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Article

Access_open The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000: Proposals for Legislative Reform to Promote Equality through Schools and the Education System

Journal Erasmus Law Review, Issue 3 2020
Keywords Transformative pedagogy, equality legislation, promotion of equality, law reform, using law to change hearts and minds
Authors Anton Kok, Lwando Xaso, Annelize Steenekamp e.a.
AbstractAuthor's information

    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.


Anton Kok
Anton Kok is Professor of Jurisprudence at the Faculty of Law of the University of Pretoria.

Lwando Xaso
Lwando Xaso is an independent lawyer, writer and historian.

Annelize Steenekamp
Annelize Steenekamp is an independent lawyer.

Michelle Oelofse
Michelle Oelofse is an Academic associate and LLM candidate at the University of Pretoria.
Article

The Windrush Scandal

A Review of Citizenship, Belonging and Justice in the United Kingdom

Journal European Journal of Law Reform, Issue 3 2020
Keywords Windrush generation, statelessness, right to nationality, genocide, apologetic UK Human Rights Act Preamble
Authors Namitasha Goring, Beverley Beckford and Simone Bowman
AbstractAuthor's information

    This article points out that the UK Human Rights Act, 1998 does not have a clear provision guaranteeing a person’s right to a nationality. Instead, this right is buried in the European Court of Human Rights decisions of Smirnova v Russia, 2003 and Alpeyeva and Dzhalagoniya v. Russia, 2018. In these cases, the Court stretched the scope of Article 8 of the European Convention on Human Rights, 1953 on non-interference with private life by public authorities to extend to nationality. The humanitarian crisis arising from the Windrush Scandal was caused by the UK Government’s decision to destroy the Windrush Generation’s landing cards in the full knowledge that for many these slips of paper were the only evidence of their legitimate arrival in Britain between 1948 and 1971.
    The kindling for this debacle was the ‘hostile environment policy’, later the ‘compliant environment policy’ that operated to formally strip British citizens of their right to a nationality in flagrant violation of international and domestic law. This article argues that the Human Rights Act, 1998 must be amended to include a very clear provision that guarantees in the UK a person’s right to a nationality as a portal to a person’s inalienable right to life. This balances the wide discretion of the Secretary of State under Section 4 of the Nationality, Immigration and Asylum Act, 2002 to deprive a person of their right to a nationality if they are deemed to have done something seriously prejudicial to the interests of the UK.
    This article also strongly recommends that the Preamble to the UK Human Rights Act, 1998 as a de facto bill of rights, be amended to put into statutory language Independent Advisor Wendy Williams’ ‘unqualified apology’ recommendation in the Windrush Lessons Learned Report for the deaths, serious bodily and mental harm inflicted on the Windrush Generation. This type of statutory contrition is in line with those of countries that have carried out similar grievous institutional abuses and their pledge to prevent similar atrocities in the future. This article’s contribution to the scholarship on the Human Rights Act, 1998 is that the Windrush Generation Scandal, like African slavery and British colonization, has long-term intergenerational effects. As such, it is fundamentally important that there is a sharp, comprehensive and enforceable legal mechanism for safeguarding the rights and interests of citizens as well as settled migrants of ethnically non-British ancestry who are clearly vulnerable to bureaucratic impulses.


Namitasha Goring
Namitasha Goring, Law and Criminology Lecturer Haringey Sixth Form College, LLM, PhD.

Beverley Beckford
Beverly Beckford, Barrister (Unregistered) (LLM).

Simone Bowman
Simone Bowman, Barrister (LLM Candidate DeMontford University).
Article

Building Legislative Frameworks

Domestication of the Financial Action Task Force Recommendations

Journal European Journal of Law Reform, Issue 3 2020
Keywords domestication, legislative processes, functionality, efficacy
Authors Tshepo Mokgothu
AbstractAuthor's information

    As the international financial framework develops it has brought with it dynamic national legislative reforms. The article establishes how the domestication of the Financial Action Task Force (FATF) Recommendations directly affects national legislative processes as the FATF mandate does not have due regard to national legislative drafting processes when setting up obligations for domestication. The article tests the FATF Recommendations against conventional legislative drafting processes and identifies that, the proposed structures created by the FAFT do not conform to traditional legislative drafting processes. Due regard to functionality and efficacy is foregone for compliance. It presents the experience of three countries which have domesticated the FATF Recommendations and proves that the speed at which compliance is required leads to entropic legislative drafting practices which affects harmonisation of national legislation.


