Search result: 273 articles

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Year 2015 x

Ielyzaveta Lvova
PHD in law, Docent, Associate professor at National Academy of Public Administration under the President of Ukraine, Odessa, Ukraine. 2015 Award of Max Planck Institute for Comparative Public Law and International Law, Heidelberg, Germany.

Ágnes Váradi
PhD, research fellow, Hungarian Academy of Sciences, Centre for Social Sciences Institute for Legal Studies.

Francesco Seatzu
Professor of International and EU Law, University of Cagliari, Italy.

Paolo Vargiu
Lecturer, University of Leicester, United Kingdom.
Article

Access_open Religion Ain’t Sacrosanct

How to Fight Obsolete Accounts of Religious Freedom

Journal Netherlands Journal of Legal Philosophy, Issue 3 2015
Keywords Hobby Lobby, Hosanna-Tabor, tolerance-leaning liberalism, equality-leaning liberalism
Authors Roland Pierik
AbstractAuthor's information

    This paper is largely an endorsement and a further elaboration of Cohen’s critical discussion of the Hobby Lobby and Hosanna-Tabor cases and the conceptual overstretch of religious freedom they embody. I disagree with Cohen, however, on the proper interpretation of this debate. Cohen construes the ominous Court cases as an anti-liberal attack on the liberal state order. My main thesis is that the root of this dispute can be traced back to a fault line within liberalism between a more tolerance-leaning and a more equality-leaning tradition. I argue that the ominous cases are instances of the tolerance-leaning tradition in liberalism, which once was characteristic of the liberal tradition. Still, I agree with Cohen that this tradition should be rejected because it reverts to an obsolete interpretation of religious freedom that defends unwarranted privileges for certain groups that are out of sync with the egalitarian underpinnings of contemporary liberal political orders.


Roland Pierik
Roland Pierik is Associate Professor of Legal Philosophy at the University of Amsterdam Law School.

    In her reply to critics, Jean Cohen responds to some of the main criticisms and remarks raised by the respondents.


Professor Jean L. Cohen
Jean L. Cohen is the Nell and Herbert M. Singer Professor of Political Thought and Contemporary Civilization at the Department of Political Science of Columbia University (New York) and will be the Emile Noel Fellow at the Jean Monet Center of the NYU Law School from January till June 2016.

Stefan Rummens
Stefan Rummens is Professor of Moral Philosophy at the Institute of Philosophy of the KU Leuven, Belgium.

Roland Pierik
Roland Pierik is Associate Professor of Legal Philosophy at the University of Amsterdam Law School.
Article

Access_open Institutional Religious Accommodation in the US and Europe

Comparative Reflections from a Liberal Perspective

Journal Netherlands Journal of Legal Philosophy, Issue 3 2015
Keywords European jurisprudence, freedom of religion, religious-based associations, religious accommodation
Authors Patrick Loobuyck
AbstractAuthor's information

    Jean Cohen argues that recent US Supreme Court decisions about institutional accommodation are problematic. She rightly points out that justice and the liberal concept of freedom of consciousness cannot do the work in Hobby Lobby and Hosanna-Tabor: what does the work is a medieval political-theological conception of church immunity and sovereignty. The first part of this commentary sketches how the autonomy of churches and religious associations can be considered from a liberal perspective, avoiding the pitfall of the medieval idea of libertas ecclesiae based on church immunity and sovereignty. The second part discusses the European jurisprudence about institutional accommodation claims and concludes that until now the European Court of Human Rights is more nuanced and its decisions are more in line with liberalism than the US Jurisprudence.


Patrick Loobuyck
Patrick Loobuyck is Associate Professor of Religion and Worldviews at the Centre Pieter Gillis of the University of Antwerp and Guest Professor of Political Philosophy at Ghent University.
Article

Access_open Religious Sovereignty and Group Exemptions

A Response to Jean Cohen

Journal Netherlands Journal of Legal Philosophy, Issue 3 2015
Keywords democracy, exemptions, group rights, religious institutionalism
Authors Jonathan Seglow
AbstractAuthor's information

    This response concurs with Cohen’s critique of the Hobby Lobby and Hosanna-Tabor cases but investigates whether religious accommodation might sometimes be justified in the case of institutions and groups (not just individuals). It suggests that exemptions for associations that are recruited to advance state purposes (e.g., in welfare or education) may be more justifiable than where private associations seek to maintain illiberal – for example, discriminatory – rules in line with their religious ethos. Non-democratic associations with a strong religious ethos might in principle enjoy permissible accommodation on the grounds that its members acquiesced to that ethos by joining the association, but only if other conditions are met. Democratic associations with a religious ethos have in principle a stronger claim for accommodation; in practice, however, few religious associations are internally democratic, especially where they seek to preserve illiberal internal rules.


