Zoekresultaat: 164 artikelen

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Artikel

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

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 2 2015
Trefwoorden international criminal law, judicial reasoning, casuistry, genocide
Auteurs Marjolein Cupido
SamenvattingAuteursinformatie

    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 Through case law, the courts have fine-tuned and modernized outdated concepts of international crimes and liability theories.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

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.
Article

Access_open Tax Competition within the European Union – Is the CCCTB Directive a Solution?

Tijdschrift Erasmus Law Review, Aflevering 1 2014
Trefwoorden tax competition, tax planning, European Union, Common Consolidated Corporate Tax Base, factor manipulation
Auteurs Maarten de Wilde LL.M
SamenvattingAuteursinformatie

    The author addresses the phenomenon of taxable profit-shifting operations undertaken by multinationals in response to countries competing for corporate tax bases within the European Union. The central question is whether this might be a relic of the past when the European Commission’s proposal for a Council Directive on a Common Consolidated Corporate Tax Base sees the light of day. Or would the EU-wide corporate tax system provide incentives for multinationals to pursue artificial tax base-shifting practices within the EU, potentially invigorating the risk of undue governmental tax competition responses? The author’s tentative answer on the potential for artificial base shifting and undue tax competition is in the affirmative. Today, the issue of harmful tax competition within the EU seems to have been pushed back as a result of the soft law approaches that were initiated in the late 1990s and early 2000s. But things might change if the CCCTB proposal as currently drafted enters into force. There may be a risk that substantial parts of the EU tax base would instantly become mobile as of that day. As the EU Member States at that time seem to have only a single tool available to respond to this – the tax rate – that may perhaps initiate an undesirable race for the EU tax base, at least theoretically.


Maarten de Wilde LL.M
LL.M, Researcher/lecturer, Erasmus University Rotterdam (<dewilde@law.eur.nl>), lecturer, University of Amsterdam, tax lawyer, Loyens & Loeff NV, Rotterdam, the Netherlands. This article was written as part of the Erasmus School of Law research programme on ‘Fiscal Autonomy and Its Boundaries’. The author wishes to thank the anonymous reviewers for their constructive comments on an earlier draft of this article.
Article

Access_open The Effect of 'Excessive’ Tax Planning and Tax Setting on Welfare: Action Needed?

Tijdschrift Erasmus Law Review, Aflevering 1 2014
Trefwoorden tax planning, optimal taxation, tax competition, corporate taxation
Auteurs Hendrik Vrijburg Ph.D.
SamenvattingAuteursinformatie

    This article presents a literature review on the welfare effects of excessive company taxation practices. The article intends to structure the debate by sketching a conceptual framework of thought for the topic under consideration and places the existing literature within this framework. The article ends with a thought-provoking discussion between two extreme papers in the literature, one against tax planning and one in favour. The discussion is concluded by identifying the fundamental differences in assumptions underlying both approaches.


Hendrik Vrijburg Ph.D.
Assistant Professor, Erasmus School of Economics, Erasmus University Rotterdam and Tinbergen Institute, PO Box 1738, 3000 DR Rotterdam, The Netherlands, Phone: +31-10-408-1485, Fax: +31-10-408-9031, email: vrijburg@ese.eur.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

Access_open The Right to Have Rights as the Right to Asylum

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 1 2014
Trefwoorden Arendt, asylum, refugeeship, right to have rights, statelessness de facto and de jure
Auteurs Nanda Oudejans
SamenvattingAuteursinformatie

    This article argues that the right to have rights, as launched by Hannah Arendt, is relative to refugee displacement and hence translates as a right to asylum. It takes issue with the dominant view that the public/private divide is the locus classicus of the meaning of this primordial right. A different direction of thought is proposed, proceeding from Arendt’s recovery of the spatiality of law. The unencompassibility of place in matters of rights, freedom and equality brings this right into view as a claim at the behest of those who have lost a legal place of their own. This also helps us to gain better understanding of Arendt’s rebuttal of the sharp-edged distinction between refugees and stateless persons and to discover the defiant potential of the right to have rights to illuminate the refugee’s claim to asylum as a claim to an own place where protection can be enjoyed again.


Nanda Oudejans
Nanda Oudejans is an independent researcher in philosophy of law and political philosophy.

