Search result: 16 articles

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Year 2020 x

    This article engages in a comparison of the regulation of PR in the Netherlands and the UK (specifically England and Wales). The latter is a good comparator as it operates a similar regulatory approach to the Netherlands, that of conditional acceptance of PR, the condition being (prior) consent. Furthermore, the UK boasts a more detailed and mature legal framework that continues to be tested through caselaw, and thus offers insight into how a regulatory approach conditional upon the (prior) consent of the deceased can fare.
    I begin with a brief exposition of the new Dutch guidelines and the current legislative position in the Netherlands vis-à-vis posthumous reproduction (part II). Likewise, I summarize the relevant UK guidelines and legislative position (part III). I draw out the similarities and differences between the two regimes, as well as engaging in a critical analysis of the regulations themselves. I then look at how the UK regime has been challenged in recent years through caselaw in anticipation of the issues that might confront the Netherlands in future (part IV). I conclude (part V) that the key lesson to be drawn from the UK experience is that clarity and consistency is crucial in navigating this ethically, emotionally, and time sensitive area. Further, that both the UK and the Netherlands can expect demand for more detailed and precise regulatory guidance as requests for the procedure increase, and within evermore novel circumstances


Dr. N. Hyder-Rahman
Nishat Hyder-Rahman is a Post-doctoral Researcher at the Utrecht Centre for European Research into Family Law, Molengraaff Institute for Private Law, Utrecht University.

Irawan Sewandono
Irawan Sewandono is universitair docent staats- en bestuursrecht aan de Open Universiteit.

    De grote toestroom van migranten en asielzoekers in de EU houdt vandaag nog steeds verschillende regelgevers wakker. Niet alleen de nationale overheden, maar ook de EU-regelgevers zoeken naarstig naar oplossingen voor de problematiek. Daartoe trachten de EU-regelgevers het Gemeenschappelijk Europees Asielstelsel (GEAS) bij te werken.
    Binnen de groep migranten en asielzoekers bestaat een specifiek kwetsbaar individu: de niet-begeleide minderjarige vreemdeling (NBMV). Hij is zowel vreemdeling als kind en kreeg reeds ruime aandacht binnen de rechtsleer. Nochtans werd deze aandacht niet altijd weerspiegeld in de EU-wetgeving. Het lijkt alsof hij door de regelgevers af en toe uit het oog verloren werd.
    Uit het onderzoek blijkt dat de EU-regelgevers nog een zekere weg te gaan hebben. In de eerste plaats bestaat er wat betreft het geheel aan regels met betrekking tot de NBMV weinig coherentie. De EU-regelgevers zouden bijvoorbeeld meer duidelijkheid kunnen scheppen door een uniforme methode vast te leggen voor de bepaling van de leeftijd van de NBMV. Hetzelfde geldt voor een verduidelijking van de notie ‘het belang van het kind’ binnen asiel en migratie. Verder blijken de Dublinoverdrachten en de vrijheidsontneming van de NBMV nog steeds gevoelige pijnpunten. Hier en daar moet aan de hervorming van het asielstelsel nog wat gesleuteld worden, zodat de rechten van de NBMV optimaal beschermd kunnen worden.
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    Today, the large influx of migrants and asylum seekers into the European Union (EU) keeps several regulators awake. Not only national authorities, but EU regulators too are diligently searching for solutions to the problems. To this end, EU regulators are seeking to update the Common European Asylum System (CEAS).
    There is however a particularly vulnerable individual within the group of migrants and asylum seekers: the unaccompanied alien minor (UAM). These minors already received a great deal of attention within legal doctrine. However, this attention was not always reflected in EU legislation. It seems as if UAM are occasionally lost from sight by the regulators.
    This article shows that the EU regulators still have a certain way to go. First, there is little coherence in the set of rules relating to the UAM. The EU regulators could, for example, create more clarity by laying down a uniform method for determining the age of the UAM. The same applies to a clarification of the notion of 'best interests of the child' within the context of asylum and migration. Second, the proposal for a new Dublin Regulation and the proposal for a new Reception Conditions Directive still appear to be sensitive. Here and there, the reform of the asylum system still needs adjustments, so that the rights of UAM can be optimally protected."


Caranina Colpaert LLM
Caranina Colpaert is PhD researcher

Klaas Rozemond
Klaas Rozemond is universitair hoofddocent strafrecht Vrije Universiteit Amsterdam.
Article

Gender and Language

A Public Law Perspective

Journal European Journal of Law Reform, Issue 1 2020
Keywords gender language, drafting, language, coercion, linguistic policies
Authors Maria De Benedetto
AbstractAuthor's information

    The article adopts a public law perspective in order to focus on Gender-Fair Language (GFL) policies and drafting, by considering both language neutralization and language differentiation in some legal systems characterized by different languages.
    The article argues that the real problem is whether it is possible to coerce legislative and administrative language as a tool for policies. In fact, coercion of language produces administrative costs and side effects on freedoms (such as freedom of speech and freedom to teach); controls and sanctions are needed for enforcement; but, overall, language (as an institution) is not a proper object of regulation.


