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Article

Access_open Introduction to the Symposium on a Way Forward

Academic and Practitioner Perspectives on the ILC Draft Articles on Prevention and Punishment of Crimes Against Humanity as adopted on Second Reading

Journal African Journal of International Criminal Justice, Issue 2 2020
Authors Charles C. Jalloh and Leila N. Sadat
Author's information

Charles C. Jalloh
Charles C. Jalloh is Professor of Law, Florida International University and Member and Chair of the Drafting Committee (seventieth session) and Rapporteur (seventy-first session), International Law Commission. Email: jallohc@gmail.com.

Leila N. Sadat
Leila N. Sadat is James Carr Professor of International Criminal Law and Director, Whitney R. Harris World Law Institute, Washington University School of Law.
Article

The Case Between Urgenda and the State of the Netherlands

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords climate change, public interest litigation, human rights, ECHR, Netherlands
Authors Otto Spijkers
AbstractAuthor's information

    The Supreme Court of the Netherlands held that the Netherlands’ Government must ensure that, by the end of 2020, greenhouse gas emission levels from the Netherlands are at least a quarter below 1990 levels, otherwise the rights to life and wellbeing, as guaranteed under Articles 2 and 8 ECHR respectively, of the people in the Netherlands are breached. In doing so, the Supreme Court affirmed the reasoning and ruling of the Appeals Court, and distanced itself from the reasoning of the District Court, which was primarily based on domestic tort law.


Otto Spijkers
Otto Spijkers: professor of law, China Institute of Boundary and Ocean Studies (CIBOS) of Wuhan University.
Conference Reports

Anniversary Conference on the Occasion of the 80th Birthday of János Bruhács

Report on the ‘Anniversary Conference on the Occasion of the 80th Birthday of János Bruhács’ Organized by University of Pécs, 4 October 2019, Pécs

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords conference report, János Bruhács, humanitarian law, environmental law, fragmentation
Authors Ágoston Mohay and István Szijártó
AbstractAuthor's information

    On 4 October 2019, the Department of International and European Law at University of Pécs, Faculty of Law organized an anniversary conference to celebrate the 80th birthday of professor emeritus János Bruhács. The conference held in Pécs brought together speakers representing universities and research institutions from all over Hungary. The four sections of the conference dealt with topics ranging from international humanitarian law to international environmental law and the question of fragmentation of the international legal order. The organizers sought to address issues, which represented important fields of research in the works of Professor Bruhács.


Ágoston Mohay
Ágoston Mohay: associate professor of law, University of Pécs.

István Szijártó
István Szijártó: law student, University of Pécs.
Article

Between Party Democracy and Citizen Democracy

Explaining Attitudes of Flemish Local Chairs Towards Democratic Innovations

Journal Politics of the Low Countries, Issue 2 2020
Keywords democratic innovations, citizen participation, local politics, Flanders, Belgium
Authors Didier Caluwaerts, Anna Kern, Min Reuchamps e.a.
AbstractAuthor's information

    As a response to the perceived legitimacy crisis that threatens modern democracies, local government has increasingly become a laboratory for democratic renewal and citizen participation. This article studies whether and why local party chairs support democratic innovations fostering more citizen participation. More specifically, we analyse the relative weight of ideas, interests and institutions in explaining their support for citizen-centred democracy. Based on the Belgian Local Chairs Survey in 2018 (albeit restricting our analysis to Flanders), the central finding is that ideas matter more than interests and institutions. Ideology is alive and kicking with regard to democratic innovation, with socialist and ecologist parties and populist parties being most supportive of participatory arrangements. By contrast, interests and institutions play, at this stage, a minor role in explaining support for participatory innovations.


Didier Caluwaerts
Didier Caluwaerts is Assistant Professor of Political Science at the Vrije Universiteit Brussel. His research and teaching deal with Belgian and comparative politics and democratic governance in deeply divided societies. His work has been published in various journals, including European Political Science Review, West European Politics, the Journal of Legislative Studies and Acta Politica.

