Zoekresultaat: 74 artikelen

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    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.

    ADR in Kenya is traceable to the pre-colonial era. Before colonial rule, African communities applied traditional justice systems in the resolution of disputes. Some of these traditional justice systems are what are formally called ADR. It is through the imposition of formal justice systems by the British that certain ADR mechanisms were recognised in Kenya. In recent times, ADR is one of the commonly used avenues in accessing justice in Kenya. ADR in Kenya is growing at an unprecedented rate courtesy of its recognition in law, inaccessibility of courts and tribunals, backlog of cases and increased commercial activities requiring the use of ADR processes. Consequently, there are efforts by government and the private sector aimed at promoting ADR in Kenya. These efforts suggest that the future of ADR in Kenya is promising. In this article, the authors discuss the growth, development and practice of ADR in Kenya highlighting some of the likely challenges and opportunities in its use.


Francis Kariuki
Francis Kariuki is a Lecturer at Strathmore University Law School.

Linet Muthoni
Linet Muthoni is the Executive Officer of the Strathmore Dispute Resolution Centre.
Article

Access_open The Ambivalent Shadow of the Pre-Wilsonian Rise of International Law

Tijdschrift Erasmus Law Review, Aflevering 2 2014
Trefwoorden American Society of International Law, Peace-Through-Law Movement, Harvard Law Library: League of Nations, President Woodrow Wilson, Pre-Wilsonianism
Auteurs Dr Ignacio de la Rasilla del Moral Ph.D.
SamenvattingAuteursinformatie

    The generation of American international lawyers who founded the American Society of International Law in 1906 and nurtured the soil for what has been retrospectively called a 'moralistic-legalistic approach to international relations' remains little studied. A survey of the rise of international legal literature in the United States from the mid-nineteenth century to the eve of the Great War serves as a backdrop to the examination of the boosting effect on international law of the Spanish American War in 1898. An examination of the Insular Cases before the US Supreme Court is then accompanied by the analysis of a number of influential factors behind the pre-war rise of international law in the United States. The work concludes with an examination of the rise of natural law doctrines in international law during the interwar period and the critiques addressed by the realist founders of the field of 'international relations' to the 'moralistic-legalistic approach to international relations'.


Dr Ignacio de la Rasilla del Moral Ph.D.
Ignacio de la Rasilla del Moral is Lecturer in Law at the Brunel Law School of Brunel University, London. In the Spring of 2014 he served as Visiting Research Fellow at the Lauterpacht Research Centre for International Law of the University of Cambridge as recipient of a British Academy/Leverhulme Small Research Grant.
Artikel

Access_open The Public Conscience of the Law

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 2 2014
Trefwoorden Hobbes, reciprocity, rule of Law, conscience, legality, liberty
Auteurs David Dyzenhaus PhD
SamenvattingAuteursinformatie

    I focus on Hobbes’s claim that the law is ’the publique Conscience, by which [the individual] (…) hath already undertaken to be guided.’ This claim is not authoritarian once it is set in the context of his complex account, which involves three different relationships of reciprocity: the contractarian idea that individuals in the state of nature agree with one another to institute a sovereign whose prescriptions they shall regard as binding; the vertical, reciprocal relationship between ruler and ruled; and the horizontal relationship between individuals in the civil condition, made possible by the existence of the sovereign who through enacting laws dictates the terms of interaction between his subjects. The interaction of these three relationships has the result that subjects relate to each other on terms that reflect their status as free and equal individuals who find that the law enables them to pursue their own conceptions of the good.


