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Article

Legislative Scrutiny in Times of Emergency

A Case Study of Australian Parliaments

Journal European Journal of Law Reform, Issue 4 2020
Keywords legislative scrutiny, sunset clauses, emergency laws, virtual parliament, parliamentary committee, trust
Authors Hon Kate Doust MLC and Mr Sam Hastings
AbstractAuthor's information

    Citizens’ trust in Australian governments and parliaments has fallen in recent years, yet trust is critical for governments to do their job effectively and attack challenging issues. The coronavirus pandemic provides an opportunity for governments and parliaments to bridge the gap between citizens’ expectations and parliamentary and government performance and therefore rebuild trust. In doing so, parliaments need to balance their desire for speedy action with proportionate measures and mechanisms for review.
    This article examines the scrutiny of primary legislation by the parliaments of Western Australia the Commonwealth of Australia during the initial stages of the pandemic, through the application of principles from the House of Lords Select Committee inquiry into fast-track legislation. The data shows that both parliaments had severely abridged time to consider, debate and consult on bills during the initial stages of the emergency. The parliaments took a different approach to address this issue. The Western Australian Parliament supported the inclusion of sunset clauses into most of the bills whereas the Commonwealth Parliament did not. The Commonwealth Parliament’s scrutiny committees considered and commented on the bills post-enactment. The Western Australian Parliament does not have mechanisms for the technical scrutiny of all bills by parliamentary committees. This divergence of approach is noteworthy as the Commonwealth Parliament has information about the impact and technical quality of bills but no power to address the issues identified. The Western Australian Parliament has little information about the impact and technical quality of the Acts but will likely have the opportunity to reconsider the laws if they are sought to be extended.


Hon Kate Doust MLC
Hon Kate Doust MLC is the President of the Legislative Council of Western Australia.

Mr Sam Hastings
Mr Sam Hastings is the Clerk Assistant (House) of the Legislative Council of Western Australia. The authors acknowledge the research assistance provided by Ms. Renae Jewell and Mr. Chris Hunt.
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 Age Barriers in Healthcare

Journal Erasmus Law Review, Issue 1 2020
Keywords age discrimination, age equality, health care
Authors Rachel Horton
AbstractAuthor's information

    Age limits, minimum and maximum, and both explicit and ‘covert’, are still used in the National Health Service to determine access to a range of health interventions, including infertility services and cancer screening and treatment. Evidence suggests that chronological age is used as a proxy for a host of characteristics in determining access to healthcare: as a proxy for the capacity of an individual to benefit from an intervention; for the type of harm that may result from an intervention; for the likelihood of such benefit or harm occurring; and, in some cases, for other indicators used to determine what may be in the patient’s interest. Age is used as a proxy in this way in making decisions about both individual patients and wider populations; it may be used where no better ‘marker’ for the relevant characteristic exists or – for reasons including cost, practicality or fairness – in preference to other available markers. This article reviews the justifications for using age in this way in the context of the existing legal framework on age discrimination in the provision of public services.


Rachel Horton
Lecturer University of Reading.
Article

Law Reform in Ireland

Implementation and Independence of Law Reform Commission

Journal European Journal of Law Reform, Issue 4 2019
Keywords law reform, statute law revision, better regulation, access to legislation, lawyer’s law
Authors Edward Donelan
AbstractAuthor's information

    This article describes the origins and work of the Law Reform Commission in Ireland. The model follows that in Common Law countries. Its work includes both substantive law reform and statute law revision (weeding out spent or unused statutes and undertaking consolidation or other work to make statute law more accessible.) The work of the Commission focuses on ‘lawyers’ law’ and, therefore, avoids subjects that could be politically controversial. Consequentially, the bulk of its recommendations are accepted and translated into legislation.


Edward Donelan
Edward Donelan, PhD, M.A., Barrister-at-Law (Kings Inns, Dublin, Middle Temple, London), Dip. Eur. Law, Dip. Arb. Better Regulation and Legislative Drafting Expert, currently working on projects with the Attorney General in Botswana to develop a programme of law reform for the newly established Law Reform Unit in the Chambers of the Attorney General.
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

Digital Identity for Refugees and Disenfranchised Populations

The ‘Invisibles’ and Standards for Sovereign Identity

Journal International Journal of Online Dispute Resolution, Issue 1 2019
Keywords digital identity, sovereign identity, standards, online dispute resolution, refugees, access to justice
Authors Daniel Rainey, Scott Cooper, Donald Rawlins e.a.
AbstractAuthor's information

    This white paper reviews the history of identity problems for refugees and disenfranchised persons, assesses the current state of digital identity programmes based in nation-states, offers examples of non-state digital ID programmes that can be models to create strong standards for digital ID programmes, and presents a call to action for organizations like International Organization for Standardization (ISO) and the United Nations High Commissioner for Refugees (UNHCR).


