Zoekresultaat: 85 artikelen

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Artikel

De orthodoxe kerken en de mensenrechten in de 21ste eeuw

Tijdschrift Tijdschrift voor Religie, Recht en Beleid, Aflevering 1 2019
Trefwoorden Theologie, mensenrechten, menselijke waardigheid, oosters christendom
Auteurs Prof. dr. Alfons Brüning
SamenvattingAuteursinformatie

    The article examines and explains the relation of current Eastern Orthodox Theology to the concept of Human Rights. Putting the controversies into a larger historical and theological context, it seeks to highlight the conditions of a variety of Orthodox theological positions. Such positions, with their common features and strong differences, concern issues such as church and state, universalism or theological anthropology and human dignity. Considerations end with arguing, that much of the treasures of the Orthodox tradition still needs to be unearthed – to the benefit of Human Rights, and of all participants in current debates worldwide.


Prof. dr. Alfons Brüning
Prof. dr. A. Brüning werkt sinds 2007 als wetenschappelijk medewerker bij het Instituut voor Oosters Christendom (IvOC) aan de Radboud Universiteit Nijmegen. In 2012 werd hij benoemd tot bijzonder hoogleraar Orthodoxie, mensenrechten, vredesopbouw in Europa, onder andere aan de Protestantse Theologische Universiteit Amsterdam (PThU). Zwaartepunten van zijn onderzoek zijn de vroege moderne tijd in Oost-Europa (Polen, Litouwen, Oekraïne, Wit-Rusland, Rusland), religie in de Sovjet-Unie, religie en kerk in Oekraïne, orthodoxe theologie en mensenrechten.
Article

Access_open Evidence-Based Regulation and the Translation from Empirical Data to Normative Choices: A Proportionality Test

Tijdschrift Erasmus Law Review, Aflevering 2 2018
Trefwoorden evidence-based, regulation, proportionality, empirical law studies, law and society studies
Auteurs Rob van Gestel en Peter van Lochem
SamenvattingAuteursinformatie

    Studies have shown that the effects of scientific research on law and policy making are often fairly limited. Different reasons can be given for this: scientists are better at falsifying hypothesis than at predicting the future, the outcomes of academic research and empirical evidence can be inconclusive or even contradictory, the timing of the legislative cycle and the production of research show mismatches, there can be clashes between the political rationality and the economic or scientific rationality in the law making process et cetera. There is one ‘wicked’ methodological problem, though, that affects all regulatory policy making, namely: the ‘jump’ from empirical facts (e.g. there are too few organ donors in the Netherlands and the voluntary registration system is not working) to normative recommendations of what the law should regulate (e.g. we need to change the default rule so that everybody in principle becomes an organ donor unless one opts out). We are interested in how this translation process takes place and whether it could make a difference if the empirical research on which legislative drafts are build is more quantitative type of research or more qualitative. That is why we have selected two cases in which either type of research played a role during the drafting phase. We use the lens of the proportionality principle in order to see how empirical data and scientific evidence are used by legislative drafters to justify normative choices in the design of new laws.


Rob van Gestel
Rob van Gestel is professor of theory and methods of regulation at Tilburg University.

Peter van Lochem
Dr. Peter van Lochem is jurist and sociologist and former director of the Academy for Legislation.

    This paper examines how the distribution of social goods within a political community relates to decisions on membership boundaries. The author challenges two renowned accounts of such a relation: firstly, Walzer’s account according to which decisions on membership boundaries necessarily precede decisions on distribution; secondly, Benhabib’s account, according to which membership boundaries can be called into question on the basis of universalist claims. Departing from both accounts, the author concludes that actual changes in the pool of participants in practices of creation and exchange of social goods pressure a political community to redefine its distributive patterns and, accordingly, the boundaries of its formal political membership. This claim will be supported by the analysis of threshold cases decided by the EU Court of Justice, in which EU citizenship is invoked with the atypical purpose of granting rights to a specific group of non-formal members.


Dr Chiara Raucea
Chiara Raucea is lecturer at Tilburg Law School. A longer version of her article is included in her doctoral dissertation Citizenship Inverted: From Rights To Status?, defended in December 2017 at Tilburg University.

