Search result: 160 articles

x
Article

Retribution, restoration and the public dimension of serious wrongs

Journal The International Journal of Restorative Justice, Issue Online First 2022
Keywords public wrongs, R.A. Duff, agent-relative values, criminalisation, punishment
Authors Theo van Willigenburg
AbstractAuthor's information

    Restorative justice has been criticised for not adequately giving serious consideration to the ‘public’ character of crimes. By bringing the ownership of the conflict involved in crime back to the victim and thus ‘privatising’ the conflict, restorative justice would overlook the need for crimes to be treated as public matters that concern all citizens, because crimes violate public values, i.e., values that are the foundation of a political community. Against this I argue that serious wrongs, like murder or rape, are violations of agent-neutral values that are fundamental to our humanity. By criminalising such serious wrongs we show that we take such violations seriously and that we stand in solidarity with victims, not in their capacity as compatriots but as fellow human beings. Such solidarity is better expressed by organising restorative procedures that serve the victim’s interest than by insisting on the kind of public condemnation and penal hardship that retributivists deem necessary ‘because the public has been wronged’. The public nature of crimes depends not on the alleged public character of the violated values but on the fact that crimes are serious wrongs that provoke a (necessarily reticent) response from government officials such as police, judges and official mediators.


Theo van Willigenburg
Theo van Willigenburg is Research Fellow at the Vrije Universiteit Amsterdam Faculteit Religie en Theologie, Amsterdam, the Netherlands. Corresponding author: Theo van Willigenburg, t.van.willigenburg@vu.nl.
Article

Access_open Dividing the Beds: A Risk Community under ‘Code Black’?

Journal Netherlands Journal of Legal Philosophy, Issue 2 2021
Keywords Cosmopolitan solidarity, COVID-19, Health care regulation, Risk society, Argumentative discourse analysis
Authors Tobias Arnoldussen
AbstractAuthor's information

    During the COVID-19 crisis a risk of ‘code black’ emerged in the Netherlands. Doctors mentioned that in case of code black, very senior citizens might not receive intensive care treatment for COVID-19 due to shortages. Sociologist Ulrich Beck argued that palpable risks lead to the creation of new networks of solidarity. In this article this assumption is investigated by analyzing the different storylines prevalent in the public discussion about ‘code black’. Initially, storylines showing sympathy with the plight of the elderly came to the fore. However, storylines brought forward by medical organizations eventually dominated, giving them the opportunity to determine health care policy to a large extent. Their sway over policymaking led to a distribution scheme of vaccines that was favourable for medical personnel, but unfavourable for the elderly. The discursive process on code black taken as a whole displayed a struggle over favourable risk positions, instead of the formation of risk solidarity.


Tobias Arnoldussen
Tobias Arnoldussen is Assistant Professor of Jurisprudence at Tilburg Law School.
Article

Access_open Suffering from Vulnerability

On the Relation Between Law, Contingency and Solidarity

Journal Netherlands Journal of Legal Philosophy, Issue 2 2021
Keywords Vulnerability, Contingency, Freedom and Anxiety, Solidarity, Legal concept of inclusion
Authors Benno Zabel
AbstractAuthor's information

    The COVID-19 crisis has produced or amplified disruptive processes in societies. This article wants to argue for the fact that we understand the meaning of the COVID-19 crisis only if we relate it to the fundamental vulnerability of modern life and the awareness of vulnerability of whole societies. Vulnerability in modernity are expressions of a reality of freedom that is to some extent considered contingent and therefore unsecured. It is true that law is understood today as the protective power of freedom. The thesis of the article, however, boils down to the fact that the COVID-19 crisis has resulted in a new way of thinking about the protection of freedom. This also means that the principle of solidarity must be assigned a new social role. Individual and societal vulnerability refer thereafter to an interconnectedness, dependency, and a future perspective of freedom margins that, in addition to the moral one, can also indicate a need for legal protection. In this respect, law has not only a function of delimitation, but also one of inclusion.


