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Article

Structuring the Judiciary to Conduct Constitutional Review in the Netherlands

A Comparative and European Perspective

Journal European Journal of Law Reform, Issue 4 2012
Keywords centralized/decentralized constitutional review, Netherlands constitutional law, comparative law
Authors Gerhard van der Schyff
AbstractAuthor's information

    Whether a legal system decides to centralize or decentralize constitutional review by the judiciary is dependent on various factors. This article critically considers a host of these factors, ranging from the separation of powers to the desire to bring about far-reaching constitutional change and the possible impact of membership of the European Union, in studying whether in the Netherlands constitutional review should be centralized or decentralized upon its possible introduction. The conclusion is reached that although decentralization can be opted for under the current circumstances, a persuasive case for centralization can also be made and might even become stronger and inevitable depending on the course of future constitutional reform.


Gerhard van der Schyff
Gerhard van der Schyff is Senior Lecturer in Constitutional Law at Tilburg Law School, The Netherlands.
Article

Access_open Globalization as a Factor in General Jurisprudence

Journal Netherlands Journal of Legal Philosophy, Issue 2 2012
Keywords general jurisprudence, globalization, global legal pluralism, legal positivism, analytical jurisprudence
Authors Sidney Richards
AbstractAuthor's information

    Globalization is commonly cited as an important factor in theorising legal phenomena in the contemporary world. Although many legal disciplines have sought to adapt their theories to globalization, progress has been comparatively modest within contemporary analytical jurisprudence. This paper aims to offer a survey of recent scholarship on legal theory and globalization and suggests various ways in which these writings are relevant to the project of jurisprudence. This paper argues, more specifically, that the dominant interpretation of globalization frames it as a particular form of legal pluralism. The resulting concept – global legal pluralism – comes in two broad varieties, depending on whether it emphasizes normative or institutional pluralism. This paper goes on to argue that these concepts coincide with two central themes of jurisprudence, namely its concern with normativity and institutionality. Finally, this paper reflects on the feasibility of constructing a ‘general’ and ‘descriptive’ jurisprudence in light of globalization.


Sidney Richards
Sidney Richards is Doctoral candidate in Law at Pembroke College at the University of Cambridge.
Article

The Impact of Europeanization of Contract Law on English Contract Law

Journal European Journal of Law Reform, Issue 2-3 2012
Keywords Rome I and II Regulations, Europeanization, contract law, Common European Sales Law, faulty goods
Authors Omar Abdelaziz
Abstract

    The ongoing process of Europeanization for promoting cross-border transactions and conferring better protection for consumers and small businesses has had its impact all over Europe. It represents a new step towards a harmonized set of legal rules to govern cross-border transactions in the field of contract law. So what is its exact scope? Who will benefit from it? What are its risks? What is its methodology? Does it represent a codification of common law rules? What will be its impact especially on common law countries such as the United Kingdom? The effectiveness of Europeanization depends almost entirely on the correct implementation into national law of the various directives; every member state is obliged to fully implement a harmonized measure into its domestic laws. This is accomplished by ensuring that (1) the relevant legal framework meets the requirements of the harmonized measure and (2) the application of the domestic rules giving effect to a harmonizing measure does not undermine the effectiveness of the European measure. English contract law is largely an uncodified law. Accordingly, the approach taken and the methods used by this jurisdiction to implement European directives into its national laws with the aim of harmonization are different. How did the English courts interpret legislations that implement EU legislations? Will Europeanization affect the deep-rooted principles and doctrines of English contract law (issues of commercial agency), good faith in pre-contractual obligations, unfair contract terms and specific performance? Finally, what could be the clash between European contract law, Rome I Regulations and the United Nations Convention on Contracts for the International Sale of Goods? Could this optional instrument be an exclusive law to either national or international mandatory rules for consumers in member states? What will be the qualification for a genuine consent of consumers in cross-border contracts? Will it lead to the development of the internal market as envisaged by the Commission?


Omar Abdelaziz
Article

Instructions to Draft Legislation

A Study on Legislative Drafting Process in Rwanda

Journal European Journal of Law Reform, Issue 2-3 2012
Keywords drafting instructions, Rwanda, quality of legislation
Authors Ruth Ikiriza
Abstract

    Drafting instructions are always difficult to discuss and evaluate because very often they depend on local traditions. Nevertheless, despite local traditions in drafting instructions their complete absence must be seen as a problem. This article tackles the issue of drafting instructions and their importance in the development of good drafts. And by good drafts the author means good quality drafts which will lead to good quality legislation. The article uses Rwanda as a case study and employs Thornton’s five stages of the drafting process as its basic methodology.


