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Article

Access_open A future agenda for environmental restorative justice?

Journal The International Journal of Restorative Justice, Issue 1 2021
Keywords restorative justice, restorative practice, environmental justice, environmental regulation
Authors Miranda Forsyth, Deborah Cleland, Felicity Tepper e.a.
AbstractAuthor's information

    The challenges of developing meaningful environmental regulation to protect communities and the environment have never been greater. Environmental regulators are regularly criticised for failing to act hard and consistently, in turn leading to demands for harsher punishments and more rigorous enforcement. Whilst acknowledging the need for strong enforcement to address wantonly destructive practices threatening communities and ecosystems, we argue that restorative approaches have an important role. This article explores a future agenda for environmental restorative justice through (1) situating it within existing scholarly and practice-based environmental regulation traditions; (2) identifying key elements and (3) raising particular theoretical and practical challenges. Overall, our vision for environmental restorative justice is that its practices can permeate the entire regulatory spectrum, going far beyond restorative justice conferences within enforcement proceedings. We see it as a shared and inclusive vision that seeks to integrate, hybridise and build broader ownership for environmental restorative justice throughout existing regulatory practices and institutions, rather than creating parallel structures or paradigms.


Miranda Forsyth
Miranda Forsyth is Associate Professor at the School of Regulation and Governance in the College of Asia and Pacific in the Australian National University, Australia.

Deborah Cleland
Deborah Cleland is a Postdoctoral Fellow at the School of Regulation and Governance in the College of Asia and Pacific in the Australian National University, Australia.

Felicity Tepper
Felicity Tepper is a Senior Research Officer at the School of Regulation and Governance in the College of Asia and Pacific in the Australian National University, Australia.

Deborah Hollingworth
Deborah Hollingworth is a Principal Solicitor at the Environment Protection Authority Victoria, Australia.

Milena Soares
Milena Soares is a public servant at the Técnica de Desenvolvimento e Administração,Brazil.

Alistair Nairn
Alistair Nairn is Senior Engagement Advisor at the Environment Protection Authority Victoria, Australia.

Cathy Wilkinson
Cathy Wilkinson is Professor of Practice at Monash Sustainable Development, Australia. Contact author: miranda.forsyth@anu.edu.au.
Article

Covid-19 Emergency Prison Release Policy: A Public Health Imperative and a Rule of Law Challenge

Journal European Journal of Law Reform, Issue 4 2020
Keywords emergency prison release, rule of law, democracy, reducing prison overcrowding, prisoner rights, appropriate sanctions for white collar criminals, alternatives to custodial sentences
Authors Victoria Jennett
AbstractAuthor's information

    Many countries are implementing emergency releases of people from prison to mitigate the spread of Covid-19. Such measures, while critical to public health, can enable the unjust release from prison of politically connected and wealthy individuals convicted of corruption offences, thereby undermining the rule of law and democratic values by weakening public trust in the justice system. To reduce overcrowding of prisons while ensuring that white-collar criminals are appropriately sanctioned, one strategy is to impose alternatives to custodial sentences that ensure appropriate sanctioning of convicted criminals while de-densifying prisons – an approach that could be considered for non-emergency times as well.
    Main points:

    • Emergency prison release mechanisms to prevent the spread of Covid-19 can pose corruption risks owing to weak design, uneven implementation and inadequate oversight.

    • Such releases take three main forms: prisoner amnesties declared by governments; emergency release procedures drafted by governments and implemented by prison directors; and court decisions to release individual prisoners or set out frameworks to determine who is eligible for release.

    • These emergency procedures can enable the unjust release of politically connected prisoners convicted of corruption offences and undermine public trust in the rule of law and the justice system.

    • To help maintain rule of law during the emergency, alternatives to custodial sentences in line with international standards can be imposed on newly released persons who have been convicted of corruption crimes.

