Search result: 33 articles

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Year 2019 x

    This article relies on the premise that to understand the significance of Open Access Repositories (OARs) it is necessary to know the context of the debate. Therefore, it is necessary to trace the historical development of the concept of copyright as a property right. The continued relevance of the rationales for copyright interests, both philosophical and pragmatic, will be assessed against the contemporary times of digital publishing. It follows then discussion about the rise of Open Access (OA) practice and its impact on conventional publishing methods. The present article argues about the proper equilibrium between self-interest and social good. In other words, there is a need to find a tool in order to balance individuals’ interests and common will. Therefore, there is examination of the concept of property that interrelates justice (Plato), private ownership (Aristotle), labour (Locke), growth of personality (Hegel) and a bundle of rights that constitute legal relations (Hohfeld). This examination sets the context for the argument.


Nikos Koutras
Postdoctoral Researcher, Faculty of Law, University of Antwerp.

Tom Daems
Tom Daems is Associate Professor at the Leuven Institute of Criminology (LINC), KU Leuven, Leuven, Belgium.

Susan L. Brooks
Susan Brooks is an Associate Dean and Professor of Law, Drexel University Kline School of Law, Philadelphia, USA.
Article

Complying with display rules: the ‘managed heart’ in restorative justice

complementing ritual theories of emotional bonding

Journal The International Journal of Restorative Justice, Issue 3 2019
Keywords Emotional bonding, emotion management, display rules, offstage performance, re-storying
Authors Bas van Stokkom
AbstractAuthor's information

    In this theoretical study it is argued, first, that ritual theories – at least those which are dominant in restorative justice literature – place too much emphasis on the potential positive impacts of emotional bonding. The author discusses some critical issues with respect to emotional bonding and points out that mutual understanding is rather the result of narrative re-appraising and re-assessing. Secondly, to explain the rather low emotional temperature of many (youth) conferences, emphasis is placed on emotion management theory, thereby suggesting that participants’ reservations and discomfort are related to rather demanding display rules (enact a sincere and authentic role; enact cooperativeness; etc.). The author identifies reasons why (young) participants cannot get grips on these rules and resort to a resigned ‘offstage’ performance. It is argued that display rules form an integral part of a relatively compelling ‘emotional regime’, a specific set of affective behavioural norms which define the ‘manners’ during the meeting. In this regime there is considerable social pressure to conform to norms and standards how to express emotions, which contradicts the restorative justice rhetoric of voluntary and spontaneous dialogue.


Bas van Stokkom
Bas van Stokkom is criminologist and research fellow at the Faculty of Law, Radboud University Nijmegen, the Netherlands.
Article

Restorative justice, anger, and the transformative energy of forgiveness

Journal The International Journal of Restorative Justice, Issue 3 2019
Keywords Restorative justice, ritual, anger, apology, forgiveness
Authors Meredith Rossner
AbstractAuthor's information

    Restorative justice has long been positioned as a justice mechanism that prioritises emotion and its expression. It is also unique in its ritual elements, such as the ritualized expression of anger and the symbolic exchange of apology and forgiveness. This paper draws on insights from research and practice in restorative justice and recent developments in criminology/legal theory and the philosophy of justice to suggest some ways that the broader criminal justice landscape can incorporate elements of successful restorative justice rituals into its practice. I argue that the unique elements of restorative justice- its ability to harness anger into a deliberative ritual for victims and offenders, its focus on symbolic reparations, and its ability to engender a form of forward-looking forgiveness that promotes civility- can provide a framework for rethinking how criminal justice institutions operate.


Meredith Rossner
Meredith Rossner will from 2020 be a Professor of Criminology, Centre for Social Research and Methods, Australian National University, Canberra, Australia. In 2019 she was an Associate Professor of Criminology at the London School of Economics and a visitor at the Center for Law and Public Affairs, Princeton University.
Article

The shame of injustice: the ethics of victimology and what it means for restorative justice

Journal The International Journal of Restorative Justice, Issue 3 2019
Keywords Victimology, restorative justice, shame, Bernard Williams, Susan Brison
Authors Antony Pemberton
AbstractAuthor's information

    The role of shame in restorative justice has a long pedigree. Most often shame has been conceptualised in terms of the act of the offender. The focus of this paper is instead on the shame of the person experiencing wrongdoing: a victim who is neither guilty nor responsible for the experience. This has the advantage of making more clear that shame fundamentally concerns an experience of ‘who I am’ rather than ‘what I have done’, while the reaction to the experience of shame in victimization should involve attention to the identity-related questions that are posed by this experience. This way of viewing shame is connected to the distinction between countering injustice and doing justice, and offers a number of fresh insights into victimological phenomena in restorative justice and restorative justice more generally.


