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Year 2016 x
Editorial

Access_open Legal Control on Social Control of Sex Offenders in the Community: A European Comparative and Human Rights Perspective

Journal Erasmus Law Review, Issue 2 2016
Keywords social control, folk devils, moral panic, dangerousness, sex offenders
Authors Michiel van der Wolf (Issue Editor)
AbstractAuthor's information

    This paper provides first of all the introduction to this special issue on ‘Legal constraints on the indeterminate control of “dangerous” sex offenders in the community: A European comparative and human rights perspective’. The issue is the outcome of a study that aims at finding the way legal control can not only be an instrument but also be a controller of social control. It is explained what social control is and how the concept of moral panic plays a part in the fact that sex offenders seem to be the folk devils of our time and subsequently pre-eminently the target group of social control at its strongest. Further elaboration of the methodology reveals why focussing on post-sentence (indeterminate) supervision is relevant, as there are hardly any legal constraints in place in comparison with measures of preventive detention. Therefore, a comparative approach within Europe is taken on the basis of country reports from England and Wales, France, Germany, The Netherlands and Spain. In the second part of the paper, the comparative analysis is presented. Similar shifts in attitudes towards sex offenders have led to legislation concerning frameworks of supervision in all countries but in different ways. Legal constraints on these frameworks are searched for in legal (sentencing) theory, the principles of proportionality and least intrusive means, and human rights, mainly as provided in the European Convention on Human Rights to which all the studied countries are subject. Finally, it is discussed what legal constraints on the control of sex offenders in the community are (to be) in place in European jurisdictions, based on the analysis of commonalities and differences found in the comparison.


Michiel van der Wolf (Issue Editor)
Ph.D., LL.M, M.Sc., Reader in Criminal Law (Theory) and Forensic Psychiatry at the Erasmus School of Law; Member of the Editorial Board of the Erasmus Law Review.
Article

Access_open Legal Constraints on the Indeterminate Control of ‘Dangerous’ Sex Offenders in the Community: The English Perspective

Journal Erasmus Law Review, Issue 2 2016
Keywords Dangerous, sex offenders, human rights, community supervision, punishment
Authors Nicola Padfield
AbstractAuthor's information

    This article explores the legal constraints imposed on the rising number of so-called ‘dangerous’ sex offenders in England and Wales, in particular once they have been released from prison into the community. The main methods of constraint are strict licence conditions, Multi-Agency Public Protection Arrangements and civil protective orders such as Sexual Harm Prevention Orders. ‘Control’ in the community is thus widespread, but is difficult to assess whether it is either effective or necessary without a great deal more research and analysis. Post-sentence ‘punishment’ has been largely ignored by both academic lawyers and criminologists. The article concludes that financial austerity might prove to be as important as the human rights agenda in curbing the disproportionate use of powers of control.


Nicola Padfield
Nicola Padfield, MA, Dip Crim, DES, Reader in Criminal and Penal Justice, University of Cambridge. I thank Michiel van der Wolf for involving me in this project and for his many useful insights and comments.
Article

Access_open Legal Constraints on the Indeterminate Control of ‘Dangerous’ Sex Offenders in the Community: The Spanish Perspective

Journal Erasmus Law Review, Issue 2 2016
Keywords Supervised release, supervision, sex offenders, dangerousness, safety measures, societal upheaval, proportionality
Authors Lucía Martínez Garay and Jorge Correcher Mira
AbstractAuthor's information

    This article presents an overview of the legal regime provided in the Spanish system of criminal sanctions regarding the control of dangerous sex offenders in the community. It focuses on the introduction, in 2010, of a post-prison safety measure named supervised release. We describe the context of its introduction in the Spanish Criminal Code, considering the influence of societal upheaval concerning dangerous sex offenders in its development, and also the historical and theoretical features of the Spanish system of criminal sanctions. We also analyse the legal framework of supervised release, the existing case law about it and how the legal doctrine has until now assessed this measure. After this analysis, the main aim of this article consists in evaluating the effectiveness and the proportionality of the measure, according to the principle of minimal constraints and the rehabilitative function of the criminal sanctions in Spanish law, stated in Article 25.2 of the Spanish Constitution.


