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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 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.
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 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.

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.
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.
Article

Access_open Giving Children a Voice in Court?

Age Boundaries for Involvement of Children in Civil Proceedings and the Relevance of Neuropsychological Insights

Journal Erasmus Law Review, Issue 1 2020
Keywords age boundaries, right to be heard, child’s autonomy, civil proceedings, neuropsychology
Authors Mariëlle Bruning and Jiska Peper
AbstractAuthor's information

    In the last decade neuropsychological insights have gained influence with regard to age boundaries in legal procedures, however, in Dutch civil law no such influence can be distinguished. Recently, voices have been raised to improve children’s legal position in civil law: to reflect upon the minimum age limit of twelve years for children to be invited to be heard in court and the need for children to have a stronger procedural position.
    In this article, first the current legal position of children in Dutch law and practice will be analysed. Second, development of psychological constructs relevant for family law will be discussed in relation to underlying brain developmental processes and contextual effects. These constructs encompass cognitive capacity, autonomy, stress responsiveness and (peer) pressure.
    From the first part it becomes clear that in Dutch family law, there is a tortuous jungle of age limits, exceptions and limitations regarding children’s procedural rights. Until recently, the Dutch government has been reluctant to improve the child’s procedural position in family law. Over the last two years, however, there has been an inclination towards further reflecting on improvements to the child’s procedural rights, which, from a children’s rights perspective, is an important step forward. Relevant neuropsychological insights support improvements for a better realisation of the child’s right to be heard, such as hearing children younger than twelve years of age in civil court proceedings.


Mariëlle Bruning
Professor of Child Law at Leiden Law Faculty, Leiden University.

Jiska Peper
Assistant professor in the Developmental and Educational Psychology unit of the Institute of Psychology at Leiden University.
Article

Access_open Safeguarding the Dynamic Legal Position of Children: A Matter of Age Limits?

Reflections on the Fundamental Principles and Practical Application of Age Limits in Light of International Children’s Rights Law

Journal Erasmus Law Review, Issue 1 2020
Keywords age limits, dynamic legal position, children’s rights, maturity, evolving capacities
Authors Stephanie Rap, Eva Schmidt and Ton Liefaard
AbstractAuthor's information

    In this article a critical reflection upon age limits applied in the law is provided, in light of the tension that exists in international children’s rights law between the protection of children and the recognition of their evolving autonomy. The main research question that will be addressed is to what extent the use of (certain) age limits is justified under international children’s rights law. The complexity of applying open norms and theoretically underdeveloped concepts as laid down in the UN Convention on the Rights of the Child, related to the development and evolving capacities of children as rights holders, will be demonstrated. The UN Committee on the Rights of the Child struggles to provide comprehensive guidance to states regarding the manner in which the dynamic legal position of children should be applied in practice. The inconsistent application of age limits that govern the involvement of children in judicial procedures provides states leeway in granting children autonomy, potentially leading to the establishment of age limits based on inappropriate – practically, politically or ideologically motivated – grounds.


Stephanie Rap
Stephanie Rap is assistant professor in children’s rights at the Department of Child Law, Leiden Law School, the Netherlands.

Eva Schmidt
Eva Schmidt is PhD candidate at the Department of Child Law, Leiden Law School, the Netherlands.

Ton Liefaard
Ton Liefaard is Vice-Dean of Leiden Law School and holds the UNICEF Chair in Children’s Rights at Leiden University, Leiden Law School, the Netherlands.

Jacques Claessen
Jacques Claessen is Associate Professor of Criminal Law and Endowed Professor of Restorative Justice at the Faculty of Law of Maastricht University, The Netherlands.

    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.
    ---
    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."


Caranina Colpaert LLM
Caranina Colpaert is PhD researcher

    This article relies on the premise that to understand the significance of Open Access Repositories (OARs) it is necessary to know the context of the debate. Therefore, it is necessary to trace the historical development of the concept of copyright as a property right. The continued relevance of the rationales for copyright interests, both philosophical and pragmatic, will be assessed against the contemporary times of digital publishing. It follows then discussion about the rise of Open Access (OA) practice and its impact on conventional publishing methods. The present article argues about the proper equilibrium between self-interest and social good. In other words, there is a need to find a tool in order to balance individuals’ interests and common will. Therefore, there is examination of the concept of property that interrelates justice (Plato), private ownership (Aristotle), labour (Locke), growth of personality (Hegel) and a bundle of rights that constitute legal relations (Hohfeld). This examination sets the context for the argument.


Nikos Koutras
Postdoctoral Researcher, Faculty of Law, University of Antwerp.
Article

Restorative justice, anger, and the transformative energy of forgiveness

Journal The International Journal of Restorative Justice, Issue 3 2019
Keywords Restorative justice, ritual, anger, apology, forgiveness
Authors Meredith Rossner
AbstractAuthor's information

    Restorative justice has long been positioned as a justice mechanism that prioritises emotion and its expression. It is also unique in its ritual elements, such as the ritualized expression of anger and the symbolic exchange of apology and forgiveness. This paper draws on insights from research and practice in restorative justice and recent developments in criminology/legal theory and the philosophy of justice to suggest some ways that the broader criminal justice landscape can incorporate elements of successful restorative justice rituals into its practice. I argue that the unique elements of restorative justice- its ability to harness anger into a deliberative ritual for victims and offenders, its focus on symbolic reparations, and its ability to engender a form of forward-looking forgiveness that promotes civility- can provide a framework for rethinking how criminal justice institutions operate.


