Laura M. Henderson
You are sitting at your desk – as an academic, lawyer, policy maker or judge. You are pondering a legal issue and need to figure out what the law on this matter means for the question at hand. It can be as simple as having to decide whether a tricycle falls under the local prohibition of vehicles in the park or as complex as a constitutional challenge to an intricate, transnational economic rescue plan. How should you decide how to interpret the applicable law? This contribution argues that a postmodern ethics of just judgment points the way forward. Such a mode of just judgment calls on our interpreter to constantly interrogate the boundaries of the law and to make decisions that preserve space for future renegotiations of those boundaries.
Legal philosophers are often criticised for being out of touch with legal practice. At best, their theories provide a highly abstract but dated understanding of what law is. In a recent prize-winning book entitled A Realistic Theory of Law legal philosopher Brian Tamanaha argues that this often heard critique is true. Many legal philosophers fail to adequately explain how law and legal institutions function: they rarely succeed in addressing the current social context in which law is made and applied. Tamanaha maintains that this lack of attention to the complexity of legal practice is endemic to the field of jurisprudence today, but considers a particular jurisprudential strand of thought to be responsible for this neglect. As he explains: “Jurisprudence in recent decades has become increasingly abstract, specialized, and narrow. Analytical jurisprudence, dominated by legal positivists, has traveled the furthest in this direction.” If legal philosophers, and in particular those who are part of the analytical tradition of jurisprudence, fail to take law in context seriously, what aspects of legal practice should they be concerned with? In this blog, I critically assess Tamanaha’s realistic approach to law and contrast it with the approach I take in my recently defended doctoral thesis. Although I agree with Tamanaha’s critique of contemporary jurisprudence, I argue that legal theories that are out of touch with legal practice should be amended and further developed.
Brianne McGonigle Leyh
From Peru to Canada to East Timor, following periods of serious conflict or gross human rights violations, societies often look to address the past in order to bring about greater accountability (trials), reparation (victim compensation), and truth (truth commissions). To date, more than 40 truth commissions have been established around the world, with the South African Truth and Reconciliation Commission being the most well-known example. Generally speaking, truth commissions are officially sanctioned, temporary, non-judicial investigative bodies designed to produce a final report describing the patterns of violence and abuse, its causes and consequences (Hayner 2011 at 11-12). They do this by taking, collecting, and analysing statements from victims, witnesses, and perpetrators, holding public hearings, carrying out exhumations, and researching and investigating allegations of wrongdoing. The claimed benefits are wide-ranging: disclosure of the truth, creation of an historical record, promotion of national healing, individual catharsis, and acknowledgement and redress for victims. While there is debate about whether truth-seeking processes can deliver these benefits, they may be able to pay greater attention to social justice concerns than criminal trials or reparation processes can. In this blog, based on a recently published chapter in the book The Global Impact and Legacy of Truth Commissions, I explain why truth commissions, while contributing modestly to achieving social justice through their structures, processes and outcomes, cannot in themselves achieve these goals.
Julie Fraser & Brianne McGonigle Leyh
Reparations are an old concept in both domestic and international law. Victims have long been repaired in some way for the harms they suffered themselves, to their families or property. Following World War II, victims received some type of reparation, usually paid by the State, for their profound losses, and just last year the Dutch Railways NS announced that it would pay reparations to victims for its role in transportation for the Nazi regime. In the USA there have been enduring discussions about the yet unpaid reparations for slavery. Along with these developments, there have been changes to the approaches taken to reparations. Firstly, reparations have been recognised as part of a victim’s right under international law. Secondly, critiques have arisen regarding the traditional approach of reparations that seeks to restore victims to the position they were in before the harm occurred. Academics and practitioners have criticised this approach as failing to address socio-economic disparities and unequal power structures, which may have led to the victimisation in the first place. The recent transformative justice movement, and transformative reparations in particular, grew out of the belief that it is ineffectual to place marginalised victims back into positions of marginalisation following serious harm. This blog, based on a recently published article, critically examines transformative reparations within the human rights and criminal context, and explores whether the concept of transformation is changing the game.
