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Article

Experimenting with Conflicts Constructively

In Search of Identity for the Field of Conflict Resolution

Journal International Journal of Conflict Engagement and Resolution, Issue 2 2013
Keywords conflict resolution, identity, group identity, constructive engagement, narratives
Authors Michal Alberstein
AbstractAuthor's information

    The field of conflict resolution has developed enough to become diverse and rich with perspectives, yet the common ground between those perspectives – a permanent core essence – has not yet been defined. The use of identity theory, specifically intergroup identity theory, may be the most effective method to understand the field’s foundations. In this article, six possible group identity claims – or grand narratives – are offered. Together, they may form a foundational code for the field, which may be examined and proved in context. Defining the profession of conflict resolution also requires engagement and dialogue with other related professions. In addition to mapping the six grand narratives, this article will suggest how these narratives can at times generate differences with other academic disciplines that deal with conflicts.


Michal Alberstein
Bar-Ilan University, Program in Conflict Management, Resolution and Negotiation.
Article

Linguistic Disharmony, National Language Authority and Legislative Drafting in Islamic Republic of Pakistan

Journal European Journal of Law Reform, Issue 4 2013
Keywords National Language Authority, National Language of Pakistan, Legislation in Urdu, Plain Language Movement, Urdu Language
Authors Mazhar Ilahi
AbstractAuthor's information

    It is quite interesting to note that first, the first language of most of the population of Pakistan remains different in different geographical regions. Secondly, Urdu, which is the second language of most of the population of Pakistan though declared to be the sole constitutional and official language, is not so accepted by all the communities resident in Pakistan. As a result, and thirdly, the laws of Pakistan are drafted in a non-native language, English, which is mostly the third language of a small fraction of the country’s population . This situation runs counter to the theme of the Plain Language Movement for writing of laws (PLM), which strives to make the laws understandable for its subjects. The problem, in reality, owes its genesis to different ethno-lingual and political issues. However, without going into much detail of these ethno-lingual and political elements, this article aims to analyse the question of the need for linguistic harmony, the main causes of lack of focus upon the same and the role of the National Language Authority (NLA) in the context. In addressing these issues the author concludes that lack of political will to handle the natural ensuing issues of the multilingual features of the Pakistani society and the (English) linguistic hegemony of the ruling elites (civil and military bureaucracy) are the two main causes of the failure of the NLA to administer Urdu as a sole national/official/legislative language of Pakistan.


Mazhar Ilahi
The author is a Solicitor qualified in England & Wales currently working as an Associate Research Fellow and Director of the Legislative Drafting Clinic at the Institute of Advanced Legal Studies, School of Advanced Study, University of London. Previously, he has worked as a Civil Judge/Judicial Magistrate and is practicing as Advocate of High Courts in Pakistan. He is also country (Pakistan) representative of ‘CLARITY’, International Association Promoting Plain Legal Language. The author acknowledges the research facilitation provided by the IALS in writing this article.
Article

Access_open From Legal Pluralism to Public Justification

Journal Erasmus Law Review, Issue 3/4 2013
Keywords legal pluralism, diversity and law, law and justification, concept of law
Authors Dr. Emmanuel Melissaris
AbstractAuthor's information

    The paper offers an argument for a conception of legal pluralism, which has some substantive upshots and at least partly alleviates that legal pluralism may regress to rampant relativism. In particular, I will argue that law in its pluralist conception is inextricably linked to the requirement of public justification. This is not by way of appealing to any transcendental normative ideals but as a matter of entailment of the very practice of law. But, perhaps to the disappointment of many, this procedural requirement is the only practical consequence of the concept of law. For thicker, substantive limits to what law can do and for ways in which legal pluralism may be reduced in real contexts one will have to turn to the actual circumstances furnishing the law with content and a different kind of thinking about the law.


Dr. Emmanuel Melissaris
Associate Professor of Law, Law Department, London School of Economics and Political Science. I am grateful to Sanne Taekema and Wibo van Rossum as well as the two anonymous referees for their helpful critical comments. A version of this paper was presented at the School of Law, Queen Mary University of London. I am indebted to all the participants in that seminar and particularly to Roger Cotterrell, Ann Mumford, Maskymilian del Mar, Prakash Shah, Valsamis Mitsilegas, Wayne Morrison, Michael Lobban, Richard Nobles and David Schiff. Many thanks also to Sean Coyle, George Pavlakos, Alexis Galan Avila and Mariano Croce for their valuable comments on earlier drafts of the paper. I am solely responsible for all remaining errors.

