The definition of human trafficking for labour exploitation, as follows from the European Council Framework Decision, proves to be unclear. Literal interpretation does not suffice, because it does not clarify all elements of what is deemed to be criminal behaviour, and hermeneutical interpretation also falls short discouraging the aim of this legislation, namely harmonisation. Hence, another solution is required. This article does so by firstly challenging assumptions about human trafficking for labour exploitation that are generally pertinent, but nonetheless untrue. This accurate appraisal of the crime’s nature is followed by a synopsis of national legislation and adjudication in three Member States, so as to also focus on these actualities regarding the crime that are commonly not conceived. This article examines two countries that have implemented the Framework Decision, namely Belgium and the Netherlands, and one that has not yet done so, the United Kingdom. Thereafter remaining unexplained elements of the Framework Decision’s definition are interpreted with use of international, pan-European and European legislation and adjudication. Based upon all this, a suggested interpretation of the Framework Decision’s definition is provided so as to overcome all identified difficulties with it.
After the 11th September 2001 attacks on the United States international attention quickly focused on the sources and methods of terrorist financing. Among the methods terrorists and other criminal actors use to transfer funds are Informal Value Transfer Systems (IVTS) which operate either outside the formal financial sector, or through use of the formal financial sector, but without leaving a full record of the transaction. Though the vast majority of funds moved through IVTS are the earnings of migrant workers and immigrant communities, the lack of uniform worldwide regulation of IVTS provides ample opportunity for abuse and misuse. The international community primarily responded to IVTS concerns through the Financial Action Task Force on Money Laundering, which issued a series of recommendations and best practices for states in regulating IVTS operations. While these recommendations are a secure beginning to regulation of IVTS operating within ethnic communities, they fail to address the more modern forms of IVTS that have come about in the post-Cold War globalised world. Comprehensive recommendations governing all types of IVTS, as well as concerted international cooperation and coordination are necessary to address this global phenomenon.
In the Netherlands the recent debate on lay involvement in the administration of criminal justice was initiated by politicians who maintain that the public favours such involvement. The response of the judiciary and legal academics to these politicians has been fairly defensive. They have pointed in particular to the dangers of the punitive character of the vox populi and rejected the idea. As a result, the debate on lay involvement has quickly become a black and white issue. This article presents the findings of a recent research of the Netherlands Council for the Judiciary and the Research and Documentation Centre of the Dutch Ministry of Justice regarding the opinion of the public on different kinds of lay involvement under different conditions. This research shows that both the position of the politicians that favour lay involvement in the administration of criminal justice and the position of the judiciary and legal academics that reject lay involvement are to a relatively large degree unrepresentative of the wishes and views of the public.
Textualism or Originalism, as defended by Justice Antonin Scalia of the U.S. Supreme Court, is a normative doctrine of method according to which the judicial interpretation of statutes and of the Constitution should aim at establishing the original meaning of the text. Textualism in the strict sense is unpopular not only among most judges but also among philosophers and theologians. In philosophy, Textualism was denounced as hopelessly naive by authors such as Martin Heidegger, Hans-Georg Gadamer, and their American followers. In theology, Textualism is not a viable option for believers who want both to accept as true the text of their holy book and to endorse the results of modern science and historical scholarship. I argue that Textualism is the only valid methodology of interpretation both in philosophy and in theology. For the judicial interpretation and application of statutes and constitutions, however, Textualism cannot be more than one methodological topos among many. We also have to accept other topoi, such as the topos that the system of statutes and treatises should form a consistent whole, and these other topoi cannot be considered as part and parcel of Textualism in the strict sense. It follows that the difference between a tenable sophisticated version of Textualism as a methodology of judicial interpretation and the so-called doctrine of the Living Constitution is one of degree and emphasis only. Justice Scalia’s simple version of Textualism is a political ideology rather than a valid methodology of judicial interpretation.
The debate on the viability of self-regulation as a mode of regulation is split and is conducted at two different levels. The insights from sophisticated regulation theory do not transpose easily to the practical concerns of those considering self-regulation as an alternative to legislation. And yet in this era of ‘Better Regulation’, self-regulation is increasingly called for by stakeholders and sometimes also by public authorities. This article aims to bring theory and practice one step closer together by analysing how in one concrete European legal system, that of the Netherlands, self-regulatory mechanisms are received. From an investigation into topics such as the relevance of fundamental rights, the public/private nature of self-regulatory bodies and the scope of liability for self-regulation, the persisting formal division between public law regulation (unilateral and therefore bound by constitutional norms) and self-regulation (assumed to be bilateral and therefore positioned in the realm of private law) emerges. Furthermore, the growing popularity of public law mechanisms at the expense of (pure) self-regulatory mechanisms can be observed. This is partly because in the current legal structure the voluntary nature of many self-regulatory arrangements is not always protected or acknowledged.
Originally, private law was considered to be immune from the effect of fundamental rights, the function of which was limited to being individual defences against the vigilant eye of the state. This traditional view, however, has recently been put under pressure as a result of fundamental rights increasingly becoming relevant for private law. The relationships between private parties under private law have started losing their immunity from the effect of fundamental rights. The major question at present is no longer whether fundamental rights may have an impact on private law, but to what extent this will occur, and the answer to this question will determine the future of private law. The primary aim of this article is to establish how fundamental rights and private law (may) relate to each other at present in different legal systems. In light of this, the article considers how fundamental rights (may) affect the relationships between private parties under private law and what consequences this effect has for the relationship between fundamental rights and private law.