David Dyzenhaus PhD
David Dyzenhaus is a Professor of Law and Philosophy at the University of Toronto, and a Fellow of the Royal Society of Canada. His books include Hard Cases in Wicked Legal Systems: South African Law in the Perspective of Legal Philosophy (now in its second edition) and Legality and Legitimacy: Carl Schmitt, Hans Kelsen, and Hermann Heller in Weimar.
Artikel

Access_open Source-usage within doctrinal legal inquiry: choices, problems, and challenges

Tijdschrift Law and Method, juni 2014
Trefwoorden methodological challenges, doctrinal legal inquiry, source-usage, methodology, method
Auteurs Mr. Marnix Vincent Roderick Snel LLM, MA
SamenvattingAuteursinformatie

    This article provides an overview of the methodological challenges that scholars are confronted with in relation to use of legislation, case law and literature commentaries within doctrinal legal inquiry. Therefore it employs a systematic literature review and a supplementary explorative expert-consultation among legal scholars of Tilburg University. Although the scope of the research is still limited, it shows that doctrinal legal inquiry is subjected to more and other methodological challenges surrounding the source-usage than one might expect. This insight may contribute to the further development of the meta-discipline ’law and methodology’ and simultaneously allows for more methodological awareness among doctrinal legal scholars.


Mr. Marnix Vincent Roderick Snel LLM, MA
Marnix Snel is a PhD researcher at the Research Group ‘Methodology of law and legal scholarship’ at Tilburg University. I thank prof. Rob van Gestel, prof. Jan Vranken and Dr. Arie-Jan Kwak for their comments on earlier draft version of this article.

    In judicial review of decisions of administrative authorities courts generally aim towards grounding a judgment on substantively true facts. Such a substantive truth is usually understood as meaning ’that which happened’. But how can true facts be established if the facts have not yet occurred and what implications does this have for judicial review in administrative procedures? In this article this question will be analysed by taking the Dutch Administrative Court’s review of merger decisions of the Dutch Competition Authority - using a substantively close copy of the European merger control assessment framework - as subject of analysis. Judicial review of the substantive assessment in merger control, including the prospective analysis involved and taking into account complexities of economic evidence, will be analyzed and set against the general aim of establishing substantive truth of facts.


Anna Dr. Gerbrandy Ph.D.
Dr. Anna Gerbrandy is associate professor in Public Economic Law at the Europa Institute, Utrecht University.
Artikel

Access_open Legal Dogmatics and Academic Education

Tijdschrift Law and Method, 2013
Trefwoorden legal dogmatics, theory design, academic education, empirical cycle
Auteurs Jan Struiksma
SamenvattingAuteursinformatie

    Previously a model was developed whereby the evolution of dogmatic legal theory design can be made more explicit. This concerns, amongst other aspects, the application of the empirical cycle constructed by De Groot, which forms the final element of an evolution of the application of mundane knowledge to theory design. The starting point of this article is that this evolution must be ‘repeated’ during an academic study in empirical subjects. The objective is to investigate how this is done in the legal dogmatic education.


Jan Struiksma
Jan Struiksma is professor of administrative law at the Faculty of Law, Free University Amsterdam.
Article

Access_open At the Crossroads of National and European Union Law. Experiences of National Judges in a Multi-level Legal Order

Tijdschrift Erasmus Law Review, Aflevering 3/4 2013
Trefwoorden national judges, legal pluralism, application of EU law, legal consciousness, supremacy and direct effect of EU law
Auteurs Urszula Jaremba Ph.D.
SamenvattingAuteursinformatie

    The notion and theory of legal pluralism have been witnessing an increasing interest on part of scholars. The theory that originates from the legal anthropological studies and is one of the major topical streams in the realm of socio-legal studies slowly but steady started to become a point of departure for other disciplines. Unavoidably it has also gained attention from the scholars in the realm of the law of the European Union. It is the aim of the present article to illustrate the legal reality in which the law of the Union and the national laws coexist and intertwine with each other and, subsequently, to provide some insight on the manner national judges personally construct their own understanding of this complex legal architecture and the problems they come across in that respect. In that sense, the present article not only illustrates the new, pluralistic legal environment that came into being with the founding of the Communities, later the European Union, but also adds another dimension to this by presenting selected, empirical data on how national judges in several Member States of the EU individually perceive, adapt to, experience and make sense of this reality of overlapping and intertwining legal orders. Thus, the principal aim of this article is to illustrate how the pluralistic legal system works in the mind of a national judge and to capture the more day-to-day legal reality by showing how the law works on the ground through the lived experiences of national judges.


