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Article

Access_open Racial Profiling and the Presumption of Innocence

Journal Netherlands Journal of Legal Philosophy, Issue 1 2014
Keywords racial profiling, stop-and-frisk, presumption of innocence, communicative theories of criminal law, social inequality and criminal law
Authors Peter DeAngelis
AbstractAuthor's information

    I argue that a compelling way to articulate what is wrong with racial profiling in policing is to view racial profiling as a violation of the presumption of innocence. I discuss the communicative nature of the presumption of innocence as an expression of social trust and a protection against the social condemnation of being undeservingly investigated, prosecuted, and convicted for committing a crime. I argue that, given its communicative dimension, failures to extend the presumption of innocence are an expression of disrespect. I take the New York Police Department’s stop-and-frisk policy as an example of racial profiling and argue that its use of race-based forms of suspicion as reasons for making stops is a violation of the presumption of innocence. I maintain that this systemic failure to extend the presumption of innocence to profiled groups reveals the essentially disrespectful nature of the NYPD policy.


Peter DeAngelis
Peter DeAngelis is Ph.D. Candidate in Philosophy at Villanova University.
Article

Strengthening Child Laws in Africa

Some Examples from the New Children’s Act of Angola

Journal European Journal of Law Reform, Issue 1 2014
Keywords children’s rights, instruments, law reform, good practice examples, developments or advancements
Authors Aquinaldo Célio Mandlate
AbstractAuthor's information

    This article highlights some of the major contributions of the new Children’s Act of Angola (Act 25/12 of 22 August 2012) to the effect that they can be used to advance children’s rights in Africa. The article advocates that although the Angolan law is in many respects similar to other African children’s statutes, its drafters added certain remarkable aspects that can be utilised to advance children’s rights in other countries in the continent. In acknowledging these innovations and the need to strengthen child laws in Africa the contribution calls on African states to learn from the Angolan experience in their quest to advance children’s rights in their own jurisdictions. Other states are also encouraged to learn from the Angolan example.


Aquinaldo Célio Mandlate
Aquinaldo Célio Mandlate, Post-Doctoral Research Fellow (UWC), LLD (Western Cape), LLM (Pretoria), is a practising lawyer registered with the Mozambican Bar Association. He also does consultancy works on several fields. His areas of interest include international human rights law, governance and rule of law, investment, corporate, tax law and banking regulations. Contact at aquinaldo101@gmail.com.
Article

A Thorny Path to the Spotlight

The Rule of Law Component in EU External Policies and EU-Ukraine Relations

Journal European Journal of Law Reform, Issue 1 2014
Keywords rule of law, rule of law promotion, European Union, European Neighbourhood Policy, Ukraine
Authors Olga Burlyuk
AbstractAuthor's information

    The rule of law and its promotion abroad is currently at the core of EU external policies, specifically in the European neighbourhood. But has it always been the case? This article traces the rule of law component of EU external policies in general and EU–Ukraine relations as a case study, and reveals that in the last two decades the rule of law has followed a thorny path to the spotlight, emerging from a rather peripheral place in the 1990s to its currently central one. The article argues that this is a result of three processes: the legislative mainstreaming of the rule of law in the EU itself, the growing ambitiousness of EU–Ukraine relations, and the increased visibility of systemic shortcomings in rule of law application in Ukraine due to the trials of opposition politicians since 2010. The article concludes by suggesting that rule of law components of other EU bilateral relations in the European neighbourhood and beyond are subject to similar processes.


Olga Burlyuk
Recently awarded the degree of Doctor of Philosophy in International Relations, Brussels School of International Studies, the University of Kent.
Article

Wrongful Testing and Its Lively Consequences

Journal European Journal of Law Reform, Issue 1 2014
Keywords wrongful life, wrongful birth, comparative law, best interests of the child, balancing convictions
Authors W.Th. Nuninga
AbstractAuthor's information

    In this article a consecutive comparison will be made between the approaches taken towards wrongful birth and wrongful life cases in the Netherlands and in England and Wales. The systems will be evaluated in the light of the best interests of the child, the balance struck between all moral convictions involved, and legal fairness. It will be argued that the approach taken in the Netherlands is more favourable in most respects, but could improve the balance between all moral convictions involved and could enhance legal fairness by limiting the claim for material damages to costs associated with the disability of the child.