Benno Zabel
Benno Zabel is Professor of Criminal Law and Philosophy of Law at the University of Bonn.
Case Notes

The Constitutional Court of Hungary on the Borderlines of Blasphemy

A Note on Two Recent Cases

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords blasphemy, freedom of speech, protection of dignity, protection of religion, Hungary
Authors Balázs Schanda
AbstractAuthor's information

    Blasphemy used to be a criminal offence in traditional legal systems. Although offending the transcendent is not criminalized in most Western legal systems, free speech must respect the dignity of others. Religious conviction constitutes an inherent part of dignity. The protection against hate speech offending the dignity of members i.e. of religious communities may include criminal sanctions in extreme cases. The new Civil Code of Hungary (2013) enables the bringing of a civil lawsuit for hate speech. After years of litigation the first two cases where litigants claimed their dignity violated by offensive images have reached the Constitutional Court. The Constitutional Court guaranteed protection of religious identity on the one hand, on the other hand, it upheld the freedom of political speech even when using a religious symbol. Degrading religion offends all members of the religious community, criticism of the religiosity of public actors, however, is protected by the freedom of speech.


Balázs Schanda
Balázs Schanda: professor of law, Pázmány Péter Catholic University, Budapest; justice, Constitutional Court of Hungary, Budapest.
Developments in International Law

Is the World Ready to Overcome the Thesis of the Clash of Civilizations?

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords clash of civilizations, end of history, tragedy of great power politics, dignity of difference, clash of ignorance
Authors István Lakatos
AbstractAuthor's information

    The article provides a critical overview of the Clash of Civilizations theory by Samuel Huntington, but in this context it also addresses two other important books also aimed at finding the correct answers to the new challenges of the post-Cold War era; Huntington’s work was also an answer to their thesis. They are Francis Fukuyama’s The End of History and the Last Man, and John Mearsheimer’s The Tragedy of Great Power Politics. I argue that neither the Clash of Civilizations nor the End of History theses correctly captures the complexity of our contemporary social and political life, as they are both based on the assumption of the superiority of the West and the inferiority of the Rest.


István Lakatos
István Lakatos: career diplomat, former human rights ambassador of the Ministry of Foreign Affairs and Trade (MFAT) of Hungary, currently senior adviser at the Ministry of Justice, Human and Minority Rights of Montenegro.
Public Health Emergency: National, European and International Law Responses

Defining the Common European Way of Life

Exploring the Concept of Europeanness

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords European identity, Common European Way of Life, coronavirus, European citizenship, Hungary, enlargement policy, Europeanness
Authors Lilla Nóra Kiss and Orsolya Johanna Sziebig
AbstractAuthor's information

    The article focuses on the interpretation of the European Way of Life and the concept of Europeanness. Ursula von der Leyen determined the Promotion of the European Way of Life as a priority of the 2019-2024 Commission. The purpose behind this was to strengthen European democracy and place the citizens into the center of decision-making. The article examines the role of European identity, European citizenship and those historical-traditional conditions that make our way of life ‘common’. The Common European Way of Life may be defined as a value system based on the established legal basis of EU citizenship that can be grasped in the pursuit of common principles and the exercise of rights guaranteed to all EU citizens, limited only under exceptional circumstances and ensuring socio-economic convergence. The article covers general conceptual issues but also focuses on the extraordinary impact of the COVID-19. Lastly, the relevant aspects of enlargement policy are also explored.


Lilla Nóra Kiss
Lilla Nóra Kiss: Visiting Scholar at Antonin Scalia Law School, George Mason University, Virginia, US.

