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Title

Parliamentary Follow-up of Law Commission Bills

An Irish Perspective

Journal European Journal of Law Reform, Issue 2 2020
Keywords law reform, legislation, Ireland, drafting, parliament
Authors Ciarán Burke
AbstractAuthor's information

    This article seeks to present a brief outline of the various means through which the draft bills and recommendations drafted by the Law Reform Commission of Ireland and published in its reports are followed up by the Irish Parliament, the Oireachtas. The Commission’s position within the Irish legislative architecture is explained, as is the process through which bills become laws in Ireland. The Commission, it is noted, occupies an unusual role. Although there is no requirement for its publications to result in legislation, ultimately the lion’s share of its output is followed up on in the legislative process in one form or another, with its publications attracting the attention of both the government and opposition parties. The challenges and advantages presented by operating within a small jurisdiction are also outlined, while some thoughts are offered on the Commission’s future.


Ciarán Burke
Professor of International Law, Friedrich Schiller Universität, Jena, and former Director of Research at the Law Reform Commission of Ireland. The author would like to thank Alexandra Molitorisovà for her help in preparing this article.
Article

Reflections on the Rule of Law and Law Reform in the Arab Region

Journal European Journal of Law Reform, Issue 2 2020
Keywords rule of law, law reform, colonialism, authoritarianism, international development
Authors Dr Sara Razai
AbstractAuthor's information

    This article offers some preliminary thoughts on the issue of international development actors in the promotion of law in the Arab region. Specifically, it reflects on the rule of law concept as a universalizing notion, touted by international organizations and governments alike as a panacea for social ills. The article discusses the act of intervention and the use and promotion of law to achieve a rule of law order in post-conflict or fragile states. It argues that the use and promotion of law by international development actors (and the donors that fund them) – a proxy for building the rule of law – is by no means new to the region. It has also been the central focus of authoritarian and colonial rulers alike. Although they are by no means similar, the three actors are strikingly similar in that they use and promote law under the aegis of building the rule of law, to the general detriment of the masses


Dr Sara Razai
Sara Razai, UCL Judicial Institute.
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.

    Many national decisions in Germany in the past had to deal with employers’ requirements regarding religious symbols in the workplace. Also, in 2017, the ECJ has dealt with two matters of such. Whilst the ECJ strictly refers to the principles of entrepreneurial freedom, the Federal Labour Court (Bundesarbeitsgericht, the ‘BAG’) tends to give priority to religious freedom. Last year, the BAG appealed to the ECJ for final clarification, in particular regarding the relationship between the basic rights of entrepreneurs and the constitutional right to religious freedom, by way of a preliminary ruling procedure with its decision dated 30 January 2019.


Caroline Dressel
Caroline Dressel is an attorney-at-law at Luther Rechtsanwaltsgesellschaft mbh
Case Law

2020/1 EELC’s review of the year 2019

Journal European Employment Law Cases, Issue 1 2020
Authors Ruben Houweling, Daiva Petrylaitė, Peter Schöffmann e.a.
Abstract

    Various of our academic board analysed employment law cases from last year. However, first, we start with some general remarks.


Ruben Houweling

Daiva Petrylaitė

Peter Schöffmann

Attila Kun

Francesca Maffei

Jean-Philippe Lhernould

Niklas Bruun

Jan-Pieter Vos

Luca Ratti

Anthony Kerr

Petr Hůrka

Michal Vrajík

John Braithwaite
John Braithwaite is an Emeritus Professor, Australian National University, Canberra, Australia.

