Zoekresultaat: 18 artikelen

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Jaar 2013 x
Artikel

Access_open Legal Dogmatics and Academic Education

Tijdschrift Law and Method, 2013
Trefwoorden legal dogmatics, theory design, academic education, empirical cycle
Auteurs Jan Struiksma
SamenvattingAuteursinformatie

    Previously a model was developed whereby the evolution of dogmatic legal theory design can be made more explicit. This concerns, amongst other aspects, the application of the empirical cycle constructed by De Groot, which forms the final element of an evolution of the application of mundane knowledge to theory design. The starting point of this article is that this evolution must be ‘repeated’ during an academic study in empirical subjects. The objective is to investigate how this is done in the legal dogmatic education.


Jan Struiksma
Jan Struiksma is professor of administrative law at the Faculty of Law, Free University Amsterdam.
Artikel

Onlinegedragingen

Een risico voor hacken en persoonsgerichte cyberdelicten?

Tijdschrift Tijdschrift voor Criminologie, Aflevering 4 2013
Trefwoorden cybercrime, victimization, hacking, cyber stalking, cyber threats
Auteurs Jurjen Jansen MSc, Rutger Leukfeldt MSc, Dr. Johan van Wilsem e.a.
SamenvattingAuteursinformatie

    The number of Internet users who reported they have come into contact with cybercrime is substantial. This article examines three forms of cybercrime, namely: hacking, cyber stalking and cyber threats. Because cybercrime is relatively extensive in the life of Dutch citizens, it is important to gain insight into factors that influence victimization. By means of a secondary analysis of data from the first Dutch national cybercrime victim survey (N=9,161), it is assessed to which extend online behaviours affect victimization. In particular, online behaviours involving the use of communication applications affect victimization of the three aforementioned cybercrimes. The article provides suggestions for further research into cybercrime victimization.


Jurjen Jansen MSc
J. Jansen, MSc is als promovendus verbonden aan het lectoraat Cybersafety van NHL Hogeschool en de Politieacademie.

Rutger Leukfeldt MSc
E.R. Leukfeldt, MSc is als promovendus verbonden aan het lectoraat Cybersafety van NHL Hogeschool en de Politieacademie.

Dr. Johan van Wilsem
Dr. J.A. van Wilsem is universitair hoofddocent Criminologie aan de faculteit der rechtsgeleerdheid van de Universiteit Leiden.

Prof. dr. Wouter Stol
Prof. dr. W.Ph. Stol is lector Cybersafety aan NHL Hogeschool en de Politieacademie en bijzonder hoogleraar Politiestudies aan de Open Universiteit.

    In this interview with prominent representatives of the British Acas and the Belgian Social Mediators Service important developments in the ADR labour practice are discussed. In particular, the impact of the financial crisis and the ever advancing globalization process on the labour negotiating climate is the centre of attention.


Annie de Roo
Annie de Roo is hoofdredacteur van TMD, verbonden aan de Erasmus Universiteit Rotterdam en mediator.

Rob Jagtenberg
Rob Jagtenberg is docent aan de Erasmus Universiteit te Rotterdam en verricht aldaar vergelijkend onderzoek naar mediation en conflictmanagement in Europa. Tevens is hij redacteur van TMD.
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.

    This article seeks to critically analyse the European Commission's Proposal for a Council Regulation on jurisdiction, applicable law and recognition and enforcement of decisions in matters of matrimonial property regimes (COM (2011) 126). It focuses upon the coordination of the Proposal's provisions on jurisdiction and applicable law with the parallel provisions contained in other related EU private international law instruments, namely those relating to divorce (Brussels II bis and Rome III) and succession (Succession Regulation). In doing so, the article adopts a 'stress-test' approach, presenting scenarios in which interaction between these related instruments takes place. The compositions and circumstances of the fictitious couples in these scenarios are varied in order to fully illustrate the potential consequences of the interplay between the instruments. This article seeks to assess the extent to which (in)consistency exists between the current and proposed EU private international instruments and, by evaluating this interaction through a number of norms, how identified inconsistencies impact upon international couples' legal relationships. In order to ensure the analysis remains as up to date as possible, the article will also take into account relevant changes introduced in the latest revised versions of the Proposal.