Catherine Barnard
Catherine Barnard, MA (Cantab), L.LM. (EUI), Ph.D. (Cantab), is a Professor in European Union and Employment Law at the University of Cambridge and a fellow of Trinity College. She specialises in EU law, employment law and discrimination law. She is co-director of the Centre for European Legal Studies at Cambridge, and the author of EU Employment Law (4th edn) OUP, Oxford, 2012 and The Substantive Law of the EU: The Four Freedoms (4th edn.), OUP, Oxford, 2013.

Petra Lea Láncos
Adjunct professor at the Pázmány Péter Catholic University of Budapest, Faculty of Law at the Department for European Law. She is also member of the secretariat of the Hungarian Deputy Commissioner for the Protection of the Interests of Future Generations (“Green Ombudsman”).

Balázs Fekete
Lecturer in law, Pázmány Péter Catholic University Faculty of Law and Political Sciences/Research fellow, Centre for Social Sciences, Hungarian Academy of Sciences.

Eva Nanopoulos
Bob Alexander Fellow and Lecturer in Law at King’s College, Cambridge, where she is also acting as Director of Studies in Law and Equal Opportunities Tutor.

Petra Bárd
LL.M. SJD, works as a senior researcher at the National Institute of Criminology, where she is also the Head of the Criminal Law Division. As a lecturer at the Central European University, Legal Studies Department she teaches EU constitutional law, EU criminal law, human rights in the EU and selected issues in criminology and forensic sciences. At ELTE School of Law she teaches criminology and data protection law. In her writings she primarily addresses European constitutionalism, human rights in the European Union, the rights of persons living with disabilities and judicial and police cooperation in criminal matters.

    This article seeks to critically analyse the European Commission's Proposal for a Council Regulation on jurisdiction, applicable law and recognition and enforcement of decisions in matters of matrimonial property regimes (COM (2011) 126). It focuses upon the coordination of the Proposal's provisions on jurisdiction and applicable law with the parallel provisions contained in other related EU private international law instruments, namely those relating to divorce (Brussels II bis and Rome III) and succession (Succession Regulation). In doing so, the article adopts a 'stress-test' approach, presenting scenarios in which interaction between these related instruments takes place. The compositions and circumstances of the fictitious couples in these scenarios are varied in order to fully illustrate the potential consequences of the interplay between the instruments. This article seeks to assess the extent to which (in)consistency exists between the current and proposed EU private international instruments and, by evaluating this interaction through a number of norms, how identified inconsistencies impact upon international couples' legal relationships. In order to ensure the analysis remains as up to date as possible, the article will also take into account relevant changes introduced in the latest revised versions of the Proposal.


Jacqueline Gray LL.M.
Jacqueline Gray studied law at the University of Glasgow (2006-2010) and European law at the Leiden University (2010-2011). Following this, she undertook a four-month internship at the Molengraaff Institute for Private Law and five-month traineeship at the European Parliament in Brussels. She is now a PhD student at the Molengraaff Institute for Private Law, where she is writing her dissertation on party autonomy in the EU private international law relating to family matters and succession.

Pablo Quinzá Redondo LL.M.
Pablo Quinzá Redondo, a research scholar funded by the Spanish Ministry of Education, Culture and Sport, is currently undertaking a PhD at the University of Valencia. His specialisation concerns 'The europeanisation of matrimonial property regimes from a substantive and private international law perspective'. Prior to commencing his PhD, he completed undergraduate degrees in both Law and Administration and Business management (2004- 2010), as well as a Master’s degree in Company Law (2010-2012), at the University of Valencia.

    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

The Principle of Ultra Vires and the Local Authorities’ Decisions in England

Journal European Journal of Law Reform, Issue 3 2013
Keywords ultra vires, administrative decisions, legislative drafting, validity and invalidity of local authority administrative decisions, misuse of discretion
Authors Charles Aguma
AbstractAuthor's information

    The hypothesis of this article is that valid administrative decisions from local authorities are guaranteed via clear and precise enabling clauses in the primary legislation. The article argues that the style of drafting local authorities’ legislations influences decisions taken by local authorities. First, legislations need to be drafted in a style that clearly and precisely spells out the limits of powers of the local authorities in order to provide sufficient guidance to local authorities’ administrators to act lawfully. In attempting to exercise implied powers conferred by the imprecise enabling legislation, however, local authorities tend to go beyond intended legal powers and as a result take unreasonable, arbitrary and invalid decisions. More so, drafters rarely provide sufficient guidance about which considerations are properly relevant to the exercise of discretion and which are not. Secondly, obscure, wide and ambiguous enabling clauses in the primary legislations are substantial causes of courts’ misinterpretation of legislation as understanding the limits of the powers of the local authorities is a challenge. On the other hand, it is questionable whether the whole range of activities performed by a local authority by invoking implied powers, while exercising discretion, under the umbrella of doing anything that is calculated to facilitate or is conducive to or incidental to the discharge of any of its functions can be regarded as lawful. This article attempts to respond to that question. Although the principle of ultra vires requires the strict observance of the limits of the powers conferred in legislation, local authorities tend to invoke widely drafted provisions to perform activities that are said to be incidental to the express powers of which courts may declare invalid.