Daniel Rainey
Daniel Rainey is a Board Member, InternetBar.Org (IBO), and Board Member, International Council for Online Dispute Resolution (ICODR)

Scott Cooper
Scott Cooper is a Vice President, American National Standards Institute (retired).

Donald Rawlins
Donald Rawlins is a Candidate (May 2019), Master of Arts in Dispute Resolution, Southern Methodist University.

Kristina Yasuda
Kristina Yasuda is a Director of Digital Identities for the InternetBar.org and a consultant with Accenture Strategy advising large Japanese corporations on their digital identity and blockchain strategy.

Tey Al-Rjula
Tey Al-Rjula is CEO and Founder of Tykn.tech.

Manreet Nijjar
Manreet Nijjar is CEO and Co-founder of truu.id, Member of the Royal College Of Physicians (UK), IEEE Blockchain Healthcare Subcommittee on Digital Identity, UK All Party Parliamentary Group on Blockchain and Sovrin Guardianship task force committee.

    In 2016 the Dutch Government Commission of Reassessment of Parenthood (GCRP) proposed a wide array of legal changes to Family Law, e.g. with regard to legal multi-parenthood and legal multiple parental responsibility. Although the commission researched these matters thoroughly in its quest towards proposing new directions in the field of Family Law, multi-parents themselves were not interviewed by the commission. Therefore, this article aims to explore a possible gap between the social experiences of parents and the recommendations of the GCRP. Data was drawn from in depth-interviews with a sample of 25 parents in plus-two-parent constellations living in Belgium and the Netherlands. For the most part the social experiences of parents aligned with the ways in which the GCRP plans to legally accommodate the former. However, my data tentatively suggests that other (legal) recommendations of the GCRP need to be explored more in depth.
    ---
    In 2016 stelde de Nederlandse Staatscommissie Herijking ouderschap voor om een wettelijk kader te creëren voor meerouderschap en meeroudergezag. Ondanks de grondigheid van het gevoerde onderzoek ontbraken er gegevens omtrent de ervaringen van de meerouders zelf. Dit artikel levert een bijdrage in het vullen van deze leemte door inzage te geven in de (juridische) ervaringen van 25 ouders in meerouderschapsconstellaties in België en Nederland.


Nola Cammu MA
Nola Cammu is PhD Candidate at the Law Faculty of the University of Antwerp.
Part II Private Justice

Standards, Qualifications, and Certification for e-Mediators

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords Online Dispute Resolution, e-Mediation, ethics, standards of practice, qualifications, certification, International Mediation Institute, Association for Conflict Resolution, American Bar Association, American Arbitration Association, National Center for Technology and Dispute Resolution, International Council for Online Dispute Resolution, National Center for State Courts
Authors Ana Maria Gonçalves and Daniel Rainey
AbstractAuthor's information

    This article explores the question ‘how does one judge whether a mediator working online is competent?’ The authors compare the basic standards used to certify mediators working offline to a set of e-mediation standards developed by the International Mediation Institute, and suggest that training modules addressing the specific skills and competencies needed to be a successful online mediator be incorporated into basic mediator training.


Ana Maria Gonçalves
Ana Maria Gonçalves is the co-chair of the IMI ODR Taskforce, the founder and president of ICFML and a member of the Portuguese Mediation Federation (FMC). She is a graduate from UAL Lisbon and has a master of law degree. She is an IMI-certified mediator and is listed in the major international panels of mediators. She is a lecturer in major Portuguese and Brazilian Universities and is a regular speaker in International Conferences on the topics of ADR, mediation, negotiation and ODR. As a mediator, she works with a wide range of international clients, particularly on cross-border disputes, often online, and has mediated a wide variety of disputes in Europe, Australia and USA. She also designs and facilitates collaboration management training programs and, as an ICF-accredited PCC coach, she supports senior executives and professionals to develop their conflict management and negotiation skills.