    Despite enjoying distinct and privileged constitutional statuses, the Indigenous minorities of Malaysia, namely, the natives of Sabah, natives of Sarawak and the Peninsular Malaysia Orang Asli continue to endure dispossession from their customary lands, territories and resources. In response, these groups have resorted to seeking justice in the domestic courts to some degree of success. Over the last two decades, the Malaysian judiciary has applied the constitutional provisions and developed the common law to recognise and protect Indigenous land and resource rights beyond the literal confines of the written law. This article focuses on the effectiveness of the Malaysian courts in delivering the preferred remedy of Indigenous communities for land and resource issues, specifically, the restitution or return of traditional areas to these communities. Despite the Courts’ recognition and to a limited extent, return of Indigenous lands and resources beyond that conferred upon by the executive and legislative arms of government, it is contended that the utilisation of the judicial process is a potentially slow, costly, incongruous and unpredictable process that may also not necessarily be free from the influence of the domestic political and policy debates surrounding the return of Indigenous lands, territories and resources.


Yogeswaran Subramaniam Ph.D.
Yogeswaran Subramaniam is an Advocate and Solicitor in Malaysia and holds a PhD from the University of New South Wales for his research on Orang Asli land rights. In addition to publishing extensively on Orang Asli land and resource rights, he has acted as legal counsel in a number of landmark indigenous land rights decisions in Malaysia.

Colin Nicholas
Colin Nicholas is the founder and coordinator of the Centre for Orang Asli Concerns (COAC). He received a PhD from the University of Malaya on the topic of Orang Asli: Politics, Development and Identity, and has authored several academic articles and books on Orang Asli issues. He has provided expert evidence in a number of leading Orang Asli cases. The law stated in this article is current as on 1 October 2017.
Artikel

Access_open Geloof in de liberale democratie

Tijdschrift Tijdschrift voor Religie, Recht en Beleid, Aflevering 3 2017
Trefwoorden Godsdienstvrijheid, Constitutionalisme, Democratie, Mensvisie, liberale democratie
Auteurs Mr. dr. Hans-Martien ten Napel
SamenvattingAuteursinformatie

    The liberal stance regarding religious freedom starts from a particular anthropology, which holds that in order to become fully human citizens must be able to build their lives on the foundations of their religious convictions. This starting point leads to distinctive conceptions of constitutionalism and democracy that make it possible for citizens to keep faith in liberal democracy. The so-called new critics of religious freedom, to the contrary, run the risk of eventually eroding trust in government by putting their substantial ideas of liberal democracy first and demanding of citizens and their organizations to act in conformity with these ideas.


Mr. dr. Hans-Martien ten Napel
Mr. dr. H.-M.Th.D. ten Napel is universitair hoofddocent Staats- en Bestuursrecht in Leiden. In 2014 ontving hij een Research Fellowship van het Center of Theological Inquiry in Princeton. Hierdoor kon hij aldaar een jaar deelnemen aan het onderzoeksproject ‘Law and Religious Freedom’. h.m.t.d.tennapel@law.leidenuniv.nl

    This paper discusses three approaches that can be helpful in the area of comparative rights jurisprudence, oriented in reference to three different kinds of studies that are possible in that area. To a large extent the methods for a comparative legal research depend on the research question and the goal of the researcher. First, a comparative law study may focus on the sociocultural context that led to the elaboration of differences or similarities in the protection of rights. Second, a comparative law approach can be a normative enterprise. It can focus on engaging in a philosophical analysis enlightened by the differences or similarities in the regulation of rights, in order to propose concrete solutions for the regulation of a right. Third, a comparative law approach can combine both elements of the two previously mentioned approaches. The paper discusses the challenges that the researcher faces in her attempt to use these methodologies and how these challenges can be overcome. The law as a normative discipline has its own constraints of justifiability. If what motivates a comparative law study is the search for principles of justice the researcher needs to persuade that her methodological approach serves her aim.


Ioanna Tourkochoriti
School of Law, NUI Galway, Ireland.

    The nexus between religion and law is an important subject of comparative law. This paper, however, finds that the majority of comparative theorists rely on the immanent frame; that legal legitimacy can and should be separated from any objective truth or moral norm. But the fact of the matter is many constitutional systems were founded based on a complicated mixture between the transcendent and immanent frame. Whereas in the immanent frame, human actions are considered self-constituting, in the transcendent frame, human actions were judged in light of their correspondence to higher, divine laws and purposes.
    This article argues that it is not sufficient for comparative theorists to offer a perspective from the immanent frame. Comparative theorists in law and religion should understand at least basic religious doctrines and know how to systematize those doctrines. In other words, comparative theorist of law and religion should work within the transcendent frame. By using a transcendent frame, comparative theorists will be able to excavate the underlying structure of religion, and so they will understand better how theological ideas influence law. Furthermore, this paper will also present a thought experiment in applying the transcendent frame in comparative constitutional studies.