W.Th. Nuninga
W.Th. Nuninga is a Legal Research Master’s student at Utrecht University.
Article

The Values of the European Union Legal Order

Constitutional Perspectives

Journal European Journal of Law Reform, Issue 1 2014
Keywords European Union, constitutional values, jurisprudence, rule of law, treaty objectives
Authors Timothy Moorhead
AbstractAuthor's information

    At the heart of the European Union legal order lie values directed collectively to the idea of European integration. As a body with significant governmental and lawmaking powers, the Union also presents itself as an institution based upon the rule of law. The Union ‘constitution’ therefore expresses both regulatory powers direct­ed towards European integration as well as rule of law principles whose scope of application is limited by the terms of the Treaties. In this article I consider how this distinctive amalgam of values operates as a constitution for the European Union, by comparison with domestic constitutional values within the Member States. I also consider how Union constitutional demands condition and inform the legal practices of the Court of Justice. Here I identify the interpretive effects of superior Union laws –‍ the core Treaty objectives as well as rule of law principles found within the General Principles ‍– as of particular significance in developing the legal influences of the entire Union project of integration.


Timothy Moorhead
Associate Lecturer, University of Kent.
Article

Internet Trolling and the 2011 UK Riots

The Need for a Dualist Reform of the Constitutional, Administrative and Security Frameworks in Great Britain

Journal European Journal of Law Reform, Issue 1 2014
Keywords UK riots, tort law, criminal law, dualism, Internet trolling
Authors Jonathan Bishop
Abstract

    This article proposes the need for ‘dualism’ in the legal system, where civil and criminal offences are considered at the same time, and where both the person complaining and the person responding are on trial at the same time. Considered is how reforming the police and judiciary, such as by replacing the police with legal aid solicitors and giving many of their other powers to the National Crime Agency could improve outcomes for all. The perils of the current system, which treats the accused as criminals until proven not guilty, are critiqued, and suggestions for replacing this process with courts of law that treat complainant and respondent equally are made. The article discusses how such a system based on dualism might have operated during the August 2011 UK riots, where the situation had such a dramatic effect on how the social networking aspects, such as ‘Internet trolling’, affected it.


Jonathan Bishop
Article

Implementation of Better Regulation Measures in the Internal Security Draft Legislation

The Case of Estonia

Journal European Journal of Law Reform, Issue 1 2014
Keywords better regulation, internal security policy, impact assessment, participation, Estonia
Authors Aare Kasemets and Annika Talmar-Pere
AbstractAuthor's information

    The article analyses the implementation of better regulation measures in the internal security (IS) strategies, draft legislation and administrative routines of the Estonian Ministry of the Interior. The article includes the results of five substudies: (a) the research problem emerged from the studies of the explanatory memoranda of draft laws 2004-2009 according to which the Ministry has some deficiencies in fulfilling the better regulation requirements; (b) mapping of better regulation and internal security policy concepts; (c) content analysis of Estonian IS strategy documents; (d) systematization of Estonian IS laws; and (e) sociological e-survey of officials. Theoretical framework integrates the concepts of institutional theory, discursive democracy, realistic legisprudence and the adaptive strategic management.The main conclusions drawn by the article are as follows: the analysis of the knowledge of draft legislation and the excessive amount of laws in the IS field gives evidence of a lack of systematic regulatory impact assessment (IA); the concept of better regulation is not integrated into IS policy documents (insufficient planning and budgeting of IA); and a sociological e-survey of the officials of the Ministry indicates discontent with the management of the IA of policies and draft legislation. According to institutional analysis, this shows readiness for changes in the context of risk society challenges and adaptation with budgetary contractions.


Aare Kasemets
Estonian Academy of Security Sciences. Email: aare.kasemets@sisekaitse.ee.

Annika Talmar-Pere
Estonian Academy of Security Sciences.
Article

Judicial Case Management and the Complexities of Competing Norms Occasioned by Law Reforms

The Experience in Respect of Criminal Proceedings in Botswana

Journal European Journal of Law Reform, Issue 1 2014
Keywords case management, Botswana, criminal proceedings, law reform, subpoena
Authors Rowland J.V. Cole
AbstractAuthor's information

    The Botswana judicial and legal system has undergone a wave of reforms over the past few years. These reforms include judicial case management, which was introduced to reduce unnecessary delays and backlog in the hearing of cases. The introduction of judicial case management necessitates a revision of the rules of court. While the rules of the courts principally relate to civil proceedings, criminal proceedings are principally regulated by the Criminal Procedure and Evidence Act. However, the revised rules of court contain provisions that seek to bring criminal proceedings in line with judicial case management. A number of these provisions are inconsistent with the Criminal Procedure and Evidence Act. This presents problems for the implementation of these rules as the Criminal Procedure and Evidence Act is superior to the rules in the hierarchy of laws. Consequently, the implementation of judicial case management in criminal proceedings may prove to be an arduous task, and urgent harmonisation of the competing provisions is required.