    • Conditions attached to releases can include, among others, status penalties, economic sanctions and monetary penalties, confiscation or expropriation of assets, and restitution or compensation to victims.

    • In non-emergency times, as well, alternatives to custodial sentences can be used to sanction those convicted of corruption crimes as a means to mitigate financial and social damage caused by corruption and reduce prison overcrowding.


Victoria Jennett
Dr. Victoria Jennett is an independent consultant to governments and international organisations on justice sector reform. She acknowledges the insights from Sofie Arjon Shuette at the U4 Anti-Corruption Resource Centre, UNODC colleagues and prison officials in the UK and the USA on an earlier version of this paper.
Article

Patience, Ladies

Gender-Sensitive Parliamentary Responses in a Time of Crisis

Journal European Journal of Law Reform, Issue 4 2020
Keywords gender sensitivity, parliament, responsiveness, COVID-19, democracy, women
Authors Sonia Palmieri and Sarah Childs
AbstractAuthor's information

    In early 2020, in the face of the Covid-19 pandemic, numerous parliaments played their rightful democratic role by following the advice of health and economic experts and swiftly passing emergency legislation and relief packages. This was, in many countries, an attempt to reach an equilibrium between saving lives and saving economic livelihoods, on the understanding that both were in serious jeopardy. In the face of public health measures many parliaments also found themselves having to reform their own rules, procedures and practices. In both cases – policy interventions and institutional redesign – it appears that parliamentary responses to the Covid-19 situation were less commonly based on the advice of gender experts or informed by considerations of gender inequalities. Few, if any, emergency packages were designed following a systematic consideration of existing, deeply entrenched gender inequalities, despite continuous public analysis and commentary about the disproportionate gender impacts of the pandemic and the resulting lockdowns; and no parliaments instituted (temporary) rule changes that prioritized the voices of women parliamentarians or constituents. In this article, which draws on our work drafting the UN Women Covid-19 Parliamentary Primer & Checklist, we revisit the democratic case for gender-sensitive parliaments, highlighting their particular relevance to the 2020 pandemic. We introduce our model for gender-sensitive crisis responses across four key stages of the parliamentary process presented in the Primer – representation, deliberation, legislation and scrutiny – and offer an initial assessment of what transpired in the world’s parliaments based on an IPU survey. We suggest that if parliaments are to be gender-sensitive institutions in times of crisis, they must not only change how they do politics but also develop and sustain a robust political culture that values gender equality and an ethic of caring that supports new rules, procedures and practices that better redress institutional gender deficiencies.


Sonia Palmieri
Sonia Palmieri, Australian National University.

Sarah Childs
Sarah Childs, Royal Holloway, University of London.
Article

Access_open The Challenges for England’s Post-Conviction Review Body

Deference to Juries, the Principle of Finality and the Court of Appeal

Journal Erasmus Law Review, Issue 4 2020
Keywords wrongful conviction, criminal justice, Criminal Cases Review Commission, Court of Appeal, discretion
Authors Carolyn Hoyle
AbstractAuthor's information

    Since 1997, the Criminal Cases Review Commission of England, Wales and Northern Ireland has served as a state-funded post-conviction body to consider claims of wrongful conviction for those who have exhausted their rights to appeal. A meticulous organisation that has over its lifetime referred over 700 cases back to the Court of Appeal, resulting in over 60% of those applicants having their convictions quashed, it is nonetheless restricted in its response to cases by its own legislation. This shapes its decision-making in reviewing cases, causing it to be somewhat deferential to the original jury, to the principle of finality and, most importantly, to the Court of Appeal, the only institution that can overturn a wrongful conviction. In mandating such deference, the legislation causes the Commission to have one eye on the Court’s evolving jurisprudence but leaves room for institutional and individual discretion, evidenced in some variability in responses across the Commission. While considerable variability would be difficult to defend, some inconsistency raises the prospects for a shift towards a less deferential referral culture. This article draws on original research by the author to consider the impact of institutional deference on the work of the Criminal Cases Review Commission and argues for a slightly bolder approach in its work


