Zoekresultaat: 13 artikelen

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Jaar 2013 x
Artikel

Access_open Skeptical Legal Education

How to Develop a Critical Attitude?

Tijdschrift Law and Method, februari 2013
Trefwoorden academic learning, skepticism, Oakeshott, judgment, Critique
Auteurs Bart van Klink en Bald de Vries
SamenvattingAuteursinformatie

    Law teachers at the university want students to develop a critical attitude. But what exactly does it mean to be critical and why is it important to be critical? How can a critical attitude be promoted? In this article we intend to elucidate the role that critical thinking may play in legal education. We will introduce the idea of skeptical legal education, which is to a large extent based on Michael Oakeshott’s understanding of liberal learning but which relativizes its insistence on the non-instrumentality of learning and reinforces its critical potential. Subsequently, the article presents a teaching experiment, where students, based on self-organization, study and discuss basic texts in order to encourage critical thinking.


Bart van Klink
Bart van Klink is professor of Legal Methodology at VU University Amsterdam and head of the Department of Legal Theory and Legal History at VU University Amsterdam.

Bald de Vries
Ulbaldus de Vries is lecturer of Legal Theory at the Department of administrative and constitutional law and jurisprudence at the Faculty of law, Utrecht University. He is a founding-member of the Working Group on Reflexive Modernisation and Law.
Artikel

Access_open Empirical Facts: A Rationale for Expanding Lawyers’ Methodological Expertise

Tijdschrift Law and Method, februari 2013
Trefwoorden empirical facts, research methods, legal education, social facts
Auteurs Terry Hutchinson
SamenvattingAuteursinformatie

    This article examines the importance of the social evidence base in relation to the development of the law. It argues that there is a need for those lawyers who play a part in law reform (legislators and those involved in the law reform process) and for those who play a part in formulating policy-based common law rules (judges and practitioners) to know more about how facts are established in the social sciences. It argues that lawyers need sufficient knowledge and skills in order to be able to critically assess the facts and evidence base when examining new legislation and also when preparing, arguing and determining the outcomes of legal disputes. For this reason the article argues that lawyers need enhanced training in empirical methodologies in order to function effectively in modern legal contexts.


Terry Hutchinson
Terry Hutchinson is Associate Professor, Law School at QUT Faculty of Law.
Artikel

Access_open Alternative Methodologies: Learning Critique as a Skill

Tijdschrift Law and Method, februari 2013
Trefwoorden governmentality, methodology, method, skill
Auteurs Bal Sokhi-Bulley
SamenvattingAuteursinformatie

    How can we teach critical legal education? The article tackles this key question by focusing on the role of methodology in legal education and research. I argue that critical legal education requires marketing methodology as a ‘skill’, thereby freeing it from what students and researchers in Law often view as the negative connotations of ‘theory’. This skill requires exploring ‘alternative methodologies’ – those critical perspectives that depart from legal positivism and which Law traditionally regards as ‘peripheral’. As an example, the article explores the Foucauldian concept of governmentality as a useful methodological tool. The article also discusses the difference between theory, methodology and method, and reviews current academic contributions on law and method(ology). Ultimately, it suggests a need for a ‘revolt of conduct’ in legal education. Perhaps then we might hope for students that are not docile and disengaged (despite being successful lawyers) but, rather, able to nurture an attitude that allows for ‘thinking’ (law) critically.


Bal Sokhi-Bulley
Bal Sokhi-Bulley is Lecturer in Law atQueen’s University in Belfast.
Article

Access_open From Legal Pluralism to Public Justification

Tijdschrift Erasmus Law Review, Aflevering 3/4 2013
Trefwoorden legal pluralism, diversity and law, law and justification, concept of law
Auteurs Dr. Emmanuel Melissaris
SamenvattingAuteursinformatie

    The paper offers an argument for a conception of legal pluralism, which has some substantive upshots and at least partly alleviates that legal pluralism may regress to rampant relativism. In particular, I will argue that law in its pluralist conception is inextricably linked to the requirement of public justification. This is not by way of appealing to any transcendental normative ideals but as a matter of entailment of the very practice of law. But, perhaps to the disappointment of many, this procedural requirement is the only practical consequence of the concept of law. For thicker, substantive limits to what law can do and for ways in which legal pluralism may be reduced in real contexts one will have to turn to the actual circumstances furnishing the law with content and a different kind of thinking about the law.


