Search result: 13 articles

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Year 2014 x

Gábor Kurunczi
Researcher, lecturer at the Pázmány Péter Catholic University, Faculty of Law; Legal advisor to the Hungarian Commissioner for Fundamental Rights.
Article

The Effectiveness of the Principle of Equal Pay in Hungarian Judicial Practice

With Special Attention to the New Directions of European Legal Practice

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2014
Authors Márton Leó Zaccaria
Author's information

Márton Leó Zaccaria
Assistant Lecturer, University of Debrecen, Faculty of Law.
Article

Access_open Global Citizens and Family Relations

Journal Erasmus Law Review, Issue 3 2014
Keywords global governance, family relations, nationality, habitual residence, party autonomy
Authors Professor Yuko Nishitani Ph.D.
AbstractAuthor's information

    As globalisation progresses, cross-border movements of people are becoming dynamic and multilateral. The existence of different groups and minorities within the community renders the society multiethnic and multicultural. As individuals acquire new affiliation and belonging, the conventional conflict of laws methods may no longer be viable and should be subject to a thorough re-examination. Against this background, this paper analyses appropriate conflicts rules in international family relations to reflect an individual’s identity. Furthermore, in light of the contemporary law fragmentation, this study also analyses interactions between state law and non-state cultural, religious or customary norms.


Professor Yuko Nishitani Ph.D.
Professor at Kyushu University Faculty of Law, Japan. This work was supported by the JSPS Grants-in-Aid for Scientific Research (C) (Grant Number 26380063). The author sincerely thanks Professor Carol Lawson (Nagoya University) and Ms. Nettie Dekker for their devoted editing work.
Article

Access_open Introduction: Reciprocity and the Normativity of Legal Orders

Journal Netherlands Journal of Legal Philosophy, Issue 2 2014
Keywords reciprocity, normativity
Authors Prof. Dr. Hans Lindahl PhD and Bart van Klink
AbstractAuthor's information

    This contribution introduces the special issue, which contains a selection of the lectures delivered by key-note speakers during the Summer School organized by the editors in August, 2013, at the behest of the Section of Ethics & Practical Philosophy of the Dutch Research School of Philosophy (OZSW).


Prof. Dr. Hans Lindahl PhD
Hans Lindahl is Professor of Legal Philosophy at Tilburg University.

Bart van Klink
Bart van Klink is Professor of Legal Methodology at the VU University Amsterdam.
Article

Medically Assisted Reproduction in Egypt, Iran, Saudi Arabia and the United Arab Emirates

Sunni and Shia Legal Debates

Journal European Journal of Law Reform, Issue 2 2014
Keywords medically assisted reproduction, Islam, Middle East, family formation, law
Authors Andrea Büchler and Eveline Schneider Kayasseh
AbstractAuthor's information

    Since the mid-1980s, biotechnologies have been widely used to assist human conception around the world, and especially in the Middle East. In this article, our main focus is the United Arab Emirates (UAE), as well as Egypt, the Islamic Republic of Iran, and Saudi-Arabia. In these Muslim-majority countries, an ever rising demand for fertility treatments runs parallel to far-reaching demographic and social changes. While assisted reproductive technologies offer various methods to pursue the desire to have biological children, they do also underscore religious and cultural sensibilities about traditional male-female relationships and family formation.
    In order to outline contemporary opinions and state laws and regulations in the countries mentioned in the outset, core notions and concepts of the Islamic family that are relevant for understanding attitudes regarding reproductive medicine and that have influence on couples seeking fertility treatment are outlined. It is also shown how ethical-juridical considerations have shaped the scholarly discourse about assisted reproduction. In this context, assisted reproductive techniques that include eggs, sperm, embryos, or wombs from third parties have been particularly contentious. In fact, there remain different views among Islamic jurists and senior clerics in Shia Islam regarding ethically controversial issues such as egg and sperm donation, as well as surrogate motherhood. While the number of IVF-clinics is on the rise in all countries discussed in this article, only in the UAE are clinics operating with rather comprehensive legislative oversight.


Andrea Büchler
University of Zurich, Switzerland.