Tshepo Mokgothu
Tshepo Mokgothu, LLB (University of Botswana), LLM (University of Kent) is a recipient of the Joint Master in Parliamentary Procedures and Legislative Drafting and a Senior Legislative Drafter at The Attorney General’s Chambers in Botswana.

Tali Gal
Tali Gal is a Senior Lecturer and Head of School of Criminology at the University of Haifa, Israel. Contact author: tali.gal.04@gmail.com.
Article

Access_open The Obligation of Judges to Uphold Rules of Positive Law and Possibly Conflicting Ethical Values in Context

The Case of Criminalization of Homelessness in Hungary

Journal Netherlands Journal of Legal Philosophy, Issue 2 2020
Keywords Judicial independence, Rule of law, Judicial ethics, Hungary, Criminalization of homelessness
Authors Petra Gyöngyi
AbstractAuthor's information

    This article examines the tension between the constitutional obligation of judges to uphold rules of positive law and possibly conflicting standards of conduct arising from professional-ethical values. The theoretical analysis will be illustrated by the case of Hungary, an EU member state experiencing rule of law challenges since 2010 and where the 2018-2019 criminalization of homelessness exemplifies the studied tension. Inspired by the theories of Philip Selznick and Martin Krygier, rule of law will be viewed as a value that requires progressive realization and context-specific implementation. By contextualizing the relevant Hungarian constitutional framework with the content of the judicial code of ethics and judicial practice, it will be shown how the legitimate space for Hungarian judges to distance themselves from legislation possibly in conflict with rule of law values is reduced. Theoretical suggestions for addressing such rule of law regressions will be made.


Petra Gyöngyi
Petra Gyöngyi is postdoctoral fellow aan de University of Oslo.
Article

An Australian Aboriginal in-prison restorative justice process: a worldview explanation

Journal The International Journal of Restorative Justice, Issue 3 2020
Keywords Australian Aboriginal, prison, recidivism, worldview, restorative justice
Authors Jane Anderson
AbstractAuthor's information

    As a response to the over-representation of Australian Aboriginal offenders in Western Australian prisons and high rates of reoffending, this article presents a sketch of Western and Australian Aboriginal worldviews and core symbols as a basis for understanding the rehabilitative-restorative needs of this prisoner cohort. The work first reviews and argues that the Western-informed Risk-Need-Responsivity model of programming for Australian Aboriginal prisoners has limited value for preventing reoffending. An introduction and description are then given to an Aboriginal in-prison restorative justice process (AIPRJP) which is delivered in a regional Western Australian prison. The process is largely undergirded by an Australian Aboriginal worldview and directed to delivering a culturally constructive and corrective intervention. The AIPRJP uses a range of symbolic forms (i.e. ritual, myth, play, art, information), which are adapted to the prison context to bring about the aims of restorative justice. The article contends that culturally informed restorative justice processes can produce intermediate outcomes that can directly or indirectly be associated with reductions in reoffending.


Jane Anderson
Jane Anderson is Honorary Research Fellow, Anthropology and Sociology, Faculty of Arts, Humanities and Social Sciences, The University of Western Australia, Crawley, Australia. Contact author: jane.a@westnet.com.au; jane.anderson@uwa.edu.au.
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
Mariëlle Bruning is Professor of Child Law at Leiden Law Faculty, Leiden University.

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

Jo-Anne Wemmers
Jo-Anne Wemmers is a Full Professor at the School of Criminology, Université de Montréal (Canada) and Researcher at the International Centre for Comparative Criminology, Montréal, Canada.
Human Rights Literature Reviews

Hungary

Journal East European Yearbook on Human Rights, Issue 1 2019
Authors Alexandra Sipos PhD
Author's information

Alexandra Sipos PhD
PhD student, Doctoral School of Sociology, Faculty of Social Sciences at Eötvös Loránd University, Budapest, Hungary.

