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Article

Access_open What Makes Age Discrimination Special? A Philosophical Look at the ECJ Case Law

Journal Netherlands Journal of Legal Philosophy, Issue 1 2014
Keywords age discrimination, intergenerational justice, complete-life view, statistical discrimination, anti-discrimination law
Authors Axel Gosseries
AbstractAuthor's information

    This paper provides an account of what makes age discrimination special, going through a set of possible justifications. In the end, it turns out that a full understanding of the specialness of age-based differential treatment requires that we consider together the ‘reliable proxy,’ the ‘complete-life neutrality,’ the ‘sequence efficiency’ and the ‘affirmative egalitarian’ accounts. Depending on the specific age criteria, all four accounts may apply or only some of them. This is the first key message of this paper. The second message of the paper has to do with the age group/birth cohort distinction. All measures that have a differential impact on different cohorts also tend to have a differential impact on various age groups during the transition. The paper points at the practical implications of anti-age-discrimination law for differential treatment between birth cohorts. The whole argument is confronted all along with ECJ cases.


Axel Gosseries
Axel Gosseries is a permanent research fellow at the Belgian FRS-FNRS and a Professor at the University of Louvain (UCL, Belgium) where he is based at the Hoover Chair in Economic and Social Ethics.
Article

Access_open The Right to Have Rights as the Right to Asylum

Journal Netherlands Journal of Legal Philosophy, Issue 1 2014
Keywords Arendt, asylum, refugeeship, right to have rights, statelessness de facto and de jure
Authors Nanda Oudejans
AbstractAuthor's information

    This article argues that the right to have rights, as launched by Hannah Arendt, is relative to refugee displacement and hence translates as a right to asylum. It takes issue with the dominant view that the public/private divide is the locus classicus of the meaning of this primordial right. A different direction of thought is proposed, proceeding from Arendt’s recovery of the spatiality of law. The unencompassibility of place in matters of rights, freedom and equality brings this right into view as a claim at the behest of those who have lost a legal place of their own. This also helps us to gain better understanding of Arendt’s rebuttal of the sharp-edged distinction between refugees and stateless persons and to discover the defiant potential of the right to have rights to illuminate the refugee’s claim to asylum as a claim to an own place where protection can be enjoyed again.


Nanda Oudejans
Nanda Oudejans is an independent researcher in philosophy of law and political philosophy.
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

The Costs and Consequences of US Drug Prohibition for the Peoples of Developing Nations

Journal European Journal of Law Reform, Issue 1 2014
Keywords U.S. drug policy, drug prohibition, War on Drugs, human rights, U.N. Declaration on the Right to Development
Authors J. Michael Blackwell
AbstractAuthor's information

    The widespread production and use of illicit drugs is a social phenomenon carrying enormous social, economic, and political significance. The United States stands as a vocal and forceful proponent of prohibitionist drug controls in international policymaking. However, strictly enforced US prohibitionist drug controls largely fail to effectively reduce the consumption of narcotic drugs and ultimately create a significant number of negative consequences for many peoples throughout the world. The increased violence, government corruption and community sequestration that result from the war against drugs are deleterious to economic development among rural communities in drug producing countries. In response to these concerns, this article examines the purpose, effects and consequences of the prohibitive drug controls routinely employed by the United States. Special attention is paid to an oft-overlooked repercussion of prohibitive drug controls: the marginalisation of developmental human rights for peoples in drug producing countries.


J. Michael Blackwell
J.D. candidate, Indiana University Robert H. McKinney School of Law, 2013; A special thanks to family, friends and Dr. Frank Emmert for guidance and support.

    This paper explores the roles that the presumption of innocence (PoI) can play beyond the criminal trial, in other dealings that citizens may have with the criminal law and its officials. It grounds the PoI in a wider notion of the civic trust that citizens owe each other, and that the state owes its citizens: by attending to the roles that citizens may find themselves playing in relation to the criminal law (such roles as suspect, defendant, convicted offender and ‘ex-offender’), we can see both how a PoI protects us, beyond the confines of the trial, against various kinds of coercion, and how that PoI is modified or qualified as we acquire certain roles. To develop and illustrate this argument, I pay particular attention to the roles of defendant (both during the trial and while awaiting trial) and of ‘ex-offender,’ and to the duties that such roles bring with them.