Philip Pettit
Philip Pettit is L.S. Rockefeller University Professor of Human Values, University Center for Human Values, Princeton University, Princeton, USA, and Distinguished University Professor of Philosophy, School of Philosophy, Australian National University, Canberra, Australia.
Article

Still Consociational? Belgian Democracy, 50 Years After ‘The Politics of Accommodation’

Journal Politics of the Low Countries, Issue 1 2020
Keywords Belgium, consociational democracy, Lijphart, federalism, ethnolinguistic conflict
Authors Didier Caluwaerts and Min Reuchamps
AbstractAuthor's information

    Despite the enduring importance of Lijphart’s work for understanding democracy in Belgium, the consociational model has come under increasing threat. Owing to deep political crises, decreasing levels of trust in elites, increasing levels of ethnic outbidding and rising demands for democratic reform, it seems as if Lijphart’s model is under siege. Even though the consociational solution proved to be very capable of transforming conflict into cooperation in Belgian politics in the past, the question we raise in this article is whether and to what extent the ‘politics of accommodation’ is still applicable to Belgian democracy. Based on an in-depth analysis of the four institutional (grand coalition, proportionality, mutual veto rights and segmental autonomy) and one cultural (public passivity) criteria, we argue that consociational democracy’s very nature and institutional set-up has largely hollowed out its potential for future conflict management.


Didier Caluwaerts
Didier Caluwaerts is professor of political science at the Vrije Universiteit Brussel. His research deals with democratic governance and innovation in deeply divided societies. With Min Reuchamps, he has recently published “The Legitimacy of Citizen-led Deliberative Democracy: The G1000 in Belgium” (Routledge, 2018).

Min Reuchamps
Min Reuchamps is professor of political science at the Université catholique de Louvain (UCLouvain). His teaching and research interests are federalism and multi-level governance, democracy and its different dimensions, relations between language(s) and politics and in particular the role of metaphors, as well as participatory and deliberative methods.
Article

Language and Gender

The Importance of Including a Gender Perspective in the Language of the Constitutional Reform in Spain

Journal European Journal of Law Reform, Issue 1 2020
Keywords language, gender, Constitution, reform, Spain
Authors Ana Marrades
AbstractAuthor's information

    Language is a reflection of culture, and at the same time it helps to build that culture. In the same way, it can be used to transform it. Language serves for describing a culture, to show what we see, but at the same time, it strengthens the relationships of power that exist on the basis of male power. In this way, we can use language to build other kinds of relationships based on equality.
    The Spanish Constitution is written in the masculine. Although it is based on equality, masculine language shows that the power relations lean towards men, and this hides women’s participation. When a text or a legal message uses structures or words that hide or discriminate against one gender, it can be said that linguistic sexism exists, and this violates the principle of equality. This is a reflection about what is happening in our society because language describes cultural values. This exclusion of women in the constitutional text is in itself a denial of them as subjects of rights and as citizens. This is not only a denial of the part of power that corresponds to them, but also the consolidation of a collective story of female subordination.
    Therefore this article aims to focus on the need to carry out a revision of the Spanish Constitution in female and inclusive language that, in parallel to the recognition and guarantee of parity democracy, makes women visible as autonomous subjects. In addition, it also breaks with the male universality of the language and the monopoly of male language to define the sources of the law, as well as rights, powers, institutions, values and policies.


Ana Marrades
Senior lecturer in Constitutional law, University of Valencia.
Article

Gender Neutrality in EU Legislative Drafting

Journal European Journal of Law Reform, Issue 1 2020
Keywords legislative drafting, EU legislation, EU treaties, multilingualism, gender neutrality
Authors William Robinson
AbstractAuthor's information

    In the English-speaking world the issue of gender-neutral drafting in legislation has been a much discussed topic for many years, and there are few legislative drafting manuals in the English-speaking world that do not address the issue.
    The EU and its institutions also attach great importance to gender issues, as is shown by the solemn commitments in EU texts to gender equality, by the establishment at the EU level of bodies or committees to focus on those issues, and by the EU actions and policies that seek to address them. But the issue of gender-neutral drafting in legislation is not even mentioned in the guidance drawn up by the legislative drafting experts of the EU institutions.
    This contribution, therefore, looks at how gender issues are dealt with in practice in the EU Treaties and in EU legislation. It finds signs of a traditional approach that is beginning to evolve but only slowly and somewhat unevenly.
    The contribution considers some of the reasons behind the approach taken by the EU institutions to gender neutrality in drafting and the impact of the important EU principles of multilingualism and multiculturalism before seeking to draw some conclusions.