Lucía Martínez Garay
Lucía Martínez Garay is a Senior Lecturer at the University of Valencia, Department of Criminal Law.

Jorge Correcher Mira
Jorge Correcher Mira, Ph.D., is an Assistant Lecturer at the University of Valencia, Department of Criminal Law.
Article

Asymmetry as an Instrument of Differentiated Integration

The Case of the European Union

Journal European Journal of Law Reform, Issue 2 2016
Keywords asymmetry, comparative and EU law, differentiated integration, crisis, economic governance
Authors Giuseppe Martinico
AbstractAuthor's information

    This article offers a reflection on asymmetry as an instrument of differentiated integration in the current phase of the EU integration process. As for the structure, this work is divided into four parts: First, I shall clarify what I mean by asymmetry as an instrument of integration relying on comparative law. This comparative exercise is particularly useful because it allows us to acknowledge the strong integrative function performed by asymmetry in contexts different from but comparable to the EU system. Second, I shall look at EU law and recall the main features of asymmetry in this particular legal system. In the third part of the article I shall look at the implications of the financial crisis, which has increased the resort to asymmetric instruments. In the last part I shall deal with some recent proposals concerning the differentiated representation of the Eurozone. The idea of differentiated integration and that of asymmetry have been extended and adapted to many different processes by scholars over the years, but to avoid misunderstandings I would like to make clear that in this work I shall analyse those forms of asymmetries that are allowed and carried out only when respect for an untouchable core of integration is guaranteed. This is crucial to conceive asymmetry as an instrument of integration.


Giuseppe Martinico
Associate Professor of Comparative Public Law, Scuola Sant’Anna, Pisa; Research Fellow, Centre for Studies on Federalism, Turin; Honorary Professor at the European law research centre, University of Henan, Kaifeng, China. Article Completed on 23 February 2016. This article is part of the project "Gobernanza económica europea y transformación constitucional”, (MINECO, DER2014-57116P).

    The Austrian Supreme Court has ruled that the general prohibition of Muslim face veils by an employer does not constitute unlawful discrimination. In this landmark decision, Austria’s Supreme Court expresses the view that an uncovered face is a prerequisite to proper communication. Thus, termination of employment by reason of an employee’s refusal to come to work unless she can wear a face veil is not unlawful under the Austrian Equal Treatment Act. Whether this rule also applies to other religious clothing such as headscarves remains to be seen.


Hans Georg Laimer
Hans Georg Laimer is a partner at zeiler.partners Rechtsanwälte GmbH.

Lukas Wieser
Lukas Wieser is an attorney at law at zeiler.partners Rechtsanwälte GmbH.

    The comparative discussions held during this seminar show that the different jurisdictions make use of – approximately – the same ingredients for their legislation on adult guardianship measures and continuing powers of attorney. Given the common international framework (for example the UN Convention on the Rights of Persons with Disabilities) and given the common societal context (cfr. the strong increase of the ageing population) this may not come as a surprise. Despite these common ingredients, the different jurisdictions have managed to arrive at different dishes spiced with specific local flavours. Given that each jurisdiction bears its own history and specific policy plans, this may not come as a surprise either. The adage ‘same same but different’ is in this respect a suitable bromide.
    For my own research, the several invitations – that implicitly or explicitly arose from the different discussions – to rethink important concepts or assumptions were of most relevance and importance. A particular example that comes to mind is the suggestion to ‘reverse the jurisprudence’ and to take persons with disabilities instead of healthy adult persons as a point of reference. Also, the invitation to rethink the relationship between the limitation of capacity and the attribution of a guard comes to mind as the juxtaposition of the different jurisdictions showed that these two aspects don’t need to be automatically combined. Also the discussion on the interference between the continuing powers of attorney and the supervision by the court, provoked further reflection on hybrid forms of protection on my part. Finally, the ethical and medical-legal approaches may lead to a reconsideration of the traditional underlying concepts of autonomy and the assessment of capacity.


