Search result: 229 articles

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Snežana Trifunovska
Associate Professor, Radboud University, Law Faculty.

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.
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

The Role of Non-Governmental Organizations in Advancing International Criminal Justice

Journal African Journal of International Criminal Justice, Issue 1 2015
Keywords Non-governmental organizations, NGOs and international criminal justice, civil society and human rights, non-state actors in international law
Authors Charles Chernor Jalloh
AbstractAuthor's information

    This article examines the role of non-governmental organizations (NGOs) in advancing international criminal justice. I argue that NGOs have had considerable impact by contributing, among other things, to the global struggle against impunity through advocacy for the creation of more robust institutional mechanisms to prosecute those who perpetrate such crimes. This ranges from supporting the processes that led to the creation of several ad hoc international tribunals for Yugoslavia, Rwanda and Sierra Leone, all the way through to their support for the establishment of an independent permanent international penal court based in The Hague. The crux of my claim is that a historically sensitive approach to evaluating the role of NGOs in international governance shows that these entities are not only willing, but also capable of enhancing the protection of human rights and international criminal justice especially but not exclusively in less developed regions of the world.


Charles Chernor Jalloh
Associate Professor, Florida International University, College of Law, Miami, USA. Email: jallohc@gmail.com.
Article

Process Pluralism in Transitional-Restorative Justice

Lessons from Dispute Resolution for Cultural Variations in Goals beyond Rule of Law and Democracy Development (Argentina and Chile)

Journal International Journal of Conflict Engagement and Resolution, Issue 1 2015
Keywords transitional justice, conflict resolution, process pluralism, cultural variation, individual and collective justice
Authors Carrie Menkel-Meadow
AbstractAuthor's information

    This article reviews some of the key issues in transitional justice process and institutional design, based on my research and experience working and living in several post-conflict societies, and suggests that cultural and political variations in transitional justice design, practices, and processes are necessary to accomplish plural goals. The idea of process pluralism, derived from the more general fields of conflict resolution and ‘alternative dispute resolution’ in legal contexts, is an essential part of transitional justice, where multiple processes may occur simultaneously or in sequence over time (e.g. truth and reconciliation processes, with or without amnesty, prosecutions, lustration and/or more local legal and communitarian processes), depending on both individual and collective preferences and resources. Transitional justice is itself ‘in transition’ as iterative learning has developed from assessment of different processes in different contexts (post-military dictatorships, civil wars, and international and sub-national conflicts). This article draws on examples from Argentina’s and Chile’s emergence from post-military dictatorships to describe and analyze a plurality of processes, including more formal governmental processes, but also those formed by civil society groups at sub-national levels. This article suggests that ‘democracy development’ and legalistic ‘rule of law’ goals and institutional design may not necessarily be the only desiderata in transitional justice, where more than the ‘legal’ and ‘governmental’ is at stake for more peaceful human flourishing. To use an important concept from dispute resolution, the “forum must fit the fuss”, and there are many different kinds of ‘fusses’ to be dealt with in transitional justice, at different levels of society – more than legal and governmental but also social, cultural and reparative.


Carrie Menkel-Meadow
Carrie Menkel-Meadow is Chancellor’s Professor of Law and Political Science, University of California, Irvine.

    Those who talk can be heard. Those who are allowed to talk may be listened to. This study is an attempt to give legal voice to those who cannot talk or are usually not listened to: children. This study is about the attention given to their interests, the best interests of the child. When these interests are immersed in a minority context, children may be overlooked for different reasons, including discriminatory attitudes or prejudice regarding their families. Law and its interpretation must be changed in order to include the difference. This study discusses the best interests of the child principle with special attention to its legal relevance in cases where lesbians, gays, bisexual and transgender (LGBT) are, or want to be, parents. The authoritative source for the interpretation of the principle is the United Nations (UN) Convention on the Rights of the Child (CRC). The analysis focuses on the European Court of Human Rights (ECtHR) and its case law. The study aims to explore the Court’s approach to the best interest of the child and identify whether the principle is being consistently applied in cases involving LGBT families, given the fact that sexual orientation and gender identity are still sensitive issues in Europe. This is done by comparing these cases to cases lodged by applicants who were not identified as an LGBT person. The margin of appreciation doctrine and the lack of European consensus on sexual minorities’ rights are confronted with the urgent paramount consideration that has to be given to children’s best interests. The analysis explores whether there is room for detecting a possible Court’s biased approach towards the concept of the best interests of the child. This study challenges the Court’s decisions in the sense that the focus should not only be at the LGBT parents’ rights to private and family life, but also at the interests of their daughters and sons. This is an attempt to call upon the ECtHR and all states not only to actively fight discrimination against LGBT persons, but, ultimately, to stop interpreting the concept of the best interests of the child in an arguably biased way, and to consider the principle’s legal value in any decision, regardless of their parents’ sexual orientation, gender identity or any other distinction.


