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Developments in European Law

The PSPP Judgment of the German Federal Constitutional Court

The Judge’s Theatre According to Karlsruhe

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords German Constitutional Court, basic law, ultra vires, European Central Bank, primacy of Union law
Authors Maria Kordeva
AbstractAuthor's information

    The PSPP decision of 5 May 2020 rendered by the German Federal Constitutional Court (FCC) does not constitute a break with the earlier jurisprudence of the FCC elaborated since the Lisbon Treaty judgment of 30 June 2009. Even though qualifying the acts of the Union as ultra vires has been likened to a warlike act, one should beware of hasty conclusions and look closely at the analysis of the Second Senate to form a moderate opinion of this decision decried by European and national commentators. Should the PSPP judgment of the Federal Constitutional Court be classified as “much ado about nothing”, despite the procedure started by the European Commission, or, on the contrary, will the CJEU in the next months, sanction Germany for its obvious affront to and breach of the principle of the primacy of Union law? The (final?) power grab between the European and national courts remains to be seen. We can criticize the German FCC that it put the fundamental principles of the Union in danger. Yet, it is worth reflecting on the possible encroachment of competences by European institutions, because, in this case, the red line between monetary policy and economic policy is more than thin.


Maria Kordeva
Maria Kordeva: PhD in Public Law (University of Strasburg/University of Constance), lecturer and research associate, Saarland University, Saarbrücken.
Public Health Emergency: National, European and International Law Responses

Constitutional Rights in the Time of Pandemic

The Experience of Hungary

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords state of emergency, emergency powers, restriction of fundamental rights, Fundamental Law, Constitutional Court of Hungary
Authors Lóránt Csink
AbstractAuthor's information

    Special circumstances may require special measures. This article is to highlight the importance of constitutional rights, also in the time of a pandemic. Its hypothesis is that constitutional rights are not luxuries one can only afford in peacetime, they are much rather at the core of civilization and democracy. History shows that a world without rights may easily turn into a nightmare. The article first focuses on the Hungarian constitutional basis of the state of emergency (Section 2). Next, it analyses the text of the constitution with respect to the limitation of fundamental rights and elaborates on the various interpretations through the lens of the case-law of the Constitutional Court (Sections 3-4). Finally, the article concludes that despite the rigid wording of the Hungarian Fundamental Law, constitutional rights can be restricted only if the restriction meets the necessity-proportionality test (Section 5)


Lóránt Csink
Lóránt Csink: associate professor of law, Pázmány Péter Catholic University, Budapest; counselor, Constitutional Court of Hungary, Budapest.
Anniversary: Commemorating the 90th Birthday of Ferenc Mádl, President of the Republic (2000-2005)

Ferenc Mádl, the Hungarian Professor of European Law

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords Ferenc Mádl, private international law, Central Europe, V4, Hungary
Authors Endre Domaniczky
AbstractAuthor's information

    Living in a country under foreign occupation he became engrossed in the science of private law, and (under the influence and with the support of his masters) he started to study the characteristics of socialist, and later of Western European legal systems. Within the socialist bloc, he became one of the early experts on Common Market law, who, following an unexpected historical event, the 1989 regime change in Hungary, was also able to make practical use of his theoretical knowledge for the benefit of his country. In 2021, on the 90th anniversary of his birth and the 10th anniversary of his death, the article remembers Ferenc Mádl, legal scholar, member of the Hungarian Academy of Sciences, minister in the Antall- and Boross governments, former President of Hungary.


Endre Domaniczky
Endre Domaniczky: senior research fellow, Ferenc Mádl Institute of Comparative Law, Budapest.
Review of Hungarian Scholarly Literature

Tamás Szabados, Economic Sanctions in EU Private International Law (Book Review)

Hart Publishing, Oxford, 2020, 280 p, ISBN 978-1-509-93351-8

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Authors Susanne Gössl
Author's information

Susanne Gössl
Susanne Gössl: professor of law, Christian Albrechts University, Kiel.
Case Notes

The Hungarian Constitutional Court’s Decision on the Protection of Forests

Decision No. 14/2020. (VII. 6.) AB of the Constitutional Court of Hungary

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords public trust, non-derogation, Constitutional Court of Hungary, Article P, future generations
Authors Attila Pánovics
AbstractAuthor's information

    In its decision delivered on 15 June 2020, the Hungarian Constitutional Court stated that several provisions of the 2017 amendment of the Act XXXVII of 2009 on Forest, Forest Protection and Forest Management are unconstitutional. The case was also an opportunity for the Constitutional Court to adopt another milestone decision on the interpretation and application of the environment-related provisions of the Fundamental Law and the “non-derogation principle”. The progressive decision of the Constitutional Court entrusts the Hungarian State with trustee duties. The present Case Note is an analysis of Decision No. 14/2020. (VII. 6.) AB of the Constitutional Court.


