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M.I. Kouskouna
Assistant Professor in EU Law, Law School, National and Kapodistrian University of Athens
Article

New Sales and Contract Law in Argentina and France

Models for Reform Inspired by the CISG and the PICC?

Journal European Journal of Law Reform, Issue Online first 2020
Keywords contracts, sales, law reform, CISG, UNIDROIT Principles, Argentina, France, comparative law
Authors Edgardo Muñoz and Inés Morfín Kroepfly
AbstractAuthor's information

    The Argentine and the French civil codes have recently undergone substantial modifications to their contract law provisions. These novel statutes could serve as models for future B2B contract law reforms in Latin American jurisdictions and beyond, as former Argentine and French laws have done in the past. The authors offer a contribution that paves the way in that direction with a systematic comparative analysis. As a starting point, this article unveils the influence that the modern unified laws on contracts (UNIDROIT Principles on International Commercial Contracts (PICC) and United Nations Convention for the International Sale of Goods of 1980 (CISG)) have in Argentina’s and France’s new contract law. It also highlights the most obvious similarities and differences in both sets of rules. This contribution goes beyond simple tertium comparisons; the authors analyse which of the two laws offers better, or more effective, rules to achieve the desired contract law functions in various matters. Readers are provided with the best rule or solution to address the problem in question and, as the authors hope, they should conclude that both models provide for a range of complementary solutions for modern contract law reforms.


Edgardo Muñoz
Professor of Law, Universidad Panamericana. School of Law. Calzada Álvaro del Portillo 49, Zapopan, Jalisco, 45010, Mexico. Ph.D. (Basel), LL.M. (UC Berkeley), LL.M. (Liverpool), LL.B. (UIA Mexico), DEUF (Lyon), emunoz@up.edu.mx.

Inés Morfín Kroepfly
J.D., Universidad Panamericana, Guadalajara.
Article

Access_open A Positive State Obligation to Counter Dehumanisation under International Human Rights Law

Journal Erasmus Law Review, Issue 3 2020
Keywords Dehumanisation, International Human Rights Law, Positive State obligations, Framework Convention for the Protection of National Minorities, International Convention on the Elimination of all forms of Racial Discrimination
Authors Stephanie Eleanor Berry
AbstractAuthor's information

    International human rights law (IHRL) was established in the aftermath of the Second World War to prevent a reoccurrence of the atrocities committed in the name of fascism. Central to this aim was the recognition that out-groups are particularly vulnerable to rights violations committed by the in-group. Yet, it is increasingly apparent that out-groups are still subject to a wide range of rights violations, including those associated with mass atrocities. These rights violations are facilitated by the dehumanisation of the out-group by the in-group. Consequently, this article argues that the creation of IHRL treaties and corresponding monitoring mechanisms should be viewed as the first step towards protecting out-groups from human rights violations. By adopting the lens of dehumanisation, this article demonstrates that if IHRL is to achieve its purpose, IHRL monitoring mechanisms must recognise the connection between dehumanisation and rights violations and develop a positive State obligation to counter dehumanisation. The four treaties explored in this article, the European Convention on Human Rights, the International Covenant on Civil and Political Rights, the Framework Convention for the Protection of National Minorities and the International Convention on the Elimination of all forms of Racial Discrimination, all establish positive State obligations to prevent hate speech and to foster tolerant societies. These obligations should, in theory, allow IHRL monitoring mechanisms to address dehumanisation. However, their interpretation of the positive State obligation to foster tolerant societies does not go far enough to counter unconscious dehumanisation and requires more detailed elaboration.


Stephanie Eleanor Berry
Senior Lecturer in International Human Rights Law, University of Sussex.
Article

Access_open How Far Should the State Go to Counter Prejudice?

A Positive State Obligation to Counter Dehumanisation

Journal Erasmus Law Review, Issue 3 2020
Keywords prejudice, soft paternalism, empathy, liberalism, employment discrimination, access to goods and services
Authors Ioanna Tourkochoriti
AbstractAuthor's information