Ruth Ikiriza
Article

Consultation: A Contribution to Efficiency of Drafting Process in Malaysia

Journal European Journal of Law Reform, Issue 2-3 2012
Keywords consultation, stakeholders, efficiency of drafting process, elements of efficiency, policy development
Authors Noor Azlina Hashim
AbstractAuthor's information

    Consultation in legislative drafting process is important and widely acknowledged. So far, many countries in the world have taken steps to foster consultation during the early stage of the drafting process. In Malaysia, the importance of opinion from the public or stakeholders in the output of the drafting process was recently evident when several bills presented before the Parliament were criticized because of the failure to take into consideration views and opinions from the public. In some cases, bills were postponed for policy review and refinement. This article examines and discusses consultation practices during the drafting process and analyses and considers the influence of consultation on the efficiency of the drafting process in Malaysia. The influence of consultation practice in relation to the drafting process were shown from a survey conducted on the drafters in the Drafting Division of the Attorney General’s Chambers of Malaysia.


Noor Azlina Hashim
The Attorney General’s Chambers of Malaysia.
Article

State Aid Given by Local Government Which Disorts Competition

Journal European Journal of Law Reform, Issue 1 2012
Keywords local government, financial autonomy, taxes, sales, state aid
Authors Fjoralba Caka
AbstractAuthor's information

    The Albanian local government has a financial autonomy that is guaranteed by the Constitution and other important legal acts. This implies the right to grant subsidies, loans, define rates of taxes, to sale land or to exercises other rights in the ambit of their financial authority. On the other hand, part of the Stabilization and Association Agreement (SAA) Albania has with the European Union, is the prohibition of state aid that distort competition. Article 71 of the SAA states that any state aid contrary to this agreement shall be assessed on the basis of criteria arising from the application of Article 87 of the EC Treaty and the interpretative instruments adopted by the EU institutions for the application of Article 87 of the EC Treaty. The right interpretation of the notion of state aid that distorts competition, as developed by the European Court of Justice and EU Commission’s documents, should be taken into consideration in order to avoid that, the local government, in exercising the financial authority would grant an aid that distort competition and infringe the Stabilization and Association Agreement.


Fjoralba Caka
Assistant Lecturer in European Union Law, Faculty of Law, University of Tirana. PhD candidate.
Article

Immigration, Religion and Human Rights

State Policy Challenges in Balancing Public and Private Interests

Journal European Journal of Law Reform, Issue 1 2012
Keywords globalization, religious symbols, reasonable accommodations, comparative law, immigration, burqa, human rights
Authors Eric Tardif
AbstractAuthor's information

    Three regions of the world – Western Europe, North America, and Australia – are probably the most popular options when families of emerging countries decide to emigrate in order to better their economic future. As the flow of immigrants establishing themselves in the receiving societies allows for these countries to get culturally richer, it creates, on the other hand, legal tensions as to the extent religious practice is to be accommodated by the governments of secular societies so as to facilitate the insertion of the newcomers into the workplace, social networks, and education system. In order to eliminate or diminish the effect of legal provisions that cause an indirect harm to religious minorities, several countries have taken steps aimed at “reasonably accommodating” them. This paper looks at these efforts made by receiving States, taking into account both the legislative aspect and the interpretation of the statutes and constitutional provisions by national as well as international tribunals; it also gives a critical appreciation of the results that have been obtained in the societies that have implemented those shifts in their legal system.


Eric Tardif
LL.L. (Ottawa); LL.M., LL.D. (National Autonomous University of Mexico - UNAM). The author is currently a Lecturer at the Faculty of Law of the National Autonomous University of Mexico, in the subjects of International and Comparative Law. This document was initially prepared for presentation at the VIIIth World Congress of the International Association of Constitutional Law, held in Mexico City, 6-10 December, 2010; an earlier version of this article was published in the International Journal of Public Law and Policy in 2011.
Article

From Port Louis to Panama and Washington DC

Two Regional Approaches to International Commercial Arbitration

Journal European Journal of Law Reform, Issue 1 2012
Keywords international commercial arbitration, OHADA, institutional arbitration, American Arbitration Association, regional law reform
Authors Jonathan Bashi Rudahindwa
AbstractAuthor's information

    In recent decades, regional efforts have been made to reform and harmonize the rules governing international arbitration. These efforts have resulted in the adoption of regional instruments governing commercial arbitration in specific areas. This paper analyzes the arbitration regimes created at a regional level in Africa and America, and particularly focuses on arbitral institutions that were created within the Organization for Harmonization of Business Law in Africa (OHADA) and within the Organization of American States (OAS). The objective of the paper is to identify any advantages provided by either regime, which can help improve regional and international commercial arbitration.