Urszula Jaremba Ph.D.
Urszula Jaremba, PhD, assistant professor at the Department of European Union Law, School of Law, Erasmus University Rotterdam. I am grateful to the editors of this Special Issue: Prof. Dr. Sanne Taekema and Dr. Wibo van Rossum as well as to the two anonymous reviewers for their useful comments. I am also indebted to Dr. Tobias Nowak for giving me his consent to use the data concerning the Dutch and German judges in this article. This article is mostly based on a doctoral research project that resulted in a doctoral manuscript titled ‘Polish Civil Judges as European Union Law Judges: Knowledge, Experiences and Attitudes’, defended on the 5th of October 2012.

    In this response to my five critics, I note the strength of the arguments in favour of treating the presumption of innocence as a narrow, legal presumption that operates only within the criminal process; but I then try to make clearer my reasons for talking of different presumptions of innocence (moral, rather than legal, presumptions) outside the criminal process, in other contexts in which issues of criminal guilt or innocence arise – presumptions that guide or are expressed in the conduct of the state’s officials towards its citizens, and of citizens towards each other. Once we look at these other contexts in which criminal guilt and innocence (of past and future crimes) are at stake, we can see the importance of civic trust as a practical attitude that citizens owe to each other; and the fruitfulness of examining the various normative roles that citizens may have to play in relation to the criminal law.


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

Access_open Towards Context-Specific Directors' Duties and Enforcement Mechanisms in the Banking Sector?

Tijdschrift Erasmus Law Review, Aflevering 2 2013
Trefwoorden banking sector, directors' duties, financial crisis, context-specific doctrines, public enforcement
Auteurs Wasima Khan LL.M.
SamenvattingAuteursinformatie

    The global financial crisis gives reason to revisit the debate on directors’ duties in corporate law, mainly with regard to the context of banks. This article explores the need, rationale and the potential for the introduction of context-specific directors’ duties and enforcement mechanisms in the banking sector in the Netherlands from a comparative perspective.
    Chiefly, two legal strategies can be derived from the post-crisis developments and calls for legal reforms for the need and rationale to sharpen directors’ duties in the context of the banking sector in order to meet societal demands. The two strategies consist in shifting the scope of directors’ duties (i) towards clients’ interests and (ii) towards the public interest.
    Subsequently, this article explores the potential for context-specific directors’ duties and accompanying enforcement mechanisms. Firstly, it is argued that the current legal framework allows for the judicial development -specific approach. Secondly, such context-specific directors’ duties should be enforced through public-enforcement mechanisms to enhance the accountability of bank directors towards the public interest but currently there are too much barriers for implementation in practice.
    In conclusion, this article argues that there is indeed a need, rationale and potential for context-specific directors’ duties; yet there are several major obstacles for the implementation of accompanying public-enforcement mechanisms. As a result, the introduction of context-specific directors’ duties in the banking sector may as yet entail nothing more than wishful thinking because it will merely end in toothless ambitions if the lack of accompanying enforcement mechanisms remains intact.


Wasima Khan LL.M.
PhD Candidate at the Erasmus School of Law, Erasmus University Rotterdam. The author wishes to express her gratitude for valuable comments on an earlier draft of this article from Prof. Vino Timmerman and Prof. Bastiaan F. Assink at the Erasmus School of Law, Erasmus University Rotterdam, as well as the Journal‘s editors and peer reviewers. Any errors remain those of the author.
Article

Access_open An Eclectic Approach to Loyalty-Promoting Instruments in Corporate Law: Revisiting Hirschman's Model of Exit, Voice, and Loyalty

Tijdschrift Erasmus Law Review, Aflevering 2 2013
Trefwoorden Eclecticism, corporate law & economics, corporate constitutionalism, loyalty-promoting instruments
Auteurs Bart Bootsma MSc LLM
SamenvattingAuteursinformatie