Orsolya Johanna Sziebig
Orsolya Johanna Sziebig: senior lecturer, University of Szeged.
Developments in International Law

The Evolution of Content-Related Offences and Their Investigation During the First 20 Years of the Cybercrime Convention

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords cybercrime, content-related offence, cyberbullying, privacy, wiretapping
Authors Kinga Sorbán
AbstractAuthor's information

    The Convention on Cybercrime otherwise known as the Budapest Convention was a complex, pioneering instrument addressing cross-border computer crimes in the wake of the 21st century. As the first international treaty aiming to tackle new threats emerging from the cyberspace, the Convention signed in 2001 certainly influenced national regulators and law enforcement over many years. Two decades have passed since 2001 and the Internet era has undergone previously unpredictable changes, as web 2.0 services started to thrive. Even though the Convention can be considered a landmark in international legislation, after 20 years one must eventually assess how well it stood the test of time and whether it still has relevance. This article has no smaller goal but to evaluate the evolution of content-related cybercrimes and try to the question whether the Convention is still fit to tackle contemporary issues or rather, is outdated and ready to retire.


Kinga Sorbán
Kinga Sorbán: junior research fellow, National University of Public Service, Budapest.

    The Employment Appeal Tribunal (EAT) has ruled that ‘gender critical’ beliefs are protected philosophical beliefs for equality law purposes, while confirming that a belief in ‘gender identity’ is also a protected characteristic. This means that it is unlawful to discriminate against someone because they do or do not hold either of those beliefs.


Bethan Carney
Bethan Carney is a Managing Practice Development Lawyer, Lewis Silkin LLP.
Annual lecture

Access_open Transforming restorative justice

Journal The International Journal of Restorative Justice, Issue 3 2021
Keywords relational theory, transformative justice, systemic injustice
Authors Jennifer J. Llewellyn
AbstractAuthor's information

    From the global pandemic to the Black Lives Matter, the Me Too/Times Up and Indigenous reconciliation and decolonisation movements, the systemic and structural failures of current social institutions around the world have all been brought to our collective consciousness in poignant, painful and urgent ways. The need for fundamental social and systemic transformation is clear. This challenge is central to the work of dealing with the past in countries undergoing transition and in established democracies confronting deep structural inequalities and injustices. Rooted in lessons from the application of restorative justice across these contexts, this article suggests that grounding restorative justice as a relational theory of justice is key to understanding and realising the potential of a restorative approach for transformation. It also explores the implications of this transformative imperative for the growth and development of restorative justice


Jennifer J. Llewellyn
Jennifer Llewellyn is Professor and Chair in Restorative Justice at the Schulich School of Law, Dalhousie University, Nova Scotia, Canada, and Director of the Restorative Research, Innovation and Education Lab. www.restorativelab.ca. Contact author: Jennifer.Llewellyn@Dal.Ca.
Article

Access_open Big Data Ethics: A Life Cycle Perspective

Journal Erasmus Law Review, Issue 1 2021
Keywords big data, big data analysis, data life cycle, ethics, AI
Authors Simon Vydra, Andrei Poama, Sarah Giest e.a.
AbstractAuthor's information

    The adoption of big data analysis in the legal domain is a recent but growing trend that highlights ethical concerns not just with big data analysis, as such, but also with its deployment in the legal domain. This article systematically analyses five big data use cases from the legal domain utilising a pluralistic and pragmatic mode of ethical reasoning. In each case we analyse what happens with data from its creation to its eventual archival or deletion, for which we utilise the concept of ‘data life cycle’. Despite the exploratory nature of this article and some limitations of our approach, the systematic summary we deliver depicts the five cases in detail, reinforces the idea that ethically significant issues exist across the entire big data life cycle, and facilitates understanding of how various ethical considerations interact with one another throughout the big data life cycle. Furthermore, owing to its pragmatic and pluralist nature, the approach is potentially useful for practitioners aiming to interrogate big data use cases.


Simon Vydra
Simon Vydra is a Researcher at the Institute for Public Administration, Leiden University, the Netherlands.

Andrei Poama
Andrei Poama is Assistant Professor at the Institute for Public Administration, Leiden University, the Netherlands.

Sarah Giest
Sarah Giest is Assistant Professor at the Institute for Public Administration, Leiden University, the Netherlands.

Alex Ingrams
Alex Ingrams is Assistant Professor at the Institute for Public Administration, Leiden University, the Netherlands.