Jonathan Bashi Rudahindwa
LL.B (Kinshasa, D.R.Congo), LL.M (Indiana, USA), Doctoral candidate – School of Oriental and African Studies/University of London.
Article

The Response of National Law to International Conventions and Community Instruments – the Dutch Example

Journal European Journal of Law Reform, Issue 1 2012
Keywords Legislative approaches, Private International Law codification, Book 10 of the Dutch Civil Code, Implementation of international instruments, Incorporation by reference
Authors Dorothea van Iterson
AbstractAuthor's information

    This paper, presented at a colloquium at Barcelona University in 2010, outlines the history of the codification of Private International Law (PIL) in the Netherlands, which was completed in 2011 by the introduction of Book 10 of the Dutch Civil Code (conflict of laws). It describes the policy guidelines followed in giving effect to international instruments, i.e. conventions and European legislation. Basically all types of international PIL rules are further regulated at the national level. Moreover, the national PIL codification contains a number of provisions which were borrowed from or inspired by international instruments.


Dorothea van Iterson
Former Counsellor of Legislation, Ministry of Justice of the Netherlands.
Article

Access_open Law and China’s Economic Growth

A Macroeconomic Perspective

Journal The Dovenschmidt Quarterly, Issue 1 2012
Keywords China, economic imbalance, factor markets, economic policies, law and regulations
Authors Guangdong Xu
AbstractAuthor's information

    China is now stuck in an investment-driven growth pattern that has helped it achieve excessive economic growth in the short run but at the cost of environmental quality, ordinary citizens’ welfare, and long-term economic health. Two main factors can be identified as responsible for the formation and continuation of the current growth pattern. One is economic policy, especially fiscal and financial policies, which contribute to the decline in household consumption by depressing household disposable income and reducing social services provided by the government. The other is the law and regulations that the government has used to subsidize investment and production by distorting factor markets, including markets for capital, land, labor, energy, and environment. A systematic legal and institutional reform whose purpose is to liberalize factor markets is therefore required to rebalance China’s economy.


Guangdong Xu
China University of Political Science and Law.
Article

From Uneasy Compromises to Democratic Partnership

The Prospects of Central European Constitutionalism

Journal European Journal of Law Reform, Issue 1 2011
Keywords Central Europe, parliamentarism, freedom of religion, Roma people, discrimination
Authors Gábor Attila Tóth
AbstractAuthor's information

    The Central European constitutional democracies were created by the political and constitutional transition of 1989. However, twenty years later, in the light of antidemocratic, authoritarian and intolerant tendencies, it is far from clear whether the negotiated revolution is a story of success or failure. This paper first outlines the constitutional background of revolutionary transition. It shows that the achieved structures and rules do not prevent political communities from realizing the full promise of democracy. Second, this analysis attempts to explore how the century-old historical circumstances, the social environment, and the commonly failed practice of constitutional institutions interact. This section focuses on the constitutional features of presidential aspirations, the privileges of churches and certain ethnic tensions. Finally, the paper argues that the chances of success of liberal democracies depend significantly on extraconstitutional factors. It seems that Hungary is in a more depressing and dangerous period of its history than for example Poland.


Gábor Attila Tóth
Associate Professor, Faculty of Law, University of Debrecen, former senior adviser, Constitutional Court of Hungary. The author welcomes comments via email: tga818@law.unideb.hu.
Article

Methods and Materials in Constitutional Law

Some Thoughts on Access to Government Information as a Problem for Constitutional Theory and Socio-Legal Studies

Journal European Journal of Law Reform, Issue 1 2011
Keywords Citizenship, democracy, government information, representative government, secrecy
Authors Barry Sullivan
AbstractAuthor's information

    To be subject to law, Hobbes argued, is to be deprived of liberty, as we understand it. In this respect, democratic governments are no different from others. Hobbes’s insight has not caused us to abandon our commitments to democracy, but it still challenges us to think hard about the nature of representative government, the nature of citizenship in a democratic society, and the conditions necessary for fulfilling the promise of democratic citizenship. Two recent trends are evident. Some citizens have embraced a more active sense of citizenship, which necessarily entails a more insistent need for information, while governments have insisted on the need for greater concentration of governmental power and a higher degree of secrecy. Much is to be learned from the approaches that various national and transnational regimes have taken with respect to this problem. This essay will consider the problem of access to government information from a comparative perspective and as a problem for constitutional theory and socio-legal studies.


