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Article

Internet Trolling and the 2011 UK Riots

The Need for a Dualist Reform of the Constitutional, Administrative and Security Frameworks in Great Britain

Journal European Journal of Law Reform, Issue 1 2014
Keywords UK riots, tort law, criminal law, dualism, Internet trolling
Authors Jonathan Bishop
Abstract

    This article proposes the need for ‘dualism’ in the legal system, where civil and criminal offences are considered at the same time, and where both the person complaining and the person responding are on trial at the same time. Considered is how reforming the police and judiciary, such as by replacing the police with legal aid solicitors and giving many of their other powers to the National Crime Agency could improve outcomes for all. The perils of the current system, which treats the accused as criminals until proven not guilty, are critiqued, and suggestions for replacing this process with courts of law that treat complainant and respondent equally are made. The article discusses how such a system based on dualism might have operated during the August 2011 UK riots, where the situation had such a dramatic effect on how the social networking aspects, such as ‘Internet trolling’, affected it.


Jonathan Bishop
Article

The Costs and Consequences of US Drug Prohibition for the Peoples of Developing Nations

Journal European Journal of Law Reform, Issue 1 2014
Keywords U.S. drug policy, drug prohibition, War on Drugs, human rights, U.N. Declaration on the Right to Development
Authors J. Michael Blackwell
AbstractAuthor's information

    The widespread production and use of illicit drugs is a social phenomenon carrying enormous social, economic, and political significance. The United States stands as a vocal and forceful proponent of prohibitionist drug controls in international policymaking. However, strictly enforced US prohibitionist drug controls largely fail to effectively reduce the consumption of narcotic drugs and ultimately create a significant number of negative consequences for many peoples throughout the world. The increased violence, government corruption and community sequestration that result from the war against drugs are deleterious to economic development among rural communities in drug producing countries. In response to these concerns, this article examines the purpose, effects and consequences of the prohibitive drug controls routinely employed by the United States. Special attention is paid to an oft-overlooked repercussion of prohibitive drug controls: the marginalisation of developmental human rights for peoples in drug producing countries.


J. Michael Blackwell
J.D. candidate, Indiana University Robert H. McKinney School of Law, 2013; A special thanks to family, friends and Dr. Frank Emmert for guidance and support.

    This paper explores the roles that the presumption of innocence (PoI) can play beyond the criminal trial, in other dealings that citizens may have with the criminal law and its officials. It grounds the PoI in a wider notion of the civic trust that citizens owe each other, and that the state owes its citizens: by attending to the roles that citizens may find themselves playing in relation to the criminal law (such roles as suspect, defendant, convicted offender and ‘ex-offender’), we can see both how a PoI protects us, beyond the confines of the trial, against various kinds of coercion, and how that PoI is modified or qualified as we acquire certain roles. To develop and illustrate this argument, I pay particular attention to the roles of defendant (both during the trial and while awaiting trial) and of ‘ex-offender,’ and to the duties that such roles bring with them.


Antony Duff
Antony Duff holds the Russell M and Elizabeth M Bennett Chair in the University of Minnesota Law School, and is a Professor Emeritus of the Department of Philosophy, University of Stirling.
Article

Legislative Techniques in Rwanda

Present and Future

Journal European Journal of Law Reform, Issue 3 2013
Keywords legislative drafting, law-making, drafting techniques, Rwanda, quality of legislation
Authors Helen Xanthaki
AbstractAuthor's information

    This report is the result of the collective work of 26 Rwandan civil servants from a number of ministries, who set out to offer the Ministry of Justice a report on legislative drafting in Rwanda. The work was undertaken under the umbrella of the Diploma in Legislative Drafting offered by the Institute for Legal Professional Development (ILPD) in Nyanza under the rectorship of Prof. Nick Johnson. The authors have used their experience of practising drafting in Rwanda, but have contributed to the report in their personal capacity: their views are personal and do not reflect those of the Government of Rwanda.
    My only contribution was the identification of topics, which follows the well-established structure of manuals and textbooks in drafting; the division of the report into two parts: Part 1 on the legislative process and Part 2 on drafting techniques; and the methodology of each individual entry to our report: what is current Rwandan practice, what are international standards, what is the future of Rwanda, and a short bibliography to allow the readers and users of the report to read further, if needed.
    The strength of this report lies both in the methodology used and in the content offered. The breakdown of topics, their prioritization and their sequence allow the reader to acquire a holistic view on how legislation is drafted in Rwanda, but there is nothing to prevent its use in the context of surveys on legislative drafting and legislative quality in other jurisdictions. The content offers a unique insight into the legislative efforts of a jurisdiction in transition from civil to common law: both styles are assessed without prejudice, thus offering a unique fertile ground for critical assessment and practical impact analysis.
    June 2013


Helen Xanthaki
Senior Lecturer and Academic Director, Centre for Legislative Studies, Institute of Advanced Legal Studies, School of Advanced Study, University of London, Lawyer (Athens Bar).