Anna Kern
Anna Kern is Assistant Professor at research group GASPAR at the Department of Political Science of Ghent University. Her main research interests include political participation, political equality and political legitimacy. Her work has been published in international peer-reviewed journals such as West European Politics, Local Government Studies, Social Science Research and Political Behavior.

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

Tony Valcke
Tony Valcke is Associate Professor at the Faculty of Political and Social Sciences of Ghent University. He is a member of the Centre for Local Politics (CLP) and coordinator of the Teacher Training Department. His research, publications and educational activities focus on elections and democratic participation/innovation, citizenship (education), (the history of) political institutions and (local) government reform, political elites and leadership.
Title

Parliamentary Follow-up of Law Commission Bills

An Irish Perspective

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

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


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

Access_open Is the CJEU Discriminating in Age Discrimination Cases?

Journal Erasmus Law Review, Issue 1 2020
Keywords age discrimination, old people, young people, complete life view, fair innings argument
Authors Beryl ter Haar
AbstractAuthor's information

    Claims have been made that the Court of Justice of the European Union (CJEU) is more lenient in accepting age discriminating measures affecting older people than in those affecting younger people. This claim is scrutinised in this article, first, by making a quantitative analysis of the outcomes of the CJEU’s case law on age discrimination cases, followed by a qualitative analysis of the line of reasoning of the CJEU in these cases and concluding with an evaluation of the Court’s reasoning against three theoretical approaches that set the context for the assessment of the justifications of age discrimination: complete life view, fair innings argument and typical anti-discrimination approach. The analysis shows that the CJEU relies more on the complete life view approach to assess measures discriminating old people and the fair innings argument approach to assess measures discriminating young people. This results in old people often having to accept disadvantageous measures and young workers often being treated more favourably.


Beryl ter Haar
Beryl ter Haar is assistant professor and academic coordinator of the Advanced LL.M. Global and European Labour Law at Leiden University and visiting professor at the University of Warsaw.
Article

Access_open The Relationship between Empirical Legal Studies and Doctrinal Legal Research

Journal Erasmus Law Review, Issue 2 2020
Keywords empirical legal studies, legal research methods, doctrinal legal research, new legal realism, critical legal studies, law and policy
Authors Gareth Davies
AbstractAuthor's information

    This article considers how empirical legal studies (ELS) and doctrinal legal research (DLR) interact. Rather than seeing them as competitors that are methodologically independent and static, it suggests that they are interdependent activities, which may each be changed by interaction with the other, and that this change brings both opportunities and threats. For ELS, the article argues that DLR should properly be understood as part of its theoretical framework, yet in practice little attention is given to doctrine in empirical work. Paying more attention to DLR and legal frames generally would help ELS meet the common criticism that it is under-theorised and excessively policy oriented. On the other hand, an embrace of legal thinking, particularly of critical legal thinking, might lead to loss of status for ELS in policy circles and mainstream social science. For DLR, ELS offers a chance for it to escape the threat of insular sterility and irrelevance and to participate in a founded commentary on the world. The risk, however, is that in tailoring legal analysis to what can be empirically researched legal scholars become less analytically ambitious and more safe, and their traditionally important role as a source of socially relevant critique is weakened. Inevitably, in offering different ways of moving to normative conclusions about the law, ELS and DLR pose challenges to each other, and meeting those challenges will require sometimes uncomfortable self-reflection.