Meredith Rossner
Meredith Rossner will from 2020 be a Professor of Criminology, Centre for Social Research and Methods, Australian National University, Canberra, Australia. In 2019 she was an Associate Professor of Criminology at the London School of Economics and a visitor at the Center for Law and Public Affairs, Princeton University.
Article

Law Reform and the Executive

Journal European Journal of Law Reform, Issue 4 2019
Keywords law reform, parliamentary counsel, legislative drafting, Australia, Victoria
Authors Adam Bushby
AbstractAuthor's information

    This article comments on the process of law reform in Australia from the perspective of a legislative drafter. After a description of the Australian political and parliamentary system and a discussion of the role of the legislative drafter, a brief summary of the formal law reform processes in Australia is provided, including a discussion of how legislative drafting offices participate in the law reform process. Participation includes the drafting of Bills giving effect to law reform proposals based on drafting instructions approved by Cabinet, providing for the undertaking of statutory reviews, as well as the remaking of legislation. It is the role of the legislative drafter to assist the government by turning policy into legislation, so the focus here is on the practical implementation of law reform rather than the independence of law reform bodies.


Adam Bushby
Senior Parliamentary Counsel, Office of the Chief Parliamentary Counsel, Department of Premier and Cabinet, Victoria, Australia. This article reflects the opinions of the author only, and should not be taken as representing the stance of the Office of the Chief Parliamentary Counsel, Victoria, Australia. I would, of course, welcome any feedback from anyone with an interest in law reform.
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.
Article

The EU Approach to Consumer ODR

Journal International Journal of Online Dispute Resolution, Issue 2 2019
Keywords consumer alternative/online dispute resolution, European Union, ODR Regulation 524/2013, ADR Directive 2013/11, ODR platform
Authors Emma van Gelder
AbstractAuthor's information

    The EU internal market has undergone several developments in the past decades. One of the main developments is the inclusion of a digital dimension. One of the fields in which these developments are very evident is the consumer market. A further development of e-commerce is however hindered because there are no suitable redress mechanisms for consumers involved in low-value, high volume claims typically arising from e-commerce transactions. In response to the ills of existing redress mechanisms, an emerging trend of consumer alternative dispute resolution (ADR) and consumer online dispute resolution (ODR) schemes has been identified throughout the Member States (MS) aimed to offer consumers a swift, cheap and simple procedure through which they can enforce their rightsThis paper outlines the EU approach to Consumer ADR/ODR, gives some observations of the functioning of the legislation in practice and concludes with some thoughts for the future.


Emma van Gelder
PhD Candidate Erasmus University, Rotterdam.
Article

Readiness for Family and Online Dispute Resolution

Journal International Journal of Online Dispute Resolution, Issue 2 2019
Keywords online dispute resolution, family dispute resolution, domestic violence, ripeness and readiness, divorce
Authors Nussen Ainsworth, Lisa Zeleznikow and John Zeleznikow
AbstractAuthor's information

    The International Conflict Resolution Community has developed considerable theory and many case studies about ripeness and readiness for mediation. Readiness involves a readiness of the disputant to resolve the conflict, while ripeness indicates the time is appropriate to attempt a resolution. There is a sparse amount of theory about these issues in commercial and family dispute resolution (FDR). We discuss the practice of readiness for mediation, FDR and online dispute resolution and develop practices about when to mediate such disputes – especially when domestic violence has occurred.


Nussen Ainsworth
Nussen Ainsworth, Victoria University, Melbourne, Australia – nussen.ainsworth@vu.edu.au.

Lisa Zeleznikow
Lisa Zeleznikow, Jewish Mediation Centre, Melbourne, Australia – lisa@jmc.org.au.

John Zeleznikow
John Zeleznikow, Victoria University, Melbourne, Australia – john.zeleznikow@vu.edu.au.
Article

The International Trading System and Market Distortions

Revisiting the Need for Competition Rules within the WTO

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Keywords cross-border business activities, developing countries, multilateral competition rules, trade and competition, WTO
Authors Franziska Sucker
AbstractAuthor's information

    As a result of the interconnectedness of the global economy, cross-border activities of economic operators are soaring. Their business practices are not governed by multilateral rules, but merely, if at all, by regional or national laws. As a result, they are potentially subject to over- or under-enforcement and -regulation or to conflicting rules. The resultant legal uncertainties and, therefore, potential lack of discipline for practices facilitates the development of dominant positions and anticompetitive behavior. This advances market distortions to the detriment of diverse offerings and the competitiveness of small market players, especially in economically weak developed countries. Such unfavorable developments could be reduced by preventing market concentration and disciplining anticompetitive behavior. I argue that multilateral rules alone would ensure that cross-border activities of economic operators are subject to uniform rules, irrespective of which country’s or region’s market is affected; and thus, provide legal certainty for current gaps. Moreover, in spite of the resistance of numerous countries to include competition disciplines within the World Trade Organization (WTO), rules aimed at dismantling barriers to trade created by private economic operators are not only theoretically desirable but indispensable in the long term to avoid an erosion of the WTO system by effectively replacing state-created barriers. The increasing role of supply chains and the rising volatility of international commodity prices should give all, albeit particularly the economically weak developed countries, reason to pause and revisit an issue that has significant implications for the competitiveness of their economic operators.


Franziska Sucker
Associate professor, University of the Witwatersrand, Johannesburg.
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