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Access_open A Critical Appraisal of the Role of Retribution in Malawian Sentencing Jurisprudence

Journal Erasmus Law Review, Issue 3 2017
Keywords sentencing, retribution, just deserts, punishment, Malawi
Authors Esther Gumboh
AbstractAuthor's information

    The theory of retribution is a central tenet in Malawian sentencing jurisprudence. Courts have given expression to retribution in various ways, most conspicuously through the recognition of the principle of proportionality as the most important principle in sentencing. Retribution has permeated courts’ consideration of certain sentencing factors such as the seriousness of the offence, family obligations and public opinion. Overall, retribution rightly plays a pivotal role in Malawian sentencing jurisprudence by elevating the principle of proportionality to the most important principle in sentencing. Malawian courts have also noted that whether in pursuit of retribution or utilitarianism, the ultimate objective is to arrive at a sentence that is just and fair in relation to the crime and the offender. This also ensures that the sentence imposed does not offend the prohibition of cruel, inhuman and degrading punishment.


Esther Gumboh
Esther Gumboh is a postdoctoral Fellow at the University of Cape Town, South Africa.
Article

Access_open An Empirical Study of the Voting Pattern of Judges of the International Court of Justice (2005-2016)

Journal Erasmus Law Review, Issue 3 2017
Keywords voting pattern, ICJ judges, empirical research
Authors Xuechan Ma and Shuai Guo
AbstractAuthor's information

    The Statute of the International Court of Justice stipulates that judges shall exercise their powers impartially. We question the practicability of this statement and examine whether the voting pattern of the judges are biased. In this light, empirical research is conducted on cases adjudicated from 2005 to 2016. We find strong evidence that (1) judges favour their home States or appointing States; and (2) judges favour States that speak same majority language with their home States.


Xuechan Ma
Xuechan Ma, Ph.D. candidate at Leiden University, LL.M. and LL.B. at Peking University. Email address: x.ma@law.leidenuniv.nl.

Shuai Guo
Shuai Guo, Ph.D. candidate at Leiden University, LL.M. and LL.B. at China University of Political Science and Law. Email address: s.guo@law.leidenuniv.nl.
Article

Access_open Faith and Scepticism in Private International Law: Trust, Governance, Politics, and Foreign Judgments

Journal Erasmus Law Review, Issue 3 2014
Keywords private international law, conflict of laws, foreign judgments, European Union, United States
Authors Christopher Whytock M.S., Ph.D., J.D.
AbstractAuthor's information

    In both the European Union (EU) and the United States (US), the law governing the enforcement of foreign judgments is evolving, but in different directions. EU law, especially after the elimination of exequatur by the 2012 ’Recast’ of the Brussels I Regulation, increasingly facilitates enforcement in member states of judgments of other member states’ courts, reflecting growing faith in a multilateral private international law approach to foreign judgments. In US law, on the other hand, increasingly widespread adoption of state legislation based on the 2005 Uniform Foreign-Country Money Judgments Recognition Act (2005 Act), which adds new case-specific grounds for refusing enforcement, suggests growing scepticism. In this essay, I explore possible reasons for these diverging trends. I begin with the most obvious explanation: the Brussels framework governs the effect of internal EU member state judgments within the EU, whereas the 2005 Act governs the effect of external foreign country judgments within the US. One would expect more mutual trust – and thus more faith in foreign judgment enforcement – internally than externally. But I argue that this mutual trust explanation is only partially satisfactory. I therefore sketch out two other possible explanations. One is that the different trends in EU and US law are a result of an emphasis on ’governance values’ in EU law and an emphasis on ’rights values’ in US law. Another explanation – and perhaps the most fundamental one – is that these trends are ultimately traceable to politics.


Christopher Whytock M.S., Ph.D., J.D.
Christopher Whytock is Professor of Law and Political Science at the University of California, Irvine School of Law.
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