Jacqueline Gray LL.M.
Jacqueline Gray studied law at the University of Glasgow (2006-2010) and European law at the Leiden University (2010-2011). Following this, she undertook a four-month internship at the Molengraaff Institute for Private Law and five-month traineeship at the European Parliament in Brussels. She is now a PhD student at the Molengraaff Institute for Private Law, where she is writing her dissertation on party autonomy in the EU private international law relating to family matters and succession.

Pablo Quinzá Redondo LL.M.
Pablo Quinzá Redondo, a research scholar funded by the Spanish Ministry of Education, Culture and Sport, is currently undertaking a PhD at the University of Valencia. His specialisation concerns 'The europeanisation of matrimonial property regimes from a substantive and private international law perspective'. Prior to commencing his PhD, he completed undergraduate degrees in both Law and Administration and Business management (2004- 2010), as well as a Master’s degree in Company Law (2010-2012), at the University of Valencia.
Artikel

De bescherming van klokkenluiders: recente lessen uit Australië

Tijdschrift Justitiële verkenningen, Aflevering 7 2013
Trefwoorden whistleblower protection, Australian legislation, human rights, anti-retaliation model, public sector integrity
Auteurs A.J. Brown
SamenvattingAuteursinformatie

    This article seeks to aid understanding of the ways in which different policy purposes, approaches and legal options can be combined in the design of better legislation, using Australia’s recently passed Public Interest Disclosure Act 2013. It provides a guide to key elements of the new legislation, as an example of legislative development taking place over a long period, informed by different trends. In particular, it is one of the first national laws to seek to integrate divergent approaches to the ‘anti-retaliation’ model of whistleblower protection, including its place in the employment law system, it sets new standards for the role of ‘public whistleblowing’ in such a regime, and provides new responses on basic questions of coverage, including which individuals are able to gain the benefit of the legislation. This provides lessons as to how different legal approaches might be better integrated, in pursuit of a clearer understanding of the interface between whistleblowing and other integrity reforms.


A.J. Brown
Prof. A.J. Brown is hoogleraar Public Policy and Law bij het Centre for Governance & Public Policy van de Griffith University in Australië. E-mail: A.J.Brown@griffith.edu.au.
Artikel

Access_open There is Only One Presumption of Innocence

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 3 2013
Trefwoorden burden of proof, German law, procedural rights, pretrial detention
Auteurs Thomas Weigend
SamenvattingAuteursinformatie

    Antony Duff proposes a comprehensive concept of the presumption of innocence, covering the period before, during and after a criminal process, both in an official (state vs. individual) and a non-official, civic sense. By that broad usage, the concept of presumption of innocence is getting blurred and risks losing its contours. I therefore suggest to keep separate matters separate. The presumption of innocence in the narrow sense that I suggest applies only where there exists a suspicion that an individual has committed a criminal offence. The important function of the presumption of innocence in that situation is to prevent an over-extension of state power against the individual under suspicion before that suspicion has been confirmed to be true beyond a reasonable doubt. A general presumption that all people abide by the law at all times is neither warranted nor necessary. It is not warranted because experience tells us that many people break some laws sometimes. And it is not necessary because a system of civil liberties is sufficient to protect us against official or social overreach based on a suspicion that we may commit crimes.


Thomas Weigend
Thomas Weigend is Professor of Criminal Law at the University of Cologne.
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.
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.

    In various neighbourhoods in Amsterdam tensions between their inhabitants are felt. Inhabitants are irritated by the behaviour of youths, polluted streets and nuisance from their neighbours. They are incapable or do not dare to address each other about this and to solve their problems by themselves. Instead they look towards the authorities for help, which are dealing with insufficient capacity. As a consequence it is getting harder and harder to address and correct each other. Small problems and conflicts develop into big and complex issues.
    Amsterdam authorities use various policy tools, pointed at both increasing its own decisiveness and credibility and at mobilizing civilians. Those policies are the Bully-approach, Neighbourhood Safety Teams, Self-protective Neighbourhoods and stimulation of civic initiatives. The reality is stubborn, but also shows bottom-up examples which function succesfully and independently from government approaches and programs. In these examples civic force plays an important role.
    These examples, knowledge and persons who play key roles can be brought together and are useful in the search for solutions of problems in other situations. This is most effective when civilians attack issues and are integrated with worthy instruments from the authorities. This will gradually enable a reconstruction of the current system and a social reacquisition of neighbourhoods. In this social ‘football ‘ team civilians would be the strikers, backed up by a strong and professional governmental midfield. This article consecutively defines the current problem, regards the governmental instruments, bottom-up initiatives. It ends up with the suggestion for the construction of a good teamplay between policy tools en bottom up initiatives.