Antony Duff
Antony Duff holds the Russell M and Elizabeth M Bennett Chair in the University of Minnesota Law School, and is a Professor Emeritus of the Department of Philosophy, University of Stirling.
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

Access_open The Opacity of a Multinational Company’s Organization, Legal Structure and Power

What Type of Corporate Information Must a Multinational Company Make Public Pursuant to Dutch Law? Options for Improving Dutch Law: Better Access to Corporate Information for Stakeholders

Journal The Dovenschmidt Quarterly, Issue 3 2013
Keywords transparency, CSR disclosure, corporate legal structure, legal framework for corporate reporting, integrated reporting
Authors Tineke E. Lambooy, Rosalien A. Diepeveen, Kim Nguyen e.a.
AbstractAuthor's information

    This article describes the types of information that a multinational company must make public pursuant to Book 2 of the Dutch Civil Code, the Act on Financial Supervision and the Commercial Registers Act. We ascertain that: (i) the Dutch Trade Register fails in providing adequate information about the foreign parts of a group; (ii) the annual reporting laws fail to require companies to provide an insight in the group legal structure, the business organization and the corporate social responsibility profile of a multinational company; and (iii) the Act on Financial Supervision fails to include disclosure requirements regarding the corporate social responsibility profile of a listed company. Different possible legislative amendments are provided in this article that could enhance transparency concerning a Dutch multinational company’s business organization, the legal structure and its corporate social responsibility profile, so that corporate information is better accessible for stakeholders. We conclude that most of these improvements are not limited to the Dutch legal system, but can be seen in the light of a global trend of increased corporate transparency. With this article, we hope to contribute to a new mind-set whereby transparency is stimulated, by offering concrete (policy) tools.


Tineke E. Lambooy
Dr. T.E. Lambooy, LL.M., is an associate professor at Utrecht University’s Molengraaff Institute for Private Law and at Nyenrode Business University’s Center for Sustainability. She is the author of Corporate Social Responsibility. Legal and Semi-Legal Frameworks Supporting CSR (Kluwer, 2010).

Rosalien A. Diepeveen

Kim Nguyen
P.K. Nguyen obtained her LL.M. degree at Utrecht University Law School.

Sander van ’t Foort
R.A. Diepeveen and S. van ’t Foort are currently pursuing an LL.M. degree at Utrecht University Law School. The authors are very grateful to R. Hordijk, LL.M., for supporting them in the research on this topic and to K. Hooft, LL.M., for reviewing the draft contribution.
Article

The Regularization of Undocumented Immigrants in the United States

The Spanish Solution

Journal European Journal of Law Reform, Issue 1 2013
Keywords undocumented immigrants, migration policy, regularization process, social assimilation, economic crisis
Authors Oscar Celador Angón
AbstractAuthor's information

    The aim of this article is to offer solutions to the problem of undocumented immigrants in the United States, using the Spanish migration model as a possible solution. During the last decade Spain has been the European country that has received more migration flows due to his economic development. Spain has used the knowledge and experience of other European host societies to design a migration model, which avoids the social conflicts arising from the coexistence of large numbers of undocumented immigrants, and that could provide answers to the problems faced by the US system.


Oscar Celador Angón
Oscar Celador Angón is Professor of Law and Director of the Department of International Law, Ecclesiastical Law and Philosophy of the Universidad Carlos III de Madrid.
Article

Continuous Mixed Forestry and the Citizens Forest Model

Journal European Journal of Law Reform, Issue 1 2013
Keywords continuous mixed forestry in Europe, citizen forest society, forest law reform, climate change, social forest ethics
Authors J.W. Simon and W. Bode
AbstractAuthor's information

