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Artikel

Opinio juris as epistème: A constructivist approach to the use of contested concepts in legal doctrine

Tijdschrift Recht der Werkelijkheid, Aflevering 3 2016
Trefwoorden Opinio juris, Interpretive concepts, Customary law, Constructivism, Pierre Bourdieu, Peter Berger & Thomas Luckmann
Auteurs Associate Professor Olaf Tans
SamenvattingAuteursinformatie

    Seeing that the role of opinio juris in the identification of customary international law is essentially contested, this contribution seeks to explain how this concept plays a fruitful role in legal doctrine despite of, or perhaps even due to, this essential contestedness. To that effect the paper adopts a constructivist perspective, primarily drawing from Bourdieu’s theory of practice and Berger & Luckmann’s ideas about institutionalization. In this perspective, contested concepts such as opinio juris are conceived of as multifaceted tools of knowledge production in the hands of members of epistemic communities.


Associate Professor Olaf Tans
Olaf Tans works as legal philosopher and political scientist at Amsterdam University College and the Centre for the Politics of Transnational Law. His contribution to this special issue is part of a research line focusing on the social construction of normativity in legal doctrine. He has also published about constitutionalism, citizenship, democracy, and most recently (e.g. in Ratio Juris and Law & Literature) about the use of foundational narratives in public deliberation and law-finding.
Artikel

Moving access to justice ‘upstream’ from the courts

Tijdschrift Recht der Werkelijkheid, Aflevering 3 2015
Trefwoorden access to justice, legal problems, justice system, legal needs
Auteurs Ab Currie
SamenvattingAuteursinformatie

    A very large number of people experience everyday legal problems considered by them to be serious and difficult to resolve, the vast majority say it is important to resolve these problems, and virtually everybody experiencing legal problems takes some action to resolve them. However, the fact that very few people make use of the formal justice system suggests that the justice system is not meeting the legal needs of the public. One response would be to expand the traditional formal justice system to include an early-resolution services sector. An ERSS would encompass the early intervention and supported self-help objectives of many existing access to justice initiatives, but would go farther by conceiving what we mean by the justice system more broadly in a way that would accommodate what the everyday legal problems approach tells us about how the public experiences legal problems.


Ab Currie
Ab Currie, Ph.D. (Sociology, University of Toronto), is Senior Research Fellow at the Canadian Forum on Civil Justice, where he is currently involved in a range of research on access to civil justice mainly. Prior to joining the Forum, Ab was for over 30 years Principal Researcher in areas of legal aid and access to justice at the Federal Department of Justice in Canada. He has conducted extensive research in criminal and civil legal aid, in particular on unmet need for criminal legal aid and on the civil justice problems experienced by the public. Contact by email at abcurrie@sympatico.ca or acurrie@cfcj-fcjc.org.
Artikel

Social security and social welfare: barriers and retrograde policies, but cause for optimism?

Tijdschrift Recht der Werkelijkheid, Aflevering 3 2015
Trefwoorden social security, legal representation, means-testing, Britain, fees
Auteurs Amir Paz-Fuchs
SamenvattingAuteursinformatie

    This contribution addresses the limits placed on access to justice in the context of social services, with a particular, but not exclusive, focus on the UK, across five central platforms: legal representation, the financial barriers, the structure of the programme, the attitude of the bureaucracy, and the personal attributes of the client. The contribution finds that there exist, for decades, problematic elements that constitute barriers to justice in this area: the means-tested element in the programmes and the bureaucracy’s double role as provider of services and detector of fraud. But to them, in recent years, significant barriers were added: recent cuts in legal aid and the imposition of tribunal fees in the UK are retrograde steps, reverting 40 years of impressive achievements in the field.