In October 2019, The Hague Court of Appeal rendered an important judgment in the Urgenda case. Urgenda is a Dutch foundation fighting for a sustainable society, which started a legal case to force the Dutch government to adopt more stringent climate policies. In that case, The Hague Court of Appeal found a violation of Articles 2 (right to life) and 8 (right to respect for private and family life) of the European Convention on Human Rights (ECHR), and ordered the Dutch State to reduce greenhouse gas emissions by at least 25 per cent by the end of 2020. Inspired by this judgment, the NGO Milieudefensie (Friends of the Earth Netherlands), together with several related organisations, has taken yet another step in climate change litigation in the Netherlands by summoning Shell, one of the largest oil companies in the world. Although Milieudefensie is petitioning a company instead of a State, the claim is the same as the one against the State in the Urgenda case. Milieudefensie requests the court to order Shell to reduce its greenhouse gas emissions. This claim is founded on the argument that Shell is guilty of hazardous negligence and violates human rights because of its (lack of a) climate policy. This argument shows that Milieudefensie has not only taken a further step in climate change litigation, but also contributes to the trend of increasingly holding private actors accountable for human rights violations. In this blog, I discuss Milieudefensie’s claim in more detail, and analyse whether, and how, human rights arguments can be used to impose greenhouse gas reduction orders on private actors. Continue reading
Last week, I listened to a podcast in NPR’s Rough Translation series that wason collecting the dead in Mosul, Iraq in 2018. The podcast is about Sroor Al-Hosayni, a 23 year old Iraqi woman who heads a team of volunteers who remove dead bodies from the rubble of Mosul, eight months after the city was liberated from its occupation by the Islamic State (IS/ISIS). Fascinated, I did more digging on the internet and found that Sroor’s work as a ‘body-collector’ has also been covered by the BBC and VICE news. In this post, I use these sources to recount the main parts of Sroor’s role as a ‘body collector’ and show how her story brings to light a set of rules in international humanitarian law (IHL) on ‘the collection of the dead’ that rarely get any attention in academic writings. Sroor’s story vividly illustrates the necessity of the rule that parties to an armed conflict should search for and collect the bodies of the dead ‘without distinction’ i.e. without taking account of their affiliation. The fact that Sroor gets into trouble with the authorities for collecting IS bodies evidences wider trends of counter-terrorism legislation impeding humanitarian action. Sroor’s story also illustrates the danger that the unsupervised removal of bodies may not only pose a health and security risk, but may also interfere with the gathering of forensic evidence needed in war crimes prosecution
Stefan Philipsen & Erlis Themeli
The exercise of government power is increasingly automated. Modern technology makes it possible to reduce the direct human involvement in a great variety of government domains. Human involvement in domains like tax and social security is already limited to the most complex cases. One of the questions this development raises is whether artificial intelligence (AI) will also impact other branches of government, besides the executive. Last month the Estonian ministry of Justice ordered the design of a ‘Robot Judge’ to help the judiciary fight backlogs in the Estonian small claims procedure. And as futuristic as a ‘Robot Judge’ may sound, the Estonian efforts do not stand alone. Also in the Netherlands, the use of AI by the judiciary is on the political agenda. This makes sense since the use of AI by the judiciary holds many promises. Procedures are expected to be cheaper, faster, and less biased. However there are, as with the automation of executive government decisions, also concerns. In this blog we give a short introduction to the development of the Robot Judge.
Kees van den Bos
Insight into social psychology is relevant for the understanding of how the law works in courtrooms, how people perceive the law as a legal system, and how officials function in several legal contexts, such as in the areas of legal decision making, law making, and law enforcement. In other words, social psychology is needed to understand how the law works (or law in action). Furthermore, in part because both social psychology and law share an emphasis on behavioural regulation, notions about how the law should work (or law in the books) can also profit from an understanding of basic principles of social psychology. Importantly, insights into the social psychology of law are not merely an application of basic social psychological principles in legal contexts. Rather, studying social psychology and the law often provides insights that may well feed into basic social psychological research. Thus, both law and social psychology can learn from each other. In this blog I reflect on the two-way street between law and social psychology.
The Egenberger and Bauer judgments concern what has been described as probably the most important development in EU fundamental rights law in a long time (Sarmiento): establishing the horizontal direct effect of some of the provisions of the EU Charter of Fundamental Rights (Charter). The Bauer judgment also established the duty of consistent interpretation in relation to the Charter. Despite the clear terms of the judgments, the role played by individuals as either beneficiaries or addressees of the Charter is worthy of further reflection; is the Charter a direct source of rights and obligations in disputes between individuals? I first discuss in a more general way the remedies of direct effect and consistent interpretation in EU law before I turn to the Egenberger and Bauer judgments and their meaning for consistent interpretation and in particular the direct effect of the Charter in disputes between individuals. Continue reading
The rule of law is under pressure in many States. In recent times, for example, Hungary and Poland have been severely criticised for changes they have made to their systems that undermine judicial impartiality and independence. Moreover, in several States, the pluriformity of the media is under pressure, the role of civil society is threatened, and the fundamental rights of minorities and asylum seekers are breached. These are all worrisome signs of the erosion of democracy and the rule of law in Europe. An important question is what can be done to stop this process of erosion and protect the values underlying the rule of law? Of course, political mechanisms can be used, but people and institutions also increasingly turn to supranational courts such as the European Court of Human Rights (ECtHR) and the Court of Justice of the EU (ECJ). For example, in Hungary, the number of applications lodged at the ECtHR concerning rule of law issues has surged, and in Poland, both the Supreme Court and other Polish courts have brought rule of law issues to the ECJ’s attention. From a strategic perspective, the question can be asked whether it makes a difference for those who want to be involved in this type of litigation to address either the ECtHR or the ECJ with rule of law concerns?This post argues that it does, because of the differences in procedure and approach taken by the two European Courts. Continue reading