    This article argues that it is legitimate for the state to practice soft paternalism towards changing hearts and minds in order to prevent behaviour that is discriminatory. Liberals accept that it is not legitimate for the state to intervene in order to change how people think because ideas and beliefs are wrong in themselves. It is legitimate for the state to intervene with the actions of a person only when there is a risk of harm to others and when there is a threat to social coexistence. Preventive action of the state is legitimate if we consider the immaterial and material harm that discrimination causes. It causes harm to the social standing of the person, psychological harm, economic and existential harm. All these harms threaten peaceful social coexistence. This article traces a theory of permissible government action. Research in the areas of behavioural psychology, neuroscience and social psychology indicates that it is possible to bring about a change in hearts and minds. Encouraging a person to adopt the perspective of the person who has experienced discrimination can lead to empathetic understanding. This, can lead a person to critically evaluate her prejudice. The paper argues that soft paternalism towards changing hearts and minds is legitimate in order to prevent harm to others. It attempts to legitimise state coercion in order to eliminate prejudice and broader social patterns of inequality and marginalisation. And it distinguishes between appropriate and non-appropriate avenues the state could pursue in order to eliminate prejudice. Policies towards eliminating prejudice should address the rational and the emotional faculties of a person. They should aim at using methods and techniques that focus on persuasion and reduce coercion. They should raise awareness of what prejudice is and how it works in order to facilitate well-informed voluntary decisions. The version of soft paternalism towards changing minds and attitudes defended in this article makes it consistent with liberalism.


Ioanna Tourkochoriti
Lecturer Above the Bar, NUI Galway School of Law.
Article

From victimisation to restorative justice: developing the offer of restorative justice

Journal The International Journal of Restorative Justice, Issue 2 2020
Keywords Restorative policing, restorative justice, offer to victims, policing, action research
Authors Joanna Shapland, Daniel Burn, Adam Crawford e.a.
AbstractAuthor's information

    Restorative justice services have expanded in England and Wales since the Victim’s Code 2015. Yet evidence from the Crime Survey for England and Wales shows that in 2016-2017 only 4.1 per cent of victims recall being offered such a service. This article presents the evidence from an action research project set in three police forces in England and Wales, which sought to develop the delivery of restorative justice interventions with victims of adult and youth crime. We depict the complexity intrinsic to making an offer of restorative justice and the difficulties forces experienced in practice, given the cultural, practical and administrative challenges encountered during the course of three distinct pilot projects. Points of good practice, such as institutional buy-in, uncomplicated referral processes and adopting a victim-focused mindset are highlighted. Finally, we draw the results from the different projects together to suggest a seven-point set of requirements that need to be in place for the offer of restorative practice to become an effective and familiar process in policing.


Joanna Shapland
Joanna Shapland is Edward Bramley Professor of Criminal Justice at the University of Sheffield, UK.

Daniel Burn
Daniel Burn is a former Research Officer at the University of Leeds, UK.

Adam Crawford
Adam Crawford is the Director of the Leeds Social Sciences Institute and Director of the N8 Policing Research Partnership at the University of Leeds, UK.

Emily Gray
Emily Gray is Senior Lecturer in Criminology, The School of Business, Law and the Social Sciences at the University of Derby, UK. Contact author: j.m.shapland@sheffield.ac.uk.
Article

Victim-offender mediation in Denmark: or how institutional placement and organisation matter

Journal The International Journal of Restorative Justice, Issue 2 2020
Keywords Danish VOM programme, police, victim-offender mediation, Norwegian Mediation Service, Konfliktråd
Authors Katrine Barnekow Rasmussen
AbstractAuthor's information

    In this article, the current state of the Danish police-based victim-offender mediation (VOM) programme is examined against the background of the Norwegian Mediation Service (NMS). In the two similar national languages both are called Konfliktråd, and the Danish programme – which was launched in 2010 – is named after and clearly inspired by the Norwegian service. Yet they differ in terms of organisational structure, capacity and use. Despite similar population size, the NMS completes around 12 times as many meetings as the Danish VOM programme. Furthermore, since 2016 the average number of meetings completed per year by the Danish programme has dropped significantly. In the article, I examine how the development of the Danish VOM programme has seemingly been held back by its placement in the police and also by a lack of clear prioritisation by management, political support and legal status. The VOM secretariat and local VOM coordinators attempt to mitigate the negative effects of these factors. Yet the framework of the Danish VOM programme seems to continue hindering the emulation of the Norwegian service in terms of capacity and use.


Katrine Barnekow Rasmussen
Katrine Barnekow Rasmussen is a PhD Fellow at the Faculty of Law of the University of Copenhagen, Denmark. Contact author: xsq276@ku.dk.
Article

Exploring amenability of a restorative justice approach to address sexual offences

Journal The International Journal of Restorative Justice, Issue 2 2020
Keywords Restorative justice, sexual abuse, victim-survivor, justice attitudes, gender
Authors Angela Hovey, BJ Rye and Courtney McCarney
AbstractAuthor's information

    This study aimed to explore current attitudes regarding the amenability of a restorative justice approach to addressing harms caused by sexual offences. A web-based survey of a university student sample included a specific narrative response question assessing empathetic responses to stepfather-teen sexual abuse scenarios. Many (78 per cent) participants endorsed a restorative justice approach, a substantial minority (19 per cent) of whom endorsed restorative justice while stipulating retributive justice conditions. Only 22 per cent completely rejected a restorative justice approach. The overarching theme was the dichotomous opinion of restorative justice as either a sufficient (e.g. best option, rehabilitative value) or insufficient (e.g. not enough punishment) response to addressing sexual offences. There was an overall self-reflective openness and willingness to consider a restorative justice approach to address sexual offences.