Christopher D. Marshall
Christopher Marshall is The Diana Unwin Chair in Restorative Justice, School of Government, Victoria University of Wellington, New Zealand.
Article

Access_open Autonomy in old age

Journal Family & Law, May 2019
Authors prof. dr. Tineke Abma and dr. Elena Bendien
AbstractAuthor's information

    Background: In many European countries caring responsibilities are being reallocated to the older people themselves to keep the welfare state affordable. This policy is often legitimized with reference to the ethical principle of autonomy. Older people are expected to be autonomous, have freedom to make their own decisions, and be self-reliant and self-sufficient as long as possible.
    Aim: The purpose of this article is to explore whether and how older people can remain autonomous in order to continue living their lives in accordance with their own values in the context of declining professional caring facilities and shrinking social networks, and which concepts of autonomy can guide professionals and other involved parties in facilitating the choices of older people.
    Method: An empirical-ethical approach is used to interpret the moral values enacted in the caring practice for older people. Two cases are presented. One is the narrative of a woman who lives by herself; she has been hospitalized after a fall and hip fracture, but does not want to be operatied. The second is the narrative of man living in a residential home; he wants to be actively involved, doing good deeds like he always did as a Scout. The cases are evaluated with the help of two concepts of autonomy: autonomy as self-determination and relational autonomy.
    Results: In both cases the enactment of autonomy remains problematic. In the case of the woman there was not enough care at home to live up to her own values. After she was admitted to a hospital her wish not to be operated was questioned but ultimately honoured due to compassionate interference by close relatives and her oncologist. In the second case there was not enough space for the man to lead his life in the way he always had; his plans for improving the social environment in the care home were torpedoed by management and ultimately the man decided to step back.
    Conclusion: In order to do justice to the complexity of each empirical case that involves autonomy of an older person more than one concept of autonomy needs to be applied. Relying on self-determination or relational autonomy exclusively will give professionals and all involved parties a restricted view on the situation, where the wishes of older people are at stake. In both cases autonomy was overruled by system procedures and stereotypical ideas about old people as being weak and not able to make their own decisions. Both cases show, however, that older people - even if they are physically and mentally frail - long to remain morally responsible for the direction their lives are taking, in accordance with their own values. They communicate their wish to determine their own future and at the same time they are interdependent on others to realize their (relational) autonomy and require support in their attempt to maintain their identity. This conclusion has implications for the normative behaviour of the professionals who are involved in care and treatment of older people.
    ---
    Achtergrond: In veel landen wordt de verantwoordelijkheid voor de zorg voor ouderen naar de ouderen zelf verplaatst, dit teneinde de welvaartstaat betaalbaar te houden. Dit beleid wordt veelal gelegitimeerd met referentie naar het ethische principe van autonomie. Oudere mensen worden geacht autonoom te zijn, vrij te zijn om hun eigen beslissingen te nemen, en om zo lang mogelijk zelfredzaam te blijven.
    Doel: Het doel van dit artikel is om te onderzoeken of en hoe oudere mensen autonoom kunnen blijven teneinde hun leven in overeenstemming met hun eigen waarden te kunnen voortzetten in de context van teruglopende professionele zorgactiviteiten en krimpende sociale netwerken, en welke concepten van autonomie zorgprofessionals en andere betrokken partijen kunnen helpen bij het faciliteren van de keuzes door ouderen.
    Methode: Een empirisch-ethische benadering wordt gebuikt om de morele waarden in de zorgpraktijk voor ouderen te interpreteren. Twee casussen worden gepresenteerd. De eerste is het verhaal van een vrouw die op zichzelf woont. Ze is na een val waarbij haar heup is gebroken, in een ziekenhuis opgenomen, maar ze wil niet geopereerd worden. De tweede is het verhaal van een man die in een verzorgingshuis woont. Hij wil actief betrokken worden en goede dingen doen zoals hij die altijd heeft gedaan toen hij padvinder was. Beide verhalen worden met behulp van twee concepten van autonomie geëvalueerd: autonomie als zelfbeschikking en relationele autonomie.
    Resultaat: In beide casussen blijft de verwezenlijking van autonomie problematisch. In het geval van de vrouw was er thuis onvoldoende zorg om volgens haar waarden te kunnen leven. Toen zij in het ziekenhuis was opgenomen werd haar wens om niet te worden geopereerd tegen gehouden, maar uiteindelijk ingewilligd als gevolg van bemoeienis uit hoofde van barmhartigheid door directe verwanten en haar oncoloog. In het tweede geval was er voor de man onvoldoende ruimte om zijn leven te leiden op de manier zoals hij dat altijd had gedaan. Zijn plannen om de sociale omgeving in het verzorgingshuis te verbeteren werden door het management getorpedeerd en uiteindelijk heeft hij zich ervan teruggetrokken.
    Conclusie: Teneinde recht te doen aan de complexiteit van beide casussen die betrekking hebben op de autonomie van een oudere, dient meer dan één concept voor autonomie te worden ingezet. Het vertrouwen in zelfbeschikking of relationele autonomie alleen zal aan de professionals en alle andere betrokken partijen een beperkt zicht geven van de situatie wanneer het de wensen van ouderen betreft. In beide gevallen werd de autonomie ter zijde geschoven door protocollen en stereotypische ideeën over ouderen als kwetsbare personen die niet in staat zouden zijn om zelf hun beslissingen te nemen. Echter tonen beide voorbeelden aan dat ouderen, zelfs als ze fysiek en mentaal kwetsbaar zijn, de wens hebben om moreel verantwoordelijk te blijven voor de richting die hun leven zal nemen, in overeenstemming met hun eigen waarden. Zij geven de wens aan om hun eigen toekomst te bepalen en tegelijkertijd zijn ze onderling afhankelijk van anderen om hun (relationele) autonomie te verwezenlijken, én hebben ze behoefte aan steun bij hun poging om hun identiteit te behouden. Deze conclusie heeft gevolgen voor het normatieve handelen van professionals die bij de zorg en behandeling van ouderen betrokken zijn.