Stefanus Hendrianto
Stefanus Hendrianto is a scholar at Boston College, School of Theology and Ministry. In recent years, he has been a visiting professor at Santa Clara University School of Law (2013-2015) and a guest scholar at the Kellogg Institute for International Studies at the University of Notre Dame (2015-2016). He holds a Ph.D. degree from the School of Law, University of Washington, Seattle and LLM degree from Utrecht University, Netherlands, in addition to his LLB degree from Gadjah Mada University, Indonesia.

    Comparative methodology is an important and a widely used method in the legal literature. This method is important inter alia to search for alternative national rules and acquire a deeper understanding of a country’s law. According to a survey of over 500 Dutch legal scholars, 61 per cent conducts comparative research (in some form). However, the methodological application of comparative research generally leaves much to be desired. This is particularly true when it comes to case selection. This applies in particular to conceptual and dogmatic research questions, possibly also allowing causal explanations for differences between countries. This article suggests that the use of an interdisciplinary research design could be helpful, and Hofstede’s cultural-psychological dimensions can offer a solution to improve the methodology of selection criteria.


Dave van Toor
D.A.G. van Toor, PhD LLM BSc works as a researcher and lecturer in Criminal (Procedural) Law and Criminology at the Universität Bielefeld.

    In the last few decades, we have witnessed the renaissance of Comparative Constitutional law as field of research. Despite such a flourishing, the methodological foundations and the ultimate ratio of Constitutional comparative law are still debated among scholars. This article starts from the definition of comparative constitutional law given by one of the most prominent comparative constitutional law scholars in Italy, prof. Bognetti, who defined comparative constitutional law as the main joining ring between the historical knowledge of the modern law and the history of the humankind in general and of its various civil realizations. Comparative constitutional law is in other words a kind of mirror of the “competing vision of who we are and who we wish to be as a political community” (Hirschl), reflecting the structural tension between universalism and particularism, globalization and tradition.
    The article aims at addressing the main contemporary methodological challenges faced by the studies of the field. The article argues that contemporary comparative constitutional studies should address these challenges integrating the classical “horizontal” comparative method with a vertical one - regarding the international and supranational influences on constitutional settings - and fostering an interdisciplinary approach, taking into account the perspective of the social sciences.


Antonia Baraggia
Emile Noël Fellow, Jean Monnet Center for International and Regional Economic Law & Justice, NYU School of Law and Post-doc Fellow in Constitutional Law, University of Milan. For helpful comments on an earlier draft I am grateful to Luca Pietro Vanoni, Sofia Ranchordas and two anonymous reviewers.

    The article discusses the contribution of comparative law to the study of federalism and decentralisation. In doing so, it stresses the relevance of the notion of federalising process, as elaborated by Carl J. Friedrich.


Giacomo Delledonne
Postdoctoral fellow in Constitutional Law, Scuola superiore Sant’Anna, Pisa, Italy. Email: giacomo. delledonne@gmail.com. Huge thanks go to Sofia Ranchordás and Irene Broekhuijse. I would also like to thank Paolo Carrozza, Paolo Addis, Ilaria Rivera and the anonymous reviewers for their precious suggestions and comments.
Artikel

Access_open The Demos as a Plural Subject

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 1 2017
Trefwoorden democracy, demos, normativity, Margaret Gilbert, joint commitment
Auteurs Bas Leijssenaar PhD
SamenvattingAuteursinformatie

    Existing conceptualizations of the demos fail to treat issues of composition and performativity consistently. Recent literature suggests that both aspects are required in a satisfactory account of the demos. An analysis of this literature suggests several desiderata that such an account must meet. I approach the definition of demos with a conceptual framework derived from Margaret Gilbert’s plural subject theory of social groups. I propose an account of demos as a plural subject, constituted by joint commitment. This account offers an improved and consistent understanding of normativity, composition, agency, and cohesion of demos.


Bas Leijssenaar PhD
Bas Leijssenaar is PhD-candidate at the Institute of Philosophy, Centre for Social and Political Philosophy of the University of Leuven.
Artikel

Access_open Belgium and Democratic Constitution-Making: Prospects for the Future?