Bram Klievink
Bram Klievink is Professor of Digitization and Public Policy at the Institute for Public Administration, Leiden University, the Netherlands.

Albert Dzur
Albert Dzur is Distinguished Research Professor, Departments of Political Science and Philosophy, Bowling Green State University, USA. Contact author: awdzur@bgsu.edu.

Claudia Mazzucato
Claudia Mazzucato is Associate Professor of Criminal Law at Università Cattolica del Sacro Cuore, Milan, Italy. Contact author: claudia.mazzucato@unicatt.it.
Case Law

Access_open 2021/1 EELC’s review of the year 2020

Journal European Employment Law Cases, Issue 1 2021
Authors Ruben Houweling, Daiva Petrylaitė, Marianne Hrdlicka e.a.
Abstract

    Various of our academic board analysed employment law cases from last year. However, first, we start with some general remarks.


Ruben Houweling

Daiva Petrylaitė

Marianne Hrdlicka

Attila Kun

Luca Calcaterra

Francesca Maffei

Jean-Philippe Lhernould

Niklas Bruun

Jan-Pieter Vos

Luca Ratti

Andrej Poruban

Anthony Kerr

Filip Dorssemont
Article

Access_open Bits and Bytes and Apps – Oh My!

Scary Things in the ODR Forest

Journal International Journal of Online Dispute Resolution, Issue 1 2021
Keywords access to justice, digital divide, Artificial Intelligence, algorithms, Online Dispute Resolution
Authors Daniel Rainey and Larry Bridgesmith
AbstractAuthor's information

    This article addresses three issues related to online dispute resolution (ODR) that offer promise, and may carry risks for those who develop, provide, and use technology to address disputes and confects. The authors offer some principles to guide the use of technology, and some predictions about the future of ODR.


Daniel Rainey
A version of this article will be published in Portuguese as a chapter in Processo Civil e Tecnologia: os impactos da virada tecnologia no mundo, Dierle Nunes, Paulo Lucon and Isadora Werneck, eds., Editora Juspodivm, Salvador/BA–Brazil, forthcoming 2021. Daniel Rainey is, among other things, a principal in Holistic Solutions, Inc., a Fellow of the National Center for Technology and Dispute Resolution (NCTDR), a founding Board Member of the International Council for Online Dispute Resolution (ICODR), Editor-in-Chief of the International Journal of Online Dispute Resolution (IJODR) and a Member of the Self-Represented Litigants Committee of the Access to Justice Commission of the Virginia Supreme Court.

Larry Bridgesmith
Larry Bridgesmith is, among other things, a practicing lawyer, professor of law at Vanderbilt Law School and co-founder of its Program on Law & Innovation, a Fellow of the International Association of Mediators, co-founder of LegalAlignment LLC, AccelerateInsite LLC and Lifefilz Inc., co-founder of the International Institute of Legal Project Management and Chair of the Tennessee Supreme Court Alternative Dispute Resolution Commission.

Maria Lucia Cruz Correia
Maria Lucia Cruz Correia is an artist, activist and environmental researcher, Belgium. Contact author: mluciacruzcorreia@gmail.com.
Article

A maximalist approach of restorative justice to address environmental harms and crimes

Analysing the Brumadinho dam collapse in Brazil

Journal The International Journal of Restorative Justice, Issue 1 2021
Keywords environmental law, maximalist approach, restorative justice principles and concepts, decision-making process, sanctioning rules
Authors Carlos Frederico Da Silva
AbstractAuthor's information

    In this article, the author analyses court cases arising from the rupture of the mining tailings dam in the city of Brumadinho, Brazil, on 25 January 2019. In a civil lawsuit context, legal professionals recognised damage to people and the environment during hearings involving a judge, prosecutors, lawyers and corporate representatives. The centrality of the victims’ interests and the need for remedial measures prevailed in the agreements signed mainly to provide urgent relief and restore damage to the ecosystem. In the criminal lawsuit dealing with the same facts, there have not yet been acquittals, non-prosecution agreements or convictions. By employing a socio-legal approach to contrast different types of legal reasoning, this article explores the possibilities of restorative responses in civil proceedings and explains the lack of them in criminal justice. In highlighting some characteristics of punishment theories that hinder a possible restorative justice approach, the article offers a critique of a penal system mostly linked to argumentative competition rather than persuasive conflict resolution. The author argues that jurisprudence should address transdisciplinary concepts, such as responsive regulation, restorative efforts, proportionality and individualisation of punishment. The discussion can shed light on the decision-making process to allow environmental restorative justice responses to crimes.


