Zoekresultaat: 119 artikelen

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Article

Access_open False Confessions in the Lab: A Review

Tijdschrift Erasmus Law Review, Aflevering 4 2014
Trefwoorden confession, interrogation, evidence
Auteurs Eric Rassin Ph.D. en Han Israëls
SamenvattingAuteursinformatie

    Intuitively, confession is a strong piece of evidence, because it appears unlikely that a suspect would confess to a crime he did not commit, thereby acting against his own best interest. Surprisingly, experimental studies show that innocent and well-educated individuals do tend to confess falsely when questioned about something they did not in fact do. In this contribution, an overview is presented of the experimental research on confession evidence. Limitations and implications of the scientific insights are discussed.


Eric Rassin Ph.D.
Eric Rassin is Endowed Professor of Legal Psychology at the Faculty of Social Sciences and the School of Law at Erasmus University Rotterdam.

Han Israëls
Han Israëls is Assistant Professor in Legal Psychology at the Maastricht University.
Article

Access_open Legal Assistance and Police Interrogation

(Problematic Aspects of) Dutch Criminal Procedure in Relation to European Union and the Council of Europe

Tijdschrift Erasmus Law Review, Aflevering 4 2014
Trefwoorden Legal assistance, police interrogation, Dutch Criminal Proceedings, EU Directive
Auteurs Paul Mevis en Joost Verbaan
SamenvattingAuteursinformatie

    This paper discusses the rise of a fundamental issue in Dutch criminal proceedings. The presence of a lawyer prior to and during police interrogations has for a long time been a matter open for debate in the Netherlands. Allowing legal assistance during and prior to police interrogations has been researched on several occasions in the previous century and the beginning of this century. In the Netherlands, one of the most important reasons for not admitting legal assistance was and is founded in the confident reliance on the professionalism and integrity of police officers and justice officials in dealing with the interests of suspects. However, after the Salduz case (ECHR 27 November 2008, Appl. No. 36391/02, Salduz v. Turkey), the Dutch government was compelled to draft legal provisions in order to facilitate legal assistance during and prior to police interrogations. The initial drafts still contained a hesitant approach on admitting the lawyer to the actual interrogation. The EU-Directive of November 2013 (Pb EU 2013, L249) set out further reaching standards compelling the Dutch government to create new drafts. In a ruling of April 2014, the Dutch Supreme Court (ECLI:NL:2014:770) argued that the judgements of the ECtHR were too casuistic to derive an absolute right to have a lawyer present during police interrogation. However, they urged the legislator to draft legislation on this matter and warned that its judgement in this could be altered in future caused by legal developments. The Dutch legislator already proposed new draft legislation in February. In this paper it is examined whether the provisions of the new drafts meet the standards as set out in the EU-Directive as well as by the ECtHR.


Paul Mevis
Paul Mevis is Professor of Criminal Law and Criminal Procedure at the Faculty of Law of the Erasmus. He has been a visiting professor at the universities of Münster, Mmabato (South Africa) and in Moldavia, the Ukrain and in Frankfurt an der Oder. Besides his academic activities, Paul Mevis is Honorary Judge at the Criminal Court of Rotterdam and Honorary Judge at the Court of Appeal in Amsterdam, since 1994 and 1998 respectively. He has been parttime Judge at the Court of Arnhem (1990-1994) and is member of the Commission of Supervision of prisons (2006-2008). Paul Mevis is also member of the board of editors of several journals in the field of criminal law and human rights law and commentator for the journal ‘Nederlandse Jurisprudentie’ on criminal cases. He was chairman of the ‘Commissie Strafvordelijke gegevensvergaring in de informatiemaatschappij’ (2000-2001), of which the report has lead to the Bill of the same name. He is a member of the School of Human Rights Research and the Research School on Safety and Security in Society.

Joost Verbaan
Mr. J.H.J. (Joost) Verbaan is an assistant-professor at the Erasmus School of Law of the Erasmus Universiteit Rotterdam. He teaches Criminal Law and Criminal Procedure law. Mr. Verbaan is the Managing Director of the Erasmus Center for Police Studies (ECPS). The ECPS organises courses on criminal and criminal procedure law for law enforcement agencies as well as the prosecution. Mr. Verbaan has been involved in many researches in the practical field of investigation. He has taken part in the research for the Governmental Institute of Scientific Research and Documentation on the effects of the presence of an attorney during the first police interrogation.For the same institute together with professor Mevis he researched the Modalities of Serving in comparative law perspective.He served the secretary of the Committee to draft a new Dutch Antillean Criminal Code and served the secretary of the Committee to draft a new Criminal Code for Aruba, Sint Maarten and Curacao. He served the secretary of the Committee to Draft a common Criminal Procedure Code in the Caribbean regions of Aruba, Curacao , Sint Maarten and the BES-territories. In the republic of Surinam Mr. Verbaan has worked in the legal advisory board of the Committee founded in order to codify a new Criminal Code for the republic of Surinam.
Artikel

