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Article

Access_open De blinde vlek in praktijk en discussie rond orgaandonatie

Journal Netherlands Journal of Legal Philosophy, Issue 1 2020
Keywords organ donation, ethics of organ donation, symbolic nature of the human body, ethics and ritual, symbolic legislation theory
Authors Herman De Dijn
AbstractAuthor's information

    In countries like Belgium and The Netherlands, there seems to be overwhelming public acceptance of transplantation and organ donation. Yet, paradoxically, part of the public refuses post-mortal donation of their own organs or of those of family members. It is customary within the transplantation context to accept the refusal of organ donation by family members “in order to accommodate their feelings”. I argue that this attitude does not take seriously what is really behind the refusal of donation by (at least some) family members. My hypothesis is that even in very secularized societies, this refusal is determined by cultural-symbolic attitudes vis-à-vis the (dead) human body (and some of its parts). The blind spot for this reality, both in the practice of and discussions around organ donation, prevents understanding of what is producing the paradox mentioned.


Herman De Dijn
Herman De Dijn is emeritus hoogleraar wijsbegeerte aan de KU Leuven.
Article

Gender and Language

A Public Law Perspective

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

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


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

Language and Gender

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

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

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


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

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

Constitutional Narcissism on the Couch of Psychoanalysis

Constitutional Unamendability in Portugal and Spain

Journal European Journal of Law Reform, Issue 3 2019
Keywords unamendable/ eternity clauses, de jure and de facto constitutional change, constitutional narcissism, foundational design, helicopter founding fathers, constitutional alma mater
Authors Catarina Santos Botelho
AbstractAuthor's information

    Comparing the Portuguese Constitution, which has the longest unamendable clause in the world, with the silence of the Spanish Constitution regarding the language of eternity is indeed a fascinating exercise. Each state’s quantum of constitutional change seems to be quite different. One can wonder how two neighbouring states that share a heavy history of right-wing dictatorships and transitioned to democracy forty years ago opted for such dissimilar constitutional designs. However, appearances are often misleading, and an effort should be done to unveil this curious mismatch.
    Both legal orders suffer from what I call constitutional narcissism, which manifests itself through the urge to perpetuate the foundational constitutional moment. Unamendable clauses (Portugal) and quasi-unamendable clauses (Spain) recast one of constitutional theory’s inner paradoxes: Can the constituent power of the people be petrified in one historical constituent decision and constrain future democratic transitions? And what if a volatile contemporary majority seeks to undermine the democratic process and run against the constitutional DNA achievements of the last centuries?
    Even if the original version of the Portuguese Constitution prohibited several provisions from ever being amended, some of these provisions were indeed modified or removed in the 1989 constitutional amendment process. This occurred without major disagreement from the political organs, scholars, or the judiciary. Therefore, the vexata quaestio remains unanswered: Given their obsolescence or hindrance towards good governance, should entrenchment clauses be eliminated de jure (through a channelled constitutional amendment process, such as the double amendment procedure) or de facto (through a revolutionary process materialized outside of the constitutional framework)?


Catarina Santos Botelho
Assistant Professor and Department Chair of Constitutional Law at the Porto Faculty of Law, Universidade Católica Portuguesa. Email: cbotelho@porto.ucp.pt. I thank Paul Kahn, Nuno Garoupa, Richard Albert, Gonçalo Almeida Ribeiro, Yaniv Roznai, Ana Teresa Ribeiro, and Luís Heleno Terrinha for their very helpful comments.
Article

The attitudes of prisoners towards participation in restorative justice procedures

Journal The International Journal of Restorative Justice, Issue 1 2019
Keywords Restorative justice, prisons, incarceration, punishment
Authors Inbal Peleg-Koriat and Dana Weimann-Saks
AbstractAuthor's information

    Restorative justice can be implemented at different stages of criminal proceedings. In Israel, restorative justice processes are mainly used prior to sentencing, while there are no restorative programmes for adults following sentencing and while serving their prison sentences. The aim of the present study is to examine the possibility of implementing restorative processes within prison walls. To this end, the present study empirically investigates the level of readiness and willingness of prisoners (n = 110) from two large prisons in Israel to participate in restorative processes and examines the psychological mechanisms underlying their attitudes towards actual participation in these processes. The study proposes a model according to which the relationship between the cognitive component of attitude towards victims and the harm caused by the offence (beliefs and thoughts) and the behavioural component of attitude (the inclination to participate in restorative processes) is mediated by the affective component of attitude towards the offence (sense of guilt and shame). The findings of the study support the proposed model. The study also found that the more prisoners perceived the harm they caused as having more dimensions (physical, economic, emotional), the more positive their attitudes towards restorative justice would be. This study will advance research into restorative justice at a stage that has not previously been researched in Israel and has rarely been investigated elsewhere.