Angela Hovey
Angela Hovey, PhD, RSW, is an associate professor at the School of Social Work, Lakehead University, Orillia, Canada.

BJ Rye
BJ Rye, PhD, is an associate professor at the Departments of Psychology and Sexuality, Marriage, and Family Studies, St Jerome's University at the University of Waterloo, Waterloo, Canada.

Courtney McCarney
Courtney McCarney, MSW, RSW is a graduate of the School of Social Work, Lakehead University, Orillia, Canada. Contact author: Angela Hovey at ahovey@lakeheadu.ca
Article

Access_open Religie op het werk?

Over positieve en negatieve godsdienstvrijheid bij private ondernemingen en tendensondernemingen

Journal Netherlands Journal of Legal Philosophy, Issue 1 2020
Authors Leni Franken and François Levrau
AbstractAuthor's information

    In this article we elaborate on the place of religion in the workplace. Does the individual freedom of religion imply that employers must always accommodate the religious claims of employees or can they boast a number of arguments allowing them to legitimately limit that freedom? And, conversely, do employers not also have a right to freedom of religion and a right to formulate certain religious expectations for their employees? In this contribution, we deal with these and related questions from a legal-philosophical perspective. The overall aim is to illustrate the extent to which univocal answers are jeopardized because of conceptual ambiguities. We first make a normative distinction between two strategies (i.e. difference-blind approach and difference-sensitive approach) and subsequently illustrate and elaborate on how and why these strategies can lead to different outcomes in legal cases. We illustrate the extent to which a contextual and proportional analysis can be a way out in theoretical and practical conundrums.


Leni Franken
Leni Franken is senior researcher and teaching assistant at the University of Antwerp.

François Levrau
François Levrau is senior researcher and teaching assistant at the University of Antwerp.
Discussion

Access_open Biopolitics and the Coronavirus

Foucault, Agamben, Žižek

Journal Netherlands Journal of Legal Philosophy, Issue 1 2020
Keywords Biopolitics, Coronavirus, Rule of law, Foucault, Agamben
Authors Lukas van den Berge
Author's information

Lukas van den Berge
Lukas van den Berge is assistant professor of legal theory at Utrecht University.
Book Review

Access_open Marc Hertogh, Nobody’s Law, Legal Consciousness and Legal Alienation in Everyday Life

Journal Netherlands Journal of Legal Philosophy, Issue 1 2020
Keywords Vervreemding, Naleving van wetten, Legitimiteit, Rule of Law
Authors Irawan Sewandono
Author's information

Irawan Sewandono
Irawan Sewandono is universitair docent staats- en bestuursrecht aan de Open Universiteit.
Article

Access_open Liberal Democracy and the Judeo-Christian Tradition

Journal Netherlands Journal of Legal Philosophy, Issue 1 2020
Keywords national identity, historical narratives, universal values, equal citizenship
Authors Tamar de Waal
AbstractAuthor's information

    Increasingly often, it is stated that the universal values underpinning Western liberal democracies are a product of a ‘Judeo-Christian’ tradition. This article explores the legitimacy of this claim from the perspective of liberal-democratic theory. It argues that state-endorsed claims about the historical roots of liberal-democratic values are problematic (1) if they are promoted as though they are above democratic scrutiny and (2) if they insinuate that citizens who belong to a particular (majority) culture remain the ‘cultural owners’ of the core values underpinning the state. More pragmatically, the paper suggests that the claim carries the risk of failing to facilitate all citizens becoming or remaining committed to nurturing fundamental rights and a shared society based on norms of democratic equality.


Tamar de Waal
Tamar de Waal is assistant professor of legal philosophy at the Amsterdam Law School of the University of Amsterdam.
Article

Access_open De blinde vlek in praktijk en discussie rond orgaandonatie

Journal Netherlands Journal of Legal Philosophy, Issue 1 2020
Keywords organ donation, ethics of organ donation, symbolic nature of the human body, ethics and ritual, symbolic legislation theory
Authors Herman De Dijn
AbstractAuthor's information

    In countries like Belgium and The Netherlands, there seems to be overwhelming public acceptance of transplantation and organ donation. Yet, paradoxically, part of the public refuses post-mortal donation of their own organs or of those of family members. It is customary within the transplantation context to accept the refusal of organ donation by family members “in order to accommodate their feelings”. I argue that this attitude does not take seriously what is really behind the refusal of donation by (at least some) family members. My hypothesis is that even in very secularized societies, this refusal is determined by cultural-symbolic attitudes vis-à-vis the (dead) human body (and some of its parts). The blind spot for this reality, both in the practice of and discussions around organ donation, prevents understanding of what is producing the paradox mentioned.