Charles Aguma
Charles Aguma graduated in Legislative Drafting (LLM) from the University of London- Institute of Advanced Legal Studies in 2012.
Article

Access_open Multinationals and Transparency in Foreign Direct Liability Cases

The Prospects for Obtaining Evidence under the Dutch Civil Procedural Regime on the Production of Exhibits

Journal The Dovenschmidt Quarterly, Issue 3 2013
Keywords foreign direct liability, corporate social responsibility, transparency document disclosure, Dutch Shell Nigeria case
Authors Liesbeth F.H. Enneking
AbstractAuthor's information

    On 30 January 2013, the The Hague district court rendered a final judgment with respect to a number of civil liability claims against Royal Dutch Shell (RDS) and its Nigerian subsidiary Shell Petroleum Development Company of Nigeria (SPDC) that had been pursued by four Nigerian farmers and the Dutch NGO Milieudefensie in relation to various oil spills from SPDC-operated pipelines in the Nigerian Niger Delta. This case is the first Dutch example of a broader, worldwide trend towards similar transnational civil liability procedures against multinational corporations for harm caused to people and planet in developing host countries. This worldwide trend towards so-called ‘foreign direct liability cases’ and the Dutch Shell Nigeria case in particular raise many interesting socio-political as well as legal questions. This article will focus on the question what the prospects are for plaintiffs seeking to pursue such claims before a Dutch court when it comes to obtaining evidence under the Dutch civil procedural regime on the production of exhibits. This is a highly relevant question, since the proceedings in the Dutch Shell Nigeria case seem to indicate that the relatively restrictive Dutch regime on the production of exhibits in civil procedures may potentially impose a structural barrier on the access to remedies before Dutch courts of the victims of corporate violations of people and planet abroad.


Liesbeth F.H. Enneking
Liesbeth Enneking is a Postdoctoral Research Fellow at UCALL, Utrecht University’s multidisciplinary Centre for Accountability and Liability Law, and an Assistant Professor of Private International Law at Utrecht University’s Molengraaff Institute for Private Law. The author would like to thank prof. I. Giesen for comments on an earlier version of this article.

    In this paper, I will firstly illustrate the broader context of the contractualisation of family law by drawing upon the oscillations in family regulation between private and public regulators, in the light of the so-called family law exceptionalism. I consider the contractualisation of family law to be the ordering of the family by families and individuals through the use of legally binding private instruments. I will elaborate upon the substantive and jurisdictional contractualisation of family law in Sections 2 and 3 of this paper respectively. The deliberately 'impressionist' presentation of Section 1-3 leads onto the conclusion which proposes that States benevolently tolerate substantive contractualisation through a lower standard of judicial review, and that, whilst they actively stimulate jurisdictional contractualisation of the content of family relations, the formation and dissolution of family relations still appear to fall within the State's exclusive domain (Section 4).
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    In deze bijdrage situeer ik eerst de 21ste eeuwse contractualisering van het familierecht in de historische pendelbeweging tussen publieke en private regulering van familieleven. Die leidde in de 19de en 20ste eeuw tot de aanneming van een bijzondere, niet-contractuele, aard van het familierecht (sectie 1). Ik beschouw als contractualisering van het familierecht: de regulering van familieleven door de familie en door individuen, door middel van juridisch bindende privaatrechtelijke instrumenten. Ik zal ingaan op de inhoudelijke en jurisdictionele contractualisering van het familierecht in respectievelijk de secties 2 en 3 van deze bijdrage. De bewust 'impressionistische' uiteenzetting in secties 1-3 leidt naar de conclusie dat Staten enerzijds een welwillende houding aannemen ten opzichte van inhoudelijke contractualisering, doordat een lagere norm van rechterlijke toetsing wordt gehanteerd. Anderzijds stimuleren zij actief de jurisdictionele contractualisering van de inhoud van familierelaties. Het aangaan en de beëindiging van familierelaties blijven daarentegen het exclusieve domein van de Staat (sectie 4).


