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  • Capabilities, Powers and Competences

    Code for cross-reference: 2021-x

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    In the jurisprudential literature, the notions of legal power and legal competence are usually not well distinguished, if they are distinguished at all. For instance, in his classic paper on the subject, Hohfeld (1913) only writes about (legal) powers, not about competences. Spaak (1994), following Lindahl (1977), claims that the terms ‘competence’ and ‘power’ are used for the same thing by authors on the European continent, respectively from the Anglo-/American tradition. To confirm this theory, Hart (2012), MacCormick (1981) and Raz (1972) wrote about powers. Lindahl and Reidhav (2017) remain in the Swedish tradition by claiming that powers and competences are the same. Kurki (2017), finally, considers competences to be a subset of powers.

    The present article tries to articulate the distinction between the two notions. Moreover, it also aims to embed them in social ontology and the theory of actions. More about that soon.

    Obviously, a theory of powers and competences should use the words 'power' and 'competence' by and large in their ordinary meanings. However, these ordinary meanings are ambiguous, and arguments that develop well-defined notions must unavoidably deviate from some forms of parlance. The argument in this article should be read as a plea to use the words 'power' and 'competence' in a particular well-defined way, and does not aim to capture all aspects of how these notions are used in legal practice or the jurisprudential literature. I do not care much about words. The distinctions that the argument makes matter; the precise words that are used for them do not. The distinction between powers and competences is blurred by the fact that the word 'power' is ambiguous.

    In its broader meaning, 'power' stands for the capability to do something. This meaning is used in, for instance the sentence ‘Making it to the finale of Wimbledon turned out to be beyond Jaap Hage’s power.’ In its narrower meaning, it stands for the capability to bring about legal consequences by means of a 'juridical act'. This meaning is used in, for instance, the sentence ‘It lies within the power of the Constitutional Court to declare this provision null and void.’ I will call these latter powers 'legal powers'. The notion of a legal power is related to the notion of a legal competence, although important differences remain.

    This article consists of two main parts. The argument of the first part is bottom-up: it starts with a discussion of actions and capabilities to act, and defines powers as capabilities to act (sections 2-4). Then follows a brief discussion of juridical acts, because the performance of juridical acts is one important way to exercise powers. The power to bring about legal consequences by means of a juridical act, the legal power, is a special case of power in the broader sense (section 5). Legal competences are necessary for the existence of legal powers. This is the argument of the first part of this article and at the same time the master argument of the article as a whole (section 6). The second part consists of a number of applications of the theory about competences and powers that was developed in the first part. These applications are also used for distinguishing my view from other views (section 7). The article is concluded in section 8.

    The master argument of the article can be formulated without connecting it to social ontology and with only a modicum of theory of action. However, that would leave the argument open to objections based on misunderstandings of what capabilities, actions and intentions are. By embedding the basic argument in a setting of social ontology and action theory, I hope to avoid at least some of these objections.



    Code for cross-reference: 2021-x

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    This paper addresses the question whether the cognitive sciences are relevant for law. The answer to this question will turn out to be a threefold ‘yes’. First, if law is traditionally conceived as a set of rules that prescribe what ought to be done, there is a role for the cognitive sciences in determining the facts of the cases to which the law is to be applied (evidential reasoning). Legal decision making often involves the application of open-textured concepts, and the cognitive sciences can study the psychological processes and perhaps also the biases involved in such application. Moreover, the results of the cognitive sciences may also be important for the evaluation of law, and for determining what would be good law.

    A perhaps more ambitious role for cognitive sciences in law has to do with the determination of the content of the law. If law is a social phenomenon and if social phenomena depend on what goes on in human minds, cognitive sciences can, at least in theory, study the content of the law. Some would argue that the cognitive sciences could never fulfil this more ambitious role, because law has to do with what OUGHT to be done, or ought to be the case, while sciences, including cognitive sciences, can only study what IS the case. It will be argued that this fundamental objection against this role for the cognitive sciences is misguided: there is no hard difference between IS and OUGHT and even if law belongs to the realm of OUGHT, cognitive sciences may still be relevant for determining the con-tent of the law.

    Finally, the cognitive sciences may disrupt the image of humankind that underlies law. It turns out that people are less rational than may seem at first sight, that they often do not know what motivates them, that it is not obvious what actions and agents are, and that it is unclear what the best level of explanation is for human actions or bodily movements. A change in the image of humankind that underlies law, to reflect the recent insights of the cognitive sciences, but also of ancient philosophical debates, may have important consequences for the contents of law.