Dr. Emmanuel Melissaris
Associate Professor of Law, Law Department, London School of Economics and Political Science. I am grateful to Sanne Taekema and Wibo van Rossum as well as the two anonymous referees for their helpful critical comments. A version of this paper was presented at the School of Law, Queen Mary University of London. I am indebted to all the participants in that seminar and particularly to Roger Cotterrell, Ann Mumford, Maskymilian del Mar, Prakash Shah, Valsamis Mitsilegas, Wayne Morrison, Michael Lobban, Richard Nobles and David Schiff. Many thanks also to Sean Coyle, George Pavlakos, Alexis Galan Avila and Mariano Croce for their valuable comments on earlier drafts of the paper. I am solely responsible for all remaining errors.
Article

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

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

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


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

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

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

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


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

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

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

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


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

Regionale risicoprofielen ter versterking van veiligheidscapaciteiten

Overzicht en evaluatie tegen de achtergrond van het externe-veiligheidsbeleid

Tijdschrift Tijdschrift voor Veiligheid, Aflevering 3 2013
Trefwoorden Regional Risk Assessment, all-hazards approach, multi-criteria evaluation, likelihood estimation, risk diagram.
Auteurs Charles Vlek
SamenvattingAuteursinformatie

    A regional risk profile (RRP) is a systematic ordering – by likelihood and impact seriousness – of identified hazards and threats in one of the Netherlands’ 25 safety regions. Since 2010, RRPs follow the Dutch National Risk Assessment (NRA) as a basis for prioritising regional safety capacities. In Europe, RRPs are proliferating, and the corresponding risk-assessment approach is further spreading internationally. The methodology comprises risk identification, scenario development, multi-criteria impact evaluation, expert likelihood estimation, a two-dimensional risk diagram and an analysis and prioritisation of safety capabilities. A compact overview and discussion is provided of the 25 published RRPs for the Netherlands, each covering between 9 and 40 hazards and threats, along with their most and least worrying risk scenarios. It appears that for many regions pandemic disease, electricity black-out and major flooding are most worrying, while transport accident, industry fire and disturbance of water supply are (relatively) least worrying. Also, in different regions similar risk scenarios (e.g., pandemic disease and electricity black-out) are assessed rather differently, both by likelihood and by impact seriousness. Apparent weaknesses of the RRP (and the NRA) approach so far are, among other: lack of stakeholder involvement, rigid multi-criteria impact evaluation, hybrid methods for likelihood estimation, forced comparison of disparate risk scenarios, and unclear decision rules for risk acceptance. Independent review and validation of major RRP components is recommended for strengthening overall results as a reliable basis for regional safety policies. The ‘new risk thinking’ is considered in view of the long-problematic standard-setting approach about Individual Risk and Group Risk in the framework of Dutch external-safety policies. The RRP approach may be called ambitious and much-demanding. External validation and closer cooperation between safety policy-makers and scientists seem desirable.


Charles Vlek
Prof. dr. Charles Vlek is emeritus hoogleraar omgevingspsychologie en besliskunde aan de Faculteit Gedrags- en Maatschappijwetenschappen, Grote Kruisstraat 2/I, 9712 TS Groningen E-mail: c.a.j.vlek@rug.nl.
Artikel

Access_open Private law and ethical life

Honneth on legal freedom and its pathologies

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 2 2013
Trefwoorden Honneth, Hegel, social freedom, legal freedom, law, pathologies
Auteurs Jan Ph. Broekhuizen
SamenvattingAuteursinformatie

    In Das Recht der Freiheit Axel Honneth develops his concept of social freedom. In this article I discuss Honneth’s project and critique one of its crucial aspects: Honneth’s views on the disruptive role of legal freedom in our society and its dependent relation to the sphere of social freedom. I argue that in his attempt in Das Recht der Freiheit to reactualize Hegel’s discourse on the realization of freedom for our time, Honneth risks mistranslating Hegel’s discourse of ‘right’ by denying the sphere of legal relations a constitutive role for true freedom, and that because of this Honneth’s own theory of social freedom suffers: it becomes less clear whether it can still offer helpful insights into the proper place of legal freedom in our society.