Jonathan Seglow
Jonathan Seglow is Reader in Political Theory in the Department of Politics and International Relations at Royal Holloway, University of London.
Article

Access_open Freedom of Religion, Inc.: Whose Sovereignty?

Journal Netherlands Journal of Legal Philosophy, Issue 3 2015
Keywords accommodation, freedom of religion, political theology, liberalism, liberty of conscience
Authors Jean L. Cohen
AbstractAuthor's information

    This article focuses on an expansive conception of religious freedom propagated by a vocal group of American legal scholars – jurisdictional pluralists – often working with well-funded conservative foundations and influencing accommodation decisions throughout the US. I show that the proliferation of ‘accommodation’ claims in the name of church autonomy and religious conscience entailing exemption from civil regulation and anti-discrimination laws required by justice have a deep structure that has little to do with fairness or inclusion or liberal pluralism. Instead they are tantamount to sovereignty claims, involving powers and immunities for the religious, implicitly referring to another, higher law and sovereign than the constitution or the people. The twenty-first century version of older pluralist ‘freedom of religion’ discourses also rejects the comprehensive jurisdiction and scope of public, civil law – this time challenging the ‘monistic sovereignty’ of the democratic constitutional state. I argue that the jurisdictional pluralist approach to religious freedom challenges liberal democratic constitutionalism at its core and should be resisted wherever it arises.


Jean L. Cohen
Jean L. Cohen is the Nell and Herbert M. Singer Professor of Political Thought and Contemporary Civilization at the Department of Political Science of Columbia University (New York) and will be the Emile Noel Fellow at the Jean Monet Center of the NYU Law School from January till June 2016.
Article

Access_open Group Pluralism versus Group Accommodation

A Commentary on Jean Cohen

Journal Netherlands Journal of Legal Philosophy, Issue 3 2015
Keywords group pluralism, multiculturalism, religious accommodation
Authors Avigail Eisenberg
AbstractAuthor's information

    In this paper, I sharply distinguish between religious group-based pluralism and religious accommodation, which are each reflected in the cases examined in Jean Cohen’s paper and thereby provide a clearer understanding of different kinds of challenges to protecting religious freedom today and explain how these two approaches sometimes pull interpretations of religious freedom in different directions.


Avigail Eisenberg
Avigail Eisenberg is Professor and Chair of the Department of Political Science at the University of Victoria, Canada.
Article

Access_open Disaggregating Corporate Freedom of Religion

Journal Netherlands Journal of Legal Philosophy, Issue 3 2015
Keywords church autonomy, freedom of association, Jean Cohen, freedom of religion
Authors Sune Lægaard
AbstractAuthor's information

    The paper investigates arguments for the idea in recent American Supreme Court jurisprudence that freedom of religion should not simply be understood as an ordinary legal right within the framework of liberal constitutionalism but as an expression of deference by the state and its legal system to religion as a separate and independent jurisdiction with its own system of law over which religious groups are sovereign. I discuss the relationship between, on the one hand, ordinary rights of freedom of association and freedom of religion and, on the other hand, this idea of corporate freedom of religion, often called ‘church autonomy’. I argue that the arguments conflate different issues, elide important distinctions and equivocate over crucial terms. There is accordingly a need for disaggregation of the concerns raised under the heading of church autonomy. This significantly weakens the apparent case for church autonomy.


Sune Lægaard
Sune Lægaard is Associate Professor in Practical Philosophy at Roskilde University, Denmark.

Stephan Hobe
Professor of International Law, Director, Institute of Air and Space Law, University of Cologne.
Article

Report of the Symposium

Journal International Institute of Space Law, Issue 11 2015
Authors Carol A. Anderson and Mclee Kerolle
Author's information

Carol A. Anderson
At the Symposium, the Rapporteurs were both candidates for the Advanced LLM in Air and Space Law offered by Leiden University’s International Institute of Air and Space Law (IIASL).

Mclee Kerolle
At the Symposium, the Rapporteurs were both candidates for the Advanced LLM in Air and Space Law offered by Leiden University’s International Institute of Air and Space Law (IIASL).
Article

Access_open Program of the Symposium

Journal International Institute of Space Law, Issue 11 2015
Authors Carol A. Anderson and Mclee Kerolle
Author's information

Carol A. Anderson
At the Symposium, the Rapporteurs were both candidates for the Advanced LLM in Air and Space Law offered by Leiden University’s International Institute of Air and Space Law (IIASL).

