that is: how statutes and treaties – are to be read and applied. This famous quote of Montesquieu – the judge as mouthpiece of the law – is, by the way, not to be understood as the expressi...
Legal hermeneutics carries the hallmark of a genuine scientific paradigm. It is the locus of prof... more Legal hermeneutics carries the hallmark of a genuine scientific paradigm. It is the locus of professional commitment, that is, a generally accepted view about the nature of legal adjudication. But as any genuine paradigm, legal hermeneutics also eludes the production of its full interpretation or rationalisation. Although most lawyers and legal scholars feel compelled to employ some standard set of methods, this consensus does not imply an underlying body of rules and assumptions that fully accounts for legal praxis and legal research. The paradigm of legal hermeneutics, flourishing on the level of legal praxis, is itself a subject of different schools of thought. This article explores different theories of law, sparked off by philosophical and legal hermeneutics. It argues that some of the weaknesses of hermeneutics are remedied by speech act theory. It discusses the increasing scientific interest in the role of metaphor in human thought and emphasises the import of the study of legal metaphor, which is inseparable from culture and tradition, for the study of law.
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