Daniel Rainey
Daniel Rainey is a principle in Holistic Solutions, Inc., and he served as the co-chair of the IMI ODR Task Force. He is an adjunct professor at multiple universities in the United States, and he serves as a Board Member for the InternetBar.Org (IBO) and the Northern Virginia Mediation Service (NVMS). He is a member of the Virginia State Supreme Court’s Access to Justice Commission Self-Represented Litigants Committee, a Fellow of the National Center for Technology and Dispute Resolution (NCTDR) and a founding Board Member of the International Council for Online Dispute Resolution (ICODR).

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

Promoting Legislative Objectives Throughout Diverse Sub-National Jurisdictions

Journal European Journal of Law Reform, Issue 1 2018
Keywords devolution, informal jurisdiction, rule of law, disparate impacts, participatory problem-solving, intransitive law, legislative standardization
Authors Lorna Seitz
AbstractAuthor's information

    This article outlines an approach, derived from Ann and Robert Seidman’s Institutionalist Legislative Drafting Theory and Methodology (ILTAM), for drafting laws and developing implementing policies and programmes to realize legislative objectives and promote necessary behavioural change throughout a jurisdiction despite significant sub-jurisdictional socio-economic differences. ILTAM can serve as a powerful tool for catalysing the development of situationally appropriate programmes to initiate and sustain behavioural change in furtherance of legislative objectives. The article begins by discussing the movement towards legislative standardization, and its benefits and failings. It then introduces the concept of informal jurisdictions, and highlights modifications to ILTAM that improve the methodology’s efficacy in devising solutions that work in those jurisdictions. The article then describes the power of intransitive law as a mechanism for catalysing progress towards shared objectives in a manner that allows for localized approaches, promotes governmental responsiveness, brings innovation, and maximizes participatory governance. Lastly, it describes the importance that Ann and Robert Seidman placed on institutionalizing on-going monitoring, evaluation and learning processes; and describes how intransitive drafting techniques can focus implementation on motivating behavioural change while systematically identifying needed policy and law reforms in response to suboptimal legislative outcomes.


Lorna Seitz
The Legis Institute. Seitz earned her JD from Boston University (BU), where she served as Editor-in-Chief of Professor Seidman’s Legislative Clinics. After graduating, Seitz served as the Director of the BU/ICLAD Legislative Distance Drafting Program for several years, taught in the BU Legislative Clinics (and overseas) alongside Professor Seidman, and served as principal for the International Consortium for Law and Development (a non-profit co-founded by the Seidmans) from 2004-2014. Seitz co-founded The Legis Institute to realize the combined potential of ILTAM and 21st Century technology to overcome barriers to inclusive, responsive, evidence-based policy and law development and governance.
Article

The Reliability of Evidence in Evidence-Based Legislation

Journal European Journal of Law Reform, Issue 1 2018
Keywords evidence-based legislation, Institutional Legislative Theory and Methodology (ILTAM), reliable evidence, Professor Robert Seidman
Authors Sean J. Kealy and Alex Forney
AbstractAuthor's information

    As evidence-based legislation develops, and as technology puts more information at our fingertips, there should be a better understanding of what exactly constitutes reliable evidence. Robert and Ann Seidman devoted their professional careers to developing the evidence-based Institutional Legislative Theory and Methodology and teaching it to legislative drafters around the world. Although ILTAM was firmly grounded in – and driven by – evidence, the question becomes what evidence is reliable and a worthy input for the methodology. Further, how can the drafter avoid the misuses of evidence such as confirmation bias and naïve beliefs? We aim to give a guide for using evidence by offering examples of evidence-based legislation in practice and through a proposed hierarchy of evidence from most to least reliable:

    1. Experiments within the jurisdiction / lessons from other jurisdictions.

    2. Information on a topic or issue that was formally requested by the legislature or produced to the legislature under oath or under the penalties of perjury.

    3. Studies / information provided by a government agency.

    4. Expert or scientific studies.

    5. Economic or mathematical models and statistics.

    6. Information provided by special interests.

    7. Stories, apocrypha and uncorroborated tales.


    We hope that this hierarchy provides a starting point for discussion to refine and improve evidence-based legislation.


Sean J. Kealy
Sean J. Kealy is a Clinical Associate Professor of Law, Director of the Legislative Clinics, Boston University School of Law. This article expands upon a concept that he first wrote about in Designing Legislation (APKN, 2011). Professor Kealy wishes to thank Professor Richard Briffault, Joseph P. Chamberlain Professor of Legislation at Columbia Law School, and Professor William W. Buzbee, Georgetown Law School, for reading and commenting on this article at the American Association of Law Schools 2017 Conference.