William Robinson
Associate Research Fellow at the Institute of Advanced Legal Studies in London; formerly a coordinator in the Quality of Legislation Team of the European Commission Legal Service.
Article

The European Union and Space

A ‘Star Wars’ Saga?

Journal European Journal of Law Reform, Issue 4 2019
Keywords EU space competence, EU Space Policy, Galileo, Copernicus, Framework Agreement ESA-EU
Authors Rebecca-Emmanuela Papadopoulou
AbstractAuthor's information

    This article explores the complex relationship between the European Union (EU) and space, alias space’s ever-growing place and role in the EU legal order. Two distinct paths are identified in this respect. On the one hand, as from the mid-1980s and despite the lack of an express ‘space competence’, space policy parameters were introduced in EU acts regulating telecommunications, satellite communications and electronic databases, but only to the extent necessary to serve the functioning of the single market. On the other hand, an autonomous EU Space Policy has been progressively elaborated as from the late 1990s through several initiatives, namely the strengthening of the collaboration with the European Space Agency and the setting up of the Galileo and Global Monitoring for Environment and Security (GMES)/Copernicus programmes. This tendency was corroborated by the conferral of an express space competence on the EU by the Lisbon Treaty, whose constitutional and institutional implications are explored in this article. It is submitted that the new space competence shall allow the EU to reach a stage of maturity and claim a greater degree of autonomy at the international level and, at the same time, to project its own governance model, thus enhancing the quality of international cooperation in space.


Rebecca-Emmanuela Papadopoulou
Rebecca-Emmanuela Papadopoulou is Assistant Professor, Law School, NKUA.
Article

Law Reform in Ireland

Implementation and Independence of Law Reform Commission

Journal European Journal of Law Reform, Issue 4 2019
Keywords law reform, statute law revision, better regulation, access to legislation, lawyer’s law
Authors Edward Donelan
AbstractAuthor's information

    This article describes the origins and work of the Law Reform Commission in Ireland. The model follows that in Common Law countries. Its work includes both substantive law reform and statute law revision (weeding out spent or unused statutes and undertaking consolidation or other work to make statute law more accessible.) The work of the Commission focuses on ‘lawyers’ law’ and, therefore, avoids subjects that could be politically controversial. Consequentially, the bulk of its recommendations are accepted and translated into legislation.


Edward Donelan
Edward Donelan, PhD, M.A., Barrister-at-Law (Kings Inns, Dublin, Middle Temple, London), Dip. Eur. Law, Dip. Arb. Better Regulation and Legislative Drafting Expert, currently working on projects with the Attorney General in Botswana to develop a programme of law reform for the newly established Law Reform Unit in the Chambers of the Attorney General.
Article

The New Regulation Governing AIR, VIR and Consultation

A Further Step Forward Towards ‘Better Regulation’ in Italy

Journal European Journal of Law Reform, Issue 4 2019
Keywords regulation, RIA, regulatory impact analysis, impact assessment, evaluation, consultation
Authors Victor Chimienti
AbstractAuthor's information

    This article describes the scope and contents of the newly adopted regulation governing regulatory impact analysis (RIA) and ex post evaluation of regulation (ExPER) in the Italian legal system. The article shows that this regulation has the potential to improve regulatory governance in Italy. Not only does it introduce innovations designed to increase transparency and participation, especially through strengthened consultation and communication mechanisms, but it also aims to improve the quality and effectiveness of regulatory analysis and evaluation activities. How the new regulation will be applied in practice, however, remains to be seen. In the meantime, the new set of rules are a welcome addition to Italy’s Better Regulation policy.


