Search result: 12 articles

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Year 2015 x
Article

Structure of Legislation: A Paradigm for Accessibility and Effectiveness

Journal European Journal of Law Reform, Issue 3 2015
Keywords effectiveness of legislation, structure of legislation, accessibility of legislation, quality drafting, clarity
Authors Elohor Onoge
AbstractAuthor's information

    The aim of this article is to examine how the structure of legislation can nurture accessibility and effectiveness of legislation.
    It explores whether the legislative drafter in carrying out the task of drafting can nurture effective communication of the policy maker’s intent to the targeted audience by making use of the structure of legislation as a tool, to ensure the legislation is accessible to the end user, and foster effectiveness.
    The third and fourth stage of Thornton’s stages of the drafting process – design and composition – would be examined and also Peter Butt’s types of structure, which relates to the drafting of legal documents but would be applied in this paper, to the drafting of legislation.


Elohor Onoge
Elohor Onoge LLM is a Nigerian legislative drafter working for the Federal Parliament. Email: stephyrook@gmail.com.
Article

Access_open Relief in Small and Simple Matters in Belgium

Journal Erasmus Law Review, Issue 4 2015
Keywords Belgium, small matters, simple matters, recovery of unchallenged claims, summary order for payment
Authors Stefaan Voet
AbstractAuthor's information

    This article is based on a national report that was written for the XVth World Congress of the International Association of Procedural Law that was held in Istanbul in May 2015 and that focused on Effective Judicial Relief and Remedies in an Age of Austerity. It first of all sketches the general judicial context in Belgium and some of its relevant features: the judicial organisation, the goals of the civil justice system, the course of an ordinary civil lawsuit, the role of the court, and the litigation costs. Next, a detailed and critical overview of the current and future procedures that offer relief in small and simple matters is given. The current summary order for payment procedure, which was introduced in 1967, did not meet its goals. The article concludes that a new trend is emerging in Belgium, namely keeping small and unchallenged claims outside the judiciary and providing for cheaper and more efficient alternatives.


Stefaan Voet
Stefaan Voet is an Associate Professor of Law at the Katholieke Universiteit Leuven and a Visiting Professor at the Universiteit Hasselt.
Article

Access_open Brazilian Civil Procedure in the ‘Age of Austerity’?

Effectiveness, Speed, and Legal Certainty: Small Claims, Uncontested Claims, and Simplification of Judicial Decisions and Proceedings

Journal Erasmus Law Review, Issue 4 2015
Keywords austerity, civil procedure, access to justice, Brazil, small claims
Authors Antonio Gidi and Hermes Zaneti, Jr.
AbstractAuthor's information

    The current debate in Brazilian Civil Procedure revolves around efficiency, legal certainty, and access to justice, not austerity. As a matter of fact, the debate over austerity is nonexistent in Brazil so far. By expanding the access to justice to a broader portion of the society, the legal system increased the number of cases and the costs associated with the judicial system. But the excess litigation and expense associated with the expansion of access to justice has contradictorily curtailed access to justice. This new situation demands new efforts to increase efficiency and legal certainty, while still increasing access to justice.


Antonio Gidi
Antonio Gidi is Visiting Assistant Professor at the Syracuse University. SJD, University of Pennsylvania Law School; LLM and PhD, PUC-SP University; LLB, Federal University of Bahia.

Hermes Zaneti, Jr.
Hermes Zaneti, Jr. is Professor of Law at the Universidade Federal do Espirito Santo and Prosecutor. PhD in Philosophy and Theory of Law, Università degli Studi di Roma Tre; LLM and PhD in Civil Procedure, Federal University of Rio Grande do Sul (UFRS).
Article

Access_open Austerity in Civil Procedure

A Critical Assessment of the Impact of Global Economic Downturn on Civil Justice in Ghana

Journal Erasmus Law Review, Issue 4 2015
Keywords austerity, small claims, civil justice, civil procedure, Ghana civil procedure
Authors Ernest Owusu-Dapaa and Ebenezer Adjei Bediako
AbstractAuthor's information

    The demand for and availability of civil justice procedures for small claims can neither be disentangled nor extricated from the health of the economic climate of the relevant country concerned. In this article, it is argued that despite not being a developed country, Ghana was not completely insulated from the hardships or implementation of austerity measures that were triggered by the global economic meltdown. The inevitability of behavioural changes on the part of the Government of Ghana as lawmaker and provider of the machinery for civil justice on the one hand and small claims litigants as users of the civil procedure on the other hand are also explored in the article. After properly situating the exploration in the relevant economic context, the article makes recommendations regarding how to minimise the impact of the austerity measures on small claims litigants.


Ernest Owusu-Dapaa
Ernest Owusu-Dapaa is Lecturer in Law at the Kwame Nkrumah University of Science and Technology, Kumasi, Ghana. Email: eodapaa@yahoo.com.