Eveline Schneider Kayasseh
University of Zurich, Switzerland.
Article

Democracy, Constitutionalism and Shariah

The Compatibility Question

Journal European Journal of Law Reform, Issue 2 2014
Authors A.T. Shehu
Abstract

    This article is a contribution and a response to the debate on the compatibility, or rather the incompatibility, of Islam and Shariah with democracy and constitutionalism. The debate has been both inter and intra; Muslims as well as non-Muslims are divided among themselves on the issue. A careful synthesis of the arguments on both sides shows fundamental problems of semantics and lack of proper appreciation of the issues involved because of divergent construction of the basic rules and normative concepts. This article identifies as a problem the tendency for cultural prejudice and intolerance to largely determine the direction of the debate and endure not only a ‘clash of civilizations’, but also, in reality, a clash of normative concepts. This article contends that Islam is more democratic in nature and that Shariah itself is a system of constitutionalism; needless to say, the objectionists have long forgotten that, in essential formulations, Shariah is the foundation of thoughts on human rights.


A.T. Shehu
Article

Human Rights in Islamic Law, Specifically the Guarantee of Procedural Justice

Journal European Journal of Law Reform, Issue 2 2014
Keywords Islamic law, procedural justice, human rights, rules of evidence, Cairo Declaration of Human Rights
Authors Mohamed Y. Mattar
AbstractAuthor's information

    International law guarantees several fundamental principles of procedural justice, such as presumption of innocence, the right against self-incrimination, the right to be tried without undue delay, the right to examine witnesses, and the right to legal assistance. In this article I examine whether Islamic law guarantees similar procedural protections and demonstrate how Islamic law provides for basic human rights as well as general principles that may serve as guidelines in procedural justice. These include the principle of non-retroactivity, the principle of personal accountability, the principle of no crime or punishment without law, the right to be presumed innocent until proven guilty, and the right to defence. The article also identifies rules of evidence provided by Islamic law which are designed to protect the accused.


Mohamed Y. Mattar
Mohamed Y. Mattar is a Senior Research Professor of International Law and the Executive Director of The Protection Project at The Johns Hopkins University School of Advanced International Studies (SAIS).
Article

The Manifestation of Religious Belief Through Dress

Human Rights and Constitutional Issues

Journal European Journal of Law Reform, Issue 2 2014
Keywords religion, religious freedom, burqa, hijab, Muslim
Authors Anthony Gray
AbstractAuthor's information

    Jurisdictions around the world continue to grapple with the clash between religious freedoms and other freedoms and values to which a society subscribes. A recent, and current, debate concerns the extent to which a person is free to wear items of clothing often thought to be symbolic of the Muslim faith, though the issues are not confined to any particular religion. Bans on the wearing of this type of clothing have often (surprisingly) survived human rights challenges, on the basis that governments had legitimate objectives in banning or restricting them. A pending case gives the European Court another chance to reconsider the issues. It is hoped that the Court will closely scrutinise claims of legitimate objectives for such laws; perceptions can arise that sometimes, governments are pandering to racism, intolerance and xenophobia with such measures, rather than seeking to meet more high-minded objectives.


Anthony Gray
Professor of Law, University of Southern Queensland, Australia.

    Under the Kafala system, which applies in all Arab countries, migrant workers must attain a work entry visa and residential permit, which is possible only if they are working for a domestic institution or corporation or a citizen of the respective country. Each and every employer is required, based on the Kafala system, to adopt all legal and economic responsibilities for all of the employer's workers during their contractual period. By giving wide-ranging powers and responsibilities unilaterally to employers, the Kafala system subjects workers to abysmal and exploitative working conditions, violence, and human rights abuses. Some of these problems have recently made headlines in the United States and in Europe in connection with the campus being built by New York University in Abu Dhabi. While NYU imposed a code of labor standards on its direct contractual partners, it claimed to have no means of controlling subcontractors. Nor did NYU try very hard, it seems, to verify compliance even by its direct contractual partners.
    Migrant workers make up at least 30 percent of the population of Saudi Arabia and 49 percent of Saudi Arabia's entire workforce. Employers control Saudi Arabia's Kafala system, in which migrant workers are the weakest link. Studies and international organizations report that foreigners employed in Saudi Arabia have returned home with many complaints. In 2006, Saudi Arabia re-examined all laws including its labor law. This re-examination resulted in abolishing some terms used in labor law, such as the kafala system, but the system remains as is. The new labor law includes many positive changes, but not enough according to the assessment of local and international scholars and observers. In this paper, I will reveal laws, practices and patterns that essentially cause the vulnerability of migrant workers, and I will suggest effective alternative strategies. This paper should contribute to our growing understanding of issues of concern for migrant workers in Saudi Arabia and other Arab countries and help to develop specific and necessary legal and institutional responses.