    Climate change, air pollution and especially short-rotation forestry are the main causes for increasing detrimental effects on forests. Therefore, it is urgently necessary to find effective counteractions to this damage so that forests will become resistant, grow sustainably and are more economically effective and thus contribute optimally to the common welfare for all citizens. ‘Continuous mixed forestry’, in contrast to the normally used short-rotation or age-classed-forestry, is one suitable model to counteract climate change and air pollution in this way on both the local and national level. It is forestry without clear-cuts, biocides and with soft logging by continuous thinning and natural regeneration.The necessary change to this sustainable cultivation model is generally possible and necessary all over Europe and in other areas of the world. A very good chance for this type of forestry is available now within the framework of selling state-owned forests to private investors. This selling is planned by governments in some countries like the Great Britain1xThe Guardian, 22 December 2010, For sale: all of our forests. Not some of them, nor most of them – the whole lot, 11:55 GMT; Frankfurter Allgemeine Zeitung (2011), In love of the forest (Aus Liebe zum Forst), 4 February, No. 29, p. 5. But the British Government has apparently changed its view, see: The Guardian, 17 February 2011, Timber! Cameron in U-turn over forests sell-off, p. 1. and has been partly realised on a large scale in Germany.2xE.g. Lower House of the German Parliament (2009), answer of the Federal Government to the small question … Privatisation of forests by the Federal Institute of Real Estate Tasks, 16. Election period, Drucks. 16/14115, 30 September 2009. This article proposes selling the state-owned forests to a central, private national heritage foundation as a first step instead of transferring them with their traditional, mismanaged short rotation or age-classed forestry to private investors who would continue the state mismanagement. The task of the foundation would be to organize the ‘citizen forest society’ as a social-ethics–based society that is privately owned by citizens and the foundation. This would generate ecological advantages for the forest and moreover long-lasting profits for citizens, because the foundation would establish other organizations where the citizens become responsible owners of ‘their’ forest without any governmental or third-party influence.This proposal describes a solution to the demands of social-oriented ethics, which are primarily focused on the cooperation of responsible persons, represented by the private ownership of the forests, and directed by a responsible foundation.

Noten

  • 1 The Guardian, 22 December 2010, For sale: all of our forests. Not some of them, nor most of them – the whole lot, 11:55 GMT; Frankfurter Allgemeine Zeitung (2011), In love of the forest (Aus Liebe zum Forst), 4 February, No. 29, p. 5. But the British Government has apparently changed its view, see: The Guardian, 17 February 2011, Timber! Cameron in U-turn over forests sell-off, p. 1.

  • 2 E.g. Lower House of the German Parliament (2009), answer of the Federal Government to the small question … Privatisation of forests by the Federal Institute of Real Estate Tasks, 16. Election period, Drucks. 16/14115, 30 September 2009.


J.W. Simon
University of London, Institute for Advanced Legal Studies/Centre for Ethics and Law in the Life Sciences, Medical University Hannover.

W. Bode
Leit.Min.R., Ministerium für Umwelt und Verbraucherschutz/Saarland, 66121 Saarbrücken, Germany.
Article

Access_open The Collapse of the Rule of Law

The Messina Earthquake and the State of Exception

Journal Netherlands Journal of Legal Philosophy, Issue 2 2012
Keywords Messina, earthquake, state of exception, rule of law, progress
Authors Massimo La Torre
AbstractAuthor's information

    Messina, a Sicilian town, was devasteted by an earthquake in1908. It was an hecatomb. Stricken through this unfathomable disgrace Messina’s institutions and civil society collapsed and a sort of wild natural state replaced the rule of law. In this situation there was a first intervention of the Russian Czarist navy who came to help but immediately enforced cruel emergency measures. The Italian army followed and there was a formal declaration of an ‘emergency situation.’ Around this event and the several exceptional measures taken by the government a debate took place about the legality of those exceptional measures. The article tries to reconstruct the historical context and the content of that debate and in a broader perspective thematizes how law (and morality) could be brought to meet the breaking of normality and ordinary life by an unexpected and catastrophic event.