    Legal position of a known donor constitutes an ongoing challenge. Known donors are often willing to play a role in the child’s life. Their wishes range from scarce involvement to aspiring legal parentage. Therefore three persons may wish for parental role. This is not catered for in the current laws allowing only for two legal parents. Several studies show how lesbian mothers and a donor ’devise new definitions of parenthood’ extending ’beyond the existing normative framework’. However, the diversity in the roles of the donors suggests a split of parental rights between three persons rather than three traditional legal parents. In this article I will discuss three jurisdictions (Quebec, Sweden and the Netherlands), allowing co-mother to become legal parent other than by a step-parent adoption. I will examine whether these jurisdictions attempt to accommodate specific needs of lesbian families by splitting up parentage ’package’ between the duo-mothers and the donor.


Prof. mr. Masha Antokolskaia Ph.D.
Masha Antokolskaia is professor of Private Law (in particular, Personal Status and Family Law) at the VU University Amsterdam. She is a member of the Commission on European Family Law (CEFL) and a board member of the International Society of Family Law. She is author of a diverse range of monographs and articles written in Dutch, English and Russian. Her main research areas are: European comparative Family Law and Dutch Family Law, with particular regard to the law relating to relationships, parentage and divorce.
Article

Access_open Unity in Multiplicity: Shared Cultural Understandings on Marital Life in a Damascus Catholic and Muslim Court

Tijdschrift Erasmus Law Review, Aflevering 3/4 2013
Trefwoorden Syria, personal status law, Eastern Catholic law, patriarchal family, marital obligations
Auteurs Esther Van Eijk Ph.D.
SamenvattingAuteursinformatie

    Family relations in Syria are governed by a plurality of personal status laws and courts. This plurality manifests itself on a variety of levels, including statutory, communal and individual. In this article, the author argues that, albeit this plurality, Syrian personal status law is also characterised by the prevalence of shared, gendered norms and views on marital life. Based on fieldwork conducted in a Catholic and a shar’iyya personal status courts in Damascus in 2009, the author examines the shared cultural understandings on marital relationships that were found in these courts, and as laid down – most importantly – in the respective Catholic and Muslim family laws. The article maintains that the patriarchal family model is preserved and reinforced by the various personal status laws and by the various actors which operated in the field of personal status law. Finally, two Catholic case studies are presented and analysed to demonstrate the importance and attachment to patriarchal gender norms in the Catholic first instance court of Damascus.


Esther Van Eijk Ph.D.
Esther Van Eijk is a postdoc researcher at Maastricht University, The Netherlands. She recently defended (September 2013) her Ph.D. thesis entitled ‘Family Law in Syria: A Plurality of Laws, Norms, and Legal Practices’ at Leiden University, the Netherlands. This study is based on her PhD fieldwork (including interviews and participant observation) conducted in March-April 2008, and October 2008-July 2009 in Syria.

    This paper explores the roles that the presumption of innocence (PoI) can play beyond the criminal trial, in other dealings that citizens may have with the criminal law and its officials. It grounds the PoI in a wider notion of the civic trust that citizens owe each other, and that the state owes its citizens: by attending to the roles that citizens may find themselves playing in relation to the criminal law (such roles as suspect, defendant, convicted offender and ‘ex-offender’), we can see both how a PoI protects us, beyond the confines of the trial, against various kinds of coercion, and how that PoI is modified or qualified as we acquire certain roles. To develop and illustrate this argument, I pay particular attention to the roles of defendant (both during the trial and while awaiting trial) and of ‘ex-offender,’ and to the duties that such roles bring with them.


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.
Artikel

Access_open Chicago, Jazz en Marihuana. Howard Becker over Outsiders

Tijdschrift Tijdschrift over Cultuur & Criminaliteit, Aflevering 3 2013
Trefwoorden Becker, Outsiders, biography, methodology
Auteurs Thaddeus Müller
SamenvattingAuteursinformatie

    In this article on the social production of the book Outsiders, I will situate its production in the daily practice of the social worlds in which Becker was involved. Therefore I focus on the relations, interactions and situations which were relevant for the form, content and success of Outsiders. For data, I use fragments from my email communication with Howard Becker, the collected interviews and other publications which show that Becker seeks to demystify Outsiders. My main contribution is that I use Becker’s own words to demystify the ethnographic practice of Outsiders and describe its mundane backstage reality, which is described by Fine as ‘the underside’ of ethnography (1993).