Victor Chimienti
Victor Chimienti is an international and EU lawyer currently working as a free-lance consultant on donor funded projects. In 1997, he graduated in Law with full marks at the University of Bari “Aldo Moro” (Italy), and, in 2006, obtained his Ph.D in International and EU Law from the same university. Meanwhile, he had attended post-graduate legal studies at LUISS University in Rome, Italy, specialising in international and EC business law. Dr. Chimienti has also served as Lecturer in International and Trade Law at the University of Foggia, Italy, and as Research Scholar in International & Comparative Law at the University of Michigan, USA. Among others, he specialises in Better Regulation tools and procedures, such as Regulatory Impact Analysis (RIA), Ex-Post Evaluation of Legislation, Monitoring, and Public Consultation.
Article

Parliamentary Control over Delegated Legislation in Japan

Journal European Journal of Law Reform, Issue 4 2019
Keywords statutory instruments, sole law-making organ, supplementary resolution, legislative veto, Committee on Oversight of Administration
Authors Katsuhiro Musashi
AbstractAuthor's information

    The delegation of legislation from the parliament to the administration plays an important role in a modern administrative state. In Britain, parliamentary control – whereby the parliament has the right to approve or veto a delegated legislation – has been institutionalized and implemented. On the other hand, the Japanese parliament is powerless to approve a delegated order beforehand or ex post. Therefore, improper procedures such as the deviation of the delegated order from the enabling act by a governmental agency, or the introduction of arbitrary administrative measures, have been carried out under insufficient supervision by the parliament in Japan. The National Diet of Japan should, ideally, also hold the power to control the administrative order on the basis of the legal principles formulated by the Diet. Therefore, we propose the introduction of a parliamentary control system that invalidates the ex post enactment of a cabinet order if both Houses of parliament refuse the order within 40 days of its submission. These procedures would have increased efficacy when augmented with a political check function on the proposed cabinet orders by the parliament’s Committee on Oversight of Administration, or their standing committees.


Katsuhiro Musashi
Katsuhiro Musashi is Professor of Law and Policy at the Faculty of Policy Studies, Doshisha University in Kyoto, Japan.
Article

Economic Inequality, Capitalism and Law

Imperfect Realization of Juridical Equality, the Right to Property and Freedom of Contract

Journal European Journal of Law Reform, Issue 4 2019
Keywords capitalism, inequality, juridical, law, property
Authors Shabir Korotana
AbstractAuthor's information

    There is a general unease among the public across all jurisdictions about the progressive economic inequality that seems to define the new normal, and this phenomenon has been succinctly documented in numerous prominent studies. This trend of capitalism has been supported by the existing structures of the common law, albeit contrary to the aim and purpose of its original principles. The studies show that the modern capitalist societies display a persistent trend of increasing inequality, and this is summed up by the observation that modern capitalism generates progressive and intense economic inequality.
    Capitalism as a socio-economic system is structured and sustained by the law and by socio-economic systems of institutions. Capitalism is not only a social ordering; essentially, it is a legal ordering. At the heart of this legal ordering are private laws, and tort law, but the most important is contract law: freedom of contract. It is common law, similar to the private law in other jurisdictions, that is responsible for the extreme inequality because it allows the institutions of capitalism to function freely and without much control. The open-ended capitalism that allows accumulation of wealth without ceiling causes progressive inequality in society and consequently works against the very freedom and individualism that are supposed to be the ideals of common law and capitalism. Because of the existing institutions of capitalism and the legal construct, freedom, fairness and the intended progress of the individual were not properly realized; the understanding of the ideas and principles of freedom, individualism, juridical equality, the right to property and freedom of contract have been imperfectly realized. With rising inequality, it is this imperfect realization, particularly of juridical equality that is in question.


Shabir Korotana
Shabir Korotana is Senior Lecturer in Commercial Law at Brunel Law School, Brunel University London.
Article

Independence and Implementation

In Harmony and in Tension

Journal European Journal of Law Reform, Issue 4 2019
Keywords Law Commission, law reform, legislation, independence, implementation
Authors Matthew Jolley
AbstractAuthor's information

    This article examines the factors that have influenced the independence of the Law Commission of England and Wales and the implementation of its recommendations. It discusses innovations in Parliamentary procedure for Law Commission Bills, the Protocol between Government and the Law Commission; and the requirement for the Lord Chancellor to report annually to Parliament on the implementation of the Law Commission’s proposals. It makes the case that the relationship between independence and implementation is complex: at times the two pull in opposite directions, and at times they support each other.