    This essay analyses the shareholder role in corporate governance in terms of Albert Hirschman's Exit, Voice, and Loyalty. The term 'exit' is embedded in a law & economics framework, while 'voice' relates to a corporate constitutional framework. The essay takes an eclectic approach and argues that, in order to understand the shareholder role in its full breadth and depth, the corporate law & economics framework can 'share the analytical stage' with a corporate constitutional framework. It is argued that Hirschman's concept of 'loyalty' is the connecting link between the corporate law & economics and corporate constitutional framework. Corporate law is perceived as a Janus head, as it is influenced by corporate law & economics as well as by corporate constitutional considerations. In the discussion on the shareholder role in public corporations, it is debated whether corporate law should facilitate loyalty-promoting instruments, such as loyalty dividend and loyalty warrants. In this essay, these instruments are analysed based on the eclectic approach. It is argued that loyalty dividend and warrants are law & economics instruments (i.e. financial incentives) based on corporate constitutional motives (i.e. promoting loyalty in order to change the exit/voice mix in favour of voice).


Bart Bootsma MSc LLM
PhD candidate in the corporate law department at Erasmus School of Law, Erasmus University Rotterdam. Email: bootsma@law.eur.nl. The research for this article has been supported by a grant from the Netherlands Organisation for Scientific Research (NWO) in the Open Competition in the Social Sciences 2010. The author is grateful to Ellen Hey, Klaus Heine, Michael Faure, Matthijs de Jongh and two anonymous reviewers for their constructive comments and suggestions. The usual disclaimer applies.
Article

Access_open Offer and Acceptance and the Dynamics of Negotiations: Arguments for Contract Theory from Negotiation Studies

Tijdschrift Erasmus Law Review, Aflevering 2 2013
Trefwoorden Contract Formation, Offer and Acceptance, Negotiation, Precontractual, UNIDROIT Principles of International Commercial Contracts
Auteurs Ekaterina Pannebakker LL.M.
SamenvattingAuteursinformatie

    The doctrine of offer and acceptance forms the basis of the rules of contract formation in most western legal systems. However, if parties enter into elaborate negotiations, these rules may become difficult to apply. This paper addresses the application of the doctrine of offer and acceptance to the formation of contract in the context of negotiations. The paper argues that while the doctrine of offer and acceptance is designed to assess the issues related to the substance of the future eventual contract (the substantive constituent of negotiations), these issues overlap within the context of negotiations with the strategic and tactical behaviour of the negotiators (dynamic constituent of negotiations). Analysis of these two constituents can be found in negotiation studies, a field which has developed over the last decades. Using the rules of offer and acceptance of the UNIDROIT Principles of International Commercial Contracts as an example, this paper shows that the demarcation between the substantive and the dynamic constituents of negotiations can be used as the criterion to distinguish between, on the one hand, the documents and conduct forming a contract, and, on the other hand, other precontractual documents and conduct. Furthermore, the paper discusses the possibility of using the structure of negotiation described by negotiation studies as an additional tool in the usual analysis of facts in order to assess the existence of a contract and the moment of contract formation.


Ekaterina Pannebakker LL.M.
PhD candidate, Erasmus School of Law, Erasmus University Rotterdam. I thank Sanne Taekema and Xandra Kramer for their valuable comments on the draft of this article, and the peer reviewers for their suggestions. The usual disclaimer applies.
Artikel

Access_open Absolute Positivism

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 2 2013
Trefwoorden jurisprudence, legal positivism, Hans Kelsen, pure theory of law
Auteurs Christoph Kletzer
SamenvattingAuteursinformatie

    The paper argues that we miss the point and strength of Kelsen’s Pure Theory of Law if we take it to drive a middle way between reductionism and moralism. Rather conversely, the Pure Theory is a radical theory. It tries to overcome the opposition between reductionism and moralism by making clear that both opponents rest on the same ill-conceived convictions about legal validity. Both take it that the law cannot be normative by itself. In contrast, the Pure Theory tries to find a new approach to the understanding of law that takes seriously the constitutive functions of law. It tries to understand the validity of law as resting in law itself. As such it is an attempt to find a philosophically satisfactory formulation of what can be called absolute positivism.