Veerle Vanderhulst Ph.D.
Veerle Vanderhulst works at the Faculty of Law and Criminology, Vrije Universiteit Brussel
Article

Prohibition of Discrimination: Citizenship as a Possible Discrimination Basis

Journal European Journal of Law Reform, Issue 3 2016
Keywords anti-discrimination law, Serbian Law, harmonization, right to a personal name, European Court of Justice
Authors Olga Jović-Prlainović and Jelena Belović
AbstractAuthor's information

    In modern society, the right to equality is not just a universal moral obligation; it is rather an expression of a generally accepted rule in international law that all people have equal rights, independently of differences based on innate or acquired personal characteristics. Prohibition of discrimination is a civilization heritage, and it is determined by systematically overcoming prejudices and stereotypes as key factors of discrimination, where educational institutions, media, public authority, and non-governmental organizations all have a vital role. Tackling with discrimination is not just the application of rules regulated by law and taking necessary measures towards social groups which are in an unequal position, but it is also a continuous development of tolerance when it comes to ethnicity, religion, gender, minorities, as well as acceptance of the existing interpersonal differences. It is well known that the area of West Balkans is often a breeding ground where stereotypes and prejudices thrive for decades. The strategic aim of the Republic of Serbia is membership in the European Union, and so nation-wide law regulation concerning this matter is directed at complying with the European Union Law since the prohibition of discrimination is one of the pillars of the European Union Law. In this article, the influence of the European Union Law and practical measures taken by the European Court of Human Rights in order to prohibit discrimination in a specific international and private domain are analyzed.


Olga Jović-Prlainović
Olga Jović-Prlainović is Associate Professor at the Faculty of Law, University of Pristina, Kosovska Mitrovica.

Jelena Belović
Jelena Belović is Assistant Professor at the Faculty of Law, University of Pristina, Kosovska Mitrovica.

Raf Geenens
Raf Geenens is Assistant Professor of Ethics and Legal Philosophy at the Institute of Philosophy, University of Leuven.

Nora Timmermans
Nora Timmermans is PhD Research Fellow of the Research Foundation - Flanders (FWO) at the Centre for Ethics, Social and Political Philosophy, University of Leuven.
Article

Access_open The Erosion of Sovereignty

Journal Netherlands Journal of Legal Philosophy, Issue 2 2016
Keywords sovereignty, state, Léon Duguit, European Union, Eurozone
Authors Martin Loughlin
AbstractAuthor's information

    This article presents an account of sovereignty as a concept that signifies in jural terms the nature and quality of political relations within the modern state. It argues, first, that sovereignty is a politico-legal concept that expresses the autonomous nature of the state’s political power and its specific mode of operation in the form of law and, secondly, that many political scientists and lawyers present a skewed account by confusing sovereignty with governmental competence. After clarifying its meaning, the significance of contemporary governmental change is explained as one that, in certain respects, involves an erosion of sovereignty.


Martin Loughlin
Martin Loughlin is Professor of Public Law at the London School of Economics and Political Science and EURIAS Senior Fellow at the Freiburg Institute of Advanced Studies (FRIAS).
Article

Access_open E pluribus unum? The Manifold Meanings of Sovereignty

Journal Netherlands Journal of Legal Philosophy, Issue 2 2016
Keywords political sovereignty, power, legislative sovereignty, constitutive power, external sovereignty
Authors Raf Geenens
AbstractAuthor's information

    This article investigates and classifies the different meanings of the term sovereignty. What exactly do we try to convey when using the words “sovereign” or “sovereignty”? I will argue that, when saying that X is sovereign, we can mean five different things: it can mean that X holds the capacity to force everyone into obedience, that X makes the laws, that the legal and political order is created by X, that X holds the competence to alter the basic norms of our legal and political order, or that X is independently active on the international stage. These different usages of the term are of course related, but they are distinct and cannot be fully reduced to one another.


Raf Geenens
Raf Geenens is an assistant professor of Ethics and Legal Philosophy at the Institute of Philosophy, University of Leuven.
Article

Access_open ‘Should the People Decide?’ Referendums in a Post-Sovereign Age, the Scottish and Catalonian Cases

Journal Netherlands Journal of Legal Philosophy, Issue 2 2016
Keywords sub-state nationalism, referendums, sovereignty, deliberative democracy, Scottish referendum
Authors Stephen Tierney
AbstractAuthor's information

    This article uses the rise of referendum democracy to highlight the tenacity of modern nationalism in Western Europe. The proliferation of direct democracy around the world raises important questions about the health of representative democracy. The paper offers a theoretical re-evaluation of the role of the referendum, using the 2014 referendum on Scottish independence to challenge some of the traditional democratic criticisms of popular democracy. The final part of the paper addresses the specific application of referendums in the context of sub-state nationalism, addressing what might be called `the demos question'. This question was addressed by the Supreme Court in Canada in the Quebec Secession Reference but has also been brought to the fore by the Scottish reference and the unresolved issue of self-determination in Catalonia.