Ebenezer Adjei Bediako
Ebenezer Adjei Bediako is Principal Research Assistant at the Kwame Nkrumah University of Science and Technology, Kumasi, Ghana.

Lucrezia Palandri
Ph.D. in Comparative Law at the University of Florence, Italy.

    When discussing O. W. Holmes’s answer to the question What constitutes the law? Morton White underlines the fact that Holmes’s inquiry didn’t focus on developing the concept of law. White states: '…Holmes said little in The Path of the Law about the notion of legal authority, perhaps because he was interested not in what he called a "useless quintessence of all legal systems" but in "an accurate anatomy of one"'. Such ambition (or lack of ambition) is characteristic of many pragmatic enterprises in the field of jurisprudence. However, sometimes the opposition between legal pragmatism and other legal theories is built upon a reference to the notion of the 'nature' or 'essence' of law. Many legal philosophers who aim to reveal the very 'nature of law' (or 'the concept of law' as H. L. A. Hart did) try to interpret Holmes and other pragmatists as offering a competitive view to their own. I will follow White’s early intuition that such a construal of the controversy is simply wrong. Afterwards I will sketch a portrait of legal pragmatism in the context of White’s own inquiry and his version of 'holistic pragmatism'; thirdly, I will present in brief the main reasons for exploring the concept of law in the contemporary analytic philosophy of law. Then I will show that traditionally 'pragmatic' and 'analytic' efforts in legal theory are situated on different levels of generality and conceptuality. However, these efforts can be, at least to some extent, reordered under the aegis of holistic pragmatism.


Adam Michał Dyrda
Adjunct Professor, Department of Legal Theory, Faculty of Law, Jagiellonian University, Cracow, Poland. Contact: adam.dyrda@uj.edu.pl; http://jagiellonian.academia.edu/AdamDyrda.
Article

Access_open The Casuistry of International Criminal Law: Exploring A New Field of Research

Journal Netherlands Journal of Legal Philosophy, Issue 2 2015
Keywords international criminal law, judicial reasoning, casuistry, genocide
Authors Marjolein Cupido
AbstractAuthor's information

    International criminal courts have made an important contribution to the development of international criminal law. Through case law, the courts have fine-tuned and modernized outdated concepts of international crimes and liability theories. In studying this practice, scholars have so far focused on the judicial interpretation of statutory and customary rules, thereby paying little attention to the rules’ application in individual cases. In this article, I reveal the limitations of this approach and illustrate how insights from casuistry can advance international criminal law discourse. In particular, I use the example of genocide to show that casuistic case law analyses can help scholars clarify the meaning of the law and appraise the application of substantive legal concepts in individual cases. Based on these observations, I argue that scholars should complement their current research with studies into the casuistry of international criminal law.


Marjolein Cupido
Marjolein Cupido is Assistant Professor at the Department of Criminal Law at VU University Amsterdam and fellow of the Center for International Criminal Justice.
Article

Creating New Pathways to Justice Using Simple Artificial Intelligence and Online Dispute Resolution

Journal International Journal of Online Dispute Resolution, Issue 1 2015
Keywords expert system, online dispute resolution, artificial intelligence, access to justice, legal information technology
Authors Darin Thompson
AbstractAuthor's information

    Access to justice in can be improved significantly through implementation of simple artificial intelligence (AI) based expert systems deployed within a broader online dispute resolution (ODR) framework.
    Simple expert systems can bridge the ‘implementation gap’ that continues to impede the adoption of AI in the justice domain. This gap can be narrowed further through the design of multi-disciplinary expert systems that address user needs through simple, non-legalistic user interfaces.
    This article provides a non-technical conceptual description of an expert system designed to enhance access to justice for non-experts. The system’s knowledge base would be populated with expert knowledge from the justice and dispute resolution domains. A conditional logic rule-based system forms the basis of the inference engine located between the knowledge base and a questionnaire-based user interface.
    The expert system’s functions include problem diagnosis, delivery of customized information, self-help support, triage and streaming into subsequent ODR processes. Its usability is optimized through the engagement of human computer interaction (HCI) and affective computing techniques that engage the social and emotional sides of technology.
    The conceptual descriptions offered in this article draw support from empirical observations of an innovative project aimed at creating an expert system for an ODR-enabled civil justice tribunal.