Amir Paz-Fuchs
Amir Paz-Fuchs (D. Phil Oxford) is a Senior Lecturer at the School of Law, University of Sussex, where he teaches employment law, public law, and legal theory. In addition, he is a Visiting Research Fellow at the Centre for Socio-Legal Studies and a Research Associate at Wolfson College, both at the University of Oxford. He is also Co-Director of the ‘The Limits of Privatization’ research project, based at the Van Leer Institute in Jerusalem. He also served on the board of several human rights and social justice NGOs.
Artikel

Merits testing in the English legal aid system: exploring its impact in asylum cases

Tijdschrift Recht der Werkelijkheid, Aflevering 3 2015
Trefwoorden access to justice, asylum seekers, merits testing, English legal aid system
Auteurs Tamara Butter
SamenvattingAuteursinformatie

    In recent years, there has been much discussion on the legal aid cuts and reforms in England and Wales, and the possible consequences this would have on access to justice for vulnerable groups in society, including immigrants and asylum seekers. This contribution focuses on one element of the English legal aid system: merits testing by legal aid providers in asylum cases. It explores whether and, if so, how this aspect may affect the access to justice for asylum seekers lacking the financial means to pay privately for legal assistance and representation. The findings indicate that a merits test which makes access to legal aid on appeal conditional upon a case having at least 50% prospect of success and makes legal aid providers responsible for conducting this assessment may compromise asylum seekers’ ability to achieve justice both within and outside the existing body of law.


Tamara Butter
Tamara Butter is a PhD candidate at the Institute for Sociology of Law/Centre for Migration Law of the Radboud University of Nijmegen. Her research consists of a comparative case study into the professional decision making of asylum legal aid lawyers in the Netherlands and England.
Artikel

Access to justice in consumer law

Tijdschrift Recht der Werkelijkheid, Aflevering 3 2015
Trefwoorden consumer law, enforcement of consumer rights, costs of procedure, obstacles for enforcement
Auteurs Marco Loos
SamenvattingAuteursinformatie

    In many areas of private law, mandatory substantive law protects consumers. In this contribution, I will argue that awarding consumer rights without properly regulating the consumer’s access to the court system renders these rights unenforceable through the ordinary courts. Several obstacles to the proper enforcement of consumer rights by individuals are identified, ranging from consumers’ lack of knowledge of their rights to the formalities of proceedings, the use of complex jargon and the costs involved in court procedures. It is argued that these obstacles produce such disincentives for consumers to maintain their rights that the result is that they do so in an insufficient manner, which leads to under-enforcement of consumer law.


Marco Loos
Marco Loos is Professor of Private Law, in particular of European consumer law, at the Centre for the Study of European Contract Law of the University of Amsterdam in the Netherlands and member of the Board of the Ius Commune Research School.
Diversen

Sociology of law in European civil law countries

Some remarks and correspondent proposals

Tijdschrift Recht der Werkelijkheid, Aflevering 1 2015
Trefwoorden socio-legal studies, high theory, research, achievements and gaps
Auteurs Vincenzo Ferrari
SamenvattingAuteursinformatie

    In continental Europe, post-war sociology of law passed through diverse phases, swinging between grand theorizing and empirical research. In the last two decades, socio-legal studies have shown a more balanced approach with respect to these models. Neo-functionalism à-la Luhmann still takes the lead in high theory, although some more eclectic voices make themselves heard and some signs of renaissance of conflict theories have become visible again. Through an overview of the recent editorial policy of three influential journals in France, Germany and Italy, the author highlights that middle range socio-legal theory has successfully dealt with some relevant aspects of legal change of the last decades, in such fields as criminal justice, migrations, or family law. Yet, it has left aside other and no less important aspects, such as commerce and property laws, common goods, environment, and other crucial questions of our times. Thus, there is a risk for sociology of law not to perform its critical and pioneering task that belongs to its own tradition.


Vincenzo Ferrari
Vincenzo Ferrari is emeritus professor of philosophy and sociology of law. He has taught in the Universities of Cagliari, Bologna and Milan, and has been a visiting professor in diverse world’s academic institutions. He chaired the ISA Research Committee on Sociology of Law and was among the founders of the IISL, Oñati.

