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Article

Access_open Age Limits in Youth Justice

A Comparative and Conceptual Analysis

Journal Erasmus Law Review, Issue 1 2020
Keywords youth justice, age limits, minimum age of criminal responsibility, age of criminal majority, legal comparison
Authors Jantien Leenknecht, Johan Put and Katrijn Veeckmans
AbstractAuthor's information

    In each youth justice system, several age limits exist that indicate what type of reaction can and may be connected to the degree of responsibility that a person can already bear. Civil liability, criminal responsibility and criminal majority are examples of concepts on which age limits are based, but whose definition and impact is not always clear. Especially as far as the minimum age of criminal responsibility (MACR) is concerned, confusion exists in legal doctrine. This is apparent from the fact that international comparison tables often show different MACRs for the same country. Moreover, the international literature often seems to define youth justice systems by means of a lower and upper limit, whereas such a dual distinction is too basic to comprehend the complex multilayer nature of the systems. This contribution therefore maps out and conceptually clarifies the different interpretations and consequences of the several age limits that exist within youth justice systems. To that extent, the age limits of six countries are analysed: Argentina, Austria, Belgium, the Netherlands, New Zealand and Northern Ireland. This legal comparison ultimately leads to a proposal to establish a coherent conceptual framework on age limits in youth justice.


Jantien Leenknecht
Jantien Leenknecht is PhD Fellow of the Research Foundation Flanders (FWO) at KU Leuven, Institute of Social Law and Leuven Institute of Criminology.

Johan Put
Johan Put is Full Professor at KU Leuven, Institute of Social Law and Leuven Institute of Criminology.

Katrijn Veeckmans
Katrijn Veeckmans is PhD Fellow at KU Leuven, Institute of Social Law and Leuven Institute of Criminology.
Article

Access_open Age Barriers in Healthcare

Journal Erasmus Law Review, Issue 1 2020
Keywords age discrimination, age equality, health care
Authors Rachel Horton
AbstractAuthor's information

    Age limits, minimum and maximum, and both explicit and ‘covert’, are still used in the National Health Service to determine access to a range of health interventions, including infertility services and cancer screening and treatment. Evidence suggests that chronological age is used as a proxy for a host of characteristics in determining access to healthcare: as a proxy for the capacity of an individual to benefit from an intervention; for the type of harm that may result from an intervention; for the likelihood of such benefit or harm occurring; and, in some cases, for other indicators used to determine what may be in the patient’s interest. Age is used as a proxy in this way in making decisions about both individual patients and wider populations; it may be used where no better ‘marker’ for the relevant characteristic exists or – for reasons including cost, practicality or fairness – in preference to other available markers. This article reviews the justifications for using age in this way in the context of the existing legal framework on age discrimination in the provision of public services.


Rachel Horton
Lecturer University of Reading.
Article

Access_open Religie op het werk?

Over positieve en negatieve godsdienstvrijheid bij private ondernemingen en tendensondernemingen

Journal Netherlands Journal of Legal Philosophy, Issue 1 2020
Authors Leni Franken and François Levrau
AbstractAuthor's information

    In this article we elaborate on the place of religion in the workplace. Does the individual freedom of religion imply that employers must always accommodate the religious claims of employees or can they boast a number of arguments allowing them to legitimately limit that freedom? And, conversely, do employers not also have a right to freedom of religion and a right to formulate certain religious expectations for their employees? In this contribution, we deal with these and related questions from a legal-philosophical perspective. The overall aim is to illustrate the extent to which univocal answers are jeopardized because of conceptual ambiguities. We first make a normative distinction between two strategies (i.e. difference-blind approach and difference-sensitive approach) and subsequently illustrate and elaborate on how and why these strategies can lead to different outcomes in legal cases. We illustrate the extent to which a contextual and proportional analysis can be a way out in theoretical and practical conundrums.


Leni Franken
Leni Franken is senior researcher and teaching assistant at the University of Antwerp.

François Levrau
François Levrau is senior researcher and teaching assistant at the University of Antwerp.
Discussion

Access_open Biopolitics and the Coronavirus

Foucault, Agamben, Žižek

Journal Netherlands Journal of Legal Philosophy, Issue 1 2020
Keywords Biopolitics, Coronavirus, Rule of law, Foucault, Agamben
Authors Lukas van den Berge
Author's information

Lukas van den Berge
Lukas van den Berge is assistant professor of legal theory at Utrecht University.
Book Review

Access_open Marc Hertogh, Nobody’s Law, Legal Consciousness and Legal Alienation in Everyday Life

Journal Netherlands Journal of Legal Philosophy, Issue 1 2020
Keywords Vervreemding, Naleving van wetten, Legitimiteit, Rule of Law
Authors Irawan Sewandono
Author's information

Irawan Sewandono
Irawan Sewandono is universitair docent staats- en bestuursrecht aan de Open Universiteit.
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.
Article

Access_open De blinde vlek in praktijk en discussie rond orgaandonatie

Journal Netherlands Journal of Legal Philosophy, Issue 1 2020
Keywords organ donation, ethics of organ donation, symbolic nature of the human body, ethics and ritual, symbolic legislation theory
Authors Herman De Dijn
AbstractAuthor's information

    In countries like Belgium and The Netherlands, there seems to be overwhelming public acceptance of transplantation and organ donation. Yet, paradoxically, part of the public refuses post-mortal donation of their own organs or of those of family members. It is customary within the transplantation context to accept the refusal of organ donation by family members “in order to accommodate their feelings”. I argue that this attitude does not take seriously what is really behind the refusal of donation by (at least some) family members. My hypothesis is that even in very secularized societies, this refusal is determined by cultural-symbolic attitudes vis-à-vis the (dead) human body (and some of its parts). The blind spot for this reality, both in the practice of and discussions around organ donation, prevents understanding of what is producing the paradox mentioned.