Stephen Tierney
Stephen Tierney is Professor of Constitutional Theory at the University of Edinburgh and Director of the Edinburgh Centre for Constitutional Law.
Article

Access_open National Identity, Constitutional Identity, and Sovereignty in the EU

Journal Netherlands Journal of Legal Philosophy, Issue 2 2016
Keywords national identity, constitutional identity, EU law, constitutional courts, Court of Justice
Authors Elke Cloots
AbstractAuthor's information

    This article challenges the assumption, widespread in European constitutional discourse, that ‘national identity’ and ‘constitutional identity’ can be used interchangeably. First, this essay demonstrates that the conflation of the two terms lacks grounding in a sound theory of legal interpretation. Second, it submits that the requirements of respect for national and constitutional identity, as articulated in the EU Treaty and in the case law of certain constitutional courts, respectively, rest on different normative foundations: fundamental principles of political morality versus a claim to State sovereignty. Third, it is argued that the Treaty-makers had good reasons for writing into the EU Treaty a requirement of respect for the Member States’ national identities rather than the States’ sovereignty, or their constitutional identity.


Elke Cloots
Elke Cloots is post-doctoral researcher at the Centre for Government and Law, University of Hasselt.
Article

The New Handshake: Where We Are Now

Journal International Journal of Online Dispute Resolution, Issue 2 2016
Keywords consumers, consumer protection, online dispute resolution (ODR), remedies, e-commerce
Authors Amy J. Schmitz and Colin Rule
AbstractAuthor's information

    The internet has empowered consumers in new and exciting ways. It has opened more efficient avenues for consumers to buy just about anything. Want proof? Just pull out your smartphone, swipe your finger across the screen a few times, and presto – your collector’s edition Notorious RBG bobblehead is on its way from China. Unfortunately, however, the internet has not yet delivered on its promise to improve consumer protection.


Amy J. Schmitz
Amy J. Schmitz is the Elwood L. Thomas Missouri Endowed Professor at the University of Missouri School of Law and Center for the Study of Dispute Resolution, and the founder of MyConsumertips.info.

Colin Rule
Colin Rule is co-founder and Chairman of Modria.com and the former Director of Online Dispute Resolution for eBay and PayPal.

Ethan Katsh
Ethan Katsh is Director and Co-Founder of the National Center for Technology and Dispute Resolution, and Professor Emeritus of Legal Studies, University of Massachusetts.

Orna Rabinovich-Einy
Orna Rabinovich-Einy is Assistant Professor at the Faculty of Law of the University of Haifa, Israel.
Article

ChAFTA, Trade, and Food Safety

When the Rubber Hits the Road

Journal European Journal of Law Reform, Issue 4 2016
Keywords food safety laws in China and implementation issues, China-Australia Free Trade Agreement (ChAFTA), agricultural trade, corporate social responsibility, collaborative governance
Authors Ying Chen
AbstractAuthor's information