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 1 2017
Trefwoorden constitutional change, democracy, participation, Belgium
Auteurs Ronald Van Crombrugge
Samenvatting

    How constitutions are changed – and more importantly: how they should be changed – is the subject of ongoing debate. There seems to be a growing consensus, however, that in order for a constitution to be considered legitimate it is required that it was created through a democratic process. This growing consensus stands in sharp contrast with the Belgian experience of constitutional change as an essentially elite-led process that takes place behind closed doors. This article seeks to explore the possibilities for more democratic forms of constitutional change in Belgium. It does so by evaluating and comparing two examples of democratic constitution-making, namely the constitution-making processes In South Africa (1996) and Iceland (2012). On the basis of these two examples, several concrete suggestions will be made, which are not only relevant for the Belgian case but can be applied more broadly to other countries as well.


Ronald Van Crombrugge
Article

Access_open Keck in Capital? Redefining ‘Restrictions’ in the ‘Golden Shares’ Case Law

Tijdschrift Erasmus Law Review, Aflevering 4 2016
Trefwoorden Keck, selling arrangements, market access, golden shares, capital
Auteurs Ilektra Antonaki
SamenvattingAuteursinformatie

    The evolution of the case law in the field of free movement of goods has been marked by consecutive changes in the legal tests applied by the Court of Justice of the European Union for the determination of the existence of a trade restriction. Starting with the broad Dassonville and Cassis de Dijon definition of MEEQR (measures having equivalent effect to a quantitative restriction), the Court subsequently introduced the Keck-concept of ‘selling arrangements’, which allowed for more regulatory autonomy of the Member States, but proved insufficient to capture disguised trade restrictions. Ultimately, a refined ‘market access’ test was adopted, qualified by the requirement of a ‘substantial’ hindrance on inter-State trade. Contrary to the free movement of goods, the free movement of capital has not undergone the same evolutionary process. Focusing on the ‘golden shares’ case law, this article questions the broad interpretation of ‘capital restrictions’ and seeks to investigate whether the underlying rationale of striking down any special right that could have a potential deterrent effect on inter-State investment is compatible with the constitutional foundations of negative integration. So far the Court seems to promote a company law regime that endorses shareholders’ primacy, lacking, however, the constitutional and institutional legitimacy to decide on such a highly political question. It is thus suggested that a refined test should be adopted that would capture measures departing from ordinary company law and hindering market access of foreign investors, while at the same time allowing Member States to determine their corporate governance systems.


Ilektra Antonaki
Ilektra Antonaki, LL.M., is a PhD candidate at Leiden University, The Netherlands.

    This article presents an account of sovereignty as a concept that signifies in jural terms the nature and quality of political relations within the modern state. It argues, first, that sovereignty is a politico-legal concept that expresses the autonomous nature of the state’s political power and its specific mode of operation in the form of law and, secondly, that many political scientists and lawyers present a skewed account by confusing sovereignty with governmental competence. After clarifying its meaning, the significance of contemporary governmental change is explained as one that, in certain respects, involves an erosion of sovereignty.


Martin Loughlin
Martin Loughlin is Professor of Public Law at the London School of Economics and Political Science and EURIAS Senior Fellow at the Freiburg Institute of Advanced Studies (FRIAS).

    This article investigates and classifies the different meanings of the term sovereignty. What exactly do we try to convey when using the words “sovereign” or “sovereignty”? I will argue that, when saying that X is sovereign, we can mean five different things: it can mean that X holds the capacity to force everyone into obedience, that X makes the laws, that the legal and political order is created by X, that X holds the competence to alter the basic norms of our legal and political order, or that X is independently active on the international stage. These different usages of the term are of course related, but they are distinct and cannot be fully reduced to one another.


Raf Geenens
Raf Geenens is an assistant professor of Ethics and Legal Philosophy at the Institute of Philosophy, University of Leuven.

    This article uses the rise of referendum democracy to highlight the tenacity of modern nationalism in Western Europe. The proliferation of direct democracy around the world raises important questions about the health of representative democracy. The paper offers a theoretical re-evaluation of the role of the referendum, using the 2014 referendum on Scottish independence to challenge some of the traditional democratic criticisms of popular democracy. The final part of the paper addresses the specific application of referendums in the context of sub-state nationalism, addressing what might be called `the demos question'. This question was addressed by the Supreme Court in Canada in the Quebec Secession Reference but has also been brought to the fore by the Scottish reference and the unresolved issue of self-determination in Catalonia.


Stephen Tierney
Stephen Tierney is Professor of Constitutional Theory at the University of Edinburgh and Director of the Edinburgh Centre for Constitutional Law.

