T.J.M. Mertens

Nazism, Legal Positivism and Radbruch's Thesis on Statutory Injustice

The small article “Statutory Injustice and Suprastatutory Law” published in 1946 by Gustav Radbruch is one of the most important texts in 20th century legal philosophy. Until recently, its importance was said to stem from its renewal of ‘natural law’ and from its ‘formula’, according to which the value of justice should override that of legal certainty in extreme cases. In this contribution, a close examination will show that Radbruchs text is less univocal than often suggested. I argue that Radbruch deals here with the acute problems of apparent criminal legality during the Nazi-era rather than with problems of validity. In order to make this clear, I first briefly sketch Radbruchs personal history and the context into which the article fits. Secondly, I analyze the text itself and focus on how to understand the well-known grudge informer case. Finally, I pay some attention to the renewed topical interest of Radbruchs formula, owing to the fact that it was used in the trials against former-GDR soldiers who shot fugitives at the Berlin Wall,and their superiors.

On Kant's Duty to Speak the Truth

In ‘On the Supposed Right to Lie from Philanthropy’, Kant defends a position that cannot be salvaged. The essay is nonetheless important because it helps us understand his philosophy of law and, more specifically, his interpretation of the social contract. Kant considers truthfulness a strict legal duty because it is the necessary condition for the juridical state. As attested by Kant’s rejection of Beccaria’s arguments against the death penalty, not even the right to life has such strict unconditional status. Within the juridical state, established by the social contract, the (single) innate right to freedom is transformed into a bundle of merely positive rights, including the right to life. Understanding the reason for the rejection of ‘the right to lie from philanthropy’ thus helps us understand the, in a sense, ‘positivist’ character of Kant’s legal philosophy. In conclusion, some suggestions are made to bring his position closer to our common moral understanding.

Whose International Order? Which Law?

The legality and legitimacy of the Iraq war in 2003 has been widely discussed before, during and after the hostilities. Though hardly anyone questions the lack of a legal basis for the military operation in Iraq, it has been argued that other grounds could have justified the undertaking of military action. The political support of the Dutch government for the American-led invasion in Iraq needs to be understood along these lines. This contribution focuses on the legal and intellectual trends that can be observed preceding the support given to the 2003 war. These trends could be summarised as a move from legality towards legitimacy, from positive law to morality, broadly understood. The support of the Dutch government for the war can be interpreted as a reflection of a certain discontent with existing international law and of changing attitudes vis-a-vis the international order. The following questions will be raised in this contribution: What was really relevant in this context: the international legal order of the Charter of the United Nations or some other international order dominated by certain values other than the ones embedded in the Charter? Moreover, what kind of a war was the invasion of Iraq: a legal war on the basis of international law broadly understood or an ethical war in accordance with the criteria of the just war tradition? These questions will be dealt with from the Dutch constitutional perspective and from the perspective of ethics.

From ‘Perpetual Peace’ to ‘The Law of Peoples’: Kant, Habermas and Rawls on International Relations

It is hardly surprising that the two greatest Kantian philosophers of the twentieth centurys second half would, at some point of time, reflect and comment on one of the most famous writings of the Konigsberg sage, namely on Perpetual Peace: A Philosophical Sketch . Of course, in recent decades, and especially around the celebration of the 200th anniversary of its publication, many commentary articles and books have been published on Kants little essay, but it makes a difference when Jurgen Habermas and John Rawls make an effort to get to an appropriate understanding of Kants text in the present-day world. Here I will describe some of the main features of their understanding of Kants peace proposal. I will first briefly recall the main scheme of Kants essay, anticipating the writings of Habermas and Rawls by employing their new vocabularies and schemes in describing Kants position. The main purpose of my outline of Kants essay is to investigate how much of Kants proposal has remained alive in Habermas and Rawls.

How to Address Kant's Legal and Political Philosophy. A Review of Malik's Kantian Context and Horn's non-ideal Normativity

Bespreking van: R. Maliks,Kant’s Politics in Context Oxford:Oxford University Press ,2014 9780199645152 C. Horn,Nichtideale Normativitat. Ein neuer Blick auf Kants politische Philosophie Berlin:Suhrkamp Verlag ,2014 9783518296745

Judicial Injustice? The “Review Case” before the Dutch Supreme Court in 1942

Although the concept of a “wicked legal system” has become well-known, it is not clear how to define such a system or which actors are crucial in bringing it about. This paper discusses from a historical, international, and jurisprudential perspective the Dutch Supreme Court’s 1942 Review Case, in which the Court notoriously grants measures issued by the Nazi occupier the status of Dutch legislation. Although this small tale of the relationship between law, politics, and morality is little known outside the Netherlands, it raises most relevant questions about the constitutional role of a domestic judiciary during foreign occupation and about the ethos of the judiciary beyond the mere obedience of civil servants.