Barry Sullivan
Cooney & Conway Chair in Advocacy and Professor of Law, Loyola University Chicago School of Law.
Article

The Problems and Promises of a Legal Constitution

The Constitutional State and History

Journal European Journal of Law Reform, Issue 1 2011
Keywords constitutional state, legitimacy, progressive history, legal constitution, political constitution
Authors Davit Zedelashvili
AbstractAuthor's information

    Nowadays, in the West, especially on the European Continent, the legitimacy of the modern state is once again subject to multifarious challenges. Against this background, the article revives one of the most important, though often overlooked themes of the constitutional theory, the relevance of the concept of progressive history for the legitimacy of the constitutional state. It is suggested, that the reappearance of the progressive history brings the supposedly forgotten themes of the objectivist metaphysics, back into the constitutional theory. The conclusion points that, only the accounts of a legal constitution, which reject the connection with progressive history, have the potential to deal with the problematic consequences that the reemergence of the metaphysically charged concept of progressive history may entail, given the contemporary socio-political conditions, characterized by the value and ideological pluralism.


Davit Zedelashvili
SJD Candidate in Comparative Constitutional Law, Central European University, Budapest.
Article

The Combination of Negative with Positive Constitutionalism in Europe

The Quest of a ‘Just Distance’ between Citizens and the Public Power

Journal European Journal of Law Reform, Issue 1 2011
Keywords democracy, constitutionalism, totalitarism, fundamental rights, judicial review
Authors Cesare Pinelli
AbstractAuthor's information

    The article is focused on European constitutionalism as resulting from the transformations following the experiences of totalitarian states. The notion of democracy was then significantly re-shaped, to the extent that democratic devices (federalism and sometimes referendum) were introduced with a view to balance the excesses of a purely representative democracy. The recognition of social rights and of human dignity reacted against totalitarism and, on other hand, against the individualistic notion of rights affecting the XIX century’s constitutionalism. Constitutional review of legislation was introduced, thus overriding the myth of parliamentary sovereignty, particularly the idea of parliament as the sole authority capable of granting fundamental rights.


Cesare Pinelli
Cesare Pinelli is Professor of Constitutional Law in the Faculty of Law, La Sapienza University of Rome.
Article

The Importance of the Symbolic Role of the Head of State

Journal European Journal of Law Reform, Issue 1 2011
Keywords head of state, monarchy, democracy, symbolic, Sarkozy
Authors David Marrani
AbstractAuthor's information

    Why do we need, in a society that we assume to be democratic, someone that reminds us of the archaic organisation of humanity, someone like a head of state? We know that the ‘powerful’ heads have now been transformed, most of the time, in ‘powerless’ ones, with solely a symbolic role, often not recognised. So why do we need them and how important are they? Because they are part of our archaic memory, images of the father of the primitive hordes, and because they ‘sit’ above us, the symbolic role of the head of state can be read with the glasses of a psychoanalyst and the magnifier of a socio-legal scholar. This paper is a journey in time and space, looking at the move from the sovereign-monarch to the president-monarch, unfolding the question of authority and its link to ‘distance’ but also the connection to ‘the Father’ and the notion of the two bodies.


David Marrani
Dr. David Marrani, Senior Lecturer, University of Essex, School of Law, UK.
Article

Comparative Aspects on Constitutions

Theory and Practice

Journal European Journal of Law Reform, Issue 1 2011
Keywords Constitutions, EU legal order, EU member states, EU enlargement
Authors Alfred E. Kellermann
AbstractAuthor's information

    This paper will investigate for the influence of international legal developments on the drafting and implementation of constitutions, especially the impact of the European Union on the texts of the national constitutions of the EU Member States and its acceding countries.
    We will look also at:

    1. the influence of history (EU Enlargement) and tradition in the drafting and implementation of constitutions;

    2. assessment (especially in the case of the Netherlands) of whether constitutional texts actually serve to achieve the practical implementation of expressed purposes.