Attila Pánovics
Attila Pánovics: senior lecturer, University of Pécs.
Article

Access_open The Common Law Remedy of Habeas Corpus Through the Prism of a Twelve-Point Construct

Journal Erasmus Law Review, Issue 2 2021
Keywords Habeas corpus, common law, detainee, consitution, liberty
Authors Chuks Okpaluba and Anthony Nwafor
AbstractAuthor's information

    Long before the coming of the Bill of Rights in written Constitutions, the common law has had the greatest regard for the personal liberty of the individual. In order to safeguard that liberty, the remedy of habeas corpus was always available to persons deprived of their liberty unlawfully. This ancient writ has been incorporated into the modern Constitution as a fundamental right and enforceable as other rights protected by virtue of their entrenchment in those Constitutions. This article aims to bring together the various understanding of habeas corpus at common law and the principles governing the writ in common law jurisdictions. The discussion is approached through a twelve-point construct thus providing a brief conspectus of the subject matter, such that one could have a better understanding of the subject as applied in most common law jurisdictions.


Chuks Okpaluba
Chuks Okpaluba, LLB LLM (London), PhD (West Indies), is a Research Fellow at the Free State Centre for Human Rights, University of the Free State, South Africa. Email: okpaluba@mweb.co.za.

Anthony Nwafor
Anthony O. Nwafor, LLB, LLM, (Nigeria), PhD (UniJos), BL, is Professor at the School of Law, University of Venda, South Africa. Email: Anthony.Nwafor@univen.ac.za.
Article

Access_open Text-mining for Lawyers: How Machine Learning Techniques Can Advance our Understanding of Legal Discourse

Journal Erasmus Law Review, Issue 1 2021
Keywords text mining, machine learning, law, natural language processing
Authors Arthur Dyevre
AbstractAuthor's information

    Many questions facing legal scholars and practitioners can be answered only by analysing and interrogating large collections of legal documents: statutes, treaties, judicial decisions and law review articles. I survey a range of novel techniques in machine learning and natural language processing – including topic modelling, word embeddings and transfer learning – that can be applied to the large-scale investigation of legal texts


Arthur Dyevre
Arthur Dyevre is Professor at the KU Leuven Centre for Empirical Jurisprudence, Leuven, Belgium. arthur.dyevre@kuleuven.be.
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.
Article

Exploring the growth and development of restorative justice in Bangladesh

Journal The International Journal of Restorative Justice, Issue 2 2021
Keywords restorative justice, Bangladesh, salish, village courts, INGOs
Authors Muhammad Asadullah and Brenda Morrison
AbstractAuthor's information

    Although restorative justice is a new concept in Bangladesh (BD), resolving wrongdoing outside the criminal justice system is not a new practice. Community-based mediation, known as salish, has been practised for centuries – withstanding colonisation, adaptation and distortion. Other practices, such as village courts and customary justice, are also prevalent in Bangladesh. Of these, village courts are currently the most widely practised in Bangladesh. Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ Bangladesh) formally introduced restorative justice in 2013 with the support of international non-governmental organisations (INGOs), NGOs, academics and government agencies. Most of the literature on community-based justice practice focuses on village courts; academic, peer-reviewed research on restorative justice in Bangladesh is scarce. This qualitative study explores the growth and development of restorative justice in Bangladesh. Using in-depth qualitative interviews and survey, the study retraces the genesis of restorative justice in Bangladesh. In recent times, GIZ Bangladesh has been key to the development of restorative justice, which was further expanded by UNDP’s Activating Village Courts project, as well as a graduate course on restorative justice at the University of Dhaka. This study also finds contentious themes raised by the key informants, specifically the role of INGOs, government and community.


Muhammad Asadullah
Muhammad Asadullah is Assistant Professor at the Department of Justice Studies, University of Regina, Canada.