Maria De Benedetto
Full Professor, Roma Tre University, Roma, Italy.
Article

A Linguistic Insight into the Legislative Drafting of English-Speaking Jurisdictions

The Use of ‘Singular They’

Journal European Journal of Law Reform, Issue 1 2020
Keywords gender neutrality, ‘singular they’, linguistic insight, legislative drafting, English-language jurisdictions
Authors Giulia Adriana Pennisi
AbstractAuthor's information

    Gender specificity in legislation started being questioned in the late 20th century, and the need to reform the way in which laws have been written for more than one-hundred years has been particularly evident in English-language jurisdictions. In the 1990s and 2000s, the adoption of a plain English style forced legislative drafters to avoid sentences of undue length, superfluous definitions, repeated words and gender specificity with the aim of achieving clarity and minimizing ambiguity.
    Experts in the legal field have suggested reorganizing sentences, avoiding male pronouns, repeating the noun in place of the pronoun, replacing a nominalization with a verb form, resorting to ‘the singular they’. This article gives a linguistic insight into the use of ‘singular they’ in English, beginning with a historical background and going on to assess the impact of its use in the primary legislation issued in a selection of English-language jurisdictions (Australia, Canada, New Zealand, the UK, the US) in the last decade (2008-2018). Given the environment of legislative drafting techniques, where considerable reliance on precedent is inevitable, proposals to change legislative language may produce interesting results in different jurisdictions.


Giulia Adriana Pennisi
Associate Professor (field of research, English Language and Translation) at the University of Palermo, Department of Political Science and International Relations; Associate Research Fellow at the Institute of Advanced Legal Studies, Sir William Dale Centre, University of London.
Article

Gender-Neutral Drafting

A View from Wales

Journal European Journal of Law Reform, Issue 1 2020
Keywords gender, legislation, English, Welsh, LGBTQIA+
Authors Thomas Glyn Watkin
AbstractAuthor's information

    The gender classification of words in English is different from that in many other languages, including Welsh. The approach in Welsh is more closely aligned to that in languages such as French, Spanish or Italian, but there are also differences. The differences include the manner in which possessive pronouns and possessive adjectives are employed. These differences pose difficulties for bilingual drafting in English and Welsh.
    This article will consider some of those difficulties, their root causes and some possible solutions as well as look at issues that may or may not complicate matters further in the future.


Thomas Glyn Watkin
Queen’s Counsel (honoris causa); Fellow of the Learned Society of Wales; Honorary Professor of Law, Bangor University. First Welsh Legislative Counsel (2007-2010); Professor of Law, Bangor Law School (2004-2007); Professor of Law, Cardiff Law School (2001-2004).
Article

Language and Gender

The Importance of Including a Gender Perspective in the Language of the Constitutional Reform in Spain

Journal European Journal of Law Reform, Issue 1 2020
Keywords language, gender, Constitution, reform, Spain
Authors Ana Marrades
AbstractAuthor's information

    Language is a reflection of culture, and at the same time it helps to build that culture. In the same way, it can be used to transform it. Language serves for describing a culture, to show what we see, but at the same time, it strengthens the relationships of power that exist on the basis of male power. In this way, we can use language to build other kinds of relationships based on equality.
    The Spanish Constitution is written in the masculine. Although it is based on equality, masculine language shows that the power relations lean towards men, and this hides women’s participation. When a text or a legal message uses structures or words that hide or discriminate against one gender, it can be said that linguistic sexism exists, and this violates the principle of equality. This is a reflection about what is happening in our society because language describes cultural values. This exclusion of women in the constitutional text is in itself a denial of them as subjects of rights and as citizens. This is not only a denial of the part of power that corresponds to them, but also the consolidation of a collective story of female subordination.
    Therefore this article aims to focus on the need to carry out a revision of the Spanish Constitution in female and inclusive language that, in parallel to the recognition and guarantee of parity democracy, makes women visible as autonomous subjects. In addition, it also breaks with the male universality of the language and the monopoly of male language to define the sources of the law, as well as rights, powers, institutions, values and policies.


Ana Marrades
Senior lecturer in Constitutional law, University of Valencia.
Article

Gender Neutrality in EU Legislative Drafting

Journal European Journal of Law Reform, Issue 1 2020
Keywords legislative drafting, EU legislation, EU treaties, multilingualism, gender neutrality
Authors William Robinson
AbstractAuthor's information

    In the English-speaking world the issue of gender-neutral drafting in legislation has been a much discussed topic for many years, and there are few legislative drafting manuals in the English-speaking world that do not address the issue.
    The EU and its institutions also attach great importance to gender issues, as is shown by the solemn commitments in EU texts to gender equality, by the establishment at the EU level of bodies or committees to focus on those issues, and by the EU actions and policies that seek to address them. But the issue of gender-neutral drafting in legislation is not even mentioned in the guidance drawn up by the legislative drafting experts of the EU institutions.
    This contribution, therefore, looks at how gender issues are dealt with in practice in the EU Treaties and in EU legislation. It finds signs of a traditional approach that is beginning to evolve but only slowly and somewhat unevenly.
    The contribution considers some of the reasons behind the approach taken by the EU institutions to gender neutrality in drafting and the impact of the important EU principles of multilingualism and multiculturalism before seeking to draw some conclusions.