Herman De Dijn
Herman De Dijn is emeritus hoogleraar wijsbegeerte aan de KU Leuven.
Article

Access_open Legal and Political Concepts as Contextures

Journal Netherlands Journal of Legal Philosophy, Issue 1 2020
Keywords Concepts, Contextualism, Essentially Contested Concepts, Legal Theory, Freedom
Authors Dora Kostakopoulou
Abstract

    Socio-political concepts are not singularities. They are, instead, complex and evolving contextures. An awareness of the latter and of what we need to do when we handle concepts opens up space for the resolution of political disagreements and multiplies opportunities for constructive dialogue and understanding. In this article, I argue that the concepts-as-contextures perspective can unravel conceptual connectivity and interweaving, and I substantiate this by examining the ‘contexture’ of liberty. I show that the different, and seemingly contested, definitions of liberty are the product of mixed articulations and the development of associative discursive links within a contexture.


Dora Kostakopoulou

Klaas Rozemond
Klaas Rozemond is universitair hoofddocent strafrecht aan de Vrije Universiteit Amsterdam.

Klaas Rozemond
Klaas Rozemond is universitair hoofddocent strafrecht Vrije Universiteit Amsterdam.

Irawan Sewandono
Irawan Sewandono is universitair docent staats- en bestuursrecht aan de Open Universiteit.

Irawan Sewandono
Irawan Sewandono is universitair docent staats- en bestuursrecht aan de Open Universiteit.

Irawan Sewandono
Irawan Sewandono is universitair docent staats- en bestuursrecht aan de Open Universiteit.

Irawan Sewandono
Irawan Sewandono is universitair docent staats- en bestuursrecht aan de Open Universiteit.
Article

Access_open Recht en politiek in de klimaatzaken

Een sleutelrol voor het internationaal recht in de argumentatie van de nationale rechter

Journal Netherlands Journal of Legal Philosophy, Issue 1 2020
Authors Vincent Dupont
AbstractAuthor's information

    Ever since it was published in 2015, the judgment of the The Hague court in the so-called Urgenda-case, and the subsequent decisions of the appellate and cassation courts confirming it, have been met with repeated and vivid critiques. By recognizing the necessity of the reduction in greenhouse gas emissions, and furthermore imposing a certain reduction level on the Dutch state, the judgments in the cases at hand gave rise to many questions concerning the position of the judiciary in the matter, and in Dutch society as a whole. This article attempts in the first place to situate the positions of the different actors intervening in the Urgenda-case within a legal-theoretical framework. The contribution subsequently explores the strategic possibilities that an alternative understanding of law could offer to the judges, focusing specifically on the use of legal instruments stemming from international law, brought into the reasoning of the national judge.


Vincent Dupont
Vincent Dupont studeerde in 2017 af als Master of Laws aan de KU Leuven en volgt momenteel een opleiding sociologie aan de Université libre de Bruxelles, Unicamp in São Paulo en de École des hautes études en sciences sociales in Parijs.
Article

Access_open Characteristics of Young Adults Sentenced with Juvenile Sanctions in the Netherlands

Journal Erasmus Law Review, Issue 1 2020
Keywords young adult offenders, juvenile sanctions for young adults, juvenile criminal law, psychosocial immaturity
Authors Lise J.C. Prop, André M. Van der Laan, Charlotte S. Barendregt e.a.
AbstractAuthor's information

    Since 1 April 2014, young adults aged 18 up to and including 22 years can be sentenced with juvenile sanctions in the Netherlands. This legislation is referred to as ‘adolescent criminal law’ (ACL). An important reason for the special treatment of young adults is their over-representation in crime. The underlying idea of ACL is that some young adult offenders are less mature than others. These young adults may benefit more from pedagogically oriented juvenile sanctions than from the deterrent focus of adult sanctions. Little is known, however, about the characteristics of the young adults sentenced with juvenile sanctions since the implementation of ACL. The aim of this study is to gain insight into the demographic, criminogenic and criminal case characteristics of young adult offenders sentenced with juvenile sanctions in the first year after the implementation of ACL. A cross-sectional study was conducted using a juvenile sanction group and an adult sanction group. Data on 583 criminal cases of young adults, sanctioned from 1 April 2014 up to March 2015, were included. Data were obtained from the Public Prosecution Service, the Dutch Probation Service and Statistics Netherlands. The results showed that characteristics indicating problems across different domains were more prevalent among young adults sentenced with juvenile sanctions. Furthermore, these young adults committed a greater number of serious offences compared with young adults who were sentenced with adult sanctions. The findings of this study provide support for the special treatment of young adult offenders in criminal law as intended by ACL.