Christoph Kletzer
Christoph Kletzer is a Senior Lecturer at the Dickson Poon School of Law at King’s College in London.
Artikel

Access_open On Fragments and Geometry

The International Legal Order as Metaphor and How It Matters

Tijdschrift Erasmus Law Review, Aflevering 1 2013
Trefwoorden international law, fragmentation, archaeology, Foucault, geometry
Auteurs Nikolas M. Rajkovic
SamenvattingAuteursinformatie

    This article engages the narrative of fragmentation in international law by asserting that legal academics and professionals have failed to probe more deeply into ‘fragmentation’ as a concept and, more specifically, as a spatial metaphor. The contention here is that however central fragmentation has been to analyses of contemporary international law, this notion has been conceptually assumed, ahistorically accepted and philosophically under-examined. The ‘fragment’ metaphor is tied historically to a cartographic rationality – and thus ‘reality’ – of all social space being reducible to a geometric object and, correspondingly, a planimetric map. The purpose of this article is to generate an appreciation among international lawyers that the problem of ‘fragmentation’ is more deeply rooted in epistemology and conceptual history. This requires an explanation of how the conflation of social space with planimetric reduction came to be constructed historically and used politically, and how that model informs representations of legal practices and perceptions of ‘international legal order’ as an inherently absolute and geometric. This implies the need to dig up and expose background assumptions that have been working to precondition a ‘fragmented’ characterization of worldly space. With the metaphor of ‘digging’ in mind, I draw upon Michel Foucault’s ‘archaeology of knowledge’ and, specifically, his assertion that epochal ideas are grounded by layers of ‘obscure knowledge’ that initially seem unrelated to a discourse. In the case of the fragmentation narrative, I argue obscure but key layers can be found in the Cartesian paradigm of space as a geometric object and the modern States’ imperative to assert (geographic) jurisdiction. To support this claim, I attempt to excavate the fragment metaphor by discussing key developments that led to the production and projection of geometric and planimetric reality since the 16th century.


Nikolas M. Rajkovic
Lecturer in International Law at the University of Kent Law School. Contact: n.rajkovic@kent.ac.uk. The research for this article was supported by a Jean Monnet Fellowship from the Global Governance Programme of the Robert Schuman Centre for Advanced Studies, European University Institute. Further support was given for the presentation and discussion of earlier drafts by COST Action IS1003 “International Law between Constitutionalization and Fragmentation”, the Institute for Global Law and Policy of the Harvard Law School, the Kent Law School and the International Studies Association (San Francisco Annual Convention). I am indebted to the helpful feedback of Tanja Aalberts, Katja Freistein, Alexis Galan, Harry Gould, Outi Korhonen, Philipe Liste, Nicholas Onuf, Kerry Rittich, Harm Schepel, Anna Sobczak, Peter Szigeti, Wouter Werner and the two anonymous reviewers.
Artikel

Medical liability: do doctors care?

Tijdschrift Recht der Werkelijkheid, Aflevering 2 2012
Auteurs Ben C.J. van Velthoven en Peter W. van Wijck
SamenvattingAuteursinformatie

    Van Velthoven and Van Wijck review empirical studies on the effects of tort law in the medical sector. The data they present comes mainly from the US, because from the 1970’s US states have enacted a variety of reforms in their tort systems. This variation has provided very useful data to study preventive effects. The empirical evidence analysed shows that medical malpractice risk affects the behaviour of health care providers. It has a negative impact on the supply of services and it encourages extra diagnostic testing;yet if the additional tests and procedures have any value, it is only a marginal one. Furthermore it has been found that changes in the supply of services do not affect health adversely. This suggests that the physicians who are driven out of business have a below average quality of performance. The authors conclude that, at the margin, medical liability law may have some social benefits after all.