Access_open The Normative Foundation of Legal Orders: A Balance Between Reciprocity and Mutuality

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 2 2014
Trefwoorden reciprocity, mutuality, social morality of duties, legal morality of rights, intergenerational justice
Auteurs Dorien Pessers PhD
SamenvattingAuteursinformatie

    Reciprocity seems to figure as a self-evident normative foundation of legal orders. Yet a clear understanding of the often opaque role that reciprocity plays in this regard demands drawing a conceptual distinction. This article views reciprocity as a social morality of duties, in opposition to mutuality, which concerns a legal morality of rights. In everyday life these two broad categories of human interaction interfere in a dynamic way. They need to be brought into an appropriate balance in legal orders, for the sake of justice. The practical relevance of this conceptual distinction is clarified by the debate about justice between present and future generations. I argue that this debate should be viewed as a debate about the terms of reciprocity rather than relations of mutuality. Acknowledging the deeply reciprocal nature of the relations between past, present and future generations would lead to a more convincing moral theory about intergenerational justice.


Dorien Pessers PhD
Dorien Pessers is Professor of the Legal and Theoretical Foundations of the Private Sphere at the VU University and at the University of Amsterdam. Her research focuses primarily on the theoretical foundations of the public and private spheres.
Artikel

Access_open Reciprocity: a fragile equilibrium

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 2 2014
Trefwoorden reciprocity, exchange theory, natural law theory, dyadic relations, corrective justice
Auteurs Prof. dr. Pauline Westerman PhD
SamenvattingAuteursinformatie

    Reciprocity may serve to explain or to justify law. In its latter capacity, which is the topic of this article, reciprocity is commonly turned into a highly idealized notion, as either a balance between two free and equal parties or as the possibility of communication tout court. Both ideals lack empirical reference. If sociological and anthropological literature on forms of exchange is taken into account, it should be acknowledged that reciprocal relations are easy to destabilize. The dynamics of exchange invites exclusion and inequality. For this reason reciprocity should not be presupposed as the normative underpinning of law; instead, law should be presupposed in order to turn reciprocity into a desirable ideal.


Prof. dr. Pauline Westerman PhD
Pauline Westerman is Professor in Philosophy of Law at the University of Groningen and member of staff at the Academy for Legislation in the Hague. She is editor of The Theory and Practice of Legislation, a journal published by Hart, Oxford. She writes mainly on legal methodology and legislation, especially on alternative forms of legislation. For more information as well as publications, see her personal website: <www.paulinewesterman.nl>.
Artikel

Access_open What Makes Age Discrimination Special? A Philosophical Look at the ECJ Case Law

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 1 2014
Trefwoorden age discrimination, intergenerational justice, complete-life view, statistical discrimination, anti-discrimination law
Auteurs Axel Gosseries
SamenvattingAuteursinformatie

    This paper provides an account of what makes age discrimination special, going through a set of possible justifications. In the end, it turns out that a full understanding of the specialness of age-based differential treatment requires that we consider together the ‘reliable proxy,’ the ‘complete-life neutrality,’ the ‘sequence efficiency’ and the ‘affirmative egalitarian’ accounts. Depending on the specific age criteria, all four accounts may apply or only some of them. This is the first key message of this paper. The second message of the paper has to do with the age group/birth cohort distinction. All measures that have a differential impact on different cohorts also tend to have a differential impact on various age groups during the transition. The paper points at the practical implications of anti-age-discrimination law for differential treatment between birth cohorts. The whole argument is confronted all along with ECJ cases.


