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. |
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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 |
Article |
Strengthening Child Laws in AfricaSome 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. |
Article |
A Thorny Path to the SpotlightThe 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. |
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. |
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The Values of the European Union Legal OrderConstitutional 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. |
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Internet Trolling and the 2011 UK RiotsThe 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. |
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Implementation of Better Regulation Measures in the Internal Security Draft LegislationThe 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. |
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Judicial Case Management and the Complexities of Competing Norms Occasioned by Law ReformsThe 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. |
Article |
Sir William Dale Annual LectureThe 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 |
Article |
Donors without BordersA 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. |
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. |
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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. |
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. |
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. |
Article |
Legislative Techniques in RwandaPresent 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. |
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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. |
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. |
Article |
Treaties X Human Rights TreatiesA 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. |
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The Controversy Surrounding Article 9 of the Law That Defines How Brazilian Laws Are AppliedThe 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. |
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. |