A question that has preoccupied sociolegal scholars for ages is whether law can change ‘hearts and minds’. This article explores whether non-discrimination law can create social change, and, more particularly, whether it can change attitudes and beliefs as well as external behaviour. The first part examines how sociolegal scholars have theorised about the possibility and desirability of using law as an instrument of social change. The second part discusses the findings of empirical research on the social working of various types of non-discrimination law. What conclusions can be drawn about the ability of non-discrimination law to create social change? What factors influence this ability? And can non-discrimination law change people’s hearts and minds as well as their behaviour? The research literature does not provide an unequivocal answer to the latter question. However, the overall picture emerging from the sociolegal literature is that law is generally more likely to bring about changes in external behaviour and that it can influence attitudes and beliefs only indirectly, by altering the situations in which attitudes and opinions are formed.

International human rights law (IHRL) was established in the aftermath of the Second World War to prevent a reoccurrence of the atrocities committed in the name of fascism. Central to this aim was the recognition that out-groups are particularly vulnerable to rights violations committed by the in-group. Yet, it is increasingly apparent that out-groups are still subject to a wide range of rights violations, including those associated with mass atrocities. These rights violations are facilitated by the dehumanisation of the out-group by the in-group. Consequently, this article argues that the creation of IHRL treaties and corresponding monitoring mechanisms should be viewed as the first step towards protecting out-groups from human rights violations. By adopting the lens of dehumanisation, this article demonstrates that if IHRL is to achieve its purpose, IHRL monitoring mechanisms must recognise the connection between dehumanisation and rights violations and develop a positive State obligation to counter dehumanisation. The four treaties explored in this article, the European Convention on Human Rights, the International Covenant on Civil and Political Rights, the Framework Convention for the Protection of National Minorities and the International Convention on the Elimination of all forms of Racial Discrimination, all establish positive State obligations to prevent hate speech and to foster tolerant societies. These obligations should, in theory, allow IHRL monitoring mechanisms to address dehumanisation. However, their interpretation of the positive State obligation to foster tolerant societies does not go far enough to counter unconscious dehumanisation and requires more detailed elaboration.

In this article, we focus on how the education system can be used to promote equality in the context of changing people’s hearts and minds – values, morals and mindsets. The duties contained in the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (‘Equality Act’) bind private and public schools, educators, learners, governing bodies and the state. The Equality Act calls on the state and all persons to promote substantive equality, but the relevant sections in the Equality Act have not been given effect yet, and are therefore currently not enforceable. We set out how the duty to promote equality should be concretised in the Equality Act to inter alia use the education system to promote equality in schools; in other words, how should an enforceable duty to promote equality in schools be fashioned in terms of the Equality Act. Should the relevant sections relating to the promotion of equality come into effect in their current form, enforcement of the promotion of equality will take the form of obliging schools to draft action plans and submit these to the South African Human Rights Commission. We deem this approach inadequate and therefore propose certain amendments to the Equality Act to allow for a more sensible monitoring of schools’ duty to promote equality. We explain how the duty to promote equality should then play out practically in the classroom to facilitate a change in learners’ hearts and minds.

A firm intention announcement must be made when the offeror is able and willing to acquire securities, and when a mandatory offer must be made. When the firm intention announcement is implemented, some sort of a contract is created. This rule has helped to determine the particular time the offeror should be liable to minorities. The question of when the offeror should bear the obligation to implement mandatory offers in aborted takeovers is thus no more problematic. Previously, the courts wrestled with this issue, but delivered what appears to be unsatisfactory decisions. This article will discuss the effect of a firm intention announcement and the responsibility that attends the making of that announcement. It intends to illustrate the extent of liability the offeror must bear in the event of a lapsed takeover, before and after the making of the firm intention announcement. The article examines the manner in which takeover rules can be enforced, and whether the current measures afford minorities proper protection. This brings to light the issue of equal treatment in takeovers and the fallacy thereof. A minor appraisal of the takeover rules in two jurisdictions in Europe (the United Kingdom and the Netherlands) is conducted to assess how equal treatment for minorities is promoted. Due to the difficulty minorities may experience in enforcing equal treatment in company takeovers, the article advocates for the alteration of the current South African takeover procedure for the promotion of minorities’ interests and for establishing rules that provide the offeror adequate information.