Matthew Jolley
Matthew Jolley is Head of Legal Services and Head of the Property, Family and Trust Law Team at the Law Commission of England and Wales. This article is written in a personal capacity – with thanks to Christine Land, Rachel Preston and Sarah Smith for their assistance with background research.

    The UN General Assembly established the International Law Commission (“ILC”) in 1947 to assist States with the promotion of 1) the progressive development of international law and 2) its codification. The ILC’s first assignment from the General Assembly was to formulate the Nuremberg Principles, which affirmed the then radical idea that individuals can be held liable for certain international crimes at the international level. Since then, the ILC has played a seminal role in the development of modern international criminal law. In 2017, the ILC adopted on first reading a draft convention aimed at the prevention and punishment of crimes against humanity which it transmitted to States for comments. The draft treaty will help fill the present gap in the law of international crimes since States criminalized genocide in 1948 and war crimes in 1949, but missed the opportunity to do so for crimes against humanity. This Article examines the first reading text using the lens of the ILC’s two-pronged mandate. Part II explains how the ILC can take up new topics and the main reasons why it decided to propose a new crimes against humanity convention. Part III discusses positive features of the draft convention, highlighting key aspects of each of the Draft Articles. Part IV critiques the ILC draft treaty focusing on inconsistencies in the use of the ICC definition of the crime, immunities, amnesties, and the lack of a proposal on a treaty monitoring mechanism. The final part draws tentative conclusions. The author argues that, notwithstanding the formal distinction drawn by the ILC Statute between progressive development, on the one hand, and codification, on the other hand, the ILC’s approach to the crimes against humanity topic follows a well settled methodology of proposing draft treaties that are judged likely to be effective and broadly acceptable to States rather than focusing on which provisions reflect codification and which constitute progressive development of the law. It is submitted that, if the General Assembly takes forward the ILC’s draft text to conclude a new crimes against humanity treaty after the second reading, this will make a significant contribution to the development of modern international criminal law.


Charles C. Jalloh B.A. LL.B Ph.D
Professor of Law, Florida International University and Member, International Law Commission.

Tamás Török
PhD candidate, University of Pécs.
Article

The European Charter for Regional or Minority Languages

Specific Features and Problems of Application

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Keywords European Charter for Regional or Minority Languages, protection of minority languages, protection of regional languages, supervisory regime
Authors Gábor Kardos
AbstractAuthor's information

    As was the case after the Great War, World War II was followed by the setting up of international legal regimes to protect national (national, ethnic, linguistic, and religious) minorities in Europe. The emerging ideas of universalism and European unity were to prevent the aftermath of World War I, a conflict which erupted as a result of Western focusing the system of European minority protection on Central and Eastern Europe. The European Charter for Regional or Minority Languages protects minority languages, without granting minority rights. It provides an á la Carte system of obligations, with a supervisory system hinged on government reports. The Charter was intended to be a ‘high politics’ treaty. Nevertheless, with the protection of the minority linguistic heritage and the indirect provision of minority linguistic rights, it meant a first step towards bringing an end to the 19th century processes linguistic homogenization of the budding nationstates. As such, its implementation is highly political. The minority languages protected by the Charter are strongly varied in nature. If we add this factor to the á la Carte system of obligations, the sheer complexity of the system prevents evaluations of the Committee of Experts from being as consistent as they should be. An important contribution of the soft supervisory mechanism is that it at least puts some problematic issues on the agenda, however, experience has shown that the transposition of treaty obligations into national law is always a simpler task than creating the substantive conditions for the actual use of minority languages.


Gábor Kardos
Professor of law, ELTE Law School, Budapest; Member of the Committee of Experts of the European Charter for Regional or Minority Languages.
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