    In the course of it short existence, Socio-legal studies (SLS) in the Anglo-Saxon world has burgeoned into a rich and variegated field. Reviewing it is therefore a challenging task. I begin with some general reflections and an outline of recent developments. Although these indicate an extremely vibrant field, concerns have been expressed for the future. In my discussion of these, I argue that our analysis of SLS needs to be historicised since the emergence of SLS is connected to processes of social modernization and democratization. The erosion of these processes by neo-liberal discourses and policies is the background to a discussion of my own research into the impact of the cuts to civil legal aid in England and Wales. This leads me to conclude that the fundamental dissonance between neo-liberal rationality and social science may portend a difficult future, in particular for empirical work; however, I note too that other developments such as the ongoing juridification of society and new social media may make continued SL engagement irresistible.


Hilary Sommerlad
Hilary Sommerlad is professor of Law and Research Director of the Centre for Professional Legal Education and Research, University of Birmingham, and Fellow of the Academy of Social Sciences. Dr. Sommerlad’s research interests are access to justice, the cultural practices of the professional workplace and diversity. She is Articles Editor of Legal Ethics, and serves on the editorial boards of the Journal of Law and Society and the International Journal of the Legal Profession.
Praktijk

Understanding knowledge sharing between judges

A quantitative analysis

Tijdschrift Recht der Werkelijkheid, Aflevering 2 2014
Trefwoorden knowledge exchange, knowledge sharing behavior, knowledge management system, judicial knowledge
Auteurs Sandra Taal PhD
SamenvattingAuteursinformatie

    Over the last two decades, there has been a growing interest in the development and implementation of knowledge management systems. In the judicial context, these knowledge management systems are designed to support judges in the decision-making process by providing them with the knowledge that they need in order to deal with doubts or uncertainties in complex cases. However, less attention has been given to the related process of knowledge sharing between judges. In order to optimally benefit from the knowledge available in the organization, this process should be better understood and acted upon. The aim of this research project is to gain a better insight into the interactive process of knowledge sharing between judges. To this end, a research model has been developed which will be quantitatively tested on the basis of survey responses from judges.


Sandra Taal PhD
PhD Candidate

    Elbers et al. studied the impact of being involved in a compensation process on the health of the claimant/plaintiff. Although there is some evidence that being involved has a negative effect on health, there is contradictory evidence concerning the explanatory factors. The authors review various empirical studies, pinpoint the contradictory conclusions and analyse their methodological strengths and weaknesses. Studies concerning the influence of claim settlement processes on the wellbeing of claimants offer insights from which suggestions can be derived for improvement of the position of claimants.


Nieke Elbers
Nieke Elbers is neuropsychologist and post-doc researcher at the Faculty of Law at the VU University Amsterdam. She wrote her PhD thesis about empowerment of injured claimants, investigating claim factors, procedural justice, and e-health.

Arno Akkermans
Arno Akkermans is professor at the Faculty of Law at the VU University Amsterdam. His research interests concern the impact of law and legal procedure on the wellbeing and health of individuals, in the context of civil procedure in general, and of the settlement of personal injury claims in particular.

Pim Cuijpers
Pim Cuijpers is professor of clinical psychology and head of the Department of Clinical Psychology at the Faculty of Psychology and Education at the VU University Amsterdam. He is specialised in conducting randomised controlled trials and meta-analyses on prevention and psychological treatments of common mental disorders, especially depression and anxiety disorders.

David Bruinvels
David Bruinvels is an epidemiologist and occupational physician working at the Netherlands Society of Occupational Medicine (NVAB), the Netherlands Cancer Institute (NKI), and the VU University Amsterdam. His research concerns developing and investigating interventions to improve return to work.

Harry Willekens
Harry Willekens teaches jurisprudence and juvenile law at the University of Hildesheim and comparative inheritance law at the University of Hannover. His research focuses on the history and sociology of the legal regulation of the family in a broad sense. His last sociological publication: Child Care and Preschool Institutions in Europe. (Houndmills, Palgrave MacMillan 2008, coedited with Kirsten Scheiwe).
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