Gareth Davies
Gareth Davies is Professor of European Law at the Faculty of Law of the Vrije Universiteit Amsterdam.
Article

Exploring amenability of a restorative justice approach to address sexual offences

Journal The International Journal of Restorative Justice, Issue 2 2020
Keywords Restorative justice, sexual abuse, victim-survivor, justice attitudes, gender
Authors Angela Hovey, BJ Rye and Courtney McCarney
AbstractAuthor's information

    This study aimed to explore current attitudes regarding the amenability of a restorative justice approach to addressing harms caused by sexual offences. A web-based survey of a university student sample included a specific narrative response question assessing empathetic responses to stepfather-teen sexual abuse scenarios. Many (78 per cent) participants endorsed a restorative justice approach, a substantial minority (19 per cent) of whom endorsed restorative justice while stipulating retributive justice conditions. Only 22 per cent completely rejected a restorative justice approach. The overarching theme was the dichotomous opinion of restorative justice as either a sufficient (e.g. best option, rehabilitative value) or insufficient (e.g. not enough punishment) response to addressing sexual offences. There was an overall self-reflective openness and willingness to consider a restorative justice approach to address sexual offences.


Angela Hovey
Angela Hovey, PhD, RSW, is an associate professor at the School of Social Work, Lakehead University, Orillia, Canada.

BJ Rye
BJ Rye, PhD, is an associate professor at the Departments of Psychology and Sexuality, Marriage, and Family Studies, St Jerome's University at the University of Waterloo, Waterloo, Canada.

Courtney McCarney
Courtney McCarney, MSW, RSW is a graduate of the School of Social Work, Lakehead University, Orillia, Canada. Contact author: Angela Hovey at ahovey@lakeheadu.ca

    On 3 October 2019, in case C-274/18 (Schuch-Ghannadan), the ECJ held that a national regulation, which provides for different maximum total durations of successive fixed-term employment contracts for part-time workers on the one hand and full-time workers on the other, could result in a discrimination of part-time workers and an indirect discrimination of women.


Ines Kager
Mag. Ines Kager is teaching and research assistant at WU Vienna University of Economics and Business.
Article

The strategic use of terminology in restorative justice for persons harmed by sexual violence

Journal The International Journal of Restorative Justice, Issue 2 2020
Keywords Restorative justice, sexual violence, victim, survivor, feminism
Authors Shirley Jülich, Julienne Molineaux and Malcolm David Green
AbstractAuthor's information

    An argument for the importance of strategically selected terminology in the practice of restorative justice in sexual violence cases is presented through reviews of restorative justice, communication, social constructivist and feminist literature. The significance of language and its impact on those who use it and hear it is established from its use in classical antiquity, psychotherapy and semantics. The use of the terms ‘victim’ and ‘survivor’ is explored in the fields of legal definitions and feminist theory. Reports in the existing restorative justice literature are used to bring together the literature on the impact of the use of terminology and the legal and feminist understandings of the significance of the use of the terms ‘victim’ and ‘survivor’. We argue that the restorative justice practitioner has a crucial role in guiding the person harmed in sexual violence cases in the strategic use of ‘victim’ and ‘survivor’ to enhance the positive impact of terminology on the persons harmed in acts of sexual violence. Conclusions from our explorations support the creation of a proposed sexual violence restorative justice situational map for use as a navigational aid in restorative justice practice in sexual violence cases.


Shirley Jülich
Shirley Jülich is Senior Lecturer at the School of Social Work at the Massey University, New Zealand.

Julienne Molineaux
Julienne Molineaux is Senior Research Officer at the School of Social Sciences, Auckland University of Technology, New Zealand.

Malcolm David Green
Malcolm David Green is Assistant Lecturer at the School of Communication, Journalism, and Marketing at Massey University, New Zealand. Contact author: m.d.green@massey.ac.nz.

Kathleen Daly
Kathleen Daly is Professor in the School of Criminology and Criminal Justice, Griffith University, Brisbane, Australia.

Aleksandar Marsavelski
Aleksandar Marsavelski is an Assistant Professor at the Faculty of Law, University of Zagreb, Croatia.

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

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

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

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


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

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

Gender and Language

A Public Law Perspective

Journal European Journal of Law Reform, Issue 1 2020
Keywords gender language, drafting, language, coercion, linguistic policies
Authors Maria De Benedetto
AbstractAuthor's information

    The article adopts a public law perspective in order to focus on Gender-Fair Language (GFL) policies and drafting, by considering both language neutralization and language differentiation in some legal systems characterized by different languages.
    The article argues that the real problem is whether it is possible to coerce legislative and administrative language as a tool for policies. In fact, coercion of language produces administrative costs and side effects on freedoms (such as freedom of speech and freedom to teach); controls and sanctions are needed for enforcement; but, overall, language (as an institution) is not a proper object of regulation.