Alex Forney
Alex Forney earned his Juris Doctor, Boston University School of Law, 2016.
Article

Access_open Legal Constraints on the Indeterminate Control of ‘Dangerous’ Sex Offenders in the Community: The English Perspective

Journal Erasmus Law Review, Issue 2 2016
Keywords Dangerous, sex offenders, human rights, community supervision, punishment
Authors Nicola Padfield
AbstractAuthor's information

    This article explores the legal constraints imposed on the rising number of so-called ‘dangerous’ sex offenders in England and Wales, in particular once they have been released from prison into the community. The main methods of constraint are strict licence conditions, Multi-Agency Public Protection Arrangements and civil protective orders such as Sexual Harm Prevention Orders. ‘Control’ in the community is thus widespread, but is difficult to assess whether it is either effective or necessary without a great deal more research and analysis. Post-sentence ‘punishment’ has been largely ignored by both academic lawyers and criminologists. The article concludes that financial austerity might prove to be as important as the human rights agenda in curbing the disproportionate use of powers of control.


Nicola Padfield
Nicola Padfield, MA, Dip Crim, DES, Reader in Criminal and Penal Justice, University of Cambridge. I thank Michiel van der Wolf for involving me in this project and for his many useful insights and comments.
Article

Prologue: The IALS Law Reform Project

Journal European Journal of Law Reform, Issue 3 2016
Keywords statute, common law, codification, consolidation, implementation
Authors Jonathan Teasdale
AbstractAuthor's information

    Law, particularly enacted law, needs to be as simple and as accessible as possible, clear and concise and – perhaps above all – fit for the purposes of modern society. Laws passed in one decade may prove to be less than adequate for the needs of later generations because of changes in the social fabric or social mores or because of technological advance or economic challenge. Societies needs mechanisms for keeping law under review, particularly when governments are focused on introducing more law – sometimes layered on top of existing law – to fulfil electoral promises. The position is compounded in common law systems where the senior judiciary add to the legal corpus.
    Different jurisdictions have differing needs. The IALS Law Reform Project (at the Institute of Advanced Legal Studies, University of London) has set itself the task of identifying the range of law reform mechanisms employed across the common law and civil law worlds with a view to establishing which of the components are core, and identifying others which could be improved. The starting point, of course, is: what is law reform? Are reform and revision the same? Does reform need to be legislative? Why does codification work in civil law jurisdictions but is eschewed in parts of the common law world? This is about the processes of law reform; substantive reform is for another day.


Jonathan Teasdale
LL.B, LL.M, Barrister (England and Wales), FRSA. Presently associate research fellow in the Sir William Dale Centre for Legislative Studies at the Institute of Advanced Legal Studies (University of London) specializing in law reform, and formerly a lawyer with the Law Commission for England and Wales.
Article

‘Living in Sin’: A Reform Proposal for Financial Relief Following Cohabitation Breakdown

Journal European Journal of Law Reform, Issue 4 2015
Keywords cohabitation, financial relief, family trusts, common law marriage
Authors Luke Tattersall
AbstractAuthor's information

    The number of adults choosing to cohabit has increased by over 67% since 1991. Despite such a dramatic shift in social norms, the law governing financial relief upon relationship breakdown remains inept to handle the significant increase in cohabitants. This article examines how the current system of family trusts constitutes an archaic and inadequate means of dividing cohabitants’ assets. The law of trusts fails to reflect the subtleties of personal relationships, often resulting in financial injustice. The author goes on to consider the notion of common law marriage, highlighting how despite attempts by both the government and policy makers to dispel the concept it nevertheless remains prevalent throughout the United Kingdom. The core counterargument to extending financial relief is that it would undermine the institution of marriage and obscure the boundaries between cohabitant and spouse. This article critically examines this claim, adopting cross-jurisdictional analysis by considering the experiences of Scotland, Ireland and Australia where cohabitants have greater financial rights before concluding that the argument fails to stand up to scrutiny. The author ends by advancing a series of reforms designed to vindicate cohabitants, resulting in a fairer distribution of assets and bringing legal recognition to the United Kingdom’s largest growing family unit.