Piet van Diepen
Piet van Diepen is mede-initiator van Wikistad, dat bijdraagt aan een maatschappij waar Eigen Kracht en Burgerkracht het uitgangspunt is bij de aanpak van problemen en de overheid aansluit. Als professionele onderzoeker, conceptontwikkelaar en burger combineert hij kennis op onder meer het gebied van veiligheid en armoedebestrijding met deze doelstelling.

A. Wallerman LLM
A. Wallerman LLM is a doctoral candidate at the University of Gothenburg.
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 The Value of Narratives

The India-USA Nuclear Deal in Terms of Fragmentation, Pluralism, Constitutionalisation and Global Administrative Law

Tijdschrift Erasmus Law Review, Aflevering 1 2013
Trefwoorden India-US Nuclear Deal, Nuclear Energy Cooperation, Non-Proliferation Treaty, Fragmentation, Constitutionalisation, Pluralism, Global Administrative Law
Auteurs Surabhi Ranganathan
SamenvattingAuteursinformatie

    ‘Fragmentation’, ‘pluralism’, ‘constitutionalisation’ and ‘global administrative law’ are among the most dominant narratives of international legal order at present. Each narrative makes a descriptive claim about the current state of the international legal order, and outlines a normative vision for this order. Yet we must not lose sight of the conflicts between, and the contingency of these, and other narratives. This article seeks to recover both conflicts and contingency by showing how each may be used to explain a given event: the inauguration of a bilateral civil nuclear cooperation between the United State and India, better known as the ‘India-US nuclear deal’. I explain how the four narratives may be, and were, co-opted at different times to justify or critique the ‘deal’. This exercise serve two purposes: the application of four narratives reveal the various facets of the deal, and by its example the deal illuminates the stakes attached to each of the four narratives. In a final section, I reflect on why these four narratives enjoy their influential status in international legal scholarship.


Surabhi Ranganathan
Junior Research Fellow, King’s College/Lauterpacht Centre for International Law, University of Cambridge.
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.
Redactioneel

Consument Markt & Mededinging

Tijdschrift Markt & Mededinging, Aflevering 4 2013
Auteurs Prof. mr. A.T. Ottow
Auteursinformatie

Prof. mr. A.T. Ottow
Prof. mr. A.T. Ottow is hoogleraar economisch publiekrecht, Europa Instituut, Universiteit Utrecht.
Artikel

Stilstaan of meebewegen?

Over de effectiviteit van het opsporingsproces binnen de politie, belicht vanuit de bestrijding van georganiseerde hennepteelt

Tijdschrift PROCES, Aflevering 3 2013
Trefwoorden Criminele netwerken, Opsporing, Politie, Georganiseerde misdaad
Auteurs Drs. Paul Duijn
SamenvattingAuteursinformatie

    Various paradigms on the structures of organized crime have shaped the criminal investigational approach within the Dutch police towards criminal networks. The idea of pyramid-shaped mafia structures, as dominant in the 1970s, led to large-scale and long-term criminal investigations, trying to get to the ‘top’ of the network. In the 1990s, the image of separate criminal groups, working independently from each other, led to isolated criminal investigations on distinct criminal networks. Today, new insights that have arisen from scientific studies and police practices call again for a renewal of investigational strategies. As shown in this article, criminal networks are not limited by social, cultural or physical boundaries and show a rapid recovery after interventions by state actors. For these reasons, the efficiency of police practices depends on the extent to which the police is able to move along with these networks.


Drs. Paul Duijn
Drs. Paul Duijn is criminoloog, recherchekundige en als strategisch analist werkzaam bij de Nederlandse Politie Eenheid Den Haag.
Artikel

Access_open Kuhn and Legal Research

A Reflexive Paradigmatic View on Legal Research

Tijdschrift Law and Method, 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.
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