    This article challenges the assumption, widespread in European constitutional discourse, that ‘national identity’ and ‘constitutional identity’ can be used interchangeably. First, this essay demonstrates that the conflation of the two terms lacks grounding in a sound theory of legal interpretation. Second, it submits that the requirements of respect for national and constitutional identity, as articulated in the EU Treaty and in the case law of certain constitutional courts, respectively, rest on different normative foundations: fundamental principles of political morality versus a claim to State sovereignty. Third, it is argued that the Treaty-makers had good reasons for writing into the EU Treaty a requirement of respect for the Member States’ national identities rather than the States’ sovereignty, or their constitutional identity.


Elke Cloots
Elke Cloots is post-doctoral researcher at the Centre for Government and Law, University of Hasselt.

    Legal and sociological theories of sovereignty disagree about the role of legal and social matters in grounding state power. This paper defends a constructivist view, according to which the constitution is a judgment of practical reason. The paper argues that a constitution sets out a comprehensive institutional architecture of social life in terms of principles and official roles that are necessary for any legitimate scheme of social cooperation to exist. It follows that legal and sociological theories of sovereignty capture only part of the truth of sovereignty. Legal reasoning engages with political power, but it is not determined by it. There is no causal chain between power and validity, as suggested by the legal positivists. The relation between power and law is interpretive, not causal. It follows that the circularity of law and the constitution, namely the fact that the law makes the constitution and the constitution makes the law, is not a vicious circle. It is part of an ordinary process of deliberation.


Pavlos Eleftheriadis
Pavlos Eleftheriadis is Associate Professor of Law and Fellow in Law at Mansfield College, University of Oxford.
Artikel

Paus Benedictus XVI: onvermoed rechtsfilosoof?

Tijdschrift Tijdschrift voor Religie, Recht en Beleid, Aflevering 2 2016
Trefwoorden Rechtsfilosofie, paus Benedictus XVI, achtergrondcultuur, Rechtspositivisme
Auteurs Mr. dr. Richard Steenvoorde
SamenvattingAuteursinformatie

    During his pontificate pope Benedict XVI held five important speeches on democracy and law. In a new study, edited by Marta Cartabia and Andrea Simonici, it is argued that these speeches constitute a papal legal philosophy on the foundation of law. This book review explores that claim. Did emeritus pope Benedict XVI have a distinctive legal philosophy? May be, but the material covered in the book might not be enough to fully support the status of pope Benedict XVI as a legal philosopher. What is needed is a more integral study that includes other papal statements on the principles of law (for instance to the Roman Rota) on the one hand, and the work of the theologian Joseph cardinal Ratzinger before he became pope Benedict XVI on the other hand.


Mr. dr. Richard Steenvoorde
Mr. dr. R.A.J. Steenvoorde O.P. is lid van de Orde der Predikers (dominicanen) en woont en werkt in Oxford (Blackfriars Hall). Hiervoor was hij onder andere secretaris van het Interkerkelijk Contact in Overheidszaken (CIO) en jurist ad extra voor het Secretariaat van de Rooms Katholieke Kerk in Nederland.
Artikel

Private kwaliteitsborging als wetgevingsvraagstuk

Tijdschrift RegelMaat, Aflevering 3 2016
Trefwoorden private kwaliteitsborging, regulering, toezicht
Auteurs dr. A.R. Neerhof
SamenvattingAuteursinformatie

    Bij zowel de Europese als de nationale overheid is er al meer dan twee decennia lang een duidelijke belangstelling voor private kwaliteitsborging als een instrument voor regulering en toezicht naast exclusief overheidsoptreden. Dit past bij de gedachte dat in de samenleving ook veel kan worden gereguleerd zonder dat de overheid daar meteen aan te pas hoeft te komen. De auteur bespreekt dit instrument als wetgevingsvraagstuk. Daarbij komen de modaliteiten van private kwaliteitsborging aan bod en welke aandachtspunten in acht moeten worden genomen als de wetgever kiest voor private kwaliteitsborging. Deze aandachtspunten zijn te ontlenen aan beginselen van de democratische rechtsstaat en beginselen van behoorlijke wetgeving, goed bestuur en de open markt. Aan het slot trekt de auteur enkele conclusies over op welke wijze de overheid rekening moet houden met private kwaliteitsborging bij de totstandkoming van wetgeving.


dr. A.R. Neerhof
dr. A.R. (Richard) Neerhof is als universitair hoofddocent bestuursrecht verbonden aan de Vrije Universiteit Amsterdam en verricht onderzoek in het programma ‘Public Contracts: Law & Governance’.
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