Luke Tattersall
Luke Tattersall is a trainee-barrister and Research Assistant in Law at Durham University. All opinions, errors and omissions are solely those of the author.
Article

Access_open Legal Advice in Police Custody: From Europe to a Local Police Station

Journal Erasmus Law Review, Issue 4 2014
Keywords legal advice, police interrogation, European Union, England and Wales, France
Authors Anna Ogorodova and Taru Spronken
AbstractAuthor's information

    In October 2013, the European Union adopted a Directive, which guarantees, inter alia, the right of access to a lawyer to suspects of criminal offences from the outset of police custody and during police interrogation. However, adoption of the relevant legislation is not sufficient to ensure that this right becomes effective in practice. A range of practical measures will have to be taken by the Member States’ authorities and the legal profession to effectuate the implementation of the right to custodial legal advice. This article aims to identify the practical factors that may influence the implementation of the Directive, based on the findings of a recent normative and empirical study conducted by the authors. The research was carried out in four European jurisdictions (England and Wales, France, the Netherlands and Scotland), and it consisted of analysis of regulations, observations of daily practice in police stations, accompanying lawyers who provided custodial legal advice, and interviews with criminal justice practitioners. The article provides a range of recommendations on the practical measures to be undertaken by the EU Member States and national Bar associations aiming at improving the protection of suspects’ rights in police custody in practice.


Anna Ogorodova
Anna Ogorodova, LLM is PhD researcher at the University of Maastricht.

Taru Spronken
Dr Taru Spronken is Professor of Criminal Law and Criminal Procedure at Maastricht University and Advocate General at the Supreme Court in the Netherlands.
Article

Access_open Can Corporate Law on Groups Assist Groups to Effectively Address Climate Change?

A Cross-Jurisdictional Analysis of Barriers and Useful Domestic Corporate Law Approaches Concerning Group Identification and Managing a Common Climate Change Policy

Journal The Dovenschmidt Quarterly, Issue 3 2014
Authors Tineke Lambooy and Jelena Stamenkova van Rumpt
Author's information

Tineke Lambooy
Tineke Lambooy is Professor Corporate Law at Nyenrode Business University and Associate Professor Corporate Social Responsibility at Utrecht University.

Jelena Stamenkova van Rumpt
Jelena Stamenkova van Rumpt, LLM, is Advisor Responsible Investment at PGGM (Dutch Asset Manager for Pension Funds).
Article

Islamic Policy of Environmental Conservation

1,500 Years Old – Yet Thoroughly Modern

Journal European Journal of Law Reform, Issue 2 2014
Keywords environment, waqf (endowment), khalifa (steward), God's equilibrium, Arab Spring
Authors Mohamed A. ‘Arafa
AbstractAuthor's information

    Any legal system plays a significant role in the principle underlying its legal doctrines. The legal system works in compliance with, or as a consequence of cultural order. In other words, any legal system is restricted to a certain environment and subject to cultural impact. Culture and law operate in conjunction. Politics and economy are, among others, the main disciplines affecting that legal system including environmental laws and natural resources. The present article attempts a comparative analysis of three different legal systems and their approaches to environmental law, contributing to the extensive literature on this area of law in numerous areas of the world such as the United States, Europe, and the Middle East. However, that literature appears to have had little coverage of the treatment of environmental law in Islamic law, one of the three main global legal systems together with common and civil law. The bold spread of Islamic tendency in the Middle East that followed the so-called “Arab Spring” assures major changes in the political and economic sphere, including environmental and natural resource levels. Environmental threats are very pressing all over the world, as the Earth needs to be protected through the adoption of universally applicable legal rules and the right to a healthy environment needs to be elaborated on in international instruments. It is very significant to understand Islam's overall view of the universe to comprehend the gap between Islamic theories and practices in Muslim countries. The universe is full of diversified creatures that aim to fulfill man's needs and prove God's greatness. The Qur'an states: “Have you not seen that God is glorified by all in the heavens and on earth, such as birds with wings outspread? Each knows its worship and glorification, and God is aware of what they do.”All creatures in the universe perform two specific roles: a religious role of evidencing God's perfection and presence and a social role of serving man and other creatures. The final outcome is the solidarity of the universe and the realization of its common good (benefit).
    Man's position in the universe is premised on two principles: the stewardship of man which means that man is not only a creature but also God's khalifa (steward) on earth; God is the only proprietor of earth; and man is a mere beneficiary, and man can exploit nature for his/her and other creatures’ benefit without depleting it and the principle of trust that all natural resources created by God are placed as a trust in man's hand and needs of coming generations must be taken into consideration by man. Islamic environmental law uses a “duty paradigm” in the sphere of the right to healthy environment, as human beings must not destroy, deplete, or unwisely use natural resources but have an obligation to develop and enhance natural resources. Any disturbance of God's equilibrium in the universe is a transgression and athm (sin) against the divine system. Last but by no means least, Islamic law regards man as a creature with elevated status. In Islamic environmental law, the human is not the owner of nature, but a mere beneficiary. Islamic environmental safety is based upon the principle of “use” without “abuse”. Environmental protection under the Islamic legal scheme does not differ from any modern environmental legal system.