Yuri Takaya-Umehara
Any views in this article pertain to the first author only. Kobe University, Japan, yuritakaya_japan@hotmail.com.

Seiji Matsuda
IHI Aerospace Co, Ltd., Japan, matsuda-s@iac.ihi.co.jp.

Takayoshi Fuji
Japan Space Systems, Japan, fuji-takayoshi@jspacesystems.or.jp.

Mitsuteru Kaneoka
CSP Japan, Inc., Japan, kaneoka@csp.co.jp.

Nataliia R. Malysheva
Deputy Director, International Space Law Center, Kyiv, Ukraine, nrm52@mail.ru

Olga S. Stelmakh
Senior Legal Adviser, Parliament of Ukraine, Ukraine, os@c-n-l.eu

Xiaodan Wu
Law School, Central University of Finance and Economics, Beijing, China: unimixiaodanwu@gmail.com.
Article

Access_open The Collapse of the Rule of Law

The Messina Earthquake and the State of Exception

Journal Netherlands Journal of Legal Philosophy, Issue 2 2012
Keywords Messina, earthquake, state of exception, rule of law, progress
Authors Massimo La Torre
AbstractAuthor's information

    Messina, a Sicilian town, was devasteted by an earthquake in1908. It was an hecatomb. Stricken through this unfathomable disgrace Messina’s institutions and civil society collapsed and a sort of wild natural state replaced the rule of law. In this situation there was a first intervention of the Russian Czarist navy who came to help but immediately enforced cruel emergency measures. The Italian army followed and there was a formal declaration of an ‘emergency situation.’ Around this event and the several exceptional measures taken by the government a debate took place about the legality of those exceptional measures. The article tries to reconstruct the historical context and the content of that debate and in a broader perspective thematizes how law (and morality) could be brought to meet the breaking of normality and ordinary life by an unexpected and catastrophic event.


Massimo La Torre
Massimo La Torre is Professor of Legal Philosophy at the University of Catanzaro in Italy and visiting Professor of Law at the University of Hull in England.
Article

Rule of Ordinance in the Islamic Republic of Pakistan

A Question of Arbitrary Legislative Endowment

Journal European Journal of Law Reform, Issue 2-3 2012
Keywords legislative authority of government in Pakistan, ordinance in English law, ordinance in British India, ordinance in Pakistan, emergency legislation by ordinance in Pakistan
Authors Mazhar Ilahi
AbstractAuthor's information

    The Constitution of the Islamic Republic of Pakistan empowers the federal and provincial Governments via the President and the Governors of the respective provinces to enact the primary legislation independent of the representative legislatures in the form of Ordinances. However, the resulting enactment remains in force for a few months, and notionally, must be promulgated only under the circumstances of urgent necessity and when the national legislature is not in session. Yet, owing to the vagueness of the text of the relevant Constitutional provisions, the scope of this legislative authority has much potential for abuse, and it has so been alleged too, in numerous Constitutional petitions filed from time to time in the superior courts of Pakistan seeking the judicial review of the promulgating action on the ground of malafide etc. But the judicature in Pakistan has largely abstained from exercising its authority to keep itself from being stigmatized from the usual aftermath of the judicial pronouncement on questions of political fiat. Resultantly, the natural democratic right of the illiterate and ignorant people of Pakistan to be governed by laws made by the designated representative legislature is persistently being jeopardized. In this view of the matter, on the basis of an empirical study of the Ordinance and the emergency legislation in the United Kingdom, and the ensuing principles of good governance and democratic norms, this article argues that the Constitutional authority of the Governments in Pakistan to enact primary legislation by way of promulgating Ordinances is an arbitrary legislative endowment, and entails a review by a truly representative, legitimate and competent Constituent Assembly.


Mazhar Ilahi
The author (mazharilahi@hotmail.com) is currently a PhD candidate at the Institute of Advanced Legal Studies, School of Advanced Study, University of London, UK. Previously he has served in the judicial service of Pakistan as civil judge-cum-judicial magistrate and has also practiced as Advocate of High Courts in Pakistan.
Article

Challenges Faced by Legislative Drafters in Samoa and Other USP Member Countries

Journal European Journal of Law Reform, Issue 2-3 2012
Keywords legislative drafting challenges in Pacific Islands
Authors Mary Victoria Petelō Fa’asau
AbstractAuthor's information

    Legislative drafting is a skill slowly developing in the Pacific today. This abstract identifies and records an update on the challenges to legislative drafting in Pacific island countries. Due to lack of information on legislative drafting in the Pacific, research was undertaken with the assistance of Parliamentary Counsel and other Pacific drafters. I also attended the second biennial meeting of the Pacific Drafters’ Technical Forum in October 2009 where more current challenges were discussed. My own experiences as a legislative drafter are also reflected in this abstract.
    The outcomes of the abstract will show that whereas legislative drafting as a specialised skill is recognised by Pacific governments and interests have grown in pursuing legislative drafting as a career, the challenges faced by Pacific legislative drafters are commonly more diverse and complex. In addition to analysing some of these challenges, this paper offers some recommendations to combating them.


