Law and Ethics

Recent decades have witnessed the rise of populism in democracies across the globe. In The Democratic Paradox Chantal Mouffe, explains the global rise of populism today by referring to the worldwide dominance of liberalism in the Western world until the turn of the millennium. The democratic paradox consists of a tension between, on the one hand, the principles of popular sovereignty and equality and, on the other hand, individual freedoms and human rights. In this course, we cover the different models that explain, understand, and assess this contradiction at the heart of the liberal democratic rule-of-law state. In addition to the classical doctrine of democracy, we discuss the aggregative, deliberative, and agonistic models of democracy.

The different models of democracy presuppose a specific tradition of politics, law and ethics. In this course, we cover the main schools of thought of law and ethics. Alongside Jeremy Bentham’s utilitarianism, Immanuel Kant’s deontology, and John Locke’s liberalism, we discuss Aristotle’s virtue ethics and Jean-Jacques Rousseau’s republicanism. These legal and ethical philosophies constitute the main sources of inspiration for contemporary theories of law and justice, such as John Stuart Mill’s liberal utilitarianism, John Rawls’s liberal egalitarianism, Robert Nozick’s libertarianism, and Michael Sandel’s communitarianism. Inspired by the different value theories (of welfare, freedom and virtue) implied in these various legal and ethical traditions, these contemporary theories of law and justice approach the ‘democratic paradox’ (between popular sovereignty and human rights) in different and various ways.

According to Mouffe, the liberal models are based on the assumption that rational individuals should be able to reach a compromise or consensus on every political issue. In this way, groups of people who disagree are excluded by them as irrational. Populist parties feed on the resentment felt by these excluded people, which intensifies friend-enemy distinctions. Populists may use the threat posed by the ‘enemy’ as a pretext to suspend citizens’ rights and freedoms, consolidating their own power. In this way, populism poses a threat to liberal democracy and the rule of law. As an alternative to liberal models of democracy and the rule of law, Mouffe develops an agonistic model of politics. The central idea of the agonistic model is that ‘antagonism’ (the struggle between radical enemies) must be transformed into ‘agonism’ (the struggle between legitimate opponents). The parties in an agonistic conflict agree on the values of ‘equality’ and ‘freedom’ in a democratic rule-of-law state, but differ on what these values actually entail.

Could the agonistic model perhaps serve as a model for a militant democracy and rule-of-law state, capable of resisting populism? In this course, this question will be examined through the lens of the three models of democracy and the rule of law as distinguished by Mouffe. Joseph A. Schumpeter will be discussed as a representative of the aggregative model, John Rawls as a representative of the deliberative model, and Chantal Mouffe as a representative of the agonistic model. Next, populism will be examined through the lens of Carl Schmitt’s political thought, which is based on the ‘friend-enemy distinction’. Finally, a model for a militant democracy and rule-of-law state will be developed on the basis of Nietzsche’s agonistic thinking. The course concludes with reflections on the sovereign and the criminal, two figures who can both be embodied by the populist leader who reveals himself as an autocrat, and by the one who challenges his power in the name of liberal democracy and the rule of law.

After this course:

Studens have insight in dominant Western ethical theories, in particular utilitarianism, Kantianism, liberalism, and libertarianism, as well as Aristotelian virtue ethics.

Students have a better understanding of the relationship between law, morality and justice, illustrated by contemporary professional, social and ethical dilemmas.

Studens have improved dealing with legal problems from the point of view of ethical theories.

Students are able to recognise theories of justice in contemporary discussions on legal issues and is able to assess the relevance of these theories in topical cases and is able to defend and argue a particular moral position, in both writing and oral expression.

Je moet voldoen aan de volgende eisen

• Alle onderstaande cursussen zijn behaald
• Inleiding verbintenissenrecht (RGBUPRV001)
• Inleiding goederenrecht (RGBUPRV002)
• Grondslagen van recht (RGBUSBR001)
• Inleiding staats- en bestuursrecht (RGBUSBR002)
• Inleiding Strafrecht (RGBUSTR001)

• Reader On Brightspace
• Book Michael J. Sandel, Justice. What's the Right Thing to Do? London: Penguin 2009.
• Book Vincent Seminck, Friendship, Enmity and the Challenges to Liberal Democracy. Agonal, Political and Legal Thinking in Nietzsche and Schmitt. (Law and Politics. Continental Perspectives). Routledge, Taylor & Francis Group 2026. E-book (full access through UU library)