Antony Pemberton
Professor of Restorative Justice, Leuven Institute of Criminology, KU Leuven, Leuven, Belgium; Professor of Victimology, Tilburg Law School, Tilburg University, Tilburg, the Netherlands.
Article

Law Reform and the Executive

Journal European Journal of Law Reform, Issue 4 2019
Keywords law reform, parliamentary counsel, legislative drafting, Australia, Victoria
Authors Adam Bushby
AbstractAuthor's information

    This article comments on the process of law reform in Australia from the perspective of a legislative drafter. After a description of the Australian political and parliamentary system and a discussion of the role of the legislative drafter, a brief summary of the formal law reform processes in Australia is provided, including a discussion of how legislative drafting offices participate in the law reform process. Participation includes the drafting of Bills giving effect to law reform proposals based on drafting instructions approved by Cabinet, providing for the undertaking of statutory reviews, as well as the remaking of legislation. It is the role of the legislative drafter to assist the government by turning policy into legislation, so the focus here is on the practical implementation of law reform rather than the independence of law reform bodies.


Adam Bushby
Senior Parliamentary Counsel, Office of the Chief Parliamentary Counsel, Department of Premier and Cabinet, Victoria, Australia. This article reflects the opinions of the author only, and should not be taken as representing the stance of the Office of the Chief Parliamentary Counsel, Victoria, Australia. I would, of course, welcome any feedback from anyone with an interest in law reform.
Article

Economic Inequality, Capitalism and Law

Imperfect Realization of Juridical Equality, the Right to Property and Freedom of Contract

Journal European Journal of Law Reform, Issue 4 2019
Keywords capitalism, inequality, juridical, law, property
Authors Shabir Korotana
AbstractAuthor's information

    There is a general unease among the public across all jurisdictions about the progressive economic inequality that seems to define the new normal, and this phenomenon has been succinctly documented in numerous prominent studies. This trend of capitalism has been supported by the existing structures of the common law, albeit contrary to the aim and purpose of its original principles. The studies show that the modern capitalist societies display a persistent trend of increasing inequality, and this is summed up by the observation that modern capitalism generates progressive and intense economic inequality.
    Capitalism as a socio-economic system is structured and sustained by the law and by socio-economic systems of institutions. Capitalism is not only a social ordering; essentially, it is a legal ordering. At the heart of this legal ordering are private laws, and tort law, but the most important is contract law: freedom of contract. It is common law, similar to the private law in other jurisdictions, that is responsible for the extreme inequality because it allows the institutions of capitalism to function freely and without much control. The open-ended capitalism that allows accumulation of wealth without ceiling causes progressive inequality in society and consequently works against the very freedom and individualism that are supposed to be the ideals of common law and capitalism. Because of the existing institutions of capitalism and the legal construct, freedom, fairness and the intended progress of the individual were not properly realized; the understanding of the ideas and principles of freedom, individualism, juridical equality, the right to property and freedom of contract have been imperfectly realized. With rising inequality, it is this imperfect realization, particularly of juridical equality that is in question.


Shabir Korotana
Shabir Korotana is Senior Lecturer in Commercial Law at Brunel Law School, Brunel University London.
Article

Independence and Implementation

In Harmony and in Tension

Journal European Journal of Law Reform, Issue 4 2019
Keywords Law Commission, law reform, legislation, independence, implementation
Authors Matthew Jolley
AbstractAuthor's information

    This article examines the factors that have influenced the independence of the Law Commission of England and Wales and the implementation of its recommendations. It discusses innovations in Parliamentary procedure for Law Commission Bills, the Protocol between Government and the Law Commission; and the requirement for the Lord Chancellor to report annually to Parliament on the implementation of the Law Commission’s proposals. It makes the case that the relationship between independence and implementation is complex: at times the two pull in opposite directions, and at times they support each other.