Majed M. Alzahrani
LL.M, Indiana University, Robert H. McKinney School of Law. The author would like to thank Professor Frank Emmert for advice and guidance in the production of this article.

    The purpose of this article is to illuminate one of the contemporary legal dilemmas in Islamic law, namely the appointment of female judges in Muslim countries. The methodology employed is library-based research. The focus of this article is to determine the legal status of appointments of female judges in Shariah courts. It is argued here that female judges can be appointed in Muslim countries and that the main reason for this is that there is no explicit prohibition of it in the fundamental sources of Islamic law. However, the claims that it is contrary to Islamic law to appoint female judges are also discussed here. The outcome of this article is to prove that there is nothing wrong in Islam in appointing female judges as long as they fulfil the necessary conditions.


Aishath Muneeza
Postgraduate Student, Harun M. Hashim Law Centre, International Islamic University Malaysia.
Article

Freedom of Speech, Freedom of Religion and Islam

A Review of Laws Regarding ‘Offences Relating to Religion’ in Pakistan from a Domestic and International Law Perspective

Journal European Journal of Law Reform, Issue 2 2014
Keywords blasphemy, apostasy, freedom of religion, Ahmadi, minority rights in Pakistan
Authors Ujala Akram
AbstractAuthor's information

    During the struggle for a separate homeland, named Pakistan, for Muslims who were the then religious minority in British India, a promise was inevitably made that the religious minorities will enjoy freedom to hold and practice their belief in this new country. The promise was kept in all three Constitutions of Pakistan where minorities were given the right to practice their religion. However, the subsequent amendments to the Constitution were made with the presumption that Pakistan was created to establish an Islamic State, which stifled the freedom of religion and belief of the religious minorities. In the absence of a domestic mechanism to protect the freedom of religion in Pakistan, international law was supposed to play a major role in the protection of the same. Unfortunately, international law, owing to the lack of sanctions and mechanism to implement the law, proved to be weak in this case. However, through an amalgamation of international law, international pressure, amendments to existing laws and promulgation of new laws to protect the religious freedom of minorities in Pakistan – the minorities may be able to enjoy the freedom of religion as it was envisioned while fighting for the independence of Pakistan.


Ujala Akram
LLM 2007, S.J.D. Candidate, Indiana University McKinney School of Law.
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

Strengthening Child Laws in Africa

Some Examples from the New Children’s Act of Angola

Journal European Journal of Law Reform, Issue 1 2014
Keywords children’s rights, instruments, law reform, good practice examples, developments or advancements
Authors Aquinaldo Célio Mandlate
AbstractAuthor's information

    This article highlights some of the major contributions of the new Children’s Act of Angola (Act 25/12 of 22 August 2012) to the effect that they can be used to advance children’s rights in Africa. The article advocates that although the Angolan law is in many respects similar to other African children’s statutes, its drafters added certain remarkable aspects that can be utilised to advance children’s rights in other countries in the continent. In acknowledging these innovations and the need to strengthen child laws in Africa the contribution calls on African states to learn from the Angolan experience in their quest to advance children’s rights in their own jurisdictions. Other states are also encouraged to learn from the Angolan example.


Aquinaldo Célio Mandlate
Aquinaldo Célio Mandlate, Post-Doctoral Research Fellow (UWC), LLD (Western Cape), LLM (Pretoria), is a practising lawyer registered with the Mozambican Bar Association. He also does consultancy works on several fields. His areas of interest include international human rights law, governance and rule of law, investment, corporate, tax law and banking regulations. Contact at aquinaldo101@gmail.com.
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