Brenda Morrison
Brenda Morrison is Associate Professor at the School of Criminology, Simon Fraser University, Canada. Contact author: Muhammad.Asadullah@uregina.ca.
Article

Risk, restorative justice and the Crown

a study of the prosecutor and institutionalisation in Canada

Journal The International Journal of Restorative Justice, Issue 2 2021
Keywords restorative justice, institutionalisation, risk, prosecutor, Canada
Authors Brendyn Johnson
AbstractAuthor's information

    In Canada, restorative justice programmes have long been institutionalised in the criminal justice system. In Ontario, specifically, their use in criminal prosecutions is subject to the approval of Crown attorneys (prosecutors) who are motivated in part by risk logics and risk management. Such reliance on state support has been criticised for the ways in which it might subvert the goals of restorative justice. However, neither the functioning of these programmes nor those who refer cases to them have been subject to much empirical study in Canada. Thus, this study asks whether Crown attorneys’ concerns for risk and its management impact their decision to refer cases to restorative justice programmes and with what consequences. Through in-depth interviews with prosecutors in Ontario, I demonstrate how they predicate the use of restorative justice on its ability to reduce the risk of recidivism to the detriment of victims’ needs. The findings suggest that restorative justice becomes a tool for risk management when prosecutors are responsible for case referrals. They also suggest that Crown attorneys bear some responsibility for the dangers of institutionalisation. This work thus contributes to a greater understanding of the functioning of institutionalised restorative justice in Canada.


Brendyn Johnson
Brendyn Johnson is a PhD candidate at the School of Criminology at the University of Montreal, Canada. Contact author: brendyn.johnson@umontreal.ca. Acknowledgement: This research is supported in part by funding from the Social Sciences and Humanities Research Council of Canada. I am grateful for the support of Véronique Strimelle and Françoise Vanhamme for their guidance in the conducting of this research as well as Marianne Quirouette for her thoughtful comments in the writing of this article.

Vidar Halvorsen
Vidar Halvorsen is a professor at the University of Oslo, Norway. Contact author: vidar.halvorsen@jus.uio.no.
Article

An exploration of trauma-informed practices in restorative justice: a phenomenological study

Journal The International Journal of Restorative Justice, Issue 2 2021
Keywords restorative justice, trauma, trauma-informed care, interpretative phenomenological analysis
Authors Claudia Christen-Schneider and Aaron Pycroft
AbstractAuthor's information

    While several studies identify trauma as a main risk factor for developing offending behaviour, the criminal justice system still largely ignores the problem, and the same seems to be true of restorative justice. This article offers a critical exploration of trauma-informed work with offenders using interpretative phenomenological analysis. The interviewees perceive a growing interest in the topic of trauma and trauma-informed care (TIC). However, they also identify several areas that seem to hinder a trauma-informed approach, not only with offenders but also with victims. One concern is the tendency to institutionalise restorative justice with an emphasis on efficiency, effectiveness and outcome orientation. The interviewees also perceive a revengeful and retributive attitude in their societies that does not condone restorative measures that seemingly favour offenders. This tendency appears even stronger in societies that have suffered from collaborative trauma and not recovered from it. Interviewees therefore advocate for raising awareness of trauma, the consequences of unhealed trauma and the need to work trauma-informed with all stakeholders, including offenders and the extended, affected community. They also appeal for increased training to be provided for practitioners in TIC and self-care as these areas seem essential to provide safe and beneficial processes for all stakeholders.


Claudia Christen-Schneider
Claudia Alexandra Christen-Schneider is president of the Swiss RJ Forum.

Aaron Pycroft
Aaron Pycroft PhD is Reader in Criminal Justice and Social Complexity at the University of Portsmouth, UK. Contact author: Claudia Alexandra Christen-Schneider at swissrjforum@gmail.com.

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

Performing the COVID-19 Crisis in Flemish Populist Radical-Right Discourse

A Case Study of Vlaams Belang’s Coronablunderboek

Journal Politics of the Low Countries, Issue 2 2021
Keywords populism, COVID-19, crisis, discourse
Authors Jens Meijen
AbstractAuthor's information

    In June 2020, the Flemish populist radical right party Vlaams Belang (VB) published the Corona Blunder Book (CBB; Coronablunderboek in Dutch), detailing the government’s mistakes in handling the COVID-19 crisis. Populist parties can ‘perform’ crisis by emphasising the mistakes made by opponents (Moffitt, 2015) and may use a specifically populist discursive style, consisting largely of aggressive and sarcastic language (Brubaker, 2017). This paper takes the CBB as a case study in the populist performance of crisis and the populist style, finding that the book is, first, a clear example of populist ‘everyman’ stylistics and the performance of crisis, and, second, that VB uses the book to shift the COVID-19 crisis from a public health crisis to a crisis of governance, seeking to blame Belgium’s federal structure for the government’s alleged mismanagement of the COVID-19 pandemic and hence arguing for Flemish independence, one of the party’s main agenda points.