Thaddeus Müller
Dr. Thaddeus Müller is verbonden aan de sectie criminologie van de Erasmus Universiteit Rotterdam. E-mail: Muller@law.eur.nl.
Article

Access_open Human Rights Courts Interpreting Sustainable Development: Balancing Individual Rights and the Collective Interest

Tijdschrift Erasmus Law Review, Aflevering 2 2013
Trefwoorden Operationalizing sustainable development, human rights, individual rights/interests, collective rights/interests, human rights courts
Auteurs Emelie Folkesson MA
SamenvattingAuteursinformatie

    This article uses a generally accepted conceptualisation of sustainable development that can be operationalized in a judicial context. It focuses on the individual and collective dimensions of the environmental, economic and social pillars, as well as the consideration of inter-generational and intra-generational equity. Case law from the European, African and American systems is analysed to reveal if the elements of sustainable development have been incorporated in their jurisprudence. The analysis reveals that the human rights bodies have used different interpretative methods, some more progressive than others, in order to incorporate the elements of sustainable development in the scope of their mandate, even if they do not mention the concept as such. The overall conclusion is that sustainable development has been operationalized through human rights courts to a certain extent. Sometimes, however, a purely individualised approach to human rights creates a hurdle to further advance sustainable development. The conclusion creates the impression that sustainable development is not just a concept on paper, but that it in fact can be operationalized, also in other courts and quasi-courts. Moreover, it shows that the institutional structure of human rights courts has been used in other areas than pure human rights protection, which means that other areas of law might make use of it to fill the gap of a non-existing court structure.


Emelie Folkesson MA
PhD Candidate in public international law, Erasmus University Rotterdam. The author would like to thank Prof. Ellen Hey, Prof. Klaus Heine and two anonymous reviewers for their valuable insights and constructive comments on the drafts of this article. The usual disclaimer applies.
Artikel

Access_open Through the Looking Glass of Global Constitutionalism and Global Administrative Law

Different Stories About the Crisis in Global Water Governance?

Tijdschrift Erasmus Law Review, Aflevering 1 2013
Trefwoorden global water governance, global constitutionalism, global administrative law, water crisis, integrated water resources management
Auteurs Mónika Ambrus
SamenvattingAuteursinformatie

    In addition to (or sometimes rather than primarily) attributing it to water scarcity, water crisis has been described as a ‘crisis of governance’; with the word ‘crisis’ also indicating that water governance lacks (full) legitimacy. The article undertakes the task to analyse the current status of global water governance (GWG) from the perspective of two competing theories relating to the legitimacy of global governance, namely global constitutionalism (GC) and global administrative law (GAL). Having mapped the current legal framework of GWG from these two perspectives, it is discussed how these theories might shape GWG and how this shaping could contribute to solving the water crisis. In addition, it is also explored whether reading one of the most accepted proposals for legitimising global water governance, the concept of ‘integrated water resources management’ (IWRM), through the lenses of either GC or GAL would have an impact on how this concept is interpreted, and whether it can be a useful mechanism to address the water crisis. The use of two theories analysing the same subject matter provides interesting insights into global water governance and the nature of the water crisis as well as the relationship between these two theories.


Mónika Ambrus
Assistant professor of public international law at the Erasmus School of Law, Erasmus University Rotterdam.
Artikel

Access_open Revisiting the Humanisation of International Law: Limits and Potential

Obligations Erga Omnes, Hierarchy of Rules and the Principle of Due Diligence as the Basis for Further Humanisation

Tijdschrift Erasmus Law Review, Aflevering 1 2013
Trefwoorden humanisation, constitutionalism, legal positivism, human rights, erga omnes, due diligence, positive obligations, normative hierarchy, proportionality
Auteurs Dr. Vassilis P. Tzevelekos
SamenvattingAuteursinformatie