Axel Gosseries
Axel Gosseries is a permanent research fellow at the Belgian FRS-FNRS and a Professor at the University of Louvain (UCL, Belgium) where he is based at the Hoover Chair in Economic and Social Ethics.
Artikel

Verzet of collaboratie? Hoe de strijd tegen genocide kan bijdragen aan genocide

Tijdschrift Tijdschrift over Cultuur & Criminaliteit, Aflevering 1 2014
Trefwoorden Rwanda, genocide against the Tutsi, denial, politics of genocide
Auteurs Roland Moerland
SamenvattingAuteursinformatie

    The politization of the concept of genocide by Western states has been severely criticised, because it has led to an impunity for genocidal crimes. In certain instances however, such criticism has contributed to the dynamic of victimization, instead of resisting it. The article discusses how Professor Edward S. Herman and journalist David Peterson’s staunch criticism of the politics of genocide amounts to a brazen denial of the genocide against the Tutsi which recycles much of the extremist discourse of the former Rwandan authorities that were implicated in genocide. In this case Herman and Peterson’s resistance against the politics of genocide has profound implications, several of which the article will address.


Roland Moerland
Mr. Roland Moerland is als docent en onderzoeker verbonden aan de vakgroep Strafrecht en Criminologie van de Faculteit der Rechtsgeleerdheid van de Universiteit Maastricht. E-mail: roland.moerland@ maastrichtuniversity.nl
Artikel

‘Resistance Through Rituals’, ‘Policing the Crisis’ and the present conjuncture

Tijdschrift Tijdschrift over Cultuur & Criminaliteit, Aflevering 1 2014
Trefwoorden conjuncture, neo-liberalism, hegemony, subcultures, exceptional state
Auteurs Dr. Tony Jefferson
SamenvattingAuteursinformatie

    This article deals with three questions. What did resistance mean in the 1970s and what does it mean today? Have the rituals of resistance changed over time? What is the status today of moral panic theory? These questions directly refer to ‘Resistance Through Rituals’ (1976) and ‘Policing the Crisis’ (1978). For that reason, one of the authors answers these key questions in a contemporary framework of hegemony, security and neoliberal politics, and points to the continuing relevance of the political and critical tradition of British cultural studies.


Dr. Tony Jefferson
Dr. Tony Jefferson is emeritus hoogleraar aan Keele University (UK). E-mail: tonyjefferson45@gmail.com
Artikel

Access_open ‘I’d like to learn what hegemony means’

Teaching International Law from a Critical Angle

Tijdschrift Law and Method, 2013
Trefwoorden Bildung, cultural hegemony, international law, teaching
Auteurs Christine E.J. Schwöbel-Patel
SamenvattingAuteursinformatie

    This contribution explores the possibility of teaching international law in a critical fashion. I examine whether the training which is taking place at law schools is establishing and sustaining a cultural hegemony (a term borrowed from Antonio Gramsci). I ask whether the current focus on technical practice-oriented teaching is a condition which should be questioned, even disrupted? In my thoughts on reorientations of this culture, a central term is the German word Bildung. Bildung refers to knowledge and education as an end in itself (John Dewey) as well as an organic process (Hegel), and therefore incorporates a wider understanding than the English word ‘education’. In terms of international law, a notion of Bildung allows us to acknowledge the political nature of the discipline; it may even allow us to ‘politicize’ our students.


Christine E.J. Schwöbel-Patel
Christine E.J. Schwöbel-Patel is Lecturer in Law at University of Liverpool.

Mr. J.G. Knot
Mr. J.G. Knot is universitair docent internationaal privaatrecht aan de Rijksuniversiteit Groningen en adviseur bij PlasBossinade te Groningen; j.g.knot@rug.nl.

Mr. A. Mens
Mr. A. Mens is als promovenda verbonden aan de sectie Internationaal Privaatrecht van de Rijksuniversiteit Groningen en bezig met de voorbereiding van een proefschrift over de erkenning van buitenlandse adopties in Nederland; a.mens@rug.nl.
Discussie

Still a rule of law guy

Tijdschrift Recht der Werkelijkheid, Aflevering 1 2013
Trefwoorden rule of law, sociology of law, suppression of arbitrary power, normative theory
Auteurs Martin Krygier
Auteursinformatie

Martin Krygier
Martin Krygier is Gordon Samuels Professor of Law and Social Theory at the University of New South Wales, co-director of its Network for Interdisciplinary Studies of Law, Adjunct Professor at the Regulatory Institutions Network, Australian National University, and a Fellow of the Australian Academy of Social Sciences. His most recent book is Philip Selznick. Ideals in the World, Stanford University Press, 2012. He has written extensively on the rule of law: its nature, conditions, and challenges. Apart from some 40 essays on these themes, he has edited and contributed to Spreading Democracy and the Rule of Law? (Springer Verlag, 2006); Rethinking the Rule of Law after Communism (CEU Press, 2005); Community and Legality: the Intellectual Legacy of Philip Selznick (Rowman & Littlefield, 2002), The Rule of Law after Communism (Ashgate, 1999), Marxism and Communism. Posthumous Reflections on Politics, Society, and Law (Rodopi, 1994). He is on the editorial boards of the Hague Journal on the Rule of Law, Annual Review of Law and Social Science, Ratio Juris, East Central Europe, and is a contributing jurisprudence editor to Jotwell (Journal of things we like lots).
Artikel