Carlos Frederico Da Silva
Carlos Frederico Braga Da Silva is a PhD researcher associated to the Graduate School of Sociology at the Federal University of Minas Gerais, Brazil, and to the Canadian Chair of Legal Traditions and Penal Rationality, Faculty of Social Sciences, Department of Criminology, University of Ottawa, Canada. He also works as a state judge in Belo Horizonte, Minas Gerais, Brazil. Contact author: carlosfrebrasilva@gmail.com.
Article

Access_open Addressing Problems Instead of Diagnoses

Reimagining Liberalism Regarding Disability and Public Health

Journal Netherlands Journal of Legal Philosophy, Issue 1 2021
Keywords Vulerability Theory, Liberalism, Convention on the Rights of Persons with Disabilities (CRPD), Public Health, Capabilities Approach
Authors Erwin Dijkstra
AbstractAuthor's information

    The public health systems of liberal states systematically fail to meet the goals and obligations of the Convention on the Rights of Persons with Disabilities, which aims to facilitate full societal participation and independent life choices by all impaired persons, as well as the unburdening of their private caretakers. This failure does not stem from a lack of money or effort by governments and other societal institutions, but flaws in the anatomy of these systems. As these systems confine institutional assistance to the needs of persons with certain delineated disabilities, they neglect the needs of other persons, whose disabilities do not fit this mould. The responsibility for the latter group thus falls to their immediate social circle. These private caretakers are in turn seldom supported. To remedy this situation, I will present the alternative paradigm of vulnerability theory as the possible foundation for a more inclusive approach to public health.


Erwin Dijkstra
Erwin Dijkstra LLM MA is lecturer and researcher at the Department of Jurisprudence of the Leiden Law School of Leiden University.
Article

Access_open The ECHR and Private Intercountry Adoptions in Germany and the Netherlands: Lessons Learned from Campanelli and Paradiso v. Italy

Journal Family & Law, January 2021
Keywords Private intercountry adoptions, surrogacy, ECHR, UNCRC, the best interests of the child
Authors dr. E.C. Loibl
AbstractAuthor's information

    Within the past half century, a market in adoptable children has emerged. The imbalance between the demand for and the supply of adoptable children, combined with the large sums of Western money, incite greedy actors in poor countries to illegally obtain children for adoption. This renders intercountry adoption conducive to abuses. Private adoptions are particularly prone to abusive and commercial practices. Yet, although they violate both international and national law, German and Dutch family courts commonly recognize them. They argue that removing the child from the illegal adopters would not be compatible with the rights and best interests of the individual child concerned. In 2017, the ECtHR rendered a ground-breaking judgement in Campanelli and Paradiso v. Italy. In this case, the Court dealt with the question as to whether removing a child from the care of an Italian couple that entered into a surrogacy agreement with a Russian clinic, given that surrogacy is illegal in Italy, violated Article 8 ECHR. Contrary to previous case law, in which the ECtHR placed a strong emphasis on the best interests of the individual child concerned, the Court attached more weight to the need to prevent disorder and crime by putting an end to the illegal situation created by the Italian couple and by discouraging others from bypassing national laws. The article argues that considering the shifting focus of the ECtHR on the prevention of unlawful conduct and, thus, on the best interests of children in general, the German and Dutch courts’ failure to properly balance the different interests at stake in a private international adoption by mainly focusing on the individual rights and interests of the children is difficult to maintain.