The CJEU published its much-awaited preliminary ruling in Case C-263/18 - Nederlands Uitgeversverbond and Groep Algemene Uitgevers (the Tom Kabinet case) in December 2019. Our paper aims to introduce the Tom Kabinet ruling and discuss its direct and indirect consequences in copyright law. The Tom Kabinet ruling has seriously limited (in fact, outruled) the resale of lawfully acquired e-books. It left various questions unanswered, and thus missed the opportunity to provide for clarity and consistency in digital copyright law. Our analysis addresses how the CJEU deferred from its own logic developed in the UsedSoft decision on the resale of lawfully acquired computer programs, and how the CJEU’s conservative approach ultimately missed the opportunity to reach a compromise ruling. The paper further introduces the US approach that has a strong distinction between selling and making with respect to the research of exhaustion. We aim to trace how this distinction rests on the statutory basis for exhaustion (in copyright) and common law basis (in patent and trademark law) and compare these findings with the CJEU’s recent interpretation of exhaustion. Our focus will be on the Supreme Court’s decisions in Kirstaeng and Bowman and lower court decisions that examine technological solutions to facilitate resale. We examine how the US approach adopts a rigid approach that might inhibit technological development in digital markets, an approach with parallels in the Tom Kabinet ruling. In conclusion, we assess whether there is convergence between the two sides of the Atlantic or whether there is a path of innovative legal development that reconciles the various precedents.

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.

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.

De grote toestroom van migranten en asielzoekers in de EU houdt vandaag nog steeds verschillende regelgevers wakker. Niet alleen de nationale overheden, maar ook de EU-regelgevers zoeken naarstig naar oplossingen voor de problematiek. Daartoe trachten de EU-regelgevers het Gemeenschappelijk Europees Asielstelsel (GEAS) bij te werken.
Binnen de groep migranten en asielzoekers bestaat een specifiek kwetsbaar individu: de niet-begeleide minderjarige vreemdeling (NBMV). Hij is zowel vreemdeling als kind en kreeg reeds ruime aandacht binnen de rechtsleer. Nochtans werd deze aandacht niet altijd weerspiegeld in de EU-wetgeving. Het lijkt alsof hij door de regelgevers af en toe uit het oog verloren werd.
Uit het onderzoek blijkt dat de EU-regelgevers nog een zekere weg te gaan hebben. In de eerste plaats bestaat er wat betreft het geheel aan regels met betrekking tot de NBMV weinig coherentie. De EU-regelgevers zouden bijvoorbeeld meer duidelijkheid kunnen scheppen door een uniforme methode vast te leggen voor de bepaling van de leeftijd van de NBMV. Hetzelfde geldt voor een verduidelijking van de notie ‘het belang van het kind’ binnen asiel en migratie. Verder blijken de Dublinoverdrachten en de vrijheidsontneming van de NBMV nog steeds gevoelige pijnpunten. Hier en daar moet aan de hervorming van het asielstelsel nog wat gesleuteld worden, zodat de rechten van de NBMV optimaal beschermd kunnen worden.
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Today, the large influx of migrants and asylum seekers into the European Union (EU) keeps several regulators awake. Not only national authorities, but EU regulators too are diligently searching for solutions to the problems. To this end, EU regulators are seeking to update the Common European Asylum System (CEAS).
There is however a particularly vulnerable individual within the group of migrants and asylum seekers: the unaccompanied alien minor (UAM). These minors already received a great deal of attention within legal doctrine. However, this attention was not always reflected in EU legislation. It seems as if UAM are occasionally lost from sight by the regulators.
This article shows that the EU regulators still have a certain way to go. First, there is little coherence in the set of rules relating to the UAM. The EU regulators could, for example, create more clarity by laying down a uniform method for determining the age of the UAM. The same applies to a clarification of the notion of 'best interests of the child' within the context of asylum and migration. Second, the proposal for a new Dublin Regulation and the proposal for a new Reception Conditions Directive still appear to be sensitive. Here and there, the reform of the asylum system still needs adjustments, so that the rights of UAM can be optimally protected."