Rowland J.V. Cole
LLB (Hons) (Sierra Leone), LLM (UNISA), LLD (Stell), Senior Lecturer, Department of Law, University of Botswana.
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.
Article

Drafting of Legislation in Compliance with Model Laws

Journal European Journal of Law Reform, Issue 4 2013
Keywords challenges, domestic legislation, model laws
Authors Lesedi Poloko
AbstractAuthor's information

    Lawmaking is an essential attribute of a state. Laws differ from one country to another, and compliance with different legal rules may create problems. Uniformity of laws is an end in itself, and its value lies in its practical benefits. Interest in the quality of legislative instruments is a major concern, especially as regards the effectiveness of the national legislation.


Lesedi Poloko
LLM in Advanced Legislative Studies (2011-2012), Institute of Advanced Legal Studies, School of Advanced Study, University of London. The author would like to thank Prof. Helen Xanthaki for her constructive comments and valuable suggestions. Any errors remain those of the author.
Article

Drafting Conventions, Templates and Legislative Precedents, and their Effects on the Drafting Process and the Drafter

Journal European Journal of Law Reform, Issue 4 2013
Keywords drafting conventions, templates, legislative precedents, drafter’s skill, necessary tools for effective communication of language of legislation
Authors Agnes Quartey Papafio
AbstractAuthor's information

    The aim of this article is to explore whether drafting conventions, templates and legislative precedents contradict or complement the drafter’s style and if they complement the drafter’s style, the various ways in which the use of these tools achieves it.


Agnes Quartey Papafio
The author received her LLM Degree from the University of London, Institute of Advanced Legal Studies in 2012. She works at the Ministry of Justice and Attorney-General’s Office in Ghana as a legislative drafter attached to the Legislative Drafting Division.
Article

The Pursuit of Clarity, Precision and Unambiguity in Drafting Retrospective Legislation

Journal European Journal of Law Reform, Issue 3 2013
Keywords retrospectivity, clarity, precision, unambiguity, legislative drafting
Authors Elias Turatsinze
AbstractAuthor's information

    The hypothesis of this paper is that clarity, precision and unambiguity are the essential tools for expressing retrospective intent, which is a pre-requisite for quality and validity of retrospective legislation. The main objective of this work is to show that retrospective laws are valid, if the retrospective intent is expressed in clear, precise and unambiguous words within the statute. The term retrospectivity is used broadly to describe any legislation or decision affecting pre-enacting conduct. It encompasses statutes affecting the pre-enactment events, administrative regulations or decisions which look back in time and judicial decisions that overturn prior decisions. All these areas cannot be covered in this limited piece of work. Thus, the emphasis in this work will be put on retrospectivity of statutes at the drafting stage. Although it may be referred to generally, retrospective delegated legislation is outside the scope of this work. Particular attention will be directed towards the importance of clarity, precision and unambiguity in attaining quality and validity of retrospective legislation.


Elias Turatsinze
Elias Turatsinze graduated in Legislative Drafting (LLM) from the University of London- Institute of Advanced Legal Studies in 2012.
Article

The Drafter’s Role in the Drafting Process

Journal European Journal of Law Reform, Issue 3 2013
Keywords drafter, drafting process, techniques, scrutiny
Authors Mico Augustin
AbstractAuthor's information

    Every government needs legislation to cover all issues transposing obligations in the manner required by the initiator and with respect to constitutional obligations and rules that provide for the conduct of society.
    Every legislative drafter should strive to achieve a law that is people oriented. The idea is to serve by extending legislative benefits to them in the best possible manner. Drafting is not a simple transcription or translation of administrative or executive guidelines, but is the command of legislative intent. It is a mixture of vision, mission and design, which brings out a workable proposition considering the background of a problem and foreseeing the ramifications of the legislative action. Drafting always supposes precision, brevity and clarity. Drafting should be compared to a focus of technical knowledge of a special kind that put together minds to produce a unity of thought enunciated as a command.
    In order to produce quality legislation, drafters need undergraduate law training, followed by specialised postgraduate training in legislative studies, combined with hands on experience in a drafting office with an experienced senior drafter.