prof. dr. Tineke Abma
Professor dr. Tineke A. Abma is a full professor of Participation and Diversity at the Department of Medical Humanities of Amsterdam UMC, location VUmc.

dr. Elena Bendien
Dr. Elena Bendien is a social gerontologist and a senior researcher at the Department of Medical Humanities of Amsterdam UMC, location VUmc.
Article

Judicial Review of Constitutional Amendments in Turkey

The Question of Unamendability

Journal European Journal of Law Reform, Issue 3 2019
Keywords judicial review of constitutional amendments, constitutional unamendability, judicial activism, competitive authoritarianism, abusive constitutionalism
Authors Ergun Özbudun
AbstractAuthor's information

    This article deals with the judicial review of constitutional amendments, which has been a hotly debated constitutional and political issue in Turkey, particularly with regard to the unamendable provisions of the constitution. Since its creation by the Constitution of 1961, the Turkish Constitutional Court has followed a markedly activist and tutelarist approach regarding this issue and annulled several constitutional amendments arguing that they violated the unamendable provisions of the Constitution. Recently, however, the Court adopted a self-restraining approach. This shift can be explained as part of the political regime’s drift towards competitive authoritarianism and the governing party’s (AKP) capturing almost total control over the entire judiciary.


Ergun Özbudun
Ergun Özbudun is Professor of Constitutional Law at İstanbul Şehir University. This is an enlarged and updated version of my article ‘Judicial Review of Constitutional Amendments in Turkey’, European Public Law, Vol. 15, No. 4, 2009, pp. 533-538.
Article

Transitional Constitutional Unamendability?

Journal European Journal of Law Reform, Issue 3 2019
Keywords transitional constitutionalism, constitutional unamendability, decline of constitutional democracy, constitution-making in Hungary, the Hungarian Constitutional Court
Authors Gábor Halmai
AbstractAuthor's information

    This article discusses the pros and cons for a suggestion to use unamendable provisions in transitional constitutions to protect the integrity and identity of constitutions drafted after a democratic transition. The presumption for such a suggestion could be that most democratic constitution-making processes are elite-driven exercises in countries with no or very little constitutional culture. The article tries to answer the question, whether in such situations unamendable constitutional provisions can help to entrench basic principles and values of constitutionalism with the help of constitutional courts reviewing amendments aimed at violating the core of constitutionalism. The article investigates the experiences of some backsliding constitutional democracies, especially Hungary, and raises the question, whether unamendable constitutional provision could have prevented the decline of constitutionalism.
    In order to discuss the issue of transitional unamendability, the article engages in the scholarly discussion on transitional constitutionalism in general, and deals with the relationship of constitutional law and constitutional culture. Another side topic of the article is whether such transitional unamendability provisions should also contain international or transnational values and principles, and what happens if those are not in conformity with the unamendable provisions that serve to build up a national constitutional identity. Again, the example of Hungary can be important here, how national constitutional identity protected by the Constitutional Court can serve to abandon the European constitutional whole.