    The article critically evaluates the theory of the humanisation of international law. First, it argues that despite human rights having impact on (other areas of) international law, this trend has in the past been somewhat inflated. A number of examples are given where human rights have been tested against other objectives pursued by international law, with humanisation revealing its limits and actual dimensions. The second argument consists in identifying and highlighting obligations erga omnes (partes) and the principle of due diligence as two ‘systemic’ tools, that are central to the humanisation of international law. Both these tools form part of modern positive law, but may also make a positive contribution towards the direction of deeper humanisation in international law, having the potential, inter alia, to limit state will, establish occasional material normative hierarchy consisting in conditional priority in the fulfilment of human rights, give a communitarian tone to international law and invite states to be pro-active in the collective protection of their common interests and values. In its conclusions, the article offers a plausible explanation about the paradox it identifies of the limits of the humanisation on the one hand, and its potential for further development on the other. For, it is inherent in international law that the line separating the law from deontology is thin. The process of humanisation needs to be balanced with the other objectives of international law as well as reconciled with the decentralised and sovereignist origins of the pluralistic international legal system.


Dr. Vassilis P. Tzevelekos
Lecturer in Public International Law, University of Hull Law School; Attorney, Athens’ Bar. PhD and M.Res, European University Institute; MA, European Political and Administrative Studies, College of Europe; DEA Droit international public et organisations internationales, Paris 1 Panthéon-Sorbonne; LLB, National and Kapodistrian University of Athens.
Artikel

Access_open A Plea for Rigorous Conceptual Analysis as a Central Method in Transnational Law Design

Offer and Acceptance as Juridical Acts in the Draft Common Frame of Reference as a Case in Point

Tijdschrift Law and Method, 2013
Trefwoorden DCFR, Conceptual Analysis, Juridical Acts, Transnational Law Design
Auteurs Rudolf Rijgersberg en Hester van der Kaaij
SamenvattingAuteursinformatie

    Although shared legal problems are generally easily identified in transnational law design, it is considerably more difficult to design frameworks that transcend the peculiarities of local law univocally. The following exposition is a plea for giving more prominence to rigorous conceptual analysis in transnational law design in order to disambiguate the terms used in such frameworks. It does this by taking the formation of contracts in the model rules of the Draft Common Frame of Reference (DCFR) as a case in point. A conceptual analysis of the basic legal notion ‘juridical act’ in its model rules for contract law shows that the DCFR allows for two mutually conflicting interpretations of contract formation that are by no means fictional. A rigorous conceptual analysis of basic legal notions in the formative stages of transnational law design would have prevented a conflation of two legal traditions resulting in an ambiguous legal framework. As such it is an indispensable method for achieving a univocal interpretation of the legal end product.


Rudolf Rijgersberg
Rudolf Rijgersberg is assistant professor Methods and Foundations of Law at Maastricht University.

Hester van der Kaaij
Hester van der Kaaij is promovendus PhD candidate in Legal Theory at Maastricht University.
Artikel

Tweeluik – Diptych: Juggling a red hot potato: Italy, the EU, and mandatory mediation

Tijdschrift Nederlands-Vlaams tijdschrift voor mediation en conflictmanagement, Aflevering 1 2013
Trefwoorden Italy, mandatory mediation, Italian Constitutional Court, European law
Auteurs Elisabetta Silvestri en Rob Jagtenberg
SamenvattingAuteursinformatie

    This diptych consists of two articles: the first, The Rise and Fall of Mediation in Italy, by Elisabetta Silvestri, analyzes the way in which the Italian Constitutional Court has recently (October-December 2012) struck down a Decree that had introduced mandatory mediation in a wide range of civil procedure areas in Italy. The second article, The EU’s Italian Job, by Rob Jagtenberg, discusses the way in which the Advocate-General with the Court of Justice of the European Union has dealt with the request for a preliminary ruling on the compatibility of the same Decree with European law (Opinion of 19 April 2013). It appears that at both Court levels, the subject was perceived as too risky to judge on the merits: mandatory mediation thus ends as a potato too hot to hold in a court’s hand.


Elisabetta Silvestri
Elisabetti Silvestri is associate professor of law at the University of Pavia, Italy.

Rob Jagtenberg
Rob Jagtenberg is a senior researcher at the Erasmus University Rotterdam, Departement of Law, and editor of TMD.
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.
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