Mico Augustin
Legislative Drafter and Advisor of the Rwanda Parliament/Chamber of Deputies. Email: micog2009@yahoo.fr
Article

Legislative Techniques in Rwanda

Present and Future

Journal European Journal of Law Reform, Issue 3 2013
Keywords legislative drafting, law-making, drafting techniques, Rwanda, quality of legislation
Authors Helen Xanthaki
AbstractAuthor's information

    This report is the result of the collective work of 26 Rwandan civil servants from a number of ministries, who set out to offer the Ministry of Justice a report on legislative drafting in Rwanda. The work was undertaken under the umbrella of the Diploma in Legislative Drafting offered by the Institute for Legal Professional Development (ILPD) in Nyanza under the rectorship of Prof. Nick Johnson. The authors have used their experience of practising drafting in Rwanda, but have contributed to the report in their personal capacity: their views are personal and do not reflect those of the Government of Rwanda.
    My only contribution was the identification of topics, which follows the well-established structure of manuals and textbooks in drafting; the division of the report into two parts: Part 1 on the legislative process and Part 2 on drafting techniques; and the methodology of each individual entry to our report: what is current Rwandan practice, what are international standards, what is the future of Rwanda, and a short bibliography to allow the readers and users of the report to read further, if needed.
    The strength of this report lies both in the methodology used and in the content offered. The breakdown of topics, their prioritization and their sequence allow the reader to acquire a holistic view on how legislation is drafted in Rwanda, but there is nothing to prevent its use in the context of surveys on legislative drafting and legislative quality in other jurisdictions. The content offers a unique insight into the legislative efforts of a jurisdiction in transition from civil to common law: both styles are assessed without prejudice, thus offering a unique fertile ground for critical assessment and practical impact analysis.
    June 2013


Helen Xanthaki
Senior Lecturer and Academic Director, Centre for Legislative Studies, Institute of Advanced Legal Studies, School of Advanced Study, University of London, Lawyer (Athens Bar).
Article

Statutory Interpretation in Multilingual Jurisdictions

Journal European Journal of Law Reform, Issue 3 2013
Keywords drafting, multilingual, translation, interpretation, authenticity
Authors Odethie Birunga
AbstractAuthor's information

    Considering that every piece of legislation is subject to legal interpretation, its practicability depends highly on successful interpretation. In any legislation drafted in more than one language, divergence in meanings of versions is not only possible, but inevitable. It is not a simple task to draft in a way so that contexts are translated and included in all different language versions so that it becomes one meaningful legislation. While relying on one version only in the course of interpreting a piece of legislation may sound a lot easier, there could be ambiguous passages which may be clarified by consulting other versions. The existence of discrepancies between the versions of legislation is neither a smooth sail in multilingual environment.


Odethie Birunga
Odethie Birungi Kamugundu is a Principal State attorney in the ministry of Justice Rwanda since 2010 in the Legislative drafting department which drafts, coordinates and oversees the drafting of laws in Rwanda. Prior to that, she worked in the National Public Prosecution as a prosecutor from 2002 to 2010. She graduated in Law (LLB) from the National University of Rwanda in 1999, and in Legislative Drafting (LLM) from the University of London- Institute of Advanced Legal Studies in 2012.
Article

The Principle of Ultra Vires and the Local Authorities’ Decisions in England

Journal European Journal of Law Reform, Issue 3 2013
Keywords ultra vires, administrative decisions, legislative drafting, validity and invalidity of local authority administrative decisions, misuse of discretion
Authors Charles Aguma
AbstractAuthor's information

    The hypothesis of this article is that valid administrative decisions from local authorities are guaranteed via clear and precise enabling clauses in the primary legislation. The article argues that the style of drafting local authorities’ legislations influences decisions taken by local authorities. First, legislations need to be drafted in a style that clearly and precisely spells out the limits of powers of the local authorities in order to provide sufficient guidance to local authorities’ administrators to act lawfully. In attempting to exercise implied powers conferred by the imprecise enabling legislation, however, local authorities tend to go beyond intended legal powers and as a result take unreasonable, arbitrary and invalid decisions. More so, drafters rarely provide sufficient guidance about which considerations are properly relevant to the exercise of discretion and which are not. Secondly, obscure, wide and ambiguous enabling clauses in the primary legislations are substantial causes of courts’ misinterpretation of legislation as understanding the limits of the powers of the local authorities is a challenge. On the other hand, it is questionable whether the whole range of activities performed by a local authority by invoking implied powers, while exercising discretion, under the umbrella of doing anything that is calculated to facilitate or is conducive to or incidental to the discharge of any of its functions can be regarded as lawful. This article attempts to respond to that question. Although the principle of ultra vires requires the strict observance of the limits of the powers conferred in legislation, local authorities tend to invoke widely drafted provisions to perform activities that are said to be incidental to the express powers of which courts may declare invalid.