Mclee Kerolle
At the Symposium, the Rapporteurs were both candidates for the Advanced LLM in Air and Space Law offered by Leiden University’s International Institute of Air and Space Law (IIASL).
Article

Access_open Directors’ Disqualification in the Netherlands

An International Comparative Re-Evaluation of an Amended Disqualification Proposal

Journal The Dovenschmidt Quarterly, Issue 1 2015
Keywords directors’ disqualification, directors’ liability, fraud, company law, insolvency law
Authors Tom Reker
AbstractAuthor's information

    In response to the effects of the global financial crisis on bankruptcy tendencies and the role of fraudulent company directors within that context, the Dutch government has introduced a proposal for a civil law directors’ disqualification instrument. This proposal aims to prevent both fraudulent conduct (by barring directors) and financial harm to corporate stakeholders, as well as to safeguard competitiveness and the trust which is necessary for effective trade. The fact that Dutch criminal law already allows for disqualification of directors in certain circumstances, which are partly similar to those in the proposal, raises doubts about the necessity of a civil law equivalent. This article concludes that the current proposal seems to have lost value vis-à-vis an earlier draft due to alterations to the disqualification and exculpation criteria, which may result in an overlap of the civil law and criminal law instruments. Consequently, there is a more pressing need for demarcation and reallocation of certain aspects of the proposal. By comparing the proposal with foreign (UK, US, Australian and German) counterparts, several suggestions are formulated to both counteract the overlap which the proposal may cause in Dutch law and to contribute to a model of effective disqualification instruments in general.


Tom Reker
Tom Reker recently graduated from the Leiden Law School, Leiden University, Leiden, The Netherlands. Email: tomreker_1@hotmail.com.
Article

Access_open Corporate Social Responsibility via Shareholders’ Proposals

Journal The Dovenschmidt Quarterly, Issue 1 2015
Keywords corporate social responsibility, shareholders, Rule 14a-8, social proposals, strategy
Authors Maria Paz Godoy Uson
AbstractAuthor's information

    Can shareholders’ proposals be considered as a mainstream alternative to incorporate social and environmental policies into the core businesses strategy? Proposing non-financial resolutions at the general meeting of shareholders is a form of shareholders’ activism that is shaping company’s direction. The American court case Lovenheim v. Iroquois Brands, Ltd. confirms that social and environmental issues, when significantly related to the core business, can give rise to new business directions firmly promoted by shareholders, resting authorial power to the board of directors in conducting the company’s direction. The US SEC Rule 14a-8 is widely used by social activists and institutional investors to influence the direction of business in becoming more sustainable. In virtue of the American Rule 14a-8, shareholders may include proposals in the company’s proxy materials and, thereby, compel a vote on the issue at the annual shareholders’ meeting. The result is that American shareholders’ proposals are being considered as an effective gateway to improve corporations’ social and environmental behaviour. This article examines, from a comparative perspective, the further developments of shareholders’ social proposals with the attempt to incorporate social and environmental policies into the core business. The article also suggests that the increasing demand of social proposals promoted by American shareholders versus the limited activity of shareholders’ proposals in Continental European jurisdictions is precipitating the process of converge between the main corporate governance models; the shareholder-oriented model and the stakeholder-oriented model, respectively. The issue of CSR via shareholders’ proposals as presented here is primarily based on literature and various cases related to SEC 14a-8, more in particular on lessons drawn from Lovenheim v. Iroquois Brands, Ltd.


Maria Paz Godoy Uson
PhD Fellow Maastricht University.
Article

Access_open Independent Supervisory Directors in Family-Controlled Publicly Listed Corporations

Is There a Need to Revisit the EU Independence Standards?

Journal The Dovenschmidt Quarterly, Issue 1 2015
Keywords corporate governance, board independence, independent non-executive or supervisory directors, listed family businesses, minority expropriation problem
Authors Fabian Imach
AbstractAuthor's information

    This contribution analyzes whether the current focus of the EU regulator on empowering independent directors is effective in corporations with a concentrated (family) ownership structure. The basic hypothesis of this contribution is that, contrary to the excessively optimistic expectations of the EU regulator, there are serious inefficiencies in the concept of independent directors when it comes to concentrated (family) ownership structures. The contribution relies on a series of empirical studies indicating a positive correlation between operating performance and family influence in European stock corporations.


Fabian Imach
Fabian Imach is management consultant at Societaet CHORVS AG, Gesellschaft für disruptive Wettbewerbsgestaltung in Düsseldorf. He has previously worked for BMW AG, JAFFÉ Rechtsanwälte Insolvenzverwalter (Lawyers and Insolvency Administrators) and Porsche Consulting GmbH. He holds a Master degree from Maastricht University, Faculty of Law.

Malay Adhikari
Ph.D., Assistant Professor, Alliance School of Law, Alliance University, Bengaluru 562106. India.

Kumar Abhijeet
Assistant Professor of Law, National Law School of India University, Bangalore. Doctoral Candidate Institute of Air and Space Law, University of Cologne, Germany.
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