Carolyn Hoyle
Carolyn Hoyle is Professor of Criminology at the Faculty of Law, University of Oxford, UK.
Article

Political Sophistication and Populist Party Support

The Case of PTB-PVDA and VB in the 2019 Belgian Elections

Journal Politics of the Low Countries, Issue 3 2020
Keywords populist voters, political sophistication, voting motivations, Belgium, elections
Authors Marta Gallina, Pierre Baudewyns and Jonas Lefevere
AbstractAuthor's information

    In this article, we investigate the moderating role of political sophistication on the vote for populist parties in Belgium. Building on the literature about the diverse determinants of populist party support, we investigate whether issue considerations and populism-related motivations play a bigger role in the electoral calculus of politically sophisticated voters.
    Using data from the 2019 general elections in Belgium, we focus on the cases of Vlaams Belang (VB) and Parti du Travail de Belgique- Partij van de Arbeid (PTB-PVDA). We find evidence suggesting that political sophistication enhances the impact of populism-related motivations on populist party support, although the effects are contingent on the party. Moreover, we show that, for issue considerations, the moderation effect only comes into play for VB voters: the impact of anti-immigrant considerations is greater at increasing levels of political sophistication.


Marta Gallina
Marta Gallina is a PhD Student at the Université catholique de Louvain, Belgium. She obtained her BA and MA in Social Sciences at the University of Milan. Her research interests regard the study of political behaviour, political sophistication, issue dimensionality, populism and Voting Advice Applications. Her work appeared in scientific journals such as Statistics, Politics and Policy, Environmental Politics and Italian Political Science.

Pierre Baudewyns
Pierre Baudewyns is Professor of political behaviour at UCLouvain. He is involved in different projects (voters, candidates) related to National Election Study. Results of his research have been published in Electoral Studies, European Political Science, Regional & Federal Studies, West European Politics and Comparative European Politics.

Jonas Lefevere
Jonas Lefevere is research professor of political communication at the Institute for European Studies and assistant professor of communication at Vesalius College. Since 2018, he is also vice-chair of the ECPR Standing Group on Political Communication. His research interests deal with the communication strategies of political parties, and the effects of election campaigns on voters’ electoral behaviour. He has published on these topics in, amongst others, Electoral Studies, Public Opinion Quarterly, Political Communication and International Journal of Public Opinion Research.

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

The ILC Draft Articles on Crimes Against Humanity

An African Perspective

Journal African Journal of International Criminal Justice, Issue 2 2020
Keywords Africa, norm creation, crimes against humanity, colonial crimes, official immunity
Authors Alhagi B.M. Marong
AbstractAuthor's information

    Africa’s contribution towards the development of the International Law Commission (ILC) Draft Articles should not be assessed exclusively on the basis of the limited engagement of African States or individuals in the discursive processes within the ILC, but from a historical perspective. When analysed from that perspective, it becomes clear that Africa has had a long connection to atrocity crimes due to the mass victimization of its civilian populations during the colonial and postcolonial periods and apartheid in South Africa. Following independence in the 1960s, African States played a leading role in the elaboration of legal regimes to deal with international crimes such as apartheid, or in the development of accountability mechanisms to respond to such crimes. Although some of these efforts proved unsuccessful in the end, the normative consensus that was generated went a long way in laying the foundations for the Rome Statute of the International Criminal Court, which, in turn, influenced the conceptual framework of the ILC Draft Articles. This article proposes that given this historical nexus, the substantive provisions and international cooperation framework provided for in the future crimes against humanity convention, Africa has more reasons to support than to oppose it when negotiations begin at the United Nations General Assembly or an international diplomatic conference.