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.

Directive 2001/42 requires the elaboration of an environmental impact assessment, before certain national, regional or local plans or programs related to the environment are adopted. The paper presents the content of the Directive and summarizes the case-law of the CJEU on the Directive. Furthermore, it raises a number of legal questions hitherto left undiscussed by the European courts.

The purpose of this study is to present the principles, strategy and operation of the social market economy, based on legal, political and economic considerations. The first social market economy, West Germany – followed by Austria, the Netherlands, as well as other countries in Northern and Western Europe –, mustered a positive overall performance from the post-World War II years to the early 1970s. Since then, however, we have been witnessing the erosion, distortion and decline of efficiency of the social market economy. There are four main issues to be addressed: (i) What are the main theoretical and conceptual, ‘eternal’ elements of the social market economy? (ii) What economic policy was built on this theoretical foundation and why did the system work well in Western Europe after World War II? (iii) What factors eroded this system? (iv) Can social market economy be renewed in the second decade of the 21st century and, if it can, what are the preconditions of it? In my analysis, I highlight some key areas: EU policies, Lisbon Agenda and Europe 2020 strategy, growth, financial disequilibria and competitiveness, innovation and employment, the relation of state and market.

Even though many municipalities use a variety of means to improve turnout in local elections, citizen participation in local elections is a point of concern in many Western countries, including the Netherlands. Our research question is therefore: How effective are municipal efforts to improve turnout in (Dutch) local elections? To this end, we collected data from three sources: (1) a survey sent to the municipal clerks of 389 Dutch municipalities to learn what they do to improve turnout; (2) data from Statistics Netherlands on municipalities’ socio-demographic characteristics; and (3) data on the turnout in local elections from the Dutch Electoral Council database. Using hierarchical multiple regression analysis, we found that the direct impact of local governments’ efforts to improve turnout is low. Nevertheless, some measures seem to be able to make a difference. The relative number of polling stations was especially found to impact turnout.

Both the French Supreme Court and the Versailles Court of Appeal held that an employer, who must ensure that liberties and fundamental rights of each employee are respected in the working community, may lawfully prohibit the wearing of any visible sign of political, philosophical or religious beliefs in the workplace, provided that the rule contained in the company rules and regulations applies without distinction to employees in direct contact with the customers of the company only. But in the absence of such rules, sanctioning an employee who refuses to remove her Islamic veil based on the wish of a customer, which does not qualify as a genuine and determining occupational requirement, amounts to an unlawful direct discrimination and should consequently be held null and void.

Een bekend kenmerk van Scholtens beschouwingswijze was zijn dialectiek.
Langemeijer heeft de aard ervan scherp geduid, maar erkend in het duister te tasten over haar oorsprong en bronnen. Hegel en Barth komen niet in aanmerking. Ik wijs op de betekenis die de theoloog P.D. Chantepie de la Saussaye (1848-1920) gehad kan hebben voor de ontwikkeling van Scholtens denken, zowel inhoudelijk als qua dialectiek. Sommige contemporaine auteurs lijken Scholten schatplichtig te achten aan Kierkegaard; ik acht dat te speculatief. Moderne digitale technologie opent potentieel grote mogelijkheden voor de toepassing van computers en artificiële intelligentie (AI) in de rechtspleging. Scholtens dialectiek stelt ons voor fundamentele rechtsfilosofische vragen ten aanzien van de mogelijkheid en wenselijkheid van ‘rechtspraak door computers’.

