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Article

From a Soft Law Process to Hard Law Obligations

The Kimberley Process and Contemporary International Legislative Process

Journal European Journal of Law Reform, Issue 1 2014
Keywords Kimberley Process, soft law, international law, legislative process
Authors Martin-Joe Ezeudu
AbstractAuthor's information

    Ever since its creation and coming into force in 2003, the Kimberley Process has elicited a number of academic commentaries coming from different backgrounds. Legal scholars who have contributed to the commentaries, simply projected the regulatory regime as an international soft law without further analysis, based on an evaluation of the text of the agreement. This article in contrast, explores its practical effects and the manner of obligations that it imposes on its participant countries. It argues that although the regime may have been a soft law by classification, its obligations are hard and are no different from those of a conventional treaty. Those obligations enhance its juridical force, and are a factor by which the regime on its own tends to nullify the traditional criteria for distinction between hard and soft law in international jurisprudence, because it has elements of both.


Martin-Joe Ezeudu
PhD (Osgoode Hall Law School, York University, Toronto, Canada); LLM (University of Birmingham, UK); LLB (Nnamdi Azikiwe University, Awka, Nigeria); Barrister & Solicitor, Nigeria; Solicitor, England & Wales. An articling student at the Ontario Ministry of the Attorney General (Legal Services Branch of the Ministry of Consumer Services), Toronto, Canada. I am grateful to Prof Ikechi Mgbeoji who introduced me to this line of research. My thanks to Mr Tom van der Meer for his helpful comments on an earlier draft of this article. All errors and omissions remain mine. Dedicated to the loving memory of my brother, Chukwuemeka Innocent Ezeudu ‍–‍ a true brother and companion.
Article

Pracademics

Making Negotiation Theory Implemented, Interdisciplinary, and International

Journal International Journal of Conflict Engagement and Resolution, Issue 2 2013
Authors Andrea Kupfer Schneider
AbstractAuthor's information

    Negotiation can be thought of as the tool that facilitates conflict engagement and resolution. As part of, and yet different from, conflict theory, negotiation theory has had a separate parallel development in the last 30 years. The challenges for negotiation theory in the future are similar to those found in the broader conflict theory – ensuring that negotiation theory can be implemented by practitioners; making sure that negotiation theory draws upon a multitude of disciplines; and includes theories, experiences and culture from around the world. The development of negotiation theories in law schools – where communication to resolve disputes is part of the job description – highlights the importance of pracademics and demonstrates how we need effective theories to engage in conflict.


Andrea Kupfer Schneider
Andrea Kupfer Schneider is Professor of Law and Director of the Dispute Resolution Program, Marquette University Law School. Many thanks to the faculty and students at the Conflict Management, Resolution, and Negotiation Program at Bar Ilan University where I first presented this material for their comments and helpful suggestions and to Larry Susskind for the use of the great word “Pracademic” to describe the linkage between theory and practice.
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

The Historical Contingencies of Conflict Resolution

Journal International Journal of Conflict Engagement and Resolution, Issue 1 2013
Keywords History of ADR, consensus building, multi-party dispute resolution, theory development, conflict handling
Authors Carrie Menkel-Meadow
AbstractAuthor's information

    This article reviews the historical contingency of theory and practice in conflict engagement. World War II and the Cold War produced adversarial, distributive, competitive, and scarce resources conceptions of negotiation and conflict resolution, as evidenced by game theory and negotiation practice. More recent and more optimistic theory and practice has focused on party needs and interests and hopes for more party-tailored, contingent, flexible, participatory and more integrative and creative solutions for more than two disputants to a conflict. The current challenges of our present history are explored: continued conflict in both domestic and international settings, the challenge of “scaling up” conflict resolution theory and the problematics of developing universal theory in highly contextualized and diverse sets of conflict sites. The limits of “rationality” in conflict resolution is explored where feelings and ethical, religious and other values may be just as important in conflict engagement and handling.


Carrie Menkel-Meadow
Chancellor’s Professor of Law, University of California Irvine Law School and A.B. Chettle Jr. Professor of Dispute Resolution and Civil Procedure, Georgetown University Law Center.
Article

Access_open Through the Looking Glass of Global Constitutionalism and Global Administrative Law

Different Stories About the Crisis in Global Water Governance?