Jens Meijen
Jens Meijen is a PhD candidate at Leuven International and European Studies (LINES) at KU Leuven. His research focuses on nationalism, populism, and diplomacy.
Article

Access_open The Resilience of Democracy in the Midst of the COVID-19 Pandemic

Democratic Compensators in Belgium, the Netherlands and France

Journal Politics of the Low Countries, Issue 2 2021
Keywords COVID-19, crisis-management, democratic compensators, exceptionalism
Authors Tom Massart, Thijs Vos, Clara Egger e.a.
AbstractAuthor's information

    Since January 2020, European countries have implemented a wide range of restrictions to contain the COVID-19 pandemic. Yet governments have also implemented democratic compensators in order to offset the negative impacts of restrictions. This article aims to account for the variation of their use between Belgium, the Netherlands and France. We analyse three drivers: the strength of counterpowers, the ruling parties’ ideological leanings and political support. Building on an original data set, our results distinguish between embedded and ad hoc compensators. We find that ad hoc compensators are championed mainly by counterpowers, but also by ideology of the ruling coalitions in Belgium and the Netherlands and used strategically to maintain political support in France. Evidence on the link between embedded compensators and counterpowers is more ambiguous.


Tom Massart
Tom Massart is a PhD candidate at ULB / CEVIPOL. His research mainly focuses on European economic governance.

Thijs Vos
Thijs Vos is a political scientist and research assistant at Groningen University.

Clara Egger
Clara Egger is assistant professor in international relations at Groningen University. She is currently leading the Exceptius project on Covid19 containment policies in Europe.

Claire Dupuy
Claire Dupuy is professor of comparative politics at UCLouvain. She specializes in comparative public policy with a focus on multilevel governance, federalism and regionalization processes.

Constance Morel-Jean
Constance Morel-Jean is a master’s student at Grenoble-Alpes University. She specialises in the study of political behaviour.

Raul Magni-Berton
Raul Magni-Berton is professor of political science at Grenoble-Alpes University, PACTE research unit. His research mainly focuses on democracy, its institutions and norms.

Sébastian Roché
Sebastian Roché is CNRS Research Professor at Grenoble-Alpes University, PACTE research unit. He specializes in policing and legitimacy studies.
Editorial

Access_open Computational Methods for Legal Analysis

The Way Forward?

Journal Erasmus Law Review, Issue 1 2021
Keywords computational legal analysis, empirical legal studies, natural language processing, machine learning
Authors Elena Kantorowicz-Reznichenko
AbstractAuthor's information

    Computational analysis can be seen as the most recent innovation in the field of Empirical Legal Studies (ELS). It concerns the use of computer science and big data tools to collect, analyse and understand the large and unstructured data, such as for instance (legal) text. Given that the text is now the object of analysis, but the methods are (largely) quantitative, it lies in the intersection between doctrinal analysis and ELS. It brings with it not only a great potential to scale up research and answer old research questions, but also to reveal uncovered patterns and address new questions. Despite a slowly growing number of legal scholars who are already applying such methods, it is underutilised in the field of law. Furthermore, given that this method comes from social and computer sciences, many legal scholars are not even aware of its existence and potential. Therefore, the purpose of this special issue is not only to introduce these methods to lawyers and discuss possibilities of their application, but also to pay special attention to the challenges, with a specific emphasis on the ethical issues arising from using ‘big data’ and the challenge of building capacity to use such methods in law schools. This editorial briefly explains some of the methods which belong to the new movement of Computational Legal Analysis and provides examples of their application. It then introduces those articles included in this special issue. Finally, it provides a personal note on the way forward for lawyers within the movement of Computational Legal Analysis


Elena Kantorowicz-Reznichenko
Elena Kantorowicz-Reznichenko is Professor of Quantitative Empirical Legal Studies at the Rotterdam Institute of Law and Economics, Erasmus School of Law, Erasmus University, Rotterdam.

    Restorative justice has frequently been presented as a new criminal justice paradigm, and as something that is radically different from punishment. I will argue that this ‘oppositioning’ is problematic for two reasons: first, because some cases of restorative justice constitute de facto punishment from the perspectives of some positions on what punishment is; second, because restorative justice could reasonably be more widely adopted as a new form of de jure punishment, which could potentially increase the use of restorative justice for the benefit of victims, offenders and society at large. In connection with the latter, I want to present some preliminary thoughts on how restorative justice could be incorporated into future criminal justice systems as de jure punishment. Furthermore, I will suggest that by insisting that restorative justice is radically different from punishment, restorative justice advocates may − contrary to their intentions − play into the hands of those who want to preserve the status quo rather than developing future criminal justice systems in the direction of restorative justice.