Alhagi B.M. Marong
Senior Legal Officer, United Nations Assistance Mission in Afghanistan (UNAMA).
Article

An Analysis of State Reactions to the ILC’s Work on Crimes Against Humanity

A Pattern of Growing Support

Journal African Journal of International Criminal Justice, Issue 2 2020
Keywords crimes against humanity, Sixth Committee, International Law Commission, Draft Articles, International Criminal Court
Authors Leila N. Sadat and Madaline George
AbstractAuthor's information

    The international community has been engaged with the topic of crimes against humanity since the International Law Commission (ILC) began work on it in 2013, with a view to draft articles for a future convention. Between 2013 and 2019, 86 States as well as several entities and subregional groups made comments on the ILC’s work at the United Nations Sixth Committee or through written comments to the ILC. This article is the culmination of the Whitney R. Harris World Law Institute’s work cataloguing and analysing States’ comments by assigning each statement to one of five categories – strong positive, positive, neutral, negative, and strong negative – examining both specific words and the general tenor of the comments. This article analyses the development of States’ reactions to the ILC’s work over time, as well as specific issues that frequently arose, observing that there is a pattern of growing support from States to use the ILC’s Draft Articles on Prevention and Punishment of Crimes Against Humanity as the basis for a new convention.


Leila N. Sadat
Leila Nadya Sadat is the James Carr Professor of International Criminal Law, and Director, Whitney R. Harris World Law Institute, Washington University School of Law. This work could not have been accomplished without the extraordinary efforts of several Harris Institute Fellows, including Fizza Batool, Evelyn Chuang, Tamara Slater, and Kristin Smith and Research Fellows Kate Falconer, Sam Rouse, and Ke (Coco) Xu.

Madaline George
Madaline George, JD, is the Senior Fellow at the Whitney R. Harris World Law Institute at Washington University School of Law.
Article

Getting Party Activists on Local Lists

How Dutch Local Party Branches Perform Their Recruitment Function

Journal Politics of the Low Countries, Issue 2 2020
Keywords municipal politics, political parties, candidate lists, local party branches, recruitment
Authors Simon Otjes, Marcel Boogers and Gerrit Voerman
AbstractAuthor's information

    This article examines what explains the performance of Dutch local party branches in the recruitment of candidates for municipal councils. Fielding a list of candidates is the most basic function of political parties. In the Netherlands, party branches are under pressure from the low number of party members. To analyse how branches fulfil their role in recruitment, we employ our own survey of the secretaries of party branches held in the run-up to the 2018 municipal election. We find that party membership drives the successful fulfilment of the recruitment function but that, more than the absolute number of members, the crucial factors are how these party members cooperate, the number of active members and the development of this number.


Simon Otjes
Simon Otjes is Assistant Professor of Dutch Politics at Leiden University and researcher at the Documentation Centre Dutch Political Parties of Groningen University. His research focuses on political parties, parliaments and public opinion. His articles have appeared in the American Journal of Political Science and in the European Journal of Political Research, among others.

Marcel Boogers
Marcel Boogers is Professor of Innovation and Regional governance at Twente University. His research focuses on the structure of and dynamics within networks of local and regional governments. Boogers combines his position at Twente University with a position as senior advisor at consultancy firm BMC.

Gerrit Voerman
Gerrit Voerman is Professor of the Development and Function of the Dutch and European Party System at Groningen University and Director of its Centre Dutch Political Parties. His research focuses on political parties, their history and their organisation. He is editor of a long-running series of books on Dutch political parties.
Article

Access_open Giving Children a Voice in Court?