Mr. Gabriel Alves de Faria
Gabriel Alves de Faria is a Brazilian lawyer, LGBTI activist and human rights specialist who holds a Law degree from the Federal University of Espirito Santo and a European Master’s Degree in Human Rights and Democratisation (E. MA/EIUC - Utrecht University). Among other legal and social experiences in the human rights field, Gabriel has worked as a researcher in comparative sexual orientation Law at Leiden University and most recently as a Fellow and consultant lawyer at the LGBTI Rapporteurship of the Inter-American Commission on Human Rights in Washington, DC. His latest project is a documentary on the situation of LGBTI persons in Southeast Asia.
Article

The Rule of Law Reform and Judicial Education in Pakistan

Search for a Model

Journal European Journal of Law Reform, Issue 1 2015
Keywords judicial education, rule of law reform, Khyber Pakhtunkhwa, militancy, Pakistan
Authors Khurshid Iqbal
AbstractAuthor's information

    The article investigates the intrinsic and instrumental roles of judicial education in broader contours of the rule of law theory and reform practice in a developing country. It focuses on: firstly, the relationship between judicial education and the rule of law theory and reform practice; secondly, whether and how judicial education can promote the rule of law; and third, the challenges to a successful judicial education in strengthening the rule of law. Examining Pakistan as a case study, the article explores challenges to judicial education in Pakistan and critically assesses Pakistan’s rule of law reform efforts to overcome those challenges. Evidence shows that key challenges to judicial education in Pakistan are lack of a national judicial educational vision and a well thought out policy, coordinated efforts to training needs assessment, curriculum and faculty, research and learning best practices, as means of development and innovation. Of special concern is the role of judicial education in promoting the rule of law to address security issues embedded in (bad) governance. The article finds that in view of its initial limited success, the judicial academy of Pakistan’s terrorism-hit Khyber Pakhtunkhwa (KP) province may play a role model to improve judicial services and thereby help promote the rule of law in a post-conflict society.


Khurshid Iqbal
PhD (Ulster, UK), LLM (Hull, UK), MA Political Science & LLB (Peshawar, Pakistan); Dean of Faculty, the Khyber Pakhtunkhwa Judicial Academy (KPJA); District & Sessions Judge; Adjunct Faculty Member Department of Law, the International Islamic University, Islamabad.
Article

Extra-Marital Children and Their Right to Inherit from Their Fathers in Botswana

A Critical Appraisal

Journal European Journal of Law Reform, Issue 1 2015
Keywords extra-marital children, inheritance, fathers, Botswana, human rights
Authors Obonye Jonas
AbstractAuthor's information

    Despite the fact that in recent years a number of states have extended to non-marital children many of the legal rights previously exclusively granted to legitimate children, Botswana still denies non-marital children a wide constellation of their basic rights. One such area where the rights of non-marital children are violated in Botswana is inheritance. In terms of the law of succession of Botswana, extra-marital children have no real legal rights to inherit from and through their father, both at customary law and Common Law. This article discusses and analyses the rule that excludes non-marital children from inheriting from and through their fathers under the two systems of laws. Its central claim is that this rule is antithetical to extra-marital children’s rights to equality, non-discrimination, and dignity. The article argues that the rule is devoid of social currency, has no place in a democratic society, and must be abolished.


Obonye Jonas
LL.B (UB), LL.M (Pretoria), Senior Lecturer, Law Department, University of Botswana & Practising Attorney with Jonas Attorneys. E-mail: jonas15098@yahoo.co.uk or obonye.jonas@mopipi.ub.bw.
Article

Regulating Genetic Discrimination in the European Union

Pushing the EU into Unchartered Territory or Ushering in a New Genomic Era?