Inbal Peleg-Koriat
Inbal Peleg-Koriat, PhD, is a lawyer and conflict management and negotiation specialist, and a faculty member at the Yezreel Valley Academic College, Israel.

Dana Weimann-Saks
Dana Weimann-Saks, PhD, is a lawyer and a social psychologist, and also a faculty member at the Yezreel Valley Academic College.
Article

Exploring the intertwining between human rights and restorative justice in private cross-border disputes

Journal The International Journal of Restorative Justice, Issue 1 2019
Keywords International human rights, private actors, horizontal effect, restorative justice
Authors Marta Sá Rebelo
AbstractAuthor's information

    International human rights instruments operate on the assumption that states are the focal human rights duty bearers. However, private actors can harm human rights as well. Moreover, since mechanisms at a supranational level are lacking, these instruments rely primarily on states for their enforcement. Yet states’ internal rules and courts are meant to address infringements that are confined within their borders, and are therefore often structurally unable to deal with violations having transnational impact. Restorative justice has proven to respond in depth to different kinds of wrongdoing and, although addressing the peculiarities of each case, restorative procedures can systemically prevent deviant behaviour as well. Additionally, as restorative justice relies on voluntary participation it need not operate in a specific territory. Having this broader picture in mind, the article explores whether restorative justice might be adequate for dealing with human rights infringements perpetrated by private actors that have cross-border impact.


Marta Sá Rebelo
Marta Sá Rebelo is a PhD researcher at Católica Global School of Law and a teaching assistant at Católica Lisbon School of Law, Universidade Católica Portuguesa, Lisbon, Portugal.
Article

Access_open The Enemy of All Humanity

Journal Netherlands Journal of Legal Philosophy, Issue 2 2018
Keywords hostis generis humani, piracy, crimes against humanity, universal jurisdiction, radical evil
Authors David Luban
AbstractAuthor's information

    Trationally, the term “enemy of all humanity” (hostis generis humani) referred to pirates. In contemporary international criminal law, it refers to perpetrators of crimes against humanity and other core. This essay traces the evolution of the concept, and then offers an analysis that ties it more closely to ancient tyrants than to pirates. Some object that the label is dehumanizing, and justifies arbitrary killing of the “enemy of humanity.” The essay admits the danger, but defends the concept if it is restricted to fair trials. Rather than dehumanizing its target, calling the hostis generis humani to account in a court of law is a way of recognizing that radical evil can be committed by humans no different from any of us.


David Luban
David Luban is University Professor in Law and Philosophy at Georgetown University.
Article

Access_open The Conduit between Technological Change and Regulation

Journal Erasmus Law Review, Issue 3 2018
Keywords technology, socio-technological change, money, windmill, data
Authors Marta Katarzyna Kołacz and Alberto Quintavalla
AbstractAuthor's information

    This article discusses how the law has approached disparate socio-technological innovations over the centuries. Precisely, the primary concern of this paper is to investigate the timing of regulatory intervention. To do so, the article makes a selection of particular innovations connected with money, windmills and data storage devices, and analyses them from a historical perspective. The individual insights from the selected innovations should yield a more systematic view on regulation and technological innovations. The result is that technological changes may be less momentous, from a regulatory standpoint, than social changes.


Marta Katarzyna Kołacz
Marta Katarzyna Kołacz, Ph.D. Candidate in the Department of Private Law, Erasmus School of Law, Erasmus University Rotterdam, The Netherlands.

Alberto Quintavalla
Alberto Quintavalla, LL.M., Ph.D. Candidate in the Rotterdam Institute of Law and Economics, Erasmus School of Law, Erasmus University Rotterdam, The Netherlands.
Part II Private Justice

Reputational Feedback Systems and Consumer Rights

Improving the European Online Redress System

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords reputational feedback systems, consumer’s protection, dispute resolution, ADR, ODR, enforceability, ecommerce, European redress system small claims
Authors Aura Esther Vilalta Nicuesa
AbstractAuthor's information

    The European Union single market needs to tackle an outstanding issue to boost competitiveness and growth: a trust-based redress framework that ensures the effectiveness of consumers’ rights. The current disparities among dispute resolution mechanisms, added to the fact that in practice many do not guarantee participation and enforceability, are serious obstacles to this goal. Trust and the integration of certain dispute avoidance tools added to the regulation of some common enforcement mechanisms are key issues in the field of consumer protection. The goal of this article is to offer some insights within the context of the European Union legislative proposals aimed at improving the current redress system.