Access_open ‘God hath given the world to men in common’

Grenzen aan privé-eigendom in geval van nood en verspilling in het middeleeuwse en vroegmoderne natuurrecht

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 1 2013
Trefwoorden natural law, property, rights of the poor, extreme necessity, necessitas urgens et evidens
Auteurs Marc de Wilde
SamenvattingAuteursinformatie

    This article examines what limitations to private property John Locke recognizes to protect the rights of the poor. As has been pointed out in the literature, Locke’s ideas on the limitations to private property have been influenced by medieval discussions about the rights of the poor and the principle of extreme necessity. Confirming this interpretation, the article shows that Locke borrows the distinction between ‘ordinary need’ and ‘evident and urgent necessity’ from Thomas Aquinas. Taking position in a debate among Grotius and Pufendorf, Locke argues that the poor have a natural right to the ‘surplus’ of somebody else’s possessions, and that this right becomes legally enforceable in case of ‘evident and urgent necessity.’


Marc de Wilde
Marc de Wilde is Professor of Legal Theory at the University of Amsterdam.
Artikel

Non-pecuniary damages: financial incentive or symbol?

Comparing an economic and a sociological account of tort law

Tijdschrift Recht der Werkelijkheid, Aflevering 2 2012
Auteurs Rob Schwitters
SamenvattingAuteursinformatie

    Schwitters focuses on the differences between economic and a sociological perspectives on non-pecuniary damages. By exposing the alternative perspectives on this issue, he illuminates some methodological differences between both disciplines. Although law and economics has had a positive influence on empirical research, he questions the merits of this perspective when analysing non-pecuniary damages. Law and economics regards non-pecuniary damages exclusively as a financial incentive to realise optimal deterrence and maximisation of welfare. Alternatively, in sociology of law there is also attention for the symbolic dimension of law in which rules are seen as normative standards of behaviour. Compensation is a way to bring the wrongdoer to recognise that he has done wrong and has to compensate the victim, and to show the victim that his rights are taken seriously. Through a sociological lens, the adoption of an exclusively economic model of human behaviour has to be questioned. To what extent human behaviour is really influenced by either financial incentives or by normative standards of behaviour is an open empirical question. Finally, he argues that the decision to base our institutions (such as law) on economic underpinnings is a decision which itself cannot be based on an economic procedure of aggregating individual preferences and maximising welfare.


Rob Schwitters
Rob Schwitters is associate professor (sociology of law) and member of the Paul Scholten Centre (University of Amsterdam). He publishes on tort law, responsibility and liability, the welfare state, compliance and methodological issues.
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

De evaluatie van Nederland in het kader van de Universal Periodic Review

Tijdschrift Justitiële verkenningen, Aflevering 6 2012
Trefwoorden Human Rights Council, Universal Periodic Review, human rights in the Netherlands, human rights policy, international human rights treaties
Auteurs P.A.M. Verrest en T. Dopheide
SamenvattingAuteursinformatie

    The Universal Periodic Review (UPR) was created by the Human Rights Council in 2006 as a tool to evaluate human rights standards in all 192 countries of the United Nations. It should be distinguished from the reviews by treaty-based bodies. These bodies are composed of independent experts and monitor the implementation of the human rights treaties. The UPR, on the other hand, is a peer review among countries on the whole spectrum of human rights. The Netherlands was evaluated for the second time in 2012. This article describes the background and procedure of the UPR. It then focuses more specific on the session of the Netherlands, by giving an impression of topics that were raised, as well as some reflections on both the session and the UPR itself.