    Code for cross-reference: 2021-x

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    co-authored with Antonia Waltermann

    This paper focuses on the relationship between liability in (criminal) law, responsibility, and retribution. It addresses the question whether law – in particular criminal law – should base liability on responsibility and whether responsibility should be based on retributivism. In examining these questions, the aim of the chapter is to present the main lines of the debates surrounding these questions and to examine whether – and if so, how – compatibilism is a means to reconcile the different positions within the debates. A central role in this regard is reserved for a social practice we call ‘the practice of agency’ and the tension between two different ways of looking at the world around us, namely the phenomenological and the realist way. Criminal liability can be justified by reference to consequentialism or retributivism. The latter fits into a view of the world that includes free will libertarianism; the phenomenological view of the world. This view includes agents with free will who are responsible for their actions and deserve liability on those grounds. It can be contrasted with the realist view, which denies the existence of a free will and the possibility of responsibility or liability based on desert. Compatibilism suggests that these two views of the world can co-exist because our actual social practice of agency does not depend on any philosophical position. We argue that for compatibilism to be successful in this regard, it needs to be shown that a. the two views of the world are about the same thing, and b. that it is desirable for both views of the world to co-exist. The cognitive sciences are relevant for both of these claims.


  • 2020

  • Exceptions in International Law

    Code for cross-reference: 20xx-x

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    Published in: Lorand Bartels and Federica Paddeu (eds.), Exceptions in International Law, Oxford University Press 2020, pp. 11-34

    co-authored with Antonia Waltermann and Gustavo Arosemena

    Together with Logical Tools for legal Pluralism and Logical Tools for International Law, this article forms a set of related and partially overlapping articles which cover different aspects of the role of logic in dealing with international law.

    Exceptions to rules play an important role in law, and in particular in international law. A proper understanding of exceptions is therefore of crucial importance for legal practice, legal doctrine and legal theory. The aim of this article is to contribute to this understanding; it is not to describe the law or the present usage with regard to rules and exceptions.

    As background for the development of a theory about exceptions to rules, sections 3 and 4 go into some detail concerning rules, rule-formulations, legal sources, reasons and their logic. In section 5, we will elaborate on the distinction between the applicability and the application of a rule. A rule is applicable to a case if the rule is valid, and if its ordinary and scope conditions are satisfied by the case. If a rule is applied to a case, the rule attaches its legal consequences to the facts of the case. Normally the applicability of a rule to a case is a contributory reason why the rule should be applied to the case. An exception to a rule in a case is defined as the situation in which a rule is applicable to, but nevertheless not applied to the case.

    In section 6, two main grounds for making an exception to a rule are identified. First, the maker of the rule may use the rule-exception construction to create a division in the burden of proof. As argued in section 9, this leads to a so-called undercutting defeater. Second, there may be reasons why the legal consequences of the rule in the case are undesirable. This leads to a reason against applying the rule, which needs to be balanced to the applicability of the rule as reason for application. In this situation we speak of rebutting defeaters (see section 9.2).

    An important reason why it is undesirable to apply a rule to a case is that application would generate a conflict with another applicable rule. Section 8 discusses a number of tools/techniques that can be used to avoid rule conflicts and which would in that way make exceptions superfluous.

    Finally, the question may be raised whether legal rules really have exceptions. Is it not the case that if a rule is well-formulated, it mentions all ‘exceptions’ as negative rule conditions? Such a well-formulated ‘derived’ rule can then be applied deductively to cases that satisfy the rule conditions. In sections 10 and 11, this possibility is discussed and it is shown that this use of derived rules blocks the possibility to model the division of burden of proof which is implicitly given with the rule-exception model. The article is summarized and concluded in section 12.


  • European Integration: A Theme

    Code for cross-reference: 2020-x

    Published as: Jaap Hage, European Integration: A Theme, Den Haag: Eleven 2020, 208 p.

    A teaching book, primarily meant for students who follow the course 'States, Markets and European Integration' at the Maastricht European Law School. It uses European integration as a theme to discuss the history and theories of European integration, the nature of explanation and understanding, the empirical cycle, the economics of free and of international trade and of monetary integration, social ontology and sovereignty, and psychological explanations of euroscepticism.


  • 2019


    Code for cross-reference: 2019-x

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    Published in: David Duarte e.a. (eds.), Legal Interpretation and Scientific Knowledge, Cham: Springer 2019, pp. 1-11

    Paper presented at the workshop on legal reasoning (Lisbon 22 June 2018)

    The main claim of this article is that lawyers should make less use of the hermeneutical method than they do. The reasons that I will adduce to support this claim are the following:

    Law (tout court) is first and foremost an answer to the question of how to act, and more in particular, the question of which rules to enforce by collective means. As such, law does not coincide with positive law. Nevertheless, positive law determines the content of the law to a large extent. It does so for two reasons. The first reason is that positive law contributes to legal certainty, and that legal certainty is very important for the question concerning which rules should be enforced by collective means. The second reason is that respect for the positive law, which was created by democratic bodies, implies respect for democracy.

    However, positive law can only contribute to legal certainty if its application is predictable. If the positive law can be interpreted in more than one way, its application will not be predictable. In that case the positive law is not relevant for the content of the law tout court. Theories about the interpretation of positive law (hermeneutical theories) are particularly relevant where positive law can be interpreted in different ways, that is: where positive law is not relevant for the content of the law tout court. Therefore, hermeneutical theories are not relevant for the content of the law and lawyers should not waste their time on them. A similar argument can be given for the democratic legitimation of positive law.