Charles Aguma
Charles Aguma graduated in Legislative Drafting (LLM) from the University of London- Institute of Advanced Legal Studies in 2012.
Article

Treaties X Human Rights Treaties

A Critical Analysis of the Dual Stance on Treaties in the Brazilian Legal System

Journal European Journal of Law Reform, Issue 2 2013
Keywords human rights, international treaties, hierarchy of the treaties
Authors Gustavo Ferreira Santos
AbstractAuthor's information

    The Constitution of the Federative Republic of Brazil provides two procedures for incorporating treaties into domestic law. Human rights treaties must be approved by a special quorum: it is necessary that of three-fifths of the members of each legislative house vote in favour, with two rounds in each chamber. This proceeding is similar to a constitutional amendment. Treaties on other subjects need only the approval of the majority. This system has been in place since 2004. The Brazilian Supreme Court decided that human rights treaties incorporated after 2004 have the same hierarchical level of constitutional provisions but human rights treaties enacted before that have the same hierarchical position of ordinary statutory laws. This system needs to be reformed in order to allow an easier integration with international law. All human rights treaties should have the same position as constitutional provisions.


Gustavo Ferreira Santos
Professor of Constitutional Law at the Federal University of Pernambuco and the Catholic University of Pernambuco. Holder of a scholarship awarded by CNPq (Brazilian National Council for Scientific and Technological Development for Research Productivity).
Article

The Controversy Surrounding Article 9 of the Law That Defines How Brazilian Laws Are Applied

The Difficult Path to Reform of Private International Law Legislation in Brazil

Journal European Journal of Law Reform, Issue 2 2013
Keywords willingness, connecting element, controversy, Brazil
Authors Paul Hugo Weberbauer
AbstractAuthor's information

    This study aims to demonstrate that the legislative reform of Private International Law is one of the most complex subjects to be understood in terms of the Law in Brazil. With this objective, the point of reference of this study will be the controversy, which involves willingness as a connecting element, and is also known as the controversy around Article 9 of LINDB. By analyzing willingness as a connecting element within Brazilian legislation, a general panorama of the aforementioned Law is developed, as well as the debate of a doctrine nature about willingness as a connecting element and its insertion in the legal system in effect in Brazil. Finally, the difficulties encountered considering Brazil’s position towards international treaties and conventions, as well as the many attempts to reform Private International Law legislation will be analyzed.


Paul Hugo Weberbauer
Ph.D. in Law and Associate Professor of Recife Law School, Legal Sciences Centre at the Federal University of Pernambuco. Research Group: Regional integration, globalisation and International Law. E-mail: phwberbauer@hotmail.com.
Article

Federalist Distortions in the Organization of the Legislative Branch of Brazilian Government

Journal European Journal of Law Reform, Issue 2 2013
Keywords Brazilian federalism, legislature, distortions
Authors Marcelo Labanca Corrêa de Araújo and Glauco Salomão Leite
AbstractAuthor's information

    This article examines the relationship between federalism and the legislature in Brazil. It examines distortions that occur in the structure of the federal legislature, in the powers conferred constitutionally and in the dynamics of legislative activity. It discusses how the role of the Senate as a house of representation of Member States has been mitigated, highlights the excessive concentration of legislative powers at the federal level and the suffocation of the autonomy of the state and municipal legislatures by the influx of the principle of symmetry.


Marcelo Labanca Corrêa de Araújo
Professor of Constitutional Law at the Catholic University of Pernambuco (undergraduate degree stricto sensu Postgraduate Program in Law). President of the OAB-Pernambuco’s Constitutional Studies Commission. CAPES grant for post-doctoral program abroad, at the University of Pisa’s Faculty of Law.

Glauco Salomão Leite
Professor of Constitutional Law at the Catholic University of Pernambuco. Professor of Public Law at the Federal University of Paraíba. Vice-President the OAB-Pernambuco’s Constitutional Studies Commission.
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