Darin Thompson
Legal Counsel, BC Ministry of Justice; Adjunct Law Professor, University of Victoria; Adjunct Law Professor, Osgoode Hall Law School. Email: darinmobile@gmail.com.
Article

The Rule of Law Reform and Judicial Education in Pakistan

Search for a Model

Journal European Journal of Law Reform, Issue 1 2015
Keywords judicial education, rule of law reform, Khyber Pakhtunkhwa, militancy, Pakistan
Authors Khurshid Iqbal
AbstractAuthor's information

    The article investigates the intrinsic and instrumental roles of judicial education in broader contours of the rule of law theory and reform practice in a developing country. It focuses on: firstly, the relationship between judicial education and the rule of law theory and reform practice; secondly, whether and how judicial education can promote the rule of law; and third, the challenges to a successful judicial education in strengthening the rule of law. Examining Pakistan as a case study, the article explores challenges to judicial education in Pakistan and critically assesses Pakistan’s rule of law reform efforts to overcome those challenges. Evidence shows that key challenges to judicial education in Pakistan are lack of a national judicial educational vision and a well thought out policy, coordinated efforts to training needs assessment, curriculum and faculty, research and learning best practices, as means of development and innovation. Of special concern is the role of judicial education in promoting the rule of law to address security issues embedded in (bad) governance. The article finds that in view of its initial limited success, the judicial academy of Pakistan’s terrorism-hit Khyber Pakhtunkhwa (KP) province may play a role model to improve judicial services and thereby help promote the rule of law in a post-conflict society.


Khurshid Iqbal
PhD (Ulster, UK), LLM (Hull, UK), MA Political Science & LLB (Peshawar, Pakistan); Dean of Faculty, the Khyber Pakhtunkhwa Judicial Academy (KPJA); District & Sessions Judge; Adjunct Faculty Member Department of Law, the International Islamic University, Islamabad.

    This article studies the significance of insights from non-legal disciplines (such as political science, economics, and sociology) for comparative legal research and the methodology connected with such ‘interdisciplinary contextualisation’. Based on a theoretical analysis concerning the nature and methodology of comparative law, the article demonstrates that contextualisation of the analysis of legal rules and case law is required for a meaningful comparison between legal systems. The challenges relating to this contextualisation are illustrated on the basis of a study of the judicial use of comparative legal analysis as a source of inspiration in the judgment of difficult cases. The insights obtained from the theoretical analysis and the example are combined in a final analysis concerning the role and method of interdisciplinary contextualisation in comparative legal analysis conducted by legal scholars and legal practitioners.


Elaine Mak Ph.D.
Endowed Professor of Empirical Study of Public Law, in particular of Rule-of-Law Institutions, at Erasmus School of Law. Contact: mak@law.eur.nl.

    The paper offers a legal theoretical analysis of the disciplinary character of the contemporary practice of legal scholarship. It is assumed that the challenges of interdisciplinary engagement are particularly revealing about the nature of legal scholarship. The paper argues for an understanding of legal scholarship that revolves around cultivating doctrinal knowledge about law. Legal scholarship is characterised as a normative and interpretive discipline that offers an internalist and non-instrumentalist perspective on law. The paper also argues that interdisciplinary engagement is sometimes necessary for legal scholars because some concepts and ideas built into the doctrinal structures of law cannot be made fully intelligible by way of pure normative legal analysis. This point is developed with the help of an epistemological clarification of doctrinal knowledge and anchored in an account of the practice of legal scholarship. The paper explores the implications of this account by way of analysing three paradigms of interdisciplinary engagement that respond to distinctive challenges facing legal scholarship: (1) understanding better the extra-legal origins of legal ideas, (2) managing discursive encounters that can generate frictions between disciplinary perspectives, and (3) building the knowledge base to handle challenge of validating policy initiatives that aim at changing the law. In different ways, all three challenges may require legal scholars to build competence in other disciplines. The third paradigm has particular relevance for understanding the methodological profile of legal scholarship. Legal scholarship is the only discipline with specific focus on how the social environment affects the doctrinal structures of law.


Matyas Bodig
Dr Matyas Bodig is Senior lecturer at the University of Aberdeen School of Law, Aberdeen, UK.

    The doctrinal methodology is in a period of change and transition. Realising that the scope of the doctrinal method is too constricting, academic lawyers are becoming eclectic in their use of research method. In this transitional time, legal scholars are increasingly infusing evidence (and methods) from other disciplines into their reasoning to bolster their reform recommendations.
    This article considers three examples of the interplay of the discipline of law with other disciplines in the pursuit of law reform. Firstly the article reviews studies on the extent of methodologies and reformist frameworks in PhD research in Australia. Secondly it analyses a ‘snapshot’ of recently published Australian journal articles on criminal law reform. Thirdly, it focuses on the law reform commissions, those independent government committees that play such an important role in law reform in common law jurisdictions.
    This examination demonstrates that while the doctrinal core of legal scholarship remains intact, legal scholars are endeavouring to accommodate statistics, comparative perspectives, social science evidence and methods, and theoretical analysis, within the legal research framework, in order to provide additional ballast to the recommendations for reform.


Terry Hutchinson
Associate Professor, Faculty of Law, QUT Law School (t.hutchinson@qut.edu.au); Marika Chang (QUT Law School) was the research assistant on this project.
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