Ben C.J. van Velthoven
Ben van Velthoven is associate professor of law and economics at Leiden University. His research interests are: liability issues, civil litigation, and criminal law enforcement.

Peter W. van Wijck
Peter van Wijck is associate professor of law and economics at Leiden University and coordinator strategy development at the Dutch Ministry of Security and Justice. His research interests concern tort law, contract law, civil litigation, and crime.
Artikel

Access_open Relational Jurisprudence

Vulnerability between Fact and Value

Tijdschrift Law and Method, 2012
Trefwoorden fact/value separation, vulnerability, relational jurisprudence, empirical methodology, normative methodology
Auteurs Maksymilian Del Mar
SamenvattingAuteursinformatie

    Relational jurisprudence is an approach to law that situates it in five relational contexts: (1) relations between individuals; (2) relations between individuals and communities; (3) relations between communities; (4) relations between individuals or communities on the one hand, and institutions on the other; and (5) relations between institutions. Thus, part of what makes relational jurisprudence distinctive is its object: the study of law in the context of certain relations, including investigating what factors affect and influence the quality of those relations. Relational jurisprudence is also distinctive, however, in its method. One of its methodological commitments is to avoid the dichotomy, without losing the benefits of a distinction, between facts and values. In trying to avoid this dichotomy, the approach identifies and uses devices that have both factual and evaluative dimensions, called here ‘factual-evaluative complexes’. These devices are then used to investigate the quality of different relations. One such device is ‘vulnerability’. The argument of this paper is that at least some of law can be profitably understood as managing vulnerability, i.e. recognising some vulnerabilities as worthy of protection and others not, or balancing the protection of different vulnerabilities in different relational contexts. Avoiding the dichotomy while retaining the usefulness of the distinction between facts and values in the above-outlined way means that we ought to employ a mix of empirical and normative methodology in the study of law.


Maksymilian Del Mar
Maksymilian Del Mar is lecturer in Legal and Social Philosophy, Department of Law, Queen Mary University of London.
Artikel

Access_open Exciting Times for Legal Scholarship

Tijdschrift Law and Method, 2012
Trefwoorden legal methodology, law as an academic discipline, ‘law and …’-movements, legal theory, innovative and multiform legal scholarship
Auteurs Jan Vranken
SamenvattingAuteursinformatie

    Until recently, legal-dogmatic research stood at the undisputed pinnacle of legal scientific research. The last few years saw increasing criticism, both nationally and internationally, levelled at this type of research or at its dominant role. Some see this as a crisis in legal scholarship, but a closer look reveals a great need for facts, common sense, and nuance. Critics usually base their calls for innovation on a one-dimensional and flawed image of legal-dogmatic research. In this article, the author subsequently addresses the various critical opinions themselves and provide an overview of the innovations that are proposed. He concludes that there are a lot of efforts to innovate legal scholarship, and that the field is more multiform than ever, which is a wonderful and unprecedented state of affairs. This multiformity should be cherished and given plenty of room to develop and grow, because most innovative movements are still fledgling and need time, sometimes a lot of time, to increase in quality. It would be a shame to nip them in the bud now, merely because they are still finding their way. In turn, none of these innovative movements have cause to disqualify legal-dogmatic research, as sometimes happens (implicitly), by first creating a straw-man version of the field and then dismissing it as uninteresting or worse. That only polarises the discussion and gains us nothing. Progress can only be achieved through cooperation, with an open mind towards different types of legal research and a willingness to accept a critical approach towards their development. In the end, the only criterion that matters is quality. All types of research are principally subject to the same quality standards. The author provides some clarification regarding these standards as well.