Massimo La Torre
Massimo La Torre is Professor of Legal Philosophy at the University of Catanzaro in Italy and visiting Professor of Law at the University of Hull in England.
Article

Rule of Ordinance in the Islamic Republic of Pakistan

A Question of Arbitrary Legislative Endowment

Journal European Journal of Law Reform, Issue 2-3 2012
Keywords legislative authority of government in Pakistan, ordinance in English law, ordinance in British India, ordinance in Pakistan, emergency legislation by ordinance in Pakistan
Authors Mazhar Ilahi
AbstractAuthor's information

    The Constitution of the Islamic Republic of Pakistan empowers the federal and provincial Governments via the President and the Governors of the respective provinces to enact the primary legislation independent of the representative legislatures in the form of Ordinances. However, the resulting enactment remains in force for a few months, and notionally, must be promulgated only under the circumstances of urgent necessity and when the national legislature is not in session. Yet, owing to the vagueness of the text of the relevant Constitutional provisions, the scope of this legislative authority has much potential for abuse, and it has so been alleged too, in numerous Constitutional petitions filed from time to time in the superior courts of Pakistan seeking the judicial review of the promulgating action on the ground of malafide etc. But the judicature in Pakistan has largely abstained from exercising its authority to keep itself from being stigmatized from the usual aftermath of the judicial pronouncement on questions of political fiat. Resultantly, the natural democratic right of the illiterate and ignorant people of Pakistan to be governed by laws made by the designated representative legislature is persistently being jeopardized. In this view of the matter, on the basis of an empirical study of the Ordinance and the emergency legislation in the United Kingdom, and the ensuing principles of good governance and democratic norms, this article argues that the Constitutional authority of the Governments in Pakistan to enact primary legislation by way of promulgating Ordinances is an arbitrary legislative endowment, and entails a review by a truly representative, legitimate and competent Constituent Assembly.


Mazhar Ilahi
The author (mazharilahi@hotmail.com) is currently a PhD candidate at the Institute of Advanced Legal Studies, School of Advanced Study, University of London, UK. Previously he has served in the judicial service of Pakistan as civil judge-cum-judicial magistrate and has also practiced as Advocate of High Courts in Pakistan.
Article

Challenges Faced by Legislative Drafters in Samoa and Other USP Member Countries

Journal European Journal of Law Reform, Issue 2-3 2012
Keywords legislative drafting challenges in Pacific Islands
Authors Mary Victoria Petelō Fa’asau
AbstractAuthor's information

    Legislative drafting is a skill slowly developing in the Pacific today. This abstract identifies and records an update on the challenges to legislative drafting in Pacific island countries. Due to lack of information on legislative drafting in the Pacific, research was undertaken with the assistance of Parliamentary Counsel and other Pacific drafters. I also attended the second biennial meeting of the Pacific Drafters’ Technical Forum in October 2009 where more current challenges were discussed. My own experiences as a legislative drafter are also reflected in this abstract.
    The outcomes of the abstract will show that whereas legislative drafting as a specialised skill is recognised by Pacific governments and interests have grown in pursuing legislative drafting as a career, the challenges faced by Pacific legislative drafters are commonly more diverse and complex. In addition to analysing some of these challenges, this paper offers some recommendations to combating them.


Mary Victoria Petelō Fa’asau
Senior Legislative Drafter, Legislative Drafting Division, Office of the Attorney-General, Samoa; 2011/2012 Greg Urwin Award recipient, Pacific Islands Forum Secretariat; Pacific Legislative Drafters’ Technical Forum; Full member of the Commonwealth Association of Legislative Counsel.
Article

Trade in Oil and Export Restrictions

Taking the Organization of the Petroleum Exporting Countries to the WTO Court

Journal European Journal of Law Reform, Issue 1 2012
Keywords WTO, dispute settlement, US, OPEC, oil
Authors Bashar H. Malkawi
AbstractAuthor's information

    The Organization of the Petroleum Exporting Countries (OPEC), as seen by observers, resembles a greedy international cartel that preys on the public in defiance of market competition. High oil prices are considered as a principal cause of the US economic woes. Some US congressmen pinpointed OPEC’s alleged inconsistency with the World Trade Organization (WTO) rules and called upon the US administration to open dispute settlement proceedings against OPEC. This article discusses the legal issues arising from a US action at the WTO level against OPEC countries. The first sections of the article comprise an institutional review of the WTO and OPEC. The article addresses the interplay between the WTO and OPEC. It then illustrates the central provisions of the WTO that can be used for arguments and counter-arguments concerning such a WTO action. It culminates with a set of concluding thoughts.