In dit artikel wordt langs wijsgerige weg de verhouding tussen tijd, identiteit en het verlenen van (sterkere) verblijfsaanspraken aan migranten onderzocht en verhelderd door een nieuwe betekenis van de term worteling voor te stellen. Want wat is worteling nu eigenlijk? Het is de relatie tussen menselijke tijd, worteling en het migratierecht die in dit artikel filosofisch wordt uitgediept. Dit om te verklaren waarom we in het migratierecht vreemdelingen in het algemeen na verloop van tijd sterkere aanspraken verlenen. In dit artikel wordt betoogd dat het verblijf van vreemdelingen op het grondgebied ervoor zorgt dat hun leven aldaar na verloop van tijd een vanzelfsprekend onderdeel uitmaakt van hun identiteit, en van het leven van anderen. Het is dit vanzelfsprekend worden van mensen door de tijd dat de grond is voor het bestaan van formele tijdscriteria voor insluiting in het migratierecht.

In this article, I discuss and analyse the Turkish case concerning judicial review of constitutional amendments in light of a recent decision by the Constitutional Court of Turkey (CCT). In the said decision, the CCT rejected carrying out judicial review over a controversial constitutional amendment, which lifted MPs’ parliamentary immunity. This decision urges to consider its implications for the possible future cases. I refer to comparative constitutional law with the hope to shed more light on the Turkish example and grasp it comprehensively. In this respect, I illustrate the most crucial arguments developed by the Supreme Court of India (SCI), the Bundesverfassungsgericht (BVG), and the Conseil Constitutionnel (FCC) in their case law. Based on the comparative account, I draw some lessons for the CCT and invite it to get into a judicial dialogue with other supreme/constitutional courts with regard to the issue.

Taking Lijphart’s work on consensus democracies as our point of departure, we signal a major shortcoming in Lijphart’s focus being almost exclusively on the political hardware of the state structure, leaving little attention for the administrative and bureaucratic characteristics of governance systems. We propose to expand the Lijphart’s model which overviews structural aspects of the executive and the state with seven additional features of the bureaucratic system. We argue that these features are critical for understanding the processes of policymaking and service delivery. Next, in order to better understand the functioning of the Netherlands and Belgium as consensus democracies, we provide a short analysis of the historical context and current characteristics of the political-administrative systems in both countries.

This article presents a perspective which focuses on the right to access information as a mean to ensure a non-discriminatory character of algorithms by providing an alternative to the right to explanation implemented in the General Data Protection Regulation (GDPR). I adopt the evidence-based assumption that automated decision-making technologies have an inherent discriminatory potential. The example of a regulatory means which to a certain extent addresses this problem is the approach based on privacy protection in regard to the right to explanation. The Articles 13-15 and 22 of the GDPR provide individual users with certain rights referring to the automated decision-making technologies. However, the right to explanation not only may have a very limited impact, but it also focuses on individuals thus overlooking potentially discriminated groups. Because of this, the article offers an alternative approach on the basis of the right to access information. It explores the possibility of using this right as a tool to receive information on the algorithms determining automated decision-making solutions. Tracking an evolution of the interpretation of Article 10 of the Convention for the Protection of Human Right and Fundamental Freedoms in the relevant case law aims to illustrate how the right to access information may become a collective-based approach towards the right to explanation. I consider both, the potential of this approach, such as its more collective character e.g. due to the unique role played by the media and NGOs in enforcing the right to access information, as well as its limitations.

In this paper I propose to analyse the binary notion of personal data and highlight its limits, in order to propose a different conception of personal data. From a risk regulation perspective, the binary notion of personal data is not particularly fit for purpose, considering that data collection and information flows are tremendously big and complex. As a result, the use of a binary system to determine the applicability of EU data protection law may be a simplistic approach. In an effort of bringing physics and law together, certain principles elaborated within the quantum theory are surprisingly applicable to data protection law, and can be used as guidance to shed light on many of today’s data complexities. Lastly, I will discuss the implications and the effects that certain processing operations may have on the possibility of qualifying certain data as personal. In other terms, how the chances to identify certain data as personal is dependent upon the processing operations that a data controller might put in place.