Maria De Benedetto
Full Professor, Roma Tre University, Roma, Italy.
Article

A Linguistic Insight into the Legislative Drafting of English-Speaking Jurisdictions

The Use of ‘Singular They’

Journal European Journal of Law Reform, Issue 1 2020
Keywords gender neutrality, ‘singular they’, linguistic insight, legislative drafting, English-language jurisdictions
Authors Giulia Adriana Pennisi
AbstractAuthor's information

    Gender specificity in legislation started being questioned in the late 20th century, and the need to reform the way in which laws have been written for more than one-hundred years has been particularly evident in English-language jurisdictions. In the 1990s and 2000s, the adoption of a plain English style forced legislative drafters to avoid sentences of undue length, superfluous definitions, repeated words and gender specificity with the aim of achieving clarity and minimizing ambiguity.
    Experts in the legal field have suggested reorganizing sentences, avoiding male pronouns, repeating the noun in place of the pronoun, replacing a nominalization with a verb form, resorting to ‘the singular they’. This article gives a linguistic insight into the use of ‘singular they’ in English, beginning with a historical background and going on to assess the impact of its use in the primary legislation issued in a selection of English-language jurisdictions (Australia, Canada, New Zealand, the UK, the US) in the last decade (2008-2018). Given the environment of legislative drafting techniques, where considerable reliance on precedent is inevitable, proposals to change legislative language may produce interesting results in different jurisdictions.


Giulia Adriana Pennisi
Associate Professor (field of research, English Language and Translation) at the University of Palermo, Department of Political Science and International Relations; Associate Research Fellow at the Institute of Advanced Legal Studies, Sir William Dale Centre, University of London.
Article

Language and Gender

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

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

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


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

The New Regulation Governing AIR, VIR and Consultation

A Further Step Forward Towards ‘Better Regulation’ in Italy

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

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


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

Smart Legal Contracts

A Shift in Conflict Prevention and Dispute Resolution

Journal International Journal of Online Dispute Resolution, Issue 2 2019
Keywords smart contracts, blockchain, contracts, conflict prevention, ODR
Authors Aura Esther Vilalta Nicuesa
AbstractAuthor's information

    This article is aimed at clarifying the legal implications of blockchain when applied to contracts and the impact of smart contracts in conflict prevention and dispute resolution.


Aura Esther Vilalta Nicuesa
Chair in Civil Law at the Universitat Oberta de Catalunya.
Article

Where Have All the Lawyers Gone?

The Empty Chair at the ODR Justice Table

Journal International Journal of Online Dispute Resolution, Issue 2 2019
Keywords legal profession ODR, system design, courts, legal practice
Authors Noam Ebner and Elayne E. Greenberg
AbstractAuthor's information

    We are currently witnessing a revolution in access to justice and a parallel revolution in justice delivery, design and experience. As dispute resolution design scholars tell us, the implementation of any new dispute intervention plan in a system should involve all of its stakeholders from the beginning. In our justice system there are three primary stakeholders, who have been traditionally involved in processes of innovation and change: the courts, the parties and the lawyers. Courts and parties have been involved in the development of online dispute resolution (ODR). However, one significant justice stakeholder, the legal profession, has been relatively absent from the table thus far – whether by lack of awareness, by lack of will or innovative spirit or by lack of invitation: lawyers.


Noam Ebner
Noam Ebner is Professor of Negotiation and Conflict Resolution, Creighton University.

Elayne E. Greenberg
Elayne E. Greenberg is Assistant Dean for Dispute Resolution Programs, Professor of Legal Practice and Director of Hugh H. Carey Center for Dispute Resolution.
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