Journal Erasmus Law Review, Issue 1 2013
Keywords global water governance, global constitutionalism, global administrative law, water crisis, integrated water resources management
Authors Mónika Ambrus
AbstractAuthor's information

    In addition to (or sometimes rather than primarily) attributing it to water scarcity, water crisis has been described as a ‘crisis of governance’; with the word ‘crisis’ also indicating that water governance lacks (full) legitimacy. The article undertakes the task to analyse the current status of global water governance (GWG) from the perspective of two competing theories relating to the legitimacy of global governance, namely global constitutionalism (GC) and global administrative law (GAL). Having mapped the current legal framework of GWG from these two perspectives, it is discussed how these theories might shape GWG and how this shaping could contribute to solving the water crisis. In addition, it is also explored whether reading one of the most accepted proposals for legitimising global water governance, the concept of ‘integrated water resources management’ (IWRM), through the lenses of either GC or GAL would have an impact on how this concept is interpreted, and whether it can be a useful mechanism to address the water crisis. The use of two theories analysing the same subject matter provides interesting insights into global water governance and the nature of the water crisis as well as the relationship between these two theories.


Mónika Ambrus
Assistant professor of public international law at the Erasmus School of Law, Erasmus University Rotterdam.
Article

Access_open ‘Down Freedom’s Main Line’

Journal Netherlands Journal of Legal Philosophy, Issue 3 2012
Keywords democracy, radical freedom, free market economy, consumerism, collective action
Authors Steven L. Winter
AbstractAuthor's information

    Two waves of democratization define the post-Cold War era of globalization. The first one saw democracies emerge in post-communist countries and post-Apartheid South Africa. The current wave began with the uprisings in the Middle East. The first focused on the formal institutions of the market and the liberal state, the second is participatory and rooted in collective action. The individualistic conception of freedom and democracy that underlies the first wave is false and fetishistic. The second wave shows democracy’s moral appeal is the commitment to equal participation in determining the terms and conditions of social life. Freedom, thus, requires collective action under conditions of equality, mutual recognition, and respect.


Steven L. Winter
Steven L. Winter is Walter S. Gibbs Professor of Constitutional Law at Wayne State University Law School, Detroit, Michigan.
Article

Instructions to Draft Legislation

A Study on Legislative Drafting Process in Rwanda

Journal European Journal of Law Reform, Issue 2-3 2012
Keywords drafting instructions, Rwanda, quality of legislation
Authors Ruth Ikiriza
Abstract

    Drafting instructions are always difficult to discuss and evaluate because very often they depend on local traditions. Nevertheless, despite local traditions in drafting instructions their complete absence must be seen as a problem. This article tackles the issue of drafting instructions and their importance in the development of good drafts. And by good drafts the author means good quality drafts which will lead to good quality legislation. The article uses Rwanda as a case study and employs Thornton’s five stages of the drafting process as its basic methodology.


Ruth Ikiriza
Article

Legal Meaning in the Interpretation of Multilingual Legislations

Comparative Analysis of Rwanda, Canada and Ireland

Journal European Journal of Law Reform, Issue 2-3 2012
Keywords intention of the Parliament, multilingual ambiguous provisions, interpretation of laws, multilingual legislations interpretation approach, comparative analysis
Authors Froduard Munyangabe
Abstract

    When construing multilingual Laws, the use of rules and methods generally used in the monolingual statutory interpretation becomes more complicated due to a multiplicity of texts equally authentic. Also, the pre-eminence of one language version to the other version(s) does not facilitate the interpreter because if the other language version can shade light to elucidate the first, it can also increase uncertainty about the first. This dilemma leads to the question of knowing whether there could not be another appropriate approach to moderate these two options.
    The answer is derived from a comparison of the prevalence of one language version approach both adopted in Rwanda and Ireland and the equal authenticity rule adopted in Canada. The comparison is made by analysing the sequential steps of approaches used differently in the three respective multilingual jurisdictions in order to point out gaps of the two approaches.


