Jaap Hage

Current global issues, such as the Covid-19 pandemic, international terrorism, environmental threats, or the refugee crisis, call for coordinated responses of States. The international cooperation required to tackle these issues demands some minimum regulatory framework: the creation and application of international rules. Any (potential) inconsistencies or conflicts between or within regulatory frameworks make international cooperation more difficult and challenge international law’s role as a tool for facilitating cooperation. It has been argued that international law is inconsistent because it is fragmented; this fragmentation can be seen as a result of state sovereignty.

In this paper, we connect state sovereignty to fragmentation and the potential for inconsistencies and conflicts and investigate whether exercises of sovereignty necessarily lead to inconsistencies that would hinder international cooperation. We argue that this is not the case, essentially because the logic of rules differs fundamentally from the logic of statements, and because this rule logic allows us to find a coherent legal system in a pluralistic and fragmented collection of sources of international law.

As the European Union (EU) matures, there is an increasing debate, partly fuelled by fierce national criticism offered by Eurosceptic politicians, partly initiated by the EU institutions themselves, on the way in which the EU has developed and what the EU must look like in the future. This debate includes a discussion on one of the core aspects of European integration: at which level should the rules be set and who decides where the authority to do so should lie? Private law has an important role to play in this discussion. Many private law rules touch on the core of the internal market as they serve to foster trade or to offer protection to market participants, such as consumers.

In 2011, the Maastricht European Private Law Institute (M-EPLI) was founded. M-EPLI researchers combine European Private Law scholarship in the fields of contract, property, commercial and procedural law as well as legal theory. In this book M-EPLI fellows present perspectives on the allocation of competences in European Private Law. This includes both general perspectives and criteria on the basis of which to decide who does what in European Private Law, but also specific perspectives relating to the various fields M-EPLI’s researchers cover. All contributions share a common approach in which each author or team of authors addresses the same two questions: (i) What are the criteria to decide upon the ideal design of their field of law for the EU?; (ii) Who should set the rules: what is in the author(s) view the optimal mix of national and European producers of legal norms?

This chapter 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.

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.