    ---

    In de afgelopen halve eeuw is er een markt voor adoptiekinderen ontstaan. De disbalans tussen de vraag naar en het aanbod van adoptiekinderen, in combinatie met grote sommen westers geld, zet hebzuchtige actoren in arme landen ertoe aan illegaal kinderen te verkrijgen voor adoptie. Dit maakt interlandelijke adoptie bevorderlijk voor misbruik. Particuliere adoptie is bijzonder vatbaar voor misbruik en commerciële praktijken. Ondanks het feit dat deze privé-adopties in strijd zijn met zowel internationaal als nationaal recht, worden ze door Duitse en Nederlandse familierechtbanken doorgaans wel erkend. Daartoe wordt aangevoerd dat het verwijderen van het kind van de illegale adoptanten niet verenigbaar is met de rechten en belangen van het individuele kind in kwestie. In 2017 heeft het EHRM een baanbrekende uitspraak gedaan in de zaak Campanelli en Paradiso t. Italië. In deze zaak behandelde het Hof de vraag of het verwijderen van een kind uit de zorg van een Italiaans echtpaar dat een draagmoederschapsovereenkomst met een Russische kliniek is aangegaan, in strijd is met artikel 8 EVRM, daarbij in ogenschouw genomen dat draagmoederschap in Italië illegaal is. In tegenstelling tot eerdere jurisprudentie, waarin het EHRM sterk de nadruk legde op de belangen van het individuele kind, hechtte het Hof meer gewicht aan de noodzaak om de openbare orde te bewaken en criminaliteit te voorkomen door een einde te maken aan de illegale situatie die door het Italiaanse echtpaar was gecreëerd door onder andere het omzeilen van nationale wetten. Het artikel stelt dat, gezien de verschuiving in de focus van het EHRM op het voorkomen van onwettig gedrag en dus op het belang van kinderen in het algemeen, de Duitse en Nederlandse rechtbanken, door met name te focussen op de individuele rechten en belangen van de kinderen, er niet in slagen om de verschillende belangen die op het spel staan ​​bij een particuliere internationale adoptie goed af te wegen.


dr. E.C. Loibl
Elvira Loibl is Assistant Professor Criminal Law and Criminology, Universiteit Maastricht.
Human Rights Literature Review

Croatia

Journal East European Yearbook on Human Rights, Issue 1 2020
Authors Matija Miloš
Author's information

Matija Miloš
Matija Miloš, PhD, junior faculty member at the Chair for Constitutional Law, University of Rijeka – Faculty of Law.
Article

Access_open Positive State Obligations under European Law: A Tool for Achieving Substantive Equality for Sexual Minorities in Europe

Journal Erasmus Law Review, Issue 3 2020
Keywords Positive obligations, sexual minorities, sexual orientation, European law, human rights
Authors Alina Tryfonidou
AbstractAuthor's information

    This article seeks to examine the development of positive obligations under European law in the specific context of the rights of sexual minorities. It is clear that the law should respect and protect all sexualities and diverse intimate relationships without discrimination, and for this purpose it needs to ensure that sexual minorities can not only be free from state interference when expressing their sexuality in private, but that they should be given the right to express their sexuality in public and to have their intimate relationships legally recognised. In addition, sexual minorities should be protected from the actions of other individuals, when these violate their legal and fundamental human rights. Accordingly, in addition to negative obligations, European law must impose positive obligations towards sexual minorities in order to achieve substantive equality for them. The article explains that, to date, European law has imposed a number of such positive obligations; nonetheless, there is definitely scope for more. It is suggested that European law should not wait for hearts and minds to change before imposing additional positive obligations, especially since this gives the impression that the EU and the European Court of Human Rights (ECtHR) are condoning or disregarding persistent discrimination against sexual minorities.


Alina Tryfonidou
Alina Tryfonidou is Professor of Law, University of Reading.
Showing 1 - 20 of 160 results
« 1 3 4 5 6 7 8
You can search full text for articles by entering your search term in the search field. If you click the search button the search results will be shown on a fresh page where the search results can be narrowed down by category or year.