Matthew Jolley
Matthew Jolley is Head of Legal Services and Head of the Property, Family and Trust Law Team at the Law Commission of England and Wales. This article is written in a personal capacity – with thanks to Christine Land, Rachel Preston and Sarah Smith for their assistance with background research.
Article

Where Have All the Lawyers Gone?

The Empty Chair at the ODR Justice Table

Journal International Journal of Online Dispute Resolution, Issue 2 2019
Keywords legal profession ODR, system design, courts, legal practice
Authors Noam Ebner and Elayne E. Greenberg
AbstractAuthor's information

    We are currently witnessing a revolution in access to justice and a parallel revolution in justice delivery, design and experience. As dispute resolution design scholars tell us, the implementation of any new dispute intervention plan in a system should involve all of its stakeholders from the beginning. In our justice system there are three primary stakeholders, who have been traditionally involved in processes of innovation and change: the courts, the parties and the lawyers. Courts and parties have been involved in the development of online dispute resolution (ODR). However, one significant justice stakeholder, the legal profession, has been relatively absent from the table thus far – whether by lack of awareness, by lack of will or innovative spirit or by lack of invitation: lawyers.


Noam Ebner
Noam Ebner is Professor of Negotiation and Conflict Resolution, Creighton University.

Elayne E. Greenberg
Elayne E. Greenberg is Assistant Dean for Dispute Resolution Programs, Professor of Legal Practice and Director of Hugh H. Carey Center for Dispute Resolution.
Article

Readiness for Family and Online Dispute Resolution

Journal International Journal of Online Dispute Resolution, Issue 2 2019
Keywords online dispute resolution, family dispute resolution, domestic violence, ripeness and readiness, divorce
Authors Nussen Ainsworth, Lisa Zeleznikow and John Zeleznikow
AbstractAuthor's information

    The International Conflict Resolution Community has developed considerable theory and many case studies about ripeness and readiness for mediation. Readiness involves a readiness of the disputant to resolve the conflict, while ripeness indicates the time is appropriate to attempt a resolution. There is a sparse amount of theory about these issues in commercial and family dispute resolution (FDR). We discuss the practice of readiness for mediation, FDR and online dispute resolution and develop practices about when to mediate such disputes – especially when domestic violence has occurred.


Nussen Ainsworth
Nussen Ainsworth, Victoria University, Melbourne, Australia – nussen.ainsworth@vu.edu.au.

Lisa Zeleznikow
Lisa Zeleznikow, Jewish Mediation Centre, Melbourne, Australia – lisa@jmc.org.au.

John Zeleznikow
John Zeleznikow, Victoria University, Melbourne, Australia – john.zeleznikow@vu.edu.au.
Article

Magyar Jeti Zrt. v. Hungary

Judgment of the ECtHR Concerning the Imposition of Liability for Posting Hyperlinks to Defamatory Content

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Keywords freedom of expression, defamatory content, liability of online press, Article 10 ECHR, hyperlinks
Authors Renáta Gyalog
AbstractAuthor's information

    The article aims to introduce the judgment of the ECtHR on the case Magyar Jeti Zrt. v. Hungary. Although in this Hungarian case the ECtHR dealt with a special provision of the Hungarian Civil Code that – under the interpretation of the domestic courts – imposes objective liability for posting hyperlinks which lead to third-party online content, the judgment can be considered as a big improvement compared to the previous decisions of the ECtHR concerning the freedom of expression. The judgment offers legal certainty and guidance for journalists who post hyperlinks by determining five relevant questions to be taken into account when deciding whether the liability of a press organ can be established for contents cited from other websites over which they have no control. Becoming the best ECtHR judgment of the year 2018 under the yearly vote announced by Strasbourg Observers blog portal also emphasizes the importance and the relevance of this decision for the digital media.