Age Boundaries for Involvement of Children in Civil Proceedings and the Relevance of Neuropsychological Insights

Journal Erasmus Law Review, Issue 1 2020
Keywords age boundaries, right to be heard, child’s autonomy, civil proceedings, neuropsychology
Authors Mariëlle Bruning and Jiska Peper
AbstractAuthor's information

    In the last decade neuropsychological insights have gained influence with regard to age boundaries in legal procedures, however, in Dutch civil law no such influence can be distinguished. Recently, voices have been raised to improve children’s legal position in civil law: to reflect upon the minimum age limit of twelve years for children to be invited to be heard in court and the need for children to have a stronger procedural position.
    In this article, first the current legal position of children in Dutch law and practice will be analysed. Second, development of psychological constructs relevant for family law will be discussed in relation to underlying brain developmental processes and contextual effects. These constructs encompass cognitive capacity, autonomy, stress responsiveness and (peer) pressure.
    From the first part it becomes clear that in Dutch family law, there is a tortuous jungle of age limits, exceptions and limitations regarding children’s procedural rights. Until recently, the Dutch government has been reluctant to improve the child’s procedural position in family law. Over the last two years, however, there has been an inclination towards further reflecting on improvements to the child’s procedural rights, which, from a children’s rights perspective, is an important step forward. Relevant neuropsychological insights support improvements for a better realisation of the child’s right to be heard, such as hearing children younger than twelve years of age in civil court proceedings.


Mariëlle Bruning
Mariëlle Bruning is Professor of Child Law at Leiden Law Faculty, Leiden University.

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

Access_open Marc Hertogh, Nobody’s Law, Legal Consciousness and Legal Alienation in Everyday Life

Journal Netherlands Journal of Legal Philosophy, Issue 1 2020
Keywords Vervreemding, Naleving van wetten, Legitimiteit, Rule of Law
Authors Irawan Sewandono
Author's information

Irawan Sewandono
Irawan Sewandono is universitair docent staats- en bestuursrecht aan de Open Universiteit.

Miranda Forsyth
Miranda Forsyth is an Associate Professor at the College of Asia and the Pacific, Australian National University, Canberra, Australia.

Valerie Braithwaite
Valerie Braithwaite is Professor at the College of Asia and the Pacific, Australian National University, Canberra, Australia.

Sofie Hennau
Sofie Hennau is a postdoctoral research at the Center for Government and Law, Hasselt University. Her research focuses on local elections and on the relationship between politics and administration at the local level.

Johan Ackaert
Johan Ackaert is professor at the Center for Government and Law, Hasselt University. His research interests are local government and local governance.
Article

Access_open Het 100-jarige bestaan van de Vereeniging voor Wijsbegeerte des Rechts

Journal Netherlands Journal of Legal Philosophy, Issue 2 2019
Keywords oprichting, doelstelling, band met de rechtspraktijk, rechtsfilosofie en rechtstheorie, internationalisering (van Duits naar Engels)
Authors Corjo Jansen
AbstractAuthor's information

    De Vereeniging voor Wijsbegeerte des Rechts (VWR) is opgericht op 28 december 1918. Zij had tot doel de studie van de rechtsfilosofie en het maatschappelijk leven. Deze studie moest tevens relevant zijn voor de rechtspraktijk. Vanaf haar oprichting kende de VWR een sterke internationale oriëntatie, aanvankelijk gericht op Duitsland, later vooral op het Verenigd Koninkrijk en de VS. In de jaren zeventig en tachtig van de vorige eeuw beleefde de VWR wat betreft belangstelling en ledenaantal haar hoogtepunt. In 2016 besloot zij – na een gestage neergang – de band met de Nederlandstalige (praktijk)jurist weer aan te halen.


Corjo Jansen
Corjo Jansen is hoogleraar Rechtsgeschiedenis en Burgerlijk recht en voorzitter van het Onderzoekcentrum Onderneming & Recht van de Radboud Universiteit Nijmegen.
Article

The Right of Appeal against a Decision on Disciplinary Liability of a Judge

Journal East European Yearbook on Human Rights, Issue 1 2019
Keywords disciplinary proceedings, scope of judicial review, standard of judicial review, remedial measures
Authors Taras Pashuk PhD
AbstractAuthor's information