    Over the past decade, food safety has evolved into a compelling issue in China. The Chinese government has been committed to strengthening the regulatory framework. A series of laws and regulations ensuring the quality and safety of food in the interests of public health have been promulgated. However, a fairly comprehensive set of laws, along with harsh punishments, does not substantially deter food safety violations. Rather, foodborne illnesses continue to occur on a daily basis. How to improve food safety has become China’s national priority; it is also the main focus of this research. This article determines that one of the main obstacles to food safety is poor implementation of laws. It identifies the external and internal impediments to food safety governance in China. It further proposes an evolving series of potential solutions. Externally, weak enforcement undermines the credibility of the food safety laws. Internally, food manufacturers and distributors in China lack the sense of corporate social responsibility (CSR). To effectively reduce or even remove the external impediment, it is imperative to improve the overall governance in various sectors. As for the internal impediment, incorporating CSR principles into business operations is vital for food safety governance. In fact, the enforcement of many regional trade agreements, in particular, the enforcement of China–Australia FTA (ChAFTA) will largely increase market share of Australian food products in China. Undoubtedly, Chinese food businesses will face unprecedented competition. The pressure to gain competitive advantages in food markets yields an enormous change in motivation for Chinese food businesses. Chinese food companies will ultimately be forced to ‘voluntarily’ integrate CSR principles into their business operations. A significant change in the food sector is expected to be seen within the next decade. The article concludes that better practice in food safety governance in China requires two essential elements: a comprehensive regulatory and cooperative framework with essential rules and institutions, and an effective implementation mechanism involving both the public and private sectors.


Ying Chen
Dr. Ying Chen, Lecturer in Law, University of New England School of Law, Armidale, NSW2351, Australia. Email: ychen56@une.edu.au.
Article

Systems Thinking, Big Data, and Data Protection Law

Using Ackoff’s Interactive Planning to Respond to Emergent Policy Challenges

Journal European Journal of Law Reform, Issue 4 2016
Keywords big data, data protection, data minimization, systems thinking, interactive planning
Authors Henry Pearce
AbstractAuthor's information

    This article examines the emergence of big data and how it poses a number of significant novel challenges to the smooth operation of some of the European data protection framework’s fundamental tenets. Building on previous research in the area, the article argues that recent proposals for reform in this area, as well as proposals based on conventional approaches to policy making and regulatory design more generally, will likely be ill-equipped to deal with some of big data’s most severe emergent difficulties. Instead, it is argued that novel, and possibly unorthodox, approaches to regulation and policy design premised on systems thinking methodologies may represent attractive and alternative ways forward. As a means of testing this general hypothesis, the article considers Interactive Planning, a systems thinking methodology popularized by the organizational theorist Russel Ackoff, as a particular embryonic example of one such methodological approach, and, using the challenges posed by big data to the principle of purpose limitation as a case study, explores whether its usage may be beneficial in the development of data protection law and policy in the big data environment.


Henry Pearce
University of Hertfordshire, Lecturer in law, e-mail: h.pearce@herts.ac.uk.
Article

The Fight against Corruption in Sierra Leone

Challenges and Opportunities in the Jurisprudence

Journal African Journal of International Criminal Justice, Issue 1-2 2016
Keywords Accountability, corruption, judicial approach, jurisprudence, reforms
Authors Michael Imran Kanu
AbstractAuthor's information

    The fight against corruption in Sierra Leone gained momentum, at least in terms of policy direction, following the enactment of the Anti-Corruption Act 2000 and the Amendment Act in 2008. It is considered to be one of the most robust anti-graft laws in the world and its promulgation is in recognition of the international and national resolve to fight the menace, owing to its devastating effects, especially in the Least Developed Countries (LCDs) of the world. The Anti-Corruption Act of 2000, though viewed as a tremendous move towards curtailing corruption, was riddled with shortcomings. Practitioners viewed the Act as limited in the number of proscribed offences created, coupled with the lack of independence signified by the absence of prosecutorial powers. With the enactment of the Amendment Act in 2008, it is crucial to examine the opportunities it has created to eradicate corruption. Critical also to the national and global resolve is the consideration of challenges that may have sprouted. This paper will examine some of the opportunities and challenges in the jurisprudence in the fight against corruption in Sierra Leone, with the aim of providing an avenue for reflection as well as a prompter for legislative reforms or change in judicial approach.


Michael Imran Kanu
Department of Legal Studies, Central European University. Email: Kanu_Michael@phd.ceu.edu.

Levente Nyakas
Head of institute, Institute for Media Studies of the Media Council of the National Media and Infocommunications Authority.

Gábor Kardos
Professor, International Law Department, Faculty of Law, ELTE University, Budapest.
Article

Piecemeal Harmonization of European Civil Law

The Case of Limitation Periods in the Antitrust Damages Directive

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2016
Authors Miriam Buiten
Author's information

Miriam Buiten
PhD candidate, Rotterdam Institute of Law and Economics, Erasmus University Rotterdam.
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