P.A.M. Verrest

T. Dopheide
Mr. dr. Pieter Verrest en mw. mr. Tessa Dopheide waren namens het ministerie van Veiligheid en Justitie betrokken bij respectievelijk het tweede en eerste landenexamen van Nederland in het kader van de UPR. Dit artikel is op persoonlijke titel geschreven.
Artikel

De inbreng van ngo’s bij het Nederlandse mensenrechtenexamen

Een terug- en vooruitblik door Amnesty International

Tijdschrift Justitiële verkenningen, Aflevering 6 2012
Trefwoorden Human Rights Council, Universal Periodic Review, human rights in the Netherlands, Amnesty International, non-governmental organizations
Auteurs C. Mommers
SamenvattingAuteursinformatie

    The UPR is an increasingly important instrument for non-governmental organizations (NGOs) to advocate for the protection and promotion of human rights in the Netherlands. In this article, the way that NGOs have used the UPR in relation to the Netherlands will be discussed. This will be done primarily from the perspective of Amnesty International. The article first outlines how NGOs can contribute to the UPR process. Subsequently, it discusses the substantive input provided by Amnesty International for the review of the Netherlands. Finally, the potential impact of this intervention on the promotion and protection of human rights on the ground in the Netherlands will be considered. This impact will depend, inter alia, on the de-politicization of the UPR, the credibility of the process, the follow-up of recommendations made during the review and, prominently, the political will of the incoming government.


C. Mommers
Drs. Christian Mommers is als senior medewerker Politieke Zaken verbonden aan Amnesty International, afdeling Nederland.
Artikel

De relevantie van het Kinderrechtenverdrag voor minderjarige vreemdelingen

Tijdschrift Justitiële verkenningen, Aflevering 6 2012
Trefwoorden Convention on the Rights of the Child, immigration, Dutch immigration law, family reunification, asylum
Auteurs C. van Os
SamenvattingAuteursinformatie

    All rights in the Convention on the Rights of the Child (CRC) apply to all children, therefore they also apply to minor foreigners in the Netherlands. Nevertheless precisely for this group a continuous fight needs to be battled to make sure they receive the protection provided by the CRC. This article provides an overview of the most important articles of the CRC where minor asylum seekers and migrants can appeal to. The article also stresses the fact that children who reside unlawfully in the country may not be discriminated against their access to socio-economic rights. Furthermore, the question whether fully integrated children should have the right to a residency permit is dealt with. Subsequently the Dutch policy with regard to family reunification is assessed alongside the CRC. At last the article elaborates on the tension between the ‘ultimum remedium’ principle (article 37 CRC) on the one hand and the policy concerning children in alien detention on the other.


C. van Os
Mr. Carla van Os is jurist kinderrechten & migratie bij Defence for Children in Leiden.
Artikel

Access_open The Collapse of the Rule of Law

The Messina Earthquake and the State of Exception

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 2 2012
Trefwoorden Messina, earthquake, state of exception, rule of law, progress
Auteurs Massimo La Torre
SamenvattingAuteursinformatie

    Messina, a Sicilian town, was devasteted by an earthquake in1908. It was an hecatomb. Stricken through this unfathomable disgrace Messina’s institutions and civil society collapsed and a sort of wild natural state replaced the rule of law. In this situation there was a first intervention of the Russian Czarist navy who came to help but immediately enforced cruel emergency measures. The Italian army followed and there was a formal declaration of an ‘emergency situation.’ Around this event and the several exceptional measures taken by the government a debate took place about the legality of those exceptional measures. The article tries to reconstruct the historical context and the content of that debate and in a broader perspective thematizes how law (and morality) could be brought to meet the breaking of normality and ordinary life by an unexpected and catastrophic event.


Massimo La Torre
Massimo La Torre is Professor of Legal Philosophy at the University of Catanzaro in Italy and visiting Professor of Law at the University of Hull in England.
Artikel

Access_open What Epistemology Would Serve Criminal Law Best in Finding the Truth about Rape?

Tijdschrift Law and Method, 2012
Trefwoorden epistemology (‘scientific’ versus ‘critical’), rape in criminal law, normative classification, empirical evidence
Auteurs Nicolle Zeegers
SamenvattingAuteursinformatie

    This article answers the question of why and in what respects a ‘critical epistemology’, compared to a ‘scientific epistemology’, offers the better alternative for criminal law investigations into rape. By resuming the recent debate concerning the importance of scientific truth in criminal law investigations the author shows that this debate overlooks the cultural values that are necessarily involved in many criminal law cases. Such involvement of cultural values will be illustrated with a historical overview of law cases concerning rape in the context of a heterosexual relationship. Whereas value-free knowledge is the ideal strived for by a ‘scientific epistemology’, the basic idea of a critical epistemology is that knowledge is theory dependent and not free of values. Therefore this epistemology offers the best guarantees for acknowledging the values that are necessarily involved in many criminal law inquiries.


Nicolle Zeegers
Dr. Nicolle Zeegers is universitair docent Politieke Wetenschappen aan de Rijksuniversiteit Groningen.
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