Christian Gade
Christian B. N. Gade is an associate professor of human security and anthropology at Aarhus University and a mediator in the Danish victim-offender mediation programme (Konfliktråd). Corresponding author: gade@cas.au.dk. Acknowledgements: I would like to thank Pernille Reese, head of the Danish Victim-Offender Mediation Secretariat, for our many dialogues about restorative justice and punishment. Furthermore, I am grateful to Søren Rask Bjerre Christensen and Isabelle Sauer for their thoughtful comments on earlier drafts of this article. Last but not least, I would like to thank the three anonymous reviewers for their valuable feedback.
Article

The Reform of Contract Rules in China’s New Civil Code

Successes or Pitfalls

Journal European Journal of Law Reform, Issue 2 2021
Keywords Civil Code of the People’s Republic of China, Contracts of the Civil Code, Chinese legal system, legislative history
Authors Peng Guo and Linxuan Li
AbstractAuthor's information

    The Civil Code of the People’s Republic of China (Civil Code) came into force on 1 January 2021. Book III on Contracts of the Civil Code has adopted significant changes compared to the old Chinese Contract Law (Contract Law). This article provides a comprehensive and systemic analysis of those changes from structure to content, from legislative technics to values underpinning the Civil Code. It evaluates all the factors in the context of the development of Chinese society, Chinese culture and Chinese legal system.
    This article first outlines the historical background of the development of the Contract Law and the Civil Code. It then moves on to compare the Civil Code and the Contract Law, highlighting the changes in structure, the incorporation of new provisions and the amendments to old provisions in light of contemporary Chinese society and culture. Finally, it argues that the Civil Code is a significant milestone in China’s legislative history; that it reflects the legislative experience and judicial practice in China; that it adds provisions which are innovative and of Chinese characteristics to meet the needs of China’s changing society and legal system; and that it keeps pace with the development of the global law reform and harmonization.


Peng Guo
Peng Guo is a Lecturer in Law, Graduate School of Business and Law, RMIT University, Australia.

Linxuan Li
Linxuan Li, LL.M. University of International Business and Economics, LL.B. Shandong University, China.
Article

Access_open Invisible before the law

The legal position of persons with intellectual disabilities under the Dutch Care and Compulsion Act (Wzd) in light of Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD)

Journal Family & Law, June 2021
Keywords dicrimination, guardianship, incapacitated adults, legal (in)capacity
Authors F. Schuthof LLM
AbstractAuthor's information

    In the Netherlands, the use of involuntary treatment in the mental health care sector is governed by the Dutch Care and Compulsion Act (Wzd). This study examines the legal position of persons with intellectual disabilities under this Act. The Wzd is analyzed in light of the human rights standards of Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD). The findings of this study show that the Wzd does not meet the standards of Article 12 in several cases. The Wzd does not recognize the legal capacity of persons with intellectual disabilities, it continues to allow for substituted decision-making and support measures are not complemented by adequate safeguards. From a theoretical point of view, an imbalance between the protection of and the respect for the autonomy of persons with intellectual disabilities can be observed. This article formulates several recommendations in order to restore this balance.
    ---
    De Nederlandse Wet zorg en dwang (Wzd) ziet toe op de rechten van mensen met een verstandelijke beperking bij onvrijwillige zorg of onvrijwillige opname. Dit artikel onderzoekt de juridische positie van mensen met een verstandelijke beperking ten aanzien van deze wet. De Wzd wordt geanalyseerd in relatie tot artikel 12 van het Verdrag inzake de Rechten van Personen met een Handicap (VRPH). De bevindingen van dit onderzoek laten zien dat de Wzd in verschillende gevallen niet voldoet aan de normen van artikel 12 VRPH. Zo wordt onder andere de handelingsbekwaamheid, ofwel ‘legal capacity’, van mensen met een verstandelijke beperking niet erkend en blijft plaatsvervangende besluitvorming mogelijk. Vanuit theoretisch oogpunt is er sprake van een disbalans tussen de bescherming van en het respect voor de autonomie van mensen met een verstandelijke beperking. Dit artikel doet daarom meerdere aanbevelingen om dit evenwicht te herstellen.


F. Schuthof LLM
Fiore Schuthof conducts research into better empowerment and protection of the elderly as a PhD student at Utrecht University (UU).
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