Bashar H. Malkawi
Associate Professor of Commercial Law, University of Sharjah, UAE. He received his LL.B from Yarmouk University in 1999, LL.M from University of Arizona College of Law in 2001, S.J.D from American University, Washington College of Law in 2005. The author would especially like to thank the two outside reviewers for their direction, feedback and invaluable insight. He also thanks the law journal editors and staff writers for their hard work in polishing the article.
Article

Access_open Law in the twilight of environmental Armageddon

A response to Han Somsen

Journal Netherlands Journal of Legal Philosophy, Issue 1 2011
Keywords environmental catastrophe, legitimacy, geo-engineering, phenomenology
Authors Luigi Corrias
AbstractAuthor's information

    This paper argues that Somsen’s article, though brave in approach and daring in ideas, suffers from some fundamental flaws. First of all, it remains unclear how Somsen conceptualises the relationship between legitimacy and effectiveness, and what this means for his position towards the argument of a state of exception. Secondly, a plea for regulation by code has serious consequences for the claim to attain justice. Finally, geo-engineering poses some profound difficulties, both because of its consequences and because of its presuppositions.


Luigi Corrias
Luigi Corrias is Assistant Professor of Legal Philosophy at VU University, Amsterdam, the Netherlands.
Article

Access_open When regulators mean business

Regulation in the shadow of environmental Armageddon

Journal Netherlands Journal of Legal Philosophy, Issue 1 2011
Keywords ecological catastrophe, regulatory legitimacy, regulatory effectiveness, geo-engineering
Authors Han Somsen
AbstractAuthor's information

    This article considers the question how knowledge of an impending ecological catastrophe is likely to impact on regulatory legitimacy and regulatory effectiveness. If the ultimate aim to safeguard meaningful human life on earth is in acute danger, this is likely to translate into zero tolerance towards non-compliance with environmental rules designed to avert catastrophe. This, in turn, will persuade regulators to employ normative technologies that do not engage with the moral reason of regulatees at all, but leave no option but to comply. In addition, regulators may turn to panoptic surveillance techniques that allow no breaches of rules to remain undetected. Finally, it is argued that if and to the extent that impending ecological catastrophe marks the end of maintaining the status quo as a plausible policy goal, regulators will be more sympathetic towards potentially apocalyptic technologies that carry greater promise for future gain than otherwise would be the case.


Han Somsen
Han Somsen is Professor of Regulation & Technology at the Tilburg Institute for Law, Technology and Society, and Dean of Research of Tilburg Law School.
Article

Methods and Materials in Constitutional Law

Some Thoughts on Access to Government Information as a Problem for Constitutional Theory and Socio-Legal Studies

Journal European Journal of Law Reform, Issue 1 2011
Keywords Citizenship, democracy, government information, representative government, secrecy
Authors Barry Sullivan
AbstractAuthor's information

    To be subject to law, Hobbes argued, is to be deprived of liberty, as we understand it. In this respect, democratic governments are no different from others. Hobbes’s insight has not caused us to abandon our commitments to democracy, but it still challenges us to think hard about the nature of representative government, the nature of citizenship in a democratic society, and the conditions necessary for fulfilling the promise of democratic citizenship. Two recent trends are evident. Some citizens have embraced a more active sense of citizenship, which necessarily entails a more insistent need for information, while governments have insisted on the need for greater concentration of governmental power and a higher degree of secrecy. Much is to be learned from the approaches that various national and transnational regimes have taken with respect to this problem. This essay will consider the problem of access to government information from a comparative perspective and as a problem for constitutional theory and socio-legal studies.


Barry Sullivan
Cooney & Conway Chair in Advocacy and Professor of Law, Loyola University Chicago School of Law.
Article

The Problems and Promises of a Legal Constitution

The Constitutional State and History

Journal European Journal of Law Reform, Issue 1 2011
Keywords constitutional state, legitimacy, progressive history, legal constitution, political constitution
Authors Davit Zedelashvili
AbstractAuthor's information

    Nowadays, in the West, especially on the European Continent, the legitimacy of the modern state is once again subject to multifarious challenges. Against this background, the article revives one of the most important, though often overlooked themes of the constitutional theory, the relevance of the concept of progressive history for the legitimacy of the constitutional state. It is suggested, that the reappearance of the progressive history brings the supposedly forgotten themes of the objectivist metaphysics, back into the constitutional theory. The conclusion points that, only the accounts of a legal constitution, which reject the connection with progressive history, have the potential to deal with the problematic consequences that the reemergence of the metaphysically charged concept of progressive history may entail, given the contemporary socio-political conditions, characterized by the value and ideological pluralism.


Davit Zedelashvili
SJD Candidate in Comparative Constitutional Law, Central European University, Budapest.
Article

Investor Protection v. State Regulatory Discretion

Definitions of Expropriation and Shrinking Regulatory Competence

Journal European Journal of Law Reform, Issue 1 2011
Keywords regulatory freeze, expropriation, investor protection, economic governance, environmental protection
Authors Ioannis Glinavos
AbstractAuthor's information

    The purpose of this paper is to offer support to the idea that the contemporary international legal framework offers opportunities to investors to challenge and control government action via what has been described as a ‘regulatory freeze’. This regulatory freeze is the consequence of government reluctance to legislate/regulate in areas where claims of expropriation may be brought. The paper presents evidence from investment-treaty dispute resolution mechanisms, national and supranational judicial processes from both sides of the Atlantic. The paper concludes by suggesting that the potential for expanded definitions of expropriation is having a greater impact than actual case outcomes, as states seek to preempt any adverse developments by shying away from regulations that may provide fertile grounds for challenge. This effect is significant, as it is contrary to expectations of greater state involvement in economic management bred by the financial crisis.


Ioannis Glinavos
Dr. Ioannis Glinavos is Lecturer in Law at the University of Reading, School of Law, i.glinavos@reading.ac.uk.
Article

Competing Constitutional Ideals in the United States’ Force Majeure-Federalism Cases

Calling the Shots in Disaster Management

Journal European Journal of Law Reform, Issue 1 2011
Keywords federalism, force majeure, disaster, commerce clause, necessary and proper clause
Authors Riddhi Dasgupta
AbstractAuthor's information

    Structure is no less important than substance in the long run. When dealing with disaster management, what is truly national and what is truly local? Disasters are the “perfect” time, if only because of the confusion they sow and/or witness, for the central government to usurp some sovereign powers of its constituent states (and sometimes vice versa). This article examines where, in the American model with its strong federalism tradition, the constitutional tipping point lies. The article conveys the practical imperatives of federalism and why ordinary citizens should care: a federalist structure to promote democratic participation and the carrying out of democratic will by splitting up authority and stopping any one layer of government from becoming too powerful or making it a dysfunctional appendage. That has special significance in the disaster context, of course, and there is no better kaleidoscope than the recent Gulf of Mexico oil spill.


Riddhi Dasgupta
Doctoral student (Expropriation in International Investment Regimes), University of Cambridge.
Article

Judicial Activism

Usurpation of Parliament’s and Executive’s Legislative Functions, or a Quest for Justice and Social Transformation

Journal European Journal of Law Reform, Issue 2 2011
Keywords judicial activism, separation of powers, constitutional interpretation
Authors Reyneck Matemba
AbstractAuthor's information

    This article examines the concept of judicial activism in relation to the courts’ role of interpreting legislation, particularly focusing on the courts’ function of interpreting the Constitution. It specifically examines modes of constitutional interpretation obtaining in RSA and Nigeria, by focusing on selected judicial decisions by superior courts in the two countries. It also examines constitutional provisions governing the interpretation of the Constitution (Bill of Rights) and legislation as provided for in the Constitution of RSA and that of Nigeria. It also makes a comparative examination of judicial approaches to the interpretation of socio-economic rights enshrined in the Constitution of each of the two countries, specifically focusing on the rights to health and housing.The article observes that the concept of judicial activism is a necessary tool for attaining justice and achieving social transformation.


Reyneck Matemba
Reyneck Thokozani Matemba is a member of the Malawi Law Society and the Commonwealth Association of Legislative Counsel (CALC) and works as an Assistant Chief Legislative Counsel for the Ministry of Justice, Malawi.
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