Mohamed A. ‘Arafa
Adjunct Professor of Islamic Law at Indiana University Robert H. McKinney School of Law (USA); Assistant Professor of Criminal Law and Criminal Justice at Alexandria University Faculty of Law (Egypt). SJD, Indiana University Robert H. McKinney School of Law (2013); LLM, University of Connecticut School of Law (2008); LLB, Alexandria University Faculty of Law (2006). Dr. ‘Arafa is a Visiting Professor of Business Law at the Arab Academy for Science, Technology, and Maritime Transport (‘College of Business Management’). Moreover, Professor ‘Arafa is a Domestic Public Mediator under Alternative Dispute Resolution, Indiana Rule ADR 25 (2012) and served as an Associate Trainee Attorney and Executive Attorney Assistant at ‘Arafa Law Firm (2007). Of course, all errors remain the author's.
Article

Human Rights in Islamic Law, Specifically the Guarantee of Procedural Justice

Journal European Journal of Law Reform, Issue 2 2014
Keywords Islamic law, procedural justice, human rights, rules of evidence, Cairo Declaration of Human Rights
Authors Mohamed Y. Mattar
AbstractAuthor's information

    International law guarantees several fundamental principles of procedural justice, such as presumption of innocence, the right against self-incrimination, the right to be tried without undue delay, the right to examine witnesses, and the right to legal assistance. In this article I examine whether Islamic law guarantees similar procedural protections and demonstrate how Islamic law provides for basic human rights as well as general principles that may serve as guidelines in procedural justice. These include the principle of non-retroactivity, the principle of personal accountability, the principle of no crime or punishment without law, the right to be presumed innocent until proven guilty, and the right to defence. The article also identifies rules of evidence provided by Islamic law which are designed to protect the accused.


Mohamed Y. Mattar
Mohamed Y. Mattar is a Senior Research Professor of International Law and the Executive Director of The Protection Project at The Johns Hopkins University School of Advanced International Studies (SAIS).
Article

Sir William Dale Annual Lecture

The Law Commission and the Implementation of Law Reform

Journal European Journal of Law Reform, Issue 4 2013
Authors The Rt. Hon. Sir David Lloyd Jones
Author's information

The Rt. Hon. Sir David Lloyd Jones
Chairman of the Law Commission of England and Wales.
Article

Donors without Borders

A Comparative Study of Tax Law Frameworks for Individual Cross-Border Philanthropy

Journal European Journal of Law Reform, Issue 4 2013
Keywords comparative, philanthropy, tax, deduction, international
Authors Joseph E. Miller, Jr.
AbstractAuthor's information

    Under current United States tax law, individual gifts to foreign charities generally are not deductible from federal income tax as charitable contributions. A comparative study of analogous tax laws in Switzerland and the United Kingdom demonstrates that the Swiss approach generally reflects the same prohibition against tax deductions for individual gifts to foreign charities, while British law permits such deductibility for gifts to qualified charities in other EU member states, Norway, and Iceland.
    All three countries’ legal frameworks demonstrate that their respective notions of the ‘public interest’ significantly affect their approaches to deductibility for gifts to foreign charities. The British conception of public interest, enlarged by participation in the European Union and the nondiscrimination requirements of the EU treaties, is embodied in its more expansive deductibility rules. Swiss non-participation in the EU, by contrast, reflects a more isolationist notion of public interest and may inform its prohibition on deductions for gifts to foreign charities. The narrower Swiss approach parallels the United States’ approach, and it suggests that an American expansion of deductibility for foreign charitable gifts could be encouraged by American participation in the proposed TPP, TTIP, or other multilateral trade agreements or economic unions.


Joseph E. Miller, Jr.
Joseph E. Miller is partner at Faegre Baker Daniels.
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