Jan Vranken
Jan Vranken is hoogleraar Methodologie van het privaatrecht aan de Universiteit van Tilburg.
Artikel

Access_open Globalization as a Factor in General Jurisprudence

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 2 2012
Trefwoorden general jurisprudence, globalization, global legal pluralism, legal positivism, analytical jurisprudence
Auteurs Sidney Richards
SamenvattingAuteursinformatie

    Globalization is commonly cited as an important factor in theorising legal phenomena in the contemporary world. Although many legal disciplines have sought to adapt their theories to globalization, progress has been comparatively modest within contemporary analytical jurisprudence. This paper aims to offer a survey of recent scholarship on legal theory and globalization and suggests various ways in which these writings are relevant to the project of jurisprudence. This paper argues, more specifically, that the dominant interpretation of globalization frames it as a particular form of legal pluralism. The resulting concept – global legal pluralism – comes in two broad varieties, depending on whether it emphasizes normative or institutional pluralism. This paper goes on to argue that these concepts coincide with two central themes of jurisprudence, namely its concern with normativity and institutionality. Finally, this paper reflects on the feasibility of constructing a ‘general’ and ‘descriptive’ jurisprudence in light of globalization.


Sidney Richards
Sidney Richards is Doctoral candidate in Law at Pembroke College at the University of Cambridge.
Artikel

Access_open Grootayatollah Fadlallahs boodschap aan de Nederlandse moslims

‘Integratie is een religieuze plicht’

Tijdschrift Tijdschrift voor Religie, Recht en Beleid, Aflevering 1 2012
Trefwoorden Fadlallah, integratie, sjiisme, Nederland
Auteurs Joseph Alagha, Huub Damoiseaux en Arnout van Ree
SamenvattingAuteursinformatie

    The authors endeavour to provide new insights on the continuing Dutch debate on ‘immigration’, ‘integration’, and the assumed clash between Islam and Dutch norms, values, and culture. The late Lebanese ayatollah Fadlallah (1935-2010) specifically addressed the Dutch situation in 2005-2010. The article is based on interviews with him, his Dutch followers, and literary sources. It demonstrates that Fadlallah and his followers hold liberal views on contentious issues such as women’s rights, veiling, integration, and condemn violence and terrorism as exemplified by 9/11. On these grounds, the authors question the supposed incompatibility between Islam and integration, arguing that the precepts of practice cast doubt on the validity of such a contention.


Joseph Alagha
Dr. J. Alagha is voormalig docent Midden Oosten Studies aan het Leiden University Institute for Area Studies (LIAS). Hij is de auteur van drie peer-reviewed boeken: Hizbullah’s Identity Construction (2011), Hizbullah’s Documents (2011) en The Shifts in Hizbullah’s Ideology (2006): http://www.hum.leidenuniv.nl/lucis/lucis-signaleert/books-alagha.html. jalagha2001@yahoo.com.

Huub Damoiseaux
Mr. drs. H. Damoiseaux studeerde Rechten (UU) en Politicologie (UvA). huubdamoiseaux@gmail.com.

Arnout van Ree
A. van Ree is BA Geschiedenis (scriptie over Hizbullah en diens integratie in de politieke arena van 1991 tot 2009) en MA-student Area Studies: Asia and the Middle East aan de Universiteit Leiden. ptsa.van.ree@gmail.com.
Artikel

Access_open De Drittwirkung van grondrechten

Retorisch curiosum of vaandel van een paradigmatische omwenteling in ons rechtsbestel?

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 1 2012
Trefwoorden Drittwirkung, horizontal effect of human rights, constitutionalisation of private law
Auteurs Stefan Somers
SamenvattingAuteursinformatie

    This article discusses whether the horizontal effect of human rights marks a new paradigm in legal systems or is merely a new style in legal rhetoric. In doing so, much attention is paid to the differences between direct and indirect horizontal effect. Departing from social contract theory the article explains that the protection of human right values in horizontal relations is an essential feature of modern constitutionalism. It also analyses whether these values in horizontal relations should be protected by private law or by human rights. This question is looked at from a substantial, a methodological and an institutional perspective. In the end, because of institutional power balancing, the article argues in favor of an indirect horizontal effect of human rights.


Stefan Somers
Stefan Somers is a researcher at the Department of Interdisciplinary Studies at the VUB (Free University of Brussels) and prepares a PhD on the relationship between human rights and tort law.
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