Herman De Dijn
Herman De Dijn is emeritus hoogleraar wijsbegeerte aan de KU Leuven.
Article

Access_open Legal and Political Concepts as Contextures

Journal Netherlands Journal of Legal Philosophy, Issue 1 2020
Keywords Concepts, Contextualism, Essentially Contested Concepts, Legal Theory, Freedom
Authors Dora Kostakopoulou
AbstractAuthor's information

    Socio-political concepts are not singularities. They are, instead, complex and evolving contextures. An awareness of the latter and of what we need to do when we handle concepts opens up space for the resolution of political disagreements and multiplies opportunities for constructive dialogue and understanding. In this article, I argue that the concepts-as-contextures perspective can unravel conceptual connectivity and interweaving, and I substantiate this by examining the ‘contexture’ of liberty. I show that the different, and seemingly contested, definitions of liberty are the product of mixed articulations and the development of associative discursive links within a contexture.


Dora Kostakopoulou
Dora Kostakopoulou is a member of the Scientific Committee of the Fundamental Rights Agency of the EU and Professor of European Union Law, European Integration and Public Policy at Warwick University.

Klaas Rozemond
Klaas Rozemond is universitair hoofddocent strafrecht aan de Vrije Universiteit Amsterdam.

Klaas Rozemond
Klaas Rozemond is universitair hoofddocent strafrecht Vrije Universiteit Amsterdam.

Irawan Sewandono
Irawan Sewandono is universitair docent staats- en bestuursrecht aan de Open Universiteit.

Irawan Sewandono
Irawan Sewandono is universitair docent staats- en bestuursrecht aan de Open Universiteit.

Irawan Sewandono
Irawan Sewandono is universitair docent staats- en bestuursrecht aan de Open Universiteit.
Article

Access_open Recht en politiek in de klimaatzaken

Een sleutelrol voor het internationaal recht in de argumentatie van de nationale rechter

Journal Netherlands Journal of Legal Philosophy, Issue 1 2020
Authors Vincent Dupont
AbstractAuthor's information

    Ever since it was published in 2015, the judgment of the The Hague court in the so-called Urgenda-case, and the subsequent decisions of the appellate and cassation courts confirming it, have been met with repeated and vivid critiques. By recognizing the necessity of the reduction in greenhouse gas emissions, and furthermore imposing a certain reduction level on the Dutch state, the judgments in the cases at hand gave rise to many questions concerning the position of the judiciary in the matter, and in Dutch society as a whole. This article attempts in the first place to situate the positions of the different actors intervening in the Urgenda-case within a legal-theoretical framework. The contribution subsequently explores the strategic possibilities that an alternative understanding of law could offer to the judges, focusing specifically on the use of legal instruments stemming from international law, brought into the reasoning of the national judge.


Vincent Dupont
Vincent Dupont studeerde in 2017 af als Master of Laws aan de KU Leuven en volgt momenteel een opleiding sociologie aan de Université libre de Bruxelles, Unicamp in São Paulo en de École des hautes études en sciences sociales in Parijs.
Article

Access_open Het classicistische politieke denken van Van Hogendorp

Journal Netherlands Journal of Legal Philosophy, Issue Pre-publications 2020
Keywords classicistisch politiek denken, constitutie, Van Hogendorp, Grondwet, politieke filosofie
Authors Alban Mik
AbstractAuthor's information

    Gijsbert Karel van Hogendorp is the auctor intellectualis of the 1818 Dutch constitution. It was his sketch for a new constitution that was used as a starting point for the deliberations of its original drafting committee. Van Hogendorp justifies his constitution as a restoration of the Burgundian constitution that applied before the Dutch Republic. In recent literature Van Hogendorp’s restorational argument is presented as an invention of tradition. In this article an alternative explanation is presented, namely that it is part of a form of classicist political thought that was common during the ancien régime. Van Hogendorp describes his constitution as a moderate monarchy, in which the three principles of monarchy, aristocracy and democracy are properly balanced. And he mainly defends this mixed regime by pointing out that it is a restoration of the old Burgundian constitution of the Netherlands. This way of reasoning is, as will be shown, typically classicistic.


Alban Mik
Alban Mik is onderzoeker aan de Afdeling Metajuridica, vakgroep Rechtsfilosofie van de Universiteit Leiden.
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