William Robinson
Associate Research Fellow at the Institute of Advanced Legal Studies in London; formerly a coordinator in the Quality of Legislation Team of the European Commission Legal Service.
Article

Access_open Liberal Democracy and the Judeo-Christian Tradition

Journal Netherlands Journal of Legal Philosophy, Issue Pre-publications 2020
Keywords national identity, historical narratives, universal values, equal citizenship
Authors Tamar de Waal
AbstractAuthor's information

    Increasingly often, it is stated that the universal values underpinning Western liberal democracies are a product of a ‘Judeo-Christian’ tradition. This article explores the legitimacy of this claim from the perspective of liberal-democratic theory. It argues that state-endorsed claims about the historical roots of liberal-democratic values are problematic (1) if they are promoted as though they are above democratic scrutiny and (2) if they insinuate that citizens who belong to a particular (majority) culture remain the ‘cultural owners’ of the core values underpinning the state. More pragmatically, the paper suggests that the claim carries the risk of failing to facilitate all citizens becoming or remaining committed to nurturing fundamental rights and a shared society based on norms of democratic equality.


Tamar de Waal
Tamar de Waal is Assistant Professor of Legal Philosophy at the Amsterdam Law School of the University of Amsterdam.
Article

Access_open De blinde vlek in praktijk en discussie rond orgaandonatie

Journal Netherlands Journal of Legal Philosophy, Issue Pre-publications 2020
Keywords organ donation, ethics of organ donation, symbolic nature of the human body, ethics and ritual, symbolic legislation theory
Authors Herman De Dijn
AbstractAuthor's information

    In countries like Belgium and The Netherlands, there seems to be overwhelming public acceptance of transplantation and organ donation. Yet, paradoxically, part of the public refuses post-mortal donation of their own organs or of those of family members. It is customary within the transplantation context to accept the refusal of organ donation by family members “in order to accommodate their feelings”. I argue that this attitude does not take seriously what is really behind the refusal of donation by (at least some) family members. My hypothesis is that even in very secularized societies, this refusal is determined by cultural-symbolic attitudes vis-à-vis the (dead) human body (and some of its parts). The blind spot for this reality, both in the practice of and discussions around organ donation, prevents understanding of what is producing the paradox mentioned.


Herman De Dijn
Herman De Dijn is emeritus hoogleraar wijsbegeerte aan de KU Leuven.

Irawan Sewandono
Irawan Sewandono is universitair docent staats- en bestuursrecht aan de Open Universiteit.

Irawan Sewandono
Irawan Sewandono is universitair docent staats- en bestuursrecht aan de Open Universiteit.

Irawan Sewandono
Universitair docent
Article

Access_open Legal and Political Concepts as Contextures

Journal Netherlands Journal of Legal Philosophy, Issue Pre-publications 2020
Keywords Concepts, Contextualism, Essentially Contested Concepts, Legal Theory, Freedom
Authors Dora Kostakopoulou
Abstract

    Socio-political concepts are not singularities. They are, instead, complex and evolving contextures. An awareness of the latter and of what we need to do when we handle concepts opens up space for the resolution of political disagreements and multiplies opportunities for constructive dialogue and understanding. In this article, I argue that the concepts-as-contextures perspective can unravel conceptual connectivity and interweaving, and I substantiate this by examining the ‘contexture’ of liberty. I show that the different, and seemingly contested, definitions of liberty are the product of mixed articulations and the development of associative discursive links within a contexture.


Dora Kostakopoulou
Article

Access_open Recht en politiek in de klimaatzaken

Een sleutelrol voor het internationaal recht in de argumentatie van de nationale rechter

Journal Netherlands Journal of Legal Philosophy, Issue Pre-publications 2020
Authors Vincent Dupont
AbstractAuthor's information

    Ever since it was published in 2015, the judgment of the The Hague court in the so-called Urgenda-case, and the subsequent decisions of the appellate and cassation courts confirming it, have been met with repeated and vivid critiques. By recognizing the necessity of the reduction in greenhouse gas emissions, and furthermore imposing a certain reduction level on the Dutch state, the judgments in the cases at hand gave rise to many questions concerning the position of the judiciary in the matter, and in Dutch society as a whole. This article attempts in the first place to situate the positions of the different actors intervening in the Urgenda-case within a legal-theoretical framework. The contribution subsequently explores the strategic possibilities that an alternative understanding of law could offer to the judges, focusing specifically on the use of legal instruments stemming from international law, brought into the reasoning of the national judge.


Vincent Dupont
Vincent Dupont studeerde in 2017 af als Master of Laws aan de KU Leuven en volgt momenteel een opleiding sociologie aan de Université libre de Bruxelles, Unicamp in São Paulo en de École des hautes études en sciences sociales in Parijs.
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