Froduard Munyangabe
Article

Immigration, Religion and Human Rights

State Policy Challenges in Balancing Public and Private Interests

Journal European Journal of Law Reform, Issue 1 2012
Keywords globalization, religious symbols, reasonable accommodations, comparative law, immigration, burqa, human rights
Authors Eric Tardif
AbstractAuthor's information

    Three regions of the world – Western Europe, North America, and Australia – are probably the most popular options when families of emerging countries decide to emigrate in order to better their economic future. As the flow of immigrants establishing themselves in the receiving societies allows for these countries to get culturally richer, it creates, on the other hand, legal tensions as to the extent religious practice is to be accommodated by the governments of secular societies so as to facilitate the insertion of the newcomers into the workplace, social networks, and education system. In order to eliminate or diminish the effect of legal provisions that cause an indirect harm to religious minorities, several countries have taken steps aimed at “reasonably accommodating” them. This paper looks at these efforts made by receiving States, taking into account both the legislative aspect and the interpretation of the statutes and constitutional provisions by national as well as international tribunals; it also gives a critical appreciation of the results that have been obtained in the societies that have implemented those shifts in their legal system.


Eric Tardif
LL.L. (Ottawa); LL.M., LL.D. (National Autonomous University of Mexico - UNAM). The author is currently a Lecturer at the Faculty of Law of the National Autonomous University of Mexico, in the subjects of International and Comparative Law. This document was initially prepared for presentation at the VIIIth World Congress of the International Association of Constitutional Law, held in Mexico City, 6-10 December, 2010; an earlier version of this article was published in the International Journal of Public Law and Policy in 2011.
Article

The European Law from Grundnorm towards the Cathedral

Constitutional Features of a Complex Legal System

Journal European Journal of Law Reform, Issue 1 2011
Keywords economic analysis of legal remedies, state liability for breach of the EU law, judicial dialogue in the EU, self-referring legal rules, efficiency of the EU law
Authors Mariusz Jerzy Golecki
AbstractAuthor's information

    Many hopes of the adherents of constitutional reform in the EU remained in vain after the enactment of the Lisbon Treaty. Meanwhile the creeping constitutionalisation of the EU law leads to the empowerment of the UE quasi constitutional court – the Court of Justice of the European Union. This kind of constitutionalism is albeit firmly grounded on judicial cross-border cooperation. The main purpose of this paper is to address the question of whether and how the concept of judicial control based on transactional framework developed in law and economics could effectively supplement if not substitute the notion of constitutional democratic legitimacy. In order to demonstrate that it is logically possible and institutionally feasible to build a system based on circularity, self-referentiality and privatization of legal remedies, the paper contains the economic analysis of the recent development of the EU law which at least partially takes this direction.


Mariusz Jerzy Golecki
PhD, LL.M. Cantab. Associate Professor, University of Łódź (Poland).
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

Instructions to Draft Legislation

A Study on the Legislative Drafting Process in Malaysia

Journal European Journal of Law Reform, Issue 2 2011
Keywords legislative drafting process, role of instructing officer and drafter
Authors Rozmizan Muhamad
AbstractAuthor's information

    The importance of legislation is beyond any dispute. Legislation governed us perhaps even before our birth, certainly during our life and until our death. Even after our death there is still the Estate Duty Act to worry about, although of course the burden passes on to our executors or administrators. But day after day, many more new laws have been proposed and many existing laws have been revised and amended for various reasons and motives. The need for legislation has never diminished but continues to increase. Governments need legislation to govern, by which they achieve their political objectives and public policies. In other words, legislation is needed to affect changes in the law, to interfere with vested rights and interests, and to impose taxes, duties, excise and imposts. Such need originates from one or more of a great many sources such as a commission of inquiry, politicians, a particular pressure group or the public as a whole and also a reaction to social situations which seemingly develop independently or deliberately


Rozmizan Muhamad
Rozmizan Muhamad is a drafter at the Malaysian Attorney-General’s office.
Article

Legislative Drafting Tools for Stabilization Provisions and Economic Balancing Provisions

Journal European Journal of Law Reform, Issue 1-2 2010
Keywords legislative drafting, stabilization, economic balancing provisions
Authors Linnet Mafukidze
AbstractAuthor's information

    The article outlines the problems with stabilization provisions in national oil or gas legislation with regard to the difficulty of governments to implement legislation to develop its economic, social and environmental regimes. It also seeks to provide a potential guideline for legislative drafters in order to address the problems wrought by stabilization provisions, in national oil or gas legislation, through the use of economic balancing provisions. The article further gives tools for legislative drafters to use when drafting economic balancing provisions.


Linnet Mafukidze
Linnet Mafukidze is a Senior State Counsel at the Attorney General’s Chambers, Botswana.
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