Jan Ph. Broekhuizen
Jan Broekhuizen is an attorney (advocaat) in Amsterdam and a deputy judge at the Court of Appeals in Den Bosch (the Netherlands). He holds degrees in both law and philosophy.
Artikel

Access_open Absolute Positivism

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

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


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

Access_open The Role of Hierarchy, Example, and Language in Learning

A Confrontation between a Liberal and a ‘Critical’ Understanding of Legal Education

Tijdschrift Law and Method, januari 2013
Trefwoorden skeptical legal education, academic learning, Critique, Knowledge, CLS, liberalism, power
Auteurs Bart van Klink
SamenvattingAuteursinformatie

    In The Voice of Liberal Learning, Michael Oakeshott characterizes learning as a strictly non-instrumental activity. In schools and universities, knowledge is acquired for its own sake. Obviously, this liberal understanding of education differs fundamentally from a ‘critical’ notion of education as advocated by Duncan Kennedy and other members of the CLS movement. From a ‘critical’ perspective, Oakeshott’s conception may be seen as yet another attempt – typical for liberalism and conservatism alike – to depoliticize the process of knowledge production and reproduction and to conceal (and thereby to strengthen and legitimize) its effects on the distribution of power, wealth, status and so forth in society. In this paper, the author will confront both views with each other, especially within the context of legal education. The general purpose is to develop a notion of skeptical legal education, which is to a large extent based on Oakeshott’s understanding of liberal learning but which relativizes its insistence on the non-instrumentality of learning and reinforces its critical potential.


Bart van Klink
Bart van Klink is professor of Legal Methodology at VU University Amsterdam and head of the Department of Legal Theory and Legal History at VU University Amsterdam.
Artikel

Access_open Kuhn and Legal Research

A Reflexive Paradigmatic View on Legal Research

Tijdschrift Law and Method, januari 2013
Trefwoorden legal paradigm, scientific revolution, social theory, reflexivity, responsibility, risk society, cosmopolitanism
Auteurs Ubaldus de Vries
SamenvattingAuteursinformatie

    This article seeks to describe a paradigmatic view on legal research, based on the thought processes underlining Kuhn’s The Structure of Scientific Revolutions, in particular as how revolutionary change is coming about through a reflexive attitude towards developments that do not fit in the prevailing assumptions in an existing paradigm or research methodology. It allows for a description of ‘normal legal research’ and the assumptions upon which normal legal research is based. It also allows for an explanation as to how these assumptions are no longer exclusively valid but carry with them limitations in the face of structural developments at the level of society. An important feature of the paradigmatic view, then, is that it is able to take issue with these developments by incorporating social theory in our understanding of law.


Ubaldus de Vries
Ulbaldus de Vries is lecturer of Legal Theory at the Department of administrative and constitutional law and jurisprudence at the Faculty of law, Utrecht University. He is a founding-member of the Working Group on Reflexive Modernisation and Law.
Article

Access_open Between a Rock and a Hard Place: Treaty-Based Settlement of Terrorism-Related Disputes in the Era of Active United Nations Security Council Involvement

Tijdschrift Erasmus Law Review, Aflevering 2 2013
Trefwoorden Terrorism, inter-state dispute, international treaties, the United Nations Security Council, the International Court of Justice
Auteurs Nathanael Tilahun Ali LL.M.
SamenvattingAuteursinformatie

    The United Nations Security Council has become a crucial actor in international counterterrorism by not only spurring the taking of preventive and suppressive measures against terrorist individuals and groups, but also by taking actions against states that are said to stand in the way. The Security Council's actions against such states invariably arise from accusations by other states, such as accusations of refusal to extradite suspects of terrorism or responsibility for supporting terrorists. Meanwhile, most such issues of dispute are covered under international treaties relating to terrorism, which provide for political (negotiation) and judicial (arbitration and adjudication) mechanisms of dispute settlement. The Security Council's actions against states in connection with terrorism, therefore, involve (explicit or implicit) factual and legal determinations that affect the legal positions of the disputing states under the applicable international treaties relating to terrorism. The point of departure of this paper is that, in this respect, the Security Council effectively becomes an alternative to the treaty-based dispute-settlement mechanisms. The article centrally contends that the Security Council effectively acts as a more attractive alternative to treaty-based dispute-settlement mechanisms for pursuing terrorism-related (legal) disputes between states, without providing a meaningful platform of disputation that is based on equality of the parties. And the Security Council's relative attractiveness, arising from the discursive and legal superiority its decisions enjoy and the relative convenience and expediency with which those decisions are delivered, entails the rendering of resort to treaty-based dispute-settlement mechanisms of little legal consequence. The point of concern the article aims to highlight is the lack of platform of disputation some states are faced with, trapped between a hostile Security Council that makes determinations and decisions of legal consequence and an unhelpful treaty-based dispute-settlement mechanism.


Nathanael Tilahun Ali LL.M.
PhD Candidate in public international law, Erasmus School of Law. E: ali@law.eur.nl. I would like to thank Prof. Xandra Kramer and Prof. Ellen Hey for their valuable comments on an earlier draft of this article. The usual disclaimer applies.
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