Renáta Gyalog
Assistant judge, Békéscsaba District Court, Hungary.
Article

To the Margin of the Theory of a New Type of Warfare

Examining Certain Aspects of Cyber Warfare

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Keywords new types of security challenges, cyberspace, cyber warfare, cyber attack, cyber defense
Authors Ádám Farkas and Roland Kelemen
AbstractAuthor's information

    In the second half of the 20th century, humanity went through an unprecedented technical and technological development. As a result, technological innovations emerged in the course of the last third of the century which have now become indispensable parts of everyday life, the whole society and even the state. Among them, we must mention the IT sector, which has effectively enabled global contacts and communication between people and organizations across different parts of the world through various tools, programs and networks. Moreover, it also facilitates and simplifies everyday tasks both in the private and the public sector. Cyberspace is a unique and complex phenomenon, since it can be described with physical and geographical concepts, but in addition, its virtual features also have extraordinary relevance. As a result of its remarkable expansion, fundamental areas such as sociology, geopolitics, security policy or warfare must also be reconsidered. This paper provides an overview of the new types of security challenges for the 21st century, most notably security risks related to the cyberspace. In addition, some aspects of cyber warfare, such as cyber intelligence, cyber attack and cyber defense are examined. Particular attention is given to the question whether a cyber attack in itself can reach the level of an armed attack, and if so, what means can be used by the State under attack in defense.


Ádám Farkas
1st Lieutenant of the Hungarian Defence Forces; associate professor, National University of Public Service, Budapest.

Roland Kelemen
Assistant lecturer, Széchenyi István University, Győr; assistant research fellow, National University of Public Service, Budapest.
Article

Delimiting Deportation, Unlawful Transfer, Forcible Transfer and Forcible Displacement in International Criminal Law

A Jurisprudential History

Journal African Journal of International Criminal Justice, Issue 1 2019
Keywords International criminal law, theory of international law, crimes against humanity, deportation, unlawful or forcible transfer
Authors Ken Roberts and James G. Stewart
AbstractAuthor's information

    The forced displacement of civilian populations is an issue of significant global concern and a subject of extensive legal debate. In international criminal law, forced displacement is criminalized by a complex network of distinct but overlapping offences. These include the Crimes Against Humanity of deportation, forcible transfer, persecution and other inhumane acts, and the grave breach of the Geneva Conventions of ‘unlawful deportation or transfer’. International courts and tribunals have been inconsistent in the adoption of these crimes in their statues and in their subsequent interpretation, making it all the more difficult to distinguish between them. The jurisprudential history of these crimes is lengthy and not without controversy, highlighted by inconsistent judicial approaches. In this article, we offer a critical jurisprudential history of these displacement crimes in international criminal law.
    In particular, we focus on the case law emanating from the International Criminal Tribunal for the former Yugoslavia, a court that comprehensively addressed crimes associated with ethnic cleansing, a characteristic feature of that conflict, with the result that displacement was a central focus of that court. We set out our jurisprudential history in chronological order, beginning with the earliest inceptions of displacement crimes at the ICTY and then tracing their development toward the establishment of a consensus. Our hope is that the article sheds light on the development of these offences, informs future debate, and acts as a useful template for those seeking to understand how these crimes may have a role to play in future international jurisprudence.


Ken Roberts
Ken Roberts is Senior Legal Officer, International, Impartial and Independent Mechanism (Syria).

James G. Stewart
James G. Stewart is Associate Professor, Allard School of Law, University of British Columbia.
Article

Access_open The Singapore International Commercial Court: The Future of Litigation?

Journal Erasmus Law Review, Issue 1 2019
Keywords international commercial court, Singapore, dispute resolution, litigation
Authors Man Yip
AbstractAuthor's information

    The Singapore International Commercial Court (‘SICC’) was launched on 5 January 2015, at the Opening of Legal Year held at the Singapore Supreme Court. What prompted the creation of SICC? How is the SICC model of litigation different from litigation in the Singapore High Court? What is the SICC’s track record and what does it tell us about its future? This article seeks to answer these questions at greater depth than existing literature. Importantly, it examines these questions from the angle of reimagining access of justice for litigants embroiled in international commercial disputes. It argues that the SICC’s enduring contribution to improving access to justice is that it helps to change our frame of reference for international commercial litigation. Hybridisation, internationalisation, and party autonomy, the underpinning values of the SICC, are likely to be the values of the future of dispute resolution. International commercial dispute resolution frameworks – typically litigation frameworks – that unduly emphasise national boundaries and formalities need not and should not be the norm. Crucially, the SICC co-opts a refreshing public-private perspective to the resolution of international commercial disputes. It illuminates on the public interest element of the resolution of such disputes which have for some time fallen into the domain of international commercial arbitration; at the same time, it introduces greater scope for self-determination in international commercial litigation.