    This article deals with the questions of scope and the standard of judicial review of a disciplinary decision against a judge. It further addresses the issue of remedial powers, which should be granted to the reviewing authority in this type of cases. It is suggested that the scope of judicial review of a disciplinary decision against a judge should extend to questions of law, fact and discretion. What actually varies is the depth of review or, more precisely, the standards of review and the corresponding level of deference, which must be demonstrated to the primary decision-making authority. It is further suggested that there are several factors that have influence on the formation of the standards of review: the institutional, procedural and expertise factors. As to the remedial capacity, the reviewing court should be provided with the competence to apply adequate remedial measures. The reviewing court should be able to effectively eliminate the identified shortcomings in the proceedings before the first-instance authority. For the effective protection of the rights at issue, it may be important for the reviewing court not only to repeal the decision subject to review, but also take other remedial measures. The legitimacy and necessity for applying particular remedial action should be established by taking into account the same institutional, procedural and expertise factors.


Taras Pashuk PhD
PhD (Ivan Franko National University of Lviv, Ukraine), lawyer at the Registry of the European Court of Human Rights. This article has been written in personal capacity, and the thoughts expressed in it cannot be attributed to any Council of Europe body.

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

Constitutional Unamendability in the Nordic Countries

Journal European Journal of Law Reform, Issue 3 2019
Keywords the Nordic constitutions, constitutional unamendability, explicit limits, implicit limits, supra-constitutional limits, review of constitutional amendments
Authors Tuomas Ojanen
AbstractAuthor's information

    With the exception of the Constitution of Norway, the Constitutions of Denmark, Finland, Iceland and Sweden are silent on any substantive limits to the power of constitutional amendment. Until now, the topic of constitutional unamendability has also attracted very little attention in Nordic constitutional scholarship.
    However, some idiosyncrasies making up the identity of the Nordic constitutions, as well as constitutional limits to Nordic participation in European integration, may implicate the existence of some implicit limits to amendment powers. Similarly, international human rights obligations binding upon the Nordic countries, as well as European Union law and European Economic Area law, may impose some external, supra-constitutional limitations on the powers of Nordic constitutional amenders. However, the existence of any implicit or supra-constitutional unamendability is speculative in the current state of evolution of Nordic constitutionalism. This is even more so since the use of constitutional amendment powers are beyond judicial review by the Nordic courts.


Tuomas Ojanen
Tuomas Ojanen is Professor of Constitutional Law, University of Helsinki, contact: tuomas.ojanen@helsinki.fi.
Article

Consensus Democracy and Bureaucracy in the Low Countries

Journal Politics of the Low Countries, Issue 1 2019
Keywords consensus democracy, bureaucracy, governance system, Lijphart, policymaking
Authors Frits van der Meer, Caspar van den Berg, Charlotte van Dijck e.a.
AbstractAuthor's information

    Taking Lijphart’s work on consensus democracies as our point of departure, we signal a major shortcoming in Lijphart’s focus being almost exclusively on the political hardware of the state structure, leaving little attention for the administrative and bureaucratic characteristics of governance systems. We propose to expand the Lijphart’s model which overviews structural aspects of the executive and the state with seven additional features of the bureaucratic system. We argue that these features are critical for understanding the processes of policymaking and service delivery. Next, in order to better understand the functioning of the Netherlands and Belgium as consensus democracies, we provide a short analysis of the historical context and current characteristics of the political-administrative systems in both countries.


Frits van der Meer
Frits van der Meer, Professor Institute Public Administration, Leiden University.

Caspar van den Berg
Caspar van den Berg, Campus Fryslân, University of Groningen.

Charlotte van Dijck
Charlotte van Dijck, PhD Fellow Research Foundation Flanders (FWO), KU Leuven Public Governance Institute.

Gerrit Dijkstra
Gerrit Dijkstra, Senior Lecturer, Leiden University.

Trui Steen
Trui Steen, Professor, KU Leuven Public Governance Institute.
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