Alfred E. Kellermann
Senior Legal and Policy Advisor, Visiting Professor in the Law of the EU, T.M.C. Asser Institute, The Hague.
Article

The European Law from Grundnorm towards the Cathedral

Constitutional Features of a Complex Legal System

Journal European Journal of Law Reform, Issue 1 2011
Keywords economic analysis of legal remedies, state liability for breach of the EU law, judicial dialogue in the EU, self-referring legal rules, efficiency of the EU law
Authors Mariusz Jerzy Golecki
AbstractAuthor's information

    Many hopes of the adherents of constitutional reform in the EU remained in vain after the enactment of the Lisbon Treaty. Meanwhile the creeping constitutionalisation of the EU law leads to the empowerment of the UE quasi constitutional court – the Court of Justice of the European Union. This kind of constitutionalism is albeit firmly grounded on judicial cross-border cooperation. The main purpose of this paper is to address the question of whether and how the concept of judicial control based on transactional framework developed in law and economics could effectively supplement if not substitute the notion of constitutional democratic legitimacy. In order to demonstrate that it is logically possible and institutionally feasible to build a system based on circularity, self-referentiality and privatization of legal remedies, the paper contains the economic analysis of the recent development of the EU law which at least partially takes this direction.


Mariusz Jerzy Golecki
PhD, LL.M. Cantab. Associate Professor, University of Łódź (Poland).
Article

Judicial Activism

Usurpation of Parliament’s and Executive’s Legislative Functions, or a Quest for Justice and Social Transformation

Journal European Journal of Law Reform, Issue 2 2011
Keywords judicial activism, separation of powers, constitutional interpretation
Authors Reyneck Matemba
AbstractAuthor's information

    This article examines the concept of judicial activism in relation to the courts’ role of interpreting legislation, particularly focusing on the courts’ function of interpreting the Constitution. It specifically examines modes of constitutional interpretation obtaining in RSA and Nigeria, by focusing on selected judicial decisions by superior courts in the two countries. It also examines constitutional provisions governing the interpretation of the Constitution (Bill of Rights) and legislation as provided for in the Constitution of RSA and that of Nigeria. It also makes a comparative examination of judicial approaches to the interpretation of socio-economic rights enshrined in the Constitution of each of the two countries, specifically focusing on the rights to health and housing.The article observes that the concept of judicial activism is a necessary tool for attaining justice and achieving social transformation.


Reyneck Matemba
Reyneck Thokozani Matemba is a member of the Malawi Law Society and the Commonwealth Association of Legislative Counsel (CALC) and works as an Assistant Chief Legislative Counsel for the Ministry of Justice, Malawi.
Article

Instructions to Draft Legislation

A Study on the Legislative Drafting Process in Malaysia

Journal European Journal of Law Reform, Issue 2 2011
Keywords legislative drafting process, role of instructing officer and drafter
Authors Rozmizan Muhamad
AbstractAuthor's information

    The importance of legislation is beyond any dispute. Legislation governed us perhaps even before our birth, certainly during our life and until our death. Even after our death there is still the Estate Duty Act to worry about, although of course the burden passes on to our executors or administrators. But day after day, many more new laws have been proposed and many existing laws have been revised and amended for various reasons and motives. The need for legislation has never diminished but continues to increase. Governments need legislation to govern, by which they achieve their political objectives and public policies. In other words, legislation is needed to affect changes in the law, to interfere with vested rights and interests, and to impose taxes, duties, excise and imposts. Such need originates from one or more of a great many sources such as a commission of inquiry, politicians, a particular pressure group or the public as a whole and also a reaction to social situations which seemingly develop independently or deliberately


Rozmizan Muhamad
Rozmizan Muhamad is a drafter at the Malaysian Attorney-General’s office.

    Le droit uniforme de l’OHADA réglemente quelques contrats spéciaux des affaires: le bail; le courtage; la commission; le mandat de l’agent commercial; la société commerciale; le transport des marchandises par route; la vente commerciale. Hormis la société commerciale, seule la vente entre commerçants est longuement régie par 87 Arts. de l’acte uniforme relatif au droit commercial général (AUDCG) dans tous les détails de sa formation, son exécution, son dénouement. L’intérêt du législateur OHADA pour ce contrat se comprend pour, soit plusieurs raisons.


Joseph Issa Sayegh
Docteur en droit, ancien Professeur aux Universités de Dakar (Sénégal), de Nice (France) et d’Abidjan (Cote d’Ivoire).
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