Mary Victoria Petelō Fa’asau
Senior Legislative Drafter, Legislative Drafting Division, Office of the Attorney-General, Samoa; 2011/2012 Greg Urwin Award recipient, Pacific Islands Forum Secretariat; Pacific Legislative Drafters’ Technical Forum; Full member of the Commonwealth Association of Legislative Counsel.

Dr. Paul Stephen Dempsey
Tomlinson Professor of Law, and Director, Institute of Air & Space Law, McGill University, Montreal, Canada, paul.dempsey@mcgill.ca.

Mr. Francois Cahuzac
CNES, France, francois.cahuzac@cnes.fr.

Mr. Stephane Louvel
CNES, France, stephane.louvel@cnes.fr.
Article

Trade in Oil and Export Restrictions

Taking the Organization of the Petroleum Exporting Countries to the WTO Court

Journal European Journal of Law Reform, Issue 1 2012
Keywords WTO, dispute settlement, US, OPEC, oil
Authors Bashar H. Malkawi
AbstractAuthor's information

    The Organization of the Petroleum Exporting Countries (OPEC), as seen by observers, resembles a greedy international cartel that preys on the public in defiance of market competition. High oil prices are considered as a principal cause of the US economic woes. Some US congressmen pinpointed OPEC’s alleged inconsistency with the World Trade Organization (WTO) rules and called upon the US administration to open dispute settlement proceedings against OPEC. This article discusses the legal issues arising from a US action at the WTO level against OPEC countries. The first sections of the article comprise an institutional review of the WTO and OPEC. The article addresses the interplay between the WTO and OPEC. It then illustrates the central provisions of the WTO that can be used for arguments and counter-arguments concerning such a WTO action. It culminates with a set of concluding thoughts.


Bashar H. Malkawi
Associate Professor of Commercial Law, University of Sharjah, UAE. He received his LL.B from Yarmouk University in 1999, LL.M from University of Arizona College of Law in 2001, S.J.D from American University, Washington College of Law in 2005. The author would especially like to thank the two outside reviewers for their direction, feedback and invaluable insight. He also thanks the law journal editors and staff writers for their hard work in polishing the article.

Diego Zannoni
University of Padua, Italy, diegodz83@hotmail.it.
Discussion

Access_open Against the ‘Pestilential Gods’

Teubner on Human Rights

Journal Netherlands Journal of Legal Philosophy, Issue 3 2011
Keywords semiosphera, paranomia, Drittwirkung, matrix argument
Authors Pasquale Femia
AbstractAuthor's information

    Examining the function of human rights in the semiosphere requires a strategy of differentiation: the dissolution of politics into political moments (politics, it is argued, is not a system, but a form of discourse); the distinction between discourse and communication; the concept of systemic paranomic functionings. Paranomia is a situation generated by the pathological closure of discourses, in which knowledge of valid and observed norms obscures power. Fundamental rights are the movement of communication, claims about redistributing powers, directed against paranomic functionings. Rethinking the debate about the third party effect implies that validity and coherence must be differentiated for the development of the ‘matrix argument’.


Pasquale Femia
Pasquale Femia is Professor of Private Law at the Faculty of Political Studies of the University of Naples II, Italy.

Philippe Clerc
Centre National d’Etudes Spatiales (CNES)

Sandra Lavenex
Institute of Political Science, University of Lucerne, Switzerland.

John A. E. Vervaele
Professor of economic and financial criminal law, Utrecht Law School and Professor of European criminal law, Europa College Bruges. The basic research for this article was carried out during an Adjunct Professorship at the American Law School of the American University in Washington DC (May-July 2003). The research has been updated up until 1 November 2006. This version is a shortened and updated version of J. A. E. Vervaele, The Anti-Terrorist Legislation in the US: Inter Arma Silent Leges? 13 European Journal of Crime, Criminal Law and Criminal Justice 201 (2005).

Rehema Mkuye
Drafter at the Ministry of Justice in Tanzania.

Ester Herlin-Karnell
Somerville College, University of Oxford. I would like to thank Stephen Weatherill and the anonymous reviewers of this journal for very helpful comments on this paper. The usual disclaimer applies. This paper was completed in March 2008.
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