Man Yip
BCL (Oxon).

Chris Straker
Chris Straker is a director, trainer and consultant at Restorative Thinking Ltd. (www.restorativethinking.co.uk) and a freelance restorative trainer registered with the Restorative Justice Council, UK.
Article

Reconciliation potential of Rwandans convicted of genocide

Journal The International Journal of Restorative Justice, Issue 2 2019
Keywords Rwanda, genocide, perpetrators, posttraumatic stress, reconciliation
Authors Kevin Barnes-Ceeney, Laurie Leitch and Lior Gideon
AbstractAuthor's information

    This study examines the reconciliation potential of Rwandans incarcerated for the crime of genocide. Utilising survey data from 302 male and female prisoners incarcerated in the Rwandan Correctional System, this study explores genocide perpetrators’ depression, anxiety, anger-hostility and somatic symptoms, levels of posttraumatic stress, degree of social support and attitudes towards unity and reconciliation. The data demonstrate that engaging in killing can have deep psychological impacts for genocide perpetrators. The data indicate that although more than two decades have passed since the genocide, perpetrators are experiencing high levels of genocide-related posttraumatic suffering. Perpetrators are persistently re-experiencing genocide, purposefully avoiding thoughts and memories of the genocide, and experiencing physical and emotional arousal and reactivity. The sample had a strong desire for all Rwandans to live in peace and unity. There is, however, an urgent need for physical and mental health interventions, as well as services that facilitate the rebuilding of family relationships well in advance of release. Improving the physical and mental well-being of both perpetrators of the genocide and victims can only be a positive development as Rwanda continues to build a unified, reconciled and resilient future.


Kevin Barnes-Ceeney
Kevin Barnes-Ceeney is Assistant Professor at the Henry C. Lee College of Criminal Justice and Forensic Sciences, University of New Haven, West Haven, USA.

Laurie Leitch
Laurie Leitch is Director, Threshold GlobalWorks, New York, USA.

Lior Gideon
Lior Gideon is Professor of Criminal Justice at the Department of Law, Police Science and Criminal Justice Administration at John Jay College of Criminal Justice, New York, USA.
Article

Listening deeply to public perceptions of Restorative Justice

What can researchers and practitioners learn?

Journal The International Journal of Restorative Justice, Issue 2 2019
Keywords Public perception, media, apophatic listening, online comments, understandings of restorative justice
Authors Dorothy Vaandering and Kristin Reimer
AbstractAuthor's information

    This article explores public perceptions of restorative justice through the examination of media articles and negative online reader comments surrounding a high-profile incident in a Canadian university in which a restorative process was successfully engaged. Utilising relational discourse analysis, we identify how restorative justice is presented in the media and how that presentation is taken up by the public. Media representations of restorative justice create understandings among the public that are profoundly different from how many restorative justice advocates perceive it. The aim of this article is to examine media representations of restorative justice and how these are received by the public so that we can respond constructively.


Dorothy Vaandering
Dorothy Vaandering, Ph.D., is an Associate Professor at the Faculty of Education, Memorial University of Newfoundland, St. John’s, Canada.

Kristin Reimer
Kristin Reimer, Ph.D., is a lecturer in Restorative Justice and Relational Pedagogies at the Faculty of Education, Monash University, Melbourne, Australia.

Christopher D. Marshall
Christopher Marshall is The Diana Unwin Chair in Restorative Justice, School of Government, Victoria University of Wellington, New Zealand.

Albert Dzur
Albert Dzur is Distinguished Research Professor, Departments of Political Science and Philosophy, Bowling Green State University, USA.
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