Lise J.C. Prop
Research and Documentation Centre (WODC), Ministry of Justice and Security, Den Haag, the Netherlands.

André M. Van der Laan
Research and Documentation Centre (WODC), Ministry of Justice and Security, Den Haag, the Netherlands.

Charlotte S. Barendregt
Health and Youth Care Inspectorate, Ministry of Health, Welfare and Sport, Utrecht, the Netherlands.

Chijs Van Nieuwenhuizen
GGzE, Centre for Child and Adolescent Psychiatry, Eindhoven, the Netherlands and Scientific Center for Care & Welfare (Tranzo),Tilburg University, Tilburg, the Netherlands.
Article

Access_open Ship Recycling Financial Instruments: A Tax or Not a Tax?

Some Brief Reflections

Journal Erasmus Law Review, Issue 2 2020
Keywords Ship Recycling Fund, Ship Recycling License, green ship scrapping, EU concept of tax, earmarked tax
Authors Han Kogels and Ton Stevens
AbstractAuthor's information

    In this article the question is reviewed whether two by the EU Commission proposed financial instruments to stimulate ‘green’ ship scrapping, (i) a Ship Recycling Fund (SRF) and (ii) a Ship Recycling License (SRL), might be qualified as a ‘tax’ under Article 192(2) TFEU. Qualification as such a “tax” would mean that the EU Commission can only introduce such a financial instrument with unanimity voting. The authors first explore the concept of ‘tax’ in the TFEU in general and in Article 192(2) TFEU in particular. Based on this analysis, the authors conclude that levies paid to an SRF might be qualified as an ‘earmarked tax’ falling within the definition of a ‘fiscal provision’ in the meaning of Article 192(2) TFEU, which means that levies to such a fund can only be introduced by unanimity voting. The SRL fee consists of two elements: (i) a fee to cover administrative expenses and (ii) a contribution to a savings account. The fee to cover administrative expenses is qualified by the authors as a retribution that should not be qualified as a fiscal provision in the meaning of Article 192(2) TFEU. The contribution to a blocked savings account can neither be qualified as a tax nor as a retribution. Therefore, the SRL fee can be introduced without unanimity voting by the EU Council.


Han Kogels
Prof. Dr. H.A. Kogels is Emeritus professor of European tax law Erasmus School of Law.

Ton Stevens
Prof. Dr. A.J.A. Stevens is Professor of corporation tax law Tilburg University and of counsel Loyens & Loeff, Rotterdam. He was previously holding the chair of international tax law at Erasmus School of Law and initially involved in the ship recycling financial instrument project but did not participate in the drafting of the final report.
Article

Access_open Het classicistische politieke denken van Van Hogendorp

Journal Netherlands Journal of Legal Philosophy, Issue Pre-publications 2020
Keywords classicistisch politiek denken, constitutie, Van Hogendorp, Grondwet, politieke filosofie
Authors Alban Mik
AbstractAuthor's information

    Gijsbert Karel van Hogendorp is the auctor intellectualis of the 1818 Dutch constitution. It was his sketch for a new constitution that was used as a starting point for the deliberations of its original drafting committee. Van Hogendorp justifies his constitution as a restoration of the Burgundian constitution that applied before the Dutch Republic. In recent literature Van Hogendorp’s restorational argument is presented as an invention of tradition. In this article an alternative explanation is presented, namely that it is part of a form of classicist political thought that was common during the ancien régime. Van Hogendorp describes his constitution as a moderate monarchy, in which the three principles of monarchy, aristocracy and democracy are properly balanced. And he mainly defends this mixed regime by pointing out that it is a restoration of the old Burgundian constitution of the Netherlands. This way of reasoning is, as will be shown, typically classicistic.


Alban Mik
Alban Mik is onderzoeker aan de Afdeling Metajuridica, vakgroep Rechtsfilosofie van de Universiteit Leiden.
Rulings

ECJ 27 February 2020, joined cases C-773/18 – C-775/18 (Land Sachsen-Anhalt), Age Discrimination

TK, UL, VM – v – Land Sachsen-Anhalt, German case

Journal European Employment Law Cases, Issue 1 2020
Keywords Age discrimination
Abstract

    General subsequent payment based on salary step not found discriminatory, provided that it protects existing acquired rights and if it does not prolong age discrimination. A summary will be provided once an English translation becomes available

Rulings

ECJ 18 December 2019, case C-447/18 (UB), Social insurance

UB – v – Generálny riaditeľ Sociálnej poisťovne Bratislava, Slovakian case

Journal European Employment Law Cases, Issue 1 2020
Keywords Social insurance
Abstract

    Additional benefits paid to high-level sportspersons who have represented a Member State or its legal predecessors are not ‘old-age benefits’ within the meaning of Article 3(1)(d) of Regulation 883/2004, but Article 7(2) of Regulation 492/2011 preclude that they are made conditional of having the nationality of that Member State.

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