Journal European Journal of Law Reform, Issue 1 2015
Keywords genetics, regulation, discrimination, data protection, European Union
Authors Aisling de Paor and Delia Ferri
AbstractAuthor's information

    Against the backdrop of rapid developments in genetic science and technology, one of the main concerns arising in this area is the potential use of genetic testing to discriminate, especially in the employment and insurance contexts. Employers and insurance companies may use the results of genetic tests to discriminate (primarily for economic advantage), based on perceptions of future health risks or future disabilities. This article explores the scope for an EU to effectively address genetic discrimination and the misuse of genetic information. It first provides a theoretical overview of the choice of regulatory frameworks. It then examines the scope and protection of current non- discrimination laws in the EU and investigates the possibility of an EU level response to address the misuse of genetic information.


Aisling de Paor
BCL, LLM, PhD, Solicitor (Law Society of Ireland) – Lecturer in Law, Dublin City University.

Delia Ferri
LLM, PhD in European and Italian constitutional law, Attorney at Law registered at the Verona Bar (Italy) – Lecturer in Law, National University of Ireland Maynooth.

    This article studies the significance of insights from non-legal disciplines (such as political science, economics, and sociology) for comparative legal research and the methodology connected with such ‘interdisciplinary contextualisation’. Based on a theoretical analysis concerning the nature and methodology of comparative law, the article demonstrates that contextualisation of the analysis of legal rules and case law is required for a meaningful comparison between legal systems. The challenges relating to this contextualisation are illustrated on the basis of a study of the judicial use of comparative legal analysis as a source of inspiration in the judgment of difficult cases. The insights obtained from the theoretical analysis and the example are combined in a final analysis concerning the role and method of interdisciplinary contextualisation in comparative legal analysis conducted by legal scholars and legal practitioners.


Elaine Mak Ph.D.
Endowed Professor of Empirical Study of Public Law, in particular of Rule-of-Law Institutions, at Erasmus School of Law. Contact: mak@law.eur.nl.

    This article sets out to contribute to the special issue devoted to multi-disciplinary legal research by discussing first the limits of purely doctrinal legal research in relation to a particular topic and second the relevant considerations in devising research that (inter alia) draws on non-legal, auxiliary disciplines to ‘fill in’ and guide the legal framework. The topic concerned is the (analysis of the) fundamental rights of minorities.
    The article starts with a long account of the flaws in the current legal analysis of the European Court of Human Rights regarding minorities’ rights, particularly the reduction in its analysis and the related failure to properly identify and weigh all relevant interests and variables. This ‘prelude’ provides crucial insights in the causes of the flaws in the Court’s jurisprudence: lack of knowledge (about the relevant interests and variables) and concerns with the Court’s political legitimacy.
    The article goes on to argue for the need for multi-disciplinary legal research to tackle the lack of knowledge: more particularly by drawing on sociology (and related social sciences) and political philosophy as auxiliary disciplines to identify additional interests and variables for the rights analysis. The ensuing new analytical framework for the analysis of minorities’ rights would benefit international courts (adjudicating on human rights) generally. To operationalise and refine the new analytical framework, the research should furthermore have regard to the practice of (a selection of) international courts and national case studies.


Kristin Henrard
Professor of minorities and fundamental rights at the Erasmus School of Law.

    The article takes as its point of departure some of the author’s multidisciplinary projects. Special attention is given to the question of whether the disciplines united in the various research team members already constituted a kind of ‘inter-discipline’, through which a single object was studied. The issue of how the disciplinary orientations of the research team members occasionally clashed, on methodological issues, is also addressed.
    The outcomes of these and similar multidisciplinary research projects are followed back into legal practice and academic legal scholarship to uncover whether an incorporation problem indeed exists. Here, special attention will be given to policy recommendations and notably proposals for new legislation. After all, according to Van Dijck et al., the typical role model for legal researchers working from an internal perspective on the law is the legislator.
    The author concludes by making a somewhat bold case for reverse incorporation, that is, the need for (traditional) academic legal research to become an integral part of a more encompassing (inter-)discipline, referred to here as ‘conflict management studies’. Key factors that will contribute to the rise of such a broad (inter-)discipline are the changes that currently permeate legal practice (the target audience of traditional legal research) and the changes in the overall financing of academic research itself (with special reference to the Netherlands).


