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Article

The Historical Contingencies of Conflict Resolution

Journal International Journal of Conflict Engagement and Resolution, Issue 1 2013
Keywords History of ADR, consensus building, multi-party dispute resolution, theory development, conflict handling
Authors Carrie Menkel-Meadow
AbstractAuthor's information

    This article reviews the historical contingency of theory and practice in conflict engagement. World War II and the Cold War produced adversarial, distributive, competitive, and scarce resources conceptions of negotiation and conflict resolution, as evidenced by game theory and negotiation practice. More recent and more optimistic theory and practice has focused on party needs and interests and hopes for more party-tailored, contingent, flexible, participatory and more integrative and creative solutions for more than two disputants to a conflict. The current challenges of our present history are explored: continued conflict in both domestic and international settings, the challenge of “scaling up” conflict resolution theory and the problematics of developing universal theory in highly contextualized and diverse sets of conflict sites. The limits of “rationality” in conflict resolution is explored where feelings and ethical, religious and other values may be just as important in conflict engagement and handling.


Carrie Menkel-Meadow
Chancellor’s Professor of Law, University of California Irvine Law School and A.B. Chettle Jr. Professor of Dispute Resolution and Civil Procedure, Georgetown University Law Center.
Article

Access_open Through the Looking Glass of Global Constitutionalism and Global Administrative Law

Different Stories About the Crisis in Global Water Governance?

Journal Erasmus Law Review, Issue 1 2013
Keywords global water governance, global constitutionalism, global administrative law, water crisis, integrated water resources management
Authors Mónika Ambrus
AbstractAuthor's information

    In addition to (or sometimes rather than primarily) attributing it to water scarcity, water crisis has been described as a ‘crisis of governance’; with the word ‘crisis’ also indicating that water governance lacks (full) legitimacy. The article undertakes the task to analyse the current status of global water governance (GWG) from the perspective of two competing theories relating to the legitimacy of global governance, namely global constitutionalism (GC) and global administrative law (GAL). Having mapped the current legal framework of GWG from these two perspectives, it is discussed how these theories might shape GWG and how this shaping could contribute to solving the water crisis. In addition, it is also explored whether reading one of the most accepted proposals for legitimising global water governance, the concept of ‘integrated water resources management’ (IWRM), through the lenses of either GC or GAL would have an impact on how this concept is interpreted, and whether it can be a useful mechanism to address the water crisis. The use of two theories analysing the same subject matter provides interesting insights into global water governance and the nature of the water crisis as well as the relationship between these two theories.


Mónika Ambrus
Assistant professor of public international law at the Erasmus School of Law, Erasmus University Rotterdam.
Article

Access_open ‘Down Freedom’s Main Line’

Journal Netherlands Journal of Legal Philosophy, Issue 3 2012
Keywords democracy, radical freedom, free market economy, consumerism, collective action
Authors Steven L. Winter
AbstractAuthor's information

    Two waves of democratization define the post-Cold War era of globalization. The first one saw democracies emerge in post-communist countries and post-Apartheid South Africa. The current wave began with the uprisings in the Middle East. The first focused on the formal institutions of the market and the liberal state, the second is participatory and rooted in collective action. The individualistic conception of freedom and democracy that underlies the first wave is false and fetishistic. The second wave shows democracy’s moral appeal is the commitment to equal participation in determining the terms and conditions of social life. Freedom, thus, requires collective action under conditions of equality, mutual recognition, and respect.


Steven L. Winter
Steven L. Winter is Walter S. Gibbs Professor of Constitutional Law at Wayne State University Law School, Detroit, Michigan.
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

Legal Meaning in the Interpretation of Multilingual Legislations

Comparative Analysis of Rwanda, Canada and Ireland

Journal European Journal of Law Reform, Issue 2-3 2012
Keywords intention of the Parliament, multilingual ambiguous provisions, interpretation of laws, multilingual legislations interpretation approach, comparative analysis
Authors Froduard Munyangabe
Abstract

    When construing multilingual Laws, the use of rules and methods generally used in the monolingual statutory interpretation becomes more complicated due to a multiplicity of texts equally authentic. Also, the pre-eminence of one language version to the other version(s) does not facilitate the interpreter because if the other language version can shade light to elucidate the first, it can also increase uncertainty about the first. This dilemma leads to the question of knowing whether there could not be another appropriate approach to moderate these two options.
    The answer is derived from a comparison of the prevalence of one language version approach both adopted in Rwanda and Ireland and the equal authenticity rule adopted in Canada. The comparison is made by analysing the sequential steps of approaches used differently in the three respective multilingual jurisdictions in order to point out gaps of the two approaches.


Froduard Munyangabe
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.

Ulrich Karpen
Prof. Dr. iur., Universitätsprofessor at the Faculty of Law, University of Hamburg, Gerrmany.
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.
Article

Legislative Drafting Tools for Stabilization Provisions and Economic Balancing Provisions

Journal European Journal of Law Reform, Issue 1-2 2010
Keywords legislative drafting, stabilization, economic balancing provisions
Authors Linnet Mafukidze
AbstractAuthor's information

    The article outlines the problems with stabilization provisions in national oil or gas legislation with regard to the difficulty of governments to implement legislation to develop its economic, social and environmental regimes. It also seeks to provide a potential guideline for legislative drafters in order to address the problems wrought by stabilization provisions, in national oil or gas legislation, through the use of economic balancing provisions. The article further gives tools for legislative drafters to use when drafting economic balancing provisions.


Linnet Mafukidze
Linnet Mafukidze is a Senior State Counsel at the Attorney General’s Chambers, Botswana.

Lilla Farkas
Lilla Farkas is a member of the Budapest Bar Association, holds an LLM from King's College, London and is a PhD candidate at Lóránd Eötvös University's Faculty of Law in Budapest, Hungary. She is collaborating with the Budapest-based Chance for Children Foundation and the Brussels-based Migration Policy Group. She serves as president of the Hungarian Equal Treatment Authority's Advisory Board and as a race (Roma) ground coordinator for the European Network of Independent Experts in the Non-Discrimination Field.
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