Gábor Halmai
Gábor Halmai is Professor and Chair of Comparative Constitutional Law, European University Institute, Florence; email: gabor.halmai@eui.eu.
Article

Access_open Constitutional Norms for All Time?

General Entrenchment Clauses in the History of European Constitutionalism

Journal European Journal of Law Reform, Issue 3 2019
Keywords constitutional amendments, constitutional law, constitutional politics, constitutionalism, entrenchment clauses, eternity clauses
Authors Michael Hein
AbstractAuthor's information

    ‘General entrenchment clauses’ are constitutional provisions that make amendments to certain parts of a constitution either more difficult to achieve than ‘normal’ amendments or even impossible, i.e., legally inadmissible. This article examines the origins of these clauses during the American Revolution (1776-77), their migration to the ‘Old World’, and their dissemination and differentiation on the European continent from 1776 until the end of 2015. In particular, the article answers three questions: (1) When, and in which contexts, did general constitutional entrenchment clauses emerge? (2) How have they migrated to and disseminated in Europe? (3) Which constitutional subjects do such clauses protect, and thus, which main functions do they aim to fulfil?


Michael Hein
Adult Education Center Altenburger Land, Altenburg, Germany. Email: mail@michaelhein.de. All cited websites were visited on June 18, 2018. Unless stated otherwise, all references to constitutions in this article are taken from M. Hein, The Constitutional Entrenchment Clauses Dataset, Göttingen 2018, http://data.michaelhein.de. All translations are by the author.

Otmar Hagemann
Otmar Hagemann is professor of social work at Kiel University of Applied Sciences, Kiel, Germany.
Article

The attitudes of prisoners towards participation in restorative justice procedures

Journal The International Journal of Restorative Justice, Issue 1 2019
Keywords Restorative justice, prisons, incarceration, punishment
Authors Inbal Peleg-Koriat and Dana Weimann-Saks
AbstractAuthor's information

    Restorative justice can be implemented at different stages of criminal proceedings. In Israel, restorative justice processes are mainly used prior to sentencing, while there are no restorative programmes for adults following sentencing and while serving their prison sentences. The aim of the present study is to examine the possibility of implementing restorative processes within prison walls. To this end, the present study empirically investigates the level of readiness and willingness of prisoners (n = 110) from two large prisons in Israel to participate in restorative processes and examines the psychological mechanisms underlying their attitudes towards actual participation in these processes. The study proposes a model according to which the relationship between the cognitive component of attitude towards victims and the harm caused by the offence (beliefs and thoughts) and the behavioural component of attitude (the inclination to participate in restorative processes) is mediated by the affective component of attitude towards the offence (sense of guilt and shame). The findings of the study support the proposed model. The study also found that the more prisoners perceived the harm they caused as having more dimensions (physical, economic, emotional), the more positive their attitudes towards restorative justice would be. This study will advance research into restorative justice at a stage that has not previously been researched in Israel and has rarely been investigated elsewhere.


Inbal Peleg-Koriat
Inbal Peleg-Koriat, PhD, is a lawyer and conflict management and negotiation specialist, and a faculty member at the Yezreel Valley Academic College, Israel.

Dana Weimann-Saks
Dana Weimann-Saks, PhD, is a lawyer and a social psychologist, and also a faculty member at the Yezreel Valley Academic College.
Article

Judging Reformers and Reforming Judges

Journal European Journal of Law Reform, Issue 1 2019
Keywords law reform, common law, judges, United Kingdom Supreme Court, legal reasoning
Authors James Lee
AbstractAuthor's information

    This article examines the practice and limits of judicial law reform. In particular, I consider the question of when initiation of a reform is appropriate for the judiciary as opposed to the legislature, an issue which has been a matter of controversy amongst the Justices of the United Kingdom Supreme Court. This question is assessed in the light of the institutional and constitutional competences of the courts, particularly with respect to the structure of common law reasoning. It is also argued that it is important to have regard to perspectives of the relevant judges, in understanding the individual and collective approaches to the judicial development of the law.