Aura Esther Vilalta Nicuesa
Aura Esther Vilalta Nicuesa is Professor of Law, Universitat Oberta de Catalunya (UOC) and member of the National Center or Technology and Dispute Resolution, Massachusetts, Amherst.
Article

Access_open ‘A Continuous Process of Becoming’: The Relevance of Qualitative Research into the Storylines of Law

Journal Erasmus Law Review, Issue 2 2018
Keywords storylines of law, qualitative research, law in action, law in books
Authors Danielle Antoinette Marguerite Chevalier
AbstractAuthor's information

    The maxim ‘law in books and law in action’ relays an implicit dichotomy, and though the constitutive nature of law is nowadays commonly professed, the reflex remains to use law in books as an autonomous starting point. Law however, it is argued in this article, has a storyline that commences before its institutional formalisation. Law as ‘a continuous process of becoming’ encompasses both law in books and law in action, and law in action encompasses timelines both before and after the formal coming about of law. To fully understand law, it is necessary to understand the entire storyline of law. Qualitative studies in law and society are well equipped to offer valuable insights on the facets of law outside the books. The insights are not additional to doctrinal understanding, but part and parcel of it. To illustrate this, an ethnographic case study of local bylaws regulating an ethnically diverse public space of everyday life is expanded upon. The case study is used to demonstrate the insights qualitative data yields with regard to the dynamics in which law comes about, and how these dynamics continue for law in action after law has made the books. This particular case study moreover exemplifies how law is one of many truths in the context in which it operates, and how formalised law is reflective of the power constellations that have brought it forth.


Danielle Antoinette Marguerite Chevalier
Dr. mr. Danielle Antoinette Marguerite Chevalier, PhD, is assistant professor at Leiden University, The Netherlands.
Article

Access_open Evidence-Based Regulation and the Translation from Empirical Data to Normative Choices: A Proportionality Test

Journal Erasmus Law Review, Issue 2 2018
Keywords evidence-based, regulation, proportionality, empirical law studies, law and society studies
Authors Rob van Gestel and Peter van Lochem
AbstractAuthor's information

    Studies have shown that the effects of scientific research on law and policy making are often fairly limited. Different reasons can be given for this: scientists are better at falsifying hypothesis than at predicting the future, the outcomes of academic research and empirical evidence can be inconclusive or even contradictory, the timing of the legislative cycle and the production of research show mismatches, there can be clashes between the political rationality and the economic or scientific rationality in the law making process et cetera. There is one ‘wicked’ methodological problem, though, that affects all regulatory policy making, namely: the ‘jump’ from empirical facts (e.g. there are too few organ donors in the Netherlands and the voluntary registration system is not working) to normative recommendations of what the law should regulate (e.g. we need to change the default rule so that everybody in principle becomes an organ donor unless one opts out). We are interested in how this translation process takes place and whether it could make a difference if the empirical research on which legislative drafts are build is more quantitative type of research or more qualitative. That is why we have selected two cases in which either type of research played a role during the drafting phase. We use the lens of the proportionality principle in order to see how empirical data and scientific evidence are used by legislative drafters to justify normative choices in the design of new laws.


Rob van Gestel
Rob van Gestel is professor of theory and methods of regulation at Tilburg University.

Peter van Lochem
Dr. Peter van Lochem is jurist and sociologist and former director of the Academy for Legislation.
Article

The adventure of the institutionalisation of restorative justice in Belgium

Journal The International Journal of Restorative Justice, Issue 2 2018
Keywords Restorative justice, institutionalisation, penal change, Belgium
Authors Anne Lemonne
AbstractAuthor's information

    At first glance, the adventure of restorative justice (RJ) in Belgium can be considered a real success story. At the turn of the 21st century, programmes oriented towards this justice model officially determined the criminal justice agenda. What were the key ideas that led to the conceptualisation of restorative justice in Belgium? Who were the main actors and agencies that carried them out? What were the main issues that led to the institutionalisation of restorative justice? What are the effects of its implementation on the Belgian criminal justice system in general? This article strives to present the main findings of a study on the basis of an extensive data collection effort and analysis targeting discourses and practices created by actors from the Belgian academic, scientific, political, administrative, social work and judicial spheres from the 1980s to 2015.