Parliamentary sovereignty, meaning that the validity of Acts of Parliament cannot be challenged in the courts, has long been a core principle of the uncodified British Constitution. Much of the political controversy in the 1960s and ’70s about UK membership of the European Communities focused on the transfer of law-making functions to the EC Commission and the Council of Ministers. The role of the European Court of Justice, and the possibility that both the ECJ and the UK’s own domestic courts might entertain challenges to domestic primary legislation, on the grounds of its incompatibility with EC law, was largely overlooked. It was not until the mid-1980s that British ‘Eurosceptics’ began to realise that the courts might pose a challenge to parliamentary sovereignty. A turning point was the Factortame litigation, in which the ECJ reaffirmed that domestic legislation that conflicts with EC legal obligations must be disapplied. A decade later, in the ‘metric martyrs’ case, a British court, without referring the issue to the ECJ, decided an important principle of EC law. Both these cases – the focus for much political lobbying – underline the extent to which the courts have acquired a much higher political profile in the UK than they have had in the past.
This article aims to provide an overview of the evolution of self-regulatory mechanisms in Italy. A brief overview of the Italian system of sources of law has showed that the model of the sources of law rooted in the Italian constitution is typically positivistic and centred on the pivotal role of Parliament, the only body empowered to legislate, either directly or by delegating its normative powers to the Government, within expressly specified limits. What room, if any, is there for self-regulatory rules? If one of the most interesting aims of the research was to analyse to what extent the self-regulatory phenomenon is compatible with Parliament’s undisputed sovereignty and with the linked principle of the rule of law, it should be clear that rules made by private actors (i.e. self-regulatory rules), which pretend to have external effects (binding erga omnes), can be considered as law and, as such, as sources of law, as long as they can be ‘incorporated’ into and recognized in some of the formal sources of Italian law. This seems the only possible and constitutionally compatible interpretation of a phenomenon (self-regulation) which, instead, could potentially be able to place the formal hierarchy of sources of law in jeopardy. On the other hand, the results of the study make clear that, even when Parliament confers its normative powers on any other bodies (i.e. either independent administrative authorities or professional orders, or, more in general, any self-regulatory associations), it is unlikely that it will give up determining the limits within which those normative powers have to be exercised. Some authors actually consider this sort of ‘delegated legislation’ to be a means for the State to reassert its sovereignty. Anyway, this new pluralistic ‘architecture’ will undoubtedly allow the legislator to retain some exclusive duties: first and foremost, the power to prescribe the institutional conditions which underlie the basis of ‘private self-regulatory governance’, as well as the aims of their future normative action; secondly, to intervene in order to correct, if necessary, the new consensual rules.
In honour of Horton Rogers, as the holder of the rotational G.J. Wiarda chair at Utrecht University, a symposium was held on 13 June 2007 concerning the right of third parties to compensation in cases of injury – one of the most provoking themes in tort law and the law of damages. The key question was to what extent relatives and the employer of an injured victim should be compensated for their pecuniary losses and the loss of earnings caused by the primary victim’s injuries. In three contributions an account of the state of the law was provided with regard to three European jurisdictions (English law, German law and Dutch law) and the so-called ‘Principles on European Tort Law’ and ‘Principles on European Law on Liability for Damages’. These contributions show that all three national law systems have rights for relatives and employers to recover, in some form, but with substantial differences between the (rules governing) the amount of compensation and as to the nature of these rights. Both sets of European principles demonstrate great differences as well. In each contribution further reflections are given on what would be the better position to take. These three contributions are brought together in this article in which also the state of the law is critically discussed.
Modern – or so-called ‘new’ - judiciaries are more active in the field of law-making than they used to be. It is argued that this calls for new checks and balances. New forms of public, social accountability are warranted to enable public scrutiny. This contribution discusses and analyses the efforts of some judiciaries in Europe and the US to open up and work more transparently and thus further so-called soft public accountability. To this end, the paper looks into the different legal regimes of access to information pertaining to information held and produced by courts and the law on public hearing and public pronouncement of judgments. The paper does not stop at an inventory of the different legal regimes but it compares and analyses the way in which judiciaries in different countries tackle the demand for information about cases, case-related or court-related issues (i.e. the information-provision policies) as well. From these policies on information provision we may read how different courts themselves cope with the demand for public accountability. In conclusion the question is tackled whether and to what extent these information-provision policies, as methods of soft accountability, contribute to the legitimacy of the judiciary.
Much effort is being made to safeguard judicial integrity – but what is it? In this article, two discourses on judicial integrity will be outlined: one in which judicial integrity is said to be at stake and one in which the emphasis lies on safeguarding judicial integrity. These discourses are by no means homogeneous. Not only are there considerable differences between the English and the Dutch discourses, there are also differences within each discourse regarding the use and meaning of integrity. In order to gain a better understanding of the concept, normative theory is consulted. From a rule of law perspective, integrity as the proper professional character of an official appears to be a presupposed norm. From the perspective of democracy, integrity appears as the norm that correlates with public trust. Expounding on these norms – integrity as professional character and integrity as external accountability – enables a better understanding of the discourses on judicial integrity.
The paper sets out to describe the most relevant social tendencies that can influence the Dutch judicial system’s domain in the medium term and to evaluate the possible effects of these tendencies on the composition of legal fