Search result: 18 articles

x
The search results will be filtered on:
Category Article x
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 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 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.
Article

Access_open Constitutionalism and the Incompleteness of Democracy: An Iterative Relationship

Journal Netherlands Journal of Legal Philosophy, Issue 3 2010
Keywords constitutionalism, globalization, democracy, modernity, postnational
Authors Neil Walker
AbstractAuthor's information

    The complexity of the relationship between democracy and modern constitutionalism is revealed by treating democracy as an incomplete ideal. This refers both to the empirical incompleteness of democracy as unable to supply its own terms of application – the internal dimension – and to the normative incompleteness of democracy as guide to good government – the external dimension. Constitutionalism is a necessary response to democratic incompleteness – seeking to realize (the internal dimension) and to supplement and qualify democracy (the external dimension). How democratic incompleteness manifests itself, and how constitutionalism responds to incompleteness evolves and alters, revealing the relationship between constitutionalism and democracy as iterative. The paper concentrates on the iteration emerging from the current globalizing wave. The fact that states are no longer the exclusive sites of democratic authority compounds democratic incompleteness and complicates how constitutionalism responds. Nevertheless, the key role of constitutionalism in addressing the double incompleteness of democracy persists under globalization. This continuity reflects how the deep moral order of political modernity, in particular the emphasis on individualism, equality, collective agency and progress, remains constant while its institutional architecture, including the forms of its commitment to democracy, evolves. Constitutionalism, itself both a basic orientation and a set of design principles for that architecture, remains a necessary support for and supplement to democracy. Yet post-national constitutionalism, even more than its state-centred predecessor, remains contingent upon non-democratic considerations, so reinforcing constitutionalism’s normative and sociological vulnerability. This conclusion challenges two opposing understandings of the constitutionalism of the global age – that which indicts global constitutionalism because of its weakened democratic credentials and that which assumes that these weakened democratic credentials pose no problem for post-national constitutionalism, which may instead thrive through a heightened emphasis on non-democratic values.


Neil Walker
Neil Walker is Regius Professor of Public Law and the Law of Nature and Nations at the University of Edinburgh, United Kingdom.
Article

The Right to Food

Journal European Journal of Law Reform, Issue 3-4 2010
Keywords food crisis, right to food
Authors Ying Chen
AbstractAuthor's information

    With the development of society, new agricultural technologies have been widely introduced and effectively applied to agricultural cultivation. Agricultural productive capacity has greatly improved and the world’s food producers are capable of providing all the people on this planet with sufficient food to satisfy everyday dietary needs for a healthy life. Ironically, food insecurity continues to be a critical issue in the contemporary world. More than 923 million people suffer from chronic hunger, malnutrition or related diseases, and this number grows with continually rising food prices. This article responds to the current food insecurity by addressing a new issue: is there any legal basis for both the international community and national governments to protect vulnerable people from hunger and malnutrition?


Ying Chen
S.J.D. Candidate, LL.M., Indiana University School of Law Indianapolis.
Article

Establishing Protection Mechanisms for Bureaucrats

The Case of the Independent Oversight Board of Civil Service of Kosovo

Journal European Journal of Law Reform, Issue 1-2 2010
Keywords Kosovo Civil Service, Civil service, Oversight Board, law, reform
Authors Dren Doli, Fisnik Korenica and Artan Rogova
AbstractAuthor's information

    This article discusses the position and powers of Kosovo’s Civil Service Oversight Board, mainly from a legal perspective. The article describes the reforms undertaken upon the Board and the civil service in Kosovo, while illustrating the central pillars of concern in regard to both the international presence and domestic institutions in Kosovo. The article then explains the three reforms and reviews each of the main legal changes the Board and the civil system have experienced, respectively. The last section of the article comprises an institutional review of the powers and the position of the current framework on the Civil Service Oversight Board, while allowing a part of the article to question its independence and pluralism. The article culminates with policy suggestions that would make the work of the Board, and the entire civil service, more independent and accountable to its mission.


Dren Doli
Dren Doli is a Senior Research Fellow at the Group for Legal and Political Studies, and a Senior Lecturer on Law Principles at Universum University College, having served earlier as a Senior Legal Executive for Integration to the Kosovo Prime Minister.

Fisnik Korenica
Fisnik Korenica is a Lecturer on the Theory of State and Law at the University of Prishtina, and a Senior Research Fellow at the Group for Legal and Political Studies.

Artan Rogova
Artan Rogova is a Senior Research Fellow at the Group for Legal and Political Studies, as a Lecturer on Economics of European Integration at Universum University College.
Article

Act of Parliament: The Role of Parliament in the Legislative Process

A Commonwealth Perspective

Journal European Journal of Law Reform, Issue 1-2 2010
Keywords parliament, legislation, pre-legislative scrutiny, supremacy of parliament, delegated legislation, Uganda, legislative process
Authors Denis Kibirige Kawooya
AbstractAuthor's information

    Whereas making law is one of the principal functions of Parliament, Parliament plays a very limited role in the legislative process. In Uganda, like in many commonwealth jurisdictions due to the role the Constitution has given to Parliament, the legislature should take a more active role in the legislative process. The paper examines the legislative authority of Parliament, the concept of Parliamentary supremacy, pre-legislative scrutiny and whether Parliament should be involved in the scrutiny of delegated legislation.


Denis Kibirige Kawooya
Denis Kibirige Kawooya is a Senior State Attorney in the Ministry of Justice and Constitutional Affairs, Uganda, a member of the Commonwealth Association of Legislative Counsel, Uganda Law Society, East African Law Society and an Advocate of the High Court of Uganda.
Showing all 18 results
You can search full text for articles by entering your search term in the search field. If you click the search button the search results will be shown on a fresh page where the search results can be narrowed down by category or year.