James Lee
James Lee is Reader in English Law and PC Woo Research Fellow 2016-2017 at The Dickson Poon School of Law, King’s College London, and Associate Academic Fellow of the Honourable Society of the Inner Temple; Senior Visiting Fellow, Gilbert + Tobin Centre of Public Law, University of New South Wales; and Visiting Professor, Hong Kong University. I am grateful to Enrico Albanesi, Mark Lunney, Jonathan Teasdale and all those who attended the Law Reform Workshop at the Institute of Advanced Legal Studies in November 2017 and a Kirby Seminar at the School of Law at the University of New England at which drafts of this article were presented. I thank both PC Woo & Co and the Faculty of Law at UNSW for the generous support for the project of which this article forms part. All views, and any errors, are my own.
Article

Access_open The Enemy of All Humanity

Journal Netherlands Journal of Legal Philosophy, Issue 2 2018
Keywords hostis generis humani, piracy, crimes against humanity, universal jurisdiction, radical evil
Authors David Luban
AbstractAuthor's information

    Trationally, the term “enemy of all humanity” (hostis generis humani) referred to pirates. In contemporary international criminal law, it refers to perpetrators of crimes against humanity and other core. This essay traces the evolution of the concept, and then offers an analysis that ties it more closely to ancient tyrants than to pirates. Some object that the label is dehumanizing, and justifies arbitrary killing of the “enemy of humanity.” The essay admits the danger, but defends the concept if it is restricted to fair trials. Rather than dehumanizing its target, calling the hostis generis humani to account in a court of law is a way of recognizing that radical evil can be committed by humans no different from any of us.


David Luban
David Luban is University Professor in Law and Philosophy at Georgetown University.
Article

Access_open ‘A Continuous Process of Becoming’: The Relevance of Qualitative Research into the Storylines of Law

Journal Erasmus Law Review, Issue 2 2018
Keywords storylines of law, qualitative research, law in action, law in books
Authors Danielle Antoinette Marguerite Chevalier
AbstractAuthor's information

    The maxim ‘law in books and law in action’ relays an implicit dichotomy, and though the constitutive nature of law is nowadays commonly professed, the reflex remains to use law in books as an autonomous starting point. Law however, it is argued in this article, has a storyline that commences before its institutional formalisation. Law as ‘a continuous process of becoming’ encompasses both law in books and law in action, and law in action encompasses timelines both before and after the formal coming about of law. To fully understand law, it is necessary to understand the entire storyline of law. Qualitative studies in law and society are well equipped to offer valuable insights on the facets of law outside the books. The insights are not additional to doctrinal understanding, but part and parcel of it. To illustrate this, an ethnographic case study of local bylaws regulating an ethnically diverse public space of everyday life is expanded upon. The case study is used to demonstrate the insights qualitative data yields with regard to the dynamics in which law comes about, and how these dynamics continue for law in action after law has made the books. This particular case study moreover exemplifies how law is one of many truths in the context in which it operates, and how formalised law is reflective of the power constellations that have brought it forth.


Danielle Antoinette Marguerite Chevalier
Dr. mr. Danielle Antoinette Marguerite Chevalier, PhD, is assistant professor at Leiden University, The Netherlands.
Article

Introducing and theorising an in-prison restorative justice programme: the second-generation Sycamore Tree Project

Journal The International Journal of Restorative Justice, Issue 2 2018
Keywords Sycamore Tree Project, in-prison restorative justice programming, human condition, liminality, narrative
Authors Jane Anderson
AbstractAuthor's information

    This article introduces an in-prison restorative justice programme: the second-generation Sycamore Tree Project (STP-2). The programme brings together crime victims and unrelated offenders in a prison setting to discuss and address the harm of crime to their lives. In the first part of the article, description is given to how STP-2 has evolved in Australia from a ‘faith-based’ programme to one that is restorative. In the second part, three anthropological theories are used to provide explanation and prediction of the transformative effects of in-prison restorative justice programming on prisoners as informed by STP-2. The prisoner-participant is viewed as a ‘person’ who, in liminal conditions, is afforded agency to create a meaningful narrative that is directed to revising how one is to associate with others in morally acceptable ways. The article concludes with a comparison between STP-1 and STP-2, and some proposals for research beyond this theoretical excursion.


Jane Anderson
Jane Anderson is Honorary Research Fellow, Anthropology and Sociology, Faculty of Arts, Humanities and Social Sciences, The University of Western Australia, Crawley, Australia. Contact author: jane.anderson@uwa.edu.au.
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