Anne Lemonne
Anne Lemonne is a researcher at the Department of Criminology, National Institute for Criminalistics and Criminology (NICC) and a member of the Centre de recherches criminologiques at the Université Libre de Bruxelles (ULB), Brussels, Belgium. Contact author: Anne.Lemonne@just.fgov.be.
Human Rights Literature Review

Ukraine

Journal East European Yearbook on Human Rights, Issue 1 2018
Authors Dr. Tetyana Antsupova
Author's information

Dr. Tetyana Antsupova
Dr. habil., Judge of the Supreme Court (Ukraine).
Article

Changing Realities

Islamic Veils and Minority Protection

Journal East European Yearbook on Human Rights, Issue 1 2018
Keywords European Court of Human Rights, freedom of religion Islamic veils, minority protection
Authors Dr Gábor Kardos LLM, PhD.
AbstractAuthor's information

    Most of the immigrant communities in Europe do not show any signs of giving up their identity. Just the contrary, they seem to be more and more committed to preserving their culture, traditions, language and religion. Their growing numbers and adherence to their culture and traditions have raised the question of whether it would be necessary to accept them as permanent factors in the society, and consequently, to secure for them, beside equality and freedom of religion, other minority rights such as the right to preserve their cultural and language identity. This change might presuppose a renewal of the traditional understanding of the concept of the national minority. To raise the standards for minority rights of immigrants and at the same time to maintain the level of protection of homeland minorities is not an easy but a necessary solution. But even the accommodation of certain aspects of the freedom of religion of migrants is a problem in practice. As far as the public use of Islamic veils is concerned, the decisions of the European Court of Human Rights proved to be too lenient towards those state parties which put secularity of public institutions before the freedom of religion of the individual. The dissenting opinions correctly emphasize that the role of the authorities is not to remove the cause of tension by eliminating pluralism but to ensure that competing groups tolerate each other. If the Islamic veils are symbols of pressurization, oppression and discrimination, or proselytism, the intervention of state authorities may be justified but the law cannot presuppose that the aforementioned situations are the prevailing ones. If it does so, the collateral damage at the expense of a basic human right of certain true believers is too high.


Dr Gábor Kardos LLM, PhD.
LLM, PhD. Dr Habil. Professor of International Law, International Law Department, Faculty of Law, ELTE University, Budapest, Hungary.
Article

The Margin of Appreciation in the ECtHR’s Case Law

A European Version of the Levels of Scrutiny Doctrine?

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords ECHR, judicial deference, levels of scrutiny, margin of appreciation, U.S. federalism
Authors Koen Lemmens
AbstractAuthor's information

    Although the American doctrine of levels of scrutiny and the European concept of margin of appreciation are regularly compared as typical instances of deferential judicial decision-making, this article argues that owing to the institutional setting in which they operate, the differences between the two are notable. It is also argued that the social consequences of the application of the two concepts may even be radically opposed.


Koen Lemmens
Associate professor of Public Law at KU Leuven (Belgium) and press law VU Brussels (Belgium). The author thanks Toon Agten for his comments and Camille Van Peteghem for her assistance during research. The usual disclaimer applies. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.

Joao Salm
Assistant Professor of Criminal Justice, Governors State University (USA). Contact author: jsalm@govst.edu.
Conversations on restorative justice

A talk with John Blad

Journal The International Journal of Restorative Justice, Issue 1 2018
Authors Albert Dzur
Author's information

Albert Dzur
Albert Dzur is Professor, Departments of Political Science and Philosophy, Bowling Green State University, USA. Contact author: awdzur@bgsu.edu.
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 Legality of the World Bank’s Informal Decisions to Expand into the Tax Field, and Implications of These Decisions for Its Legitimacy

Journal Erasmus Law Review, Issue 2 2017
Keywords World Bank, legality, legitimacy, global tax governance, tax policy and tax administration reforms
Authors Uyanga Berkel-Dorlig
AbstractAuthor's information

    The emergence of global tax governance was triggered by common tax problems, which are now still being faced by international society of nation-states. In the creation of this framework, international institutions have been playing a major role. One of these institutions is the World Bank (Bank). However, those who write about the virtues and vices of the main creators of the framework usually disregard the Bank. This article, therefore, argues that this disregard is not justified because the Bank has also been playing a prominent role. Since two informal decisions taken in the past have contributed to this position of the Bank, the article gives in addition to it answers to the following two related questions: whether these informal decisions of the Bank were legal and if so, what implications, if any, they have for the Bank’s legitimacy.


Uyanga Berkel-Dorlig
Ph.D. candidate in the Department of Tax Law, Erasmus School of Law, Erasmus University Rotterdam, The Netherlands.
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