Annie de Roo
Erasmus School of Law, Erasmus University Rotterdam.
Article

Access_open Expounding the Place of Legal Doctrinal Methods in Legal-Interdisciplinary Research

Experiences with Studying the Practice of Independent Accountability Mechanisms at Multilateral Development Banks

Journal Erasmus Law Review, Issue 3 2015
Authors Andria Naudé Fourie
AbstractAuthor's information

    There is a distinct place for legal doctrinal methods in legal-interdisciplinary research methodologies, but there is value to be had in expounding that place – in developing a deeper understanding, for instance, of what legal doctrinal analysis has to offer, wherein lies its limitations, and how it could work in concert with methods and theories from disciplinary areas other than law. This article offers such perspectives, based on experiences with an ‘advanced’ legal-interdisciplinary methodology, which facilitates a long-term study of the growing body of practice generated by citizen-driven, independent accountability mechanisms (IAMs) that are institutionally affiliated with multilateral development banks. The article demonstrates how legal doctrinal methods have contributed towards the design and development of a multipurpose IAM-practice database. This database constitutes the analytical platform of the research project and also facilitates the integration of various types of research questions, methods and theories.


Andria Naudé Fourie
Research Associate, Erasmus University Rotterdam, School of Law.
Article

Access_open Juveniles’ Right to Counsel during Police Interrogations: An Interdisciplinary Analysis of a Youth-Specific Approach, with a Particular Focus on the Netherlands

Journal Erasmus Law Review, Issue 4 2014
Keywords legal representation, counsel, juvenile justice, police interrogations, children’s rights
Authors Prof. Dr. Ton Liefaard Ph.D. LL.M and Yannick van den Brink
AbstractAuthor's information

    The right to counsel of juveniles at the stage of police interrogations has gained significant attention since the Salduz ruling of the European Court on Human Rights in 2008. The legislative and policy developments that have taken place since then and that are still ongoing – both on a regional (European) and domestic (Dutch) level – reveal a shared belief that juvenile suspects must be awarded special protection in this phase of the criminal justice proceedings. This calls for a youth-specific approach as fundamentally different from the common approach for adults. At the same time, there seems to be ambivalence concerning the justification and concrete implications of such a youth-specific approach. This article aims to clarify the underlying rationale and significance of a youth specific approach to the right to counsel at the stage of police interrogations on the basis of an interdisciplinary analysis of European Court on Human Rights case law, international children’s rights standards and relevant developmental psychological insights. In addition, this article aims to position this right of juveniles in conflict with the law in the particular context of the Dutch juvenile justice system and provide concrete recommendations to the Dutch legislator.


Prof. Dr. Ton Liefaard Ph.D. LL.M
Prof. Dr. T. Liefaard is Professor of Children’s Rights (UNICEF Chair) at Leiden Law School, Department of Child Law; t.liefaard@law.leidenuniv.nl.

Yannick van den Brink
Y.N. van den Brink, LL.M, MA, is PhD researcher at Leiden Law School, Department of Child Law; y.n.van.den.brink@law.leidenuniv.nl.
Article

Access_open The Essential Role of Cooperative Law

Journal The Dovenschmidt Quarterly, Issue 4 2014
Keywords comparative cooperative law, organizational law, mutual purpose, cooperative identity, social function
Authors Antonio Fici
AbstractAuthor's information

    The idea that cooperative law is essential for the development of cooperatives is not new, but only lately is it spreading rapidly within cooperative circles and urging representative entities of the cooperative movement to take concrete actions. Also in light of this renewed interest towards the cooperative legal theory, this article will seek to demonstrate that recognizing and protecting a distinct identity based on a specific purpose constitute the essential role of cooperative law. The article will subsequently discuss, also from a comparative legal perspective, the nature and essence of the cooperative purpose and some related regulation issues.


Antonio Fici
Professor of Private Law at the University of Molise and of Comparative Cooperative Law at the L.U.M.S.A. of Rome.

Mónika Ganczer
Research fellow, Hungarian Academy of Sciences, Centre for Social Sciences, Institute for Legal Studies; Assistant professor, Széchenyi István University, Deák Ferenc Faculty of Law and Political Sciences.

Gábor Sulyok
Head of department, Senior research fellow, Hungarian Academy of Sciences, Centre for Social Sciences, Institute for Legal Studies; Associate professor, Széchenyi István University, Deák Ferenc Faculty of Law and Political Sciences.

Tamás Molnár
Adjunct Professor, Corvinus University of Budapest, Institute of International Studies; Head of Unit, Ministry of Interior of Hungary, Department of EU Cooperation, Migration Unit.

Zsuzsa Szakály
PhD candidate, University of Szeged, Faculty of Law and Political Sciences.

Tamás Lattmann
Associate professor, National University of Public Service, Institute of International Studies; Lecturer, Eötvös Loránd University, Department of International Law.
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