Prof. dr. Frederik Swennen
Frederik Swennen is a senior lecturer at the University of Antwerp and an attorney at the Brussels Bar.

    Met de financiële steun van het FWO Vlaanderen werd een doctoraat geschreven over grensoverschrijdend familierecht in de praktijk. Opzet van het onderzoek was om de concrete toepassing van het Belgisch Wetboek IPR grondig door te lichten. De auteur onderzocht of de doelstellingen van de wetgever werden bereikt in de praktijk. Hiertoe steunde zij op drie bronnen: 1) een databank met meer dan 3000 adviesvragen aan het Steunpunt IPR; 2) diepte-interviews met magistraten gespecialiseerd in familiezaken met een internationaal aspect; 3) 659 rechterlijke uitspraken. Dit empirisch bronnenmateriaal gaf de auteur een goed zicht op de wijze waarop rechtbanken en administraties de IPR-regels toepassen. Het artikel gaat uitvoerig in op de empirische onderzoeksmethode en bespreekt enkele onderzoeksbevindingen en beleidsaanbevelingen.
    ---
    Through funding from the Research Foundation Flanders, a doctoral thesis on the actual practices of cross-border family law has been written. The main research question concerned whether or not the Belgian Code of Private International Law adequately deals with 'real-life' international family law matters. It was examined whether the objectives set out by the legislator have been met in practice. Three empirical sources were relied upon: 1) The database of the Centre for Private International Law, which contained more than 3.000 files, ranging from simple questions posed to the helpdesk to more elaborate advice given by the Centre's lawyers; 2) In-depth interviews with judges specialized in cross-border family cases; 3) 656 court decisions. This material allowed the author to obtain a very good understanding of how courts and (local) authorities apply the PIL rules. This paper elaborates on the empirical methodology, several research findings and policy recommendations.


Dr. Jinske Verhellen
Jinske Verhellen is currently a postdoctoral researcher at the Private International Law Institute of Ghent University. Alongside this, she lectures in private international law, nationality law and immigration law at the Oost-Vlaamse Bestuursacademie (East Flanders Management Academy).
Article

The Controversy Surrounding Article 9 of the Law That Defines How Brazilian Laws Are Applied

The Difficult Path to Reform of Private International Law Legislation in Brazil

Journal European Journal of Law Reform, Issue 2 2013
Keywords willingness, connecting element, controversy, Brazil
Authors Paul Hugo Weberbauer
AbstractAuthor's information

    This study aims to demonstrate that the legislative reform of Private International Law is one of the most complex subjects to be understood in terms of the Law in Brazil. With this objective, the point of reference of this study will be the controversy, which involves willingness as a connecting element, and is also known as the controversy around Article 9 of LINDB. By analyzing willingness as a connecting element within Brazilian legislation, a general panorama of the aforementioned Law is developed, as well as the debate of a doctrine nature about willingness as a connecting element and its insertion in the legal system in effect in Brazil. Finally, the difficulties encountered considering Brazil’s position towards international treaties and conventions, as well as the many attempts to reform Private International Law legislation will be analyzed.


Paul Hugo Weberbauer
Ph.D. in Law and Associate Professor of Recife Law School, Legal Sciences Centre at the Federal University of Pernambuco. Research Group: Regional integration, globalisation and International Law. E-mail: phwberbauer@hotmail.com.
Article

Federalist Distortions in the Organization of the Legislative Branch of Brazilian Government

Journal European Journal of Law Reform, Issue 2 2013
Keywords Brazilian federalism, legislature, distortions
Authors Marcelo Labanca Corrêa de Araújo and Glauco Salomão Leite
AbstractAuthor's information

    This article examines the relationship between federalism and the legislature in Brazil. It examines distortions that occur in the structure of the federal legislature, in the powers conferred constitutionally and in the dynamics of legislative activity. It discusses how the role of the Senate as a house of representation of Member States has been mitigated, highlights the excessive concentration of legislative powers at the federal level and the suffocation of the autonomy of the state and municipal legislatures by the influx of the principle of symmetry.


Marcelo Labanca Corrêa de Araújo
Professor of Constitutional Law at the Catholic University of Pernambuco (undergraduate degree stricto sensu Postgraduate Program in Law). President of the OAB-Pernambuco’s Constitutional Studies Commission. CAPES grant for post-doctoral program abroad, at the University of Pisa’s Faculty of Law.

Glauco Salomão Leite
Professor of Constitutional Law at the Catholic University of Pernambuco. Professor of Public Law at the Federal University of Paraíba. Vice-President the OAB-Pernambuco’s Constitutional Studies Commission.
Article

Does Our Field Have a Centre?

Thoughts from the Academy

Journal International Journal of Conflict Engagement and Resolution, Issue 1 2013
Keywords Conflict and Peace studies, peacebuilding, pedagogy, George Mason University, S-CAR
Authors Kevin Avruch
AbstractAuthor's information

    This article is a personal reflection on the development of the field of conflict resolution/peace and conflict studies from the perspective of the classroom: how what is thought necessary to teach has changed as the field has grown and reacted to often turbulent political change


Kevin Avruch
Henry Hart Rice Professor of Conflict Resolution & Professor of Anthropology, School for Conflict Analysis and Resolution. I thank my colleagues Arthur Romano, Richard Rubenstein, and Dennis Sandole for their careful and critical reading of earlier drafts of this essay, and Oliver Ramsbotham for his critical reading of a later one. Their various suggestions greatly improved the work.
Article

Is There a Theory of Radical Disagreement?

Journal International Journal of Conflict Engagement and Resolution, Issue 1 2013
Keywords Radical disagreement, linguistic intractability, agonistic dialogue, conflict engagement
Authors Oliver Ramsbotham
AbstractAuthor's information

    This article concerns linguistic intractability, the verbal aspect of those conflicts that so far cannot be settled or transformed. At its heart lies the phenomenon of radical disagreement. This is generally discounted in conflict resolution as positional or adversarial debate. It is seen as a terminus to dialogue that must from the outset be transformed, not learnt from. In this article the refusal to take radical disagreement seriously is traced back to the way radical disagreement is described and explained in the third party theories that frame attempts at settlement and resolution in the first place.
    On pp. 58-60 a theory of radical disagreement is contrasted with an example. In the theory radical disagreement is described as a juxtaposition of equivalent subjective narratives that do not ‘reflect truth’ but merely serve as ‘motivational tools’ for group survival. In the example, it can be seen that neither speaker is saying that. The Palestinian claim (A) is not about a subjective narrative or motivational tool, but about a lived reality endured for 60 years. And the Israeli claim (B) is not about a juxtaposition of equivalent accounts, but a fierce refutation of faults and misrepresentations in what the other says. This mismatch between third party theory and participant example explains a great deal about why third party interventions based on those theoretical assumptions fail.
    The rest of the article looks at a range of putative theories invoked in conflict analysis and conflict resolution. This is a search for third party descriptions and explanations that are adequate to examples of what they purport to describe and explain. Surprisingly the net is hauled in empty. The interim conclusion to this article is that there is no adequate theory of radical disagreement.
    In the first issue of the International Journal of Conflict Engagement and Resolution, this article sets the scene for an exploration of the relationship between engagement and resolution that it is hoped will be developed in future issues. It will be argued there that the practical implication of the discovery that there is no adequate theory of radical disagreement is that in intractable conflicts it is a mistake to ignore this phenomenon. Radical disagreement is not all too familiar but perhaps the least familiar feature of intense political conflict. What is required in the face of linguistic intractability, therefore, is not less radical disagreement but more – namely promotion of a ‘strategic engagement of discourses’. Only then is it possible to move from engagement to resolution and to create the space for a future revival of attempts at settlement and transformation in the linguistic sphere.


Oliver Ramsbotham
Emeritus Professor of Conflict Resolution, University of Bradford. Paper first presented at the Conflict Research Society Annual Conference, Coventry, September 2012.
Article

Access_open Private law and ethical life

Honneth on legal freedom and its pathologies

Journal Netherlands Journal of Legal Philosophy, Issue 2 2013
Keywords Honneth, Hegel, social freedom, legal freedom, law, pathologies
Authors Jan Ph. Broekhuizen
AbstractAuthor's information

    In Das Recht der Freiheit Axel Honneth develops his concept of social freedom. In this article I discuss Honneth’s project and critique one of its crucial aspects: Honneth’s views on the disruptive role of legal freedom in our society and its dependent relation to the sphere of social freedom. I argue that in his attempt in Das Recht der Freiheit to reactualize Hegel’s discourse on the realization of freedom for our time, Honneth risks mistranslating Hegel’s discourse of ‘right’ by denying the sphere of legal relations a constitutive role for true freedom, and that because of this Honneth’s own theory of social freedom suffers: it becomes less clear whether it can still offer helpful insights into the proper place of legal freedom in our society.


Jan Ph. Broekhuizen
Jan Broekhuizen is an attorney (advocaat) in Amsterdam and a deputy judge at the Court of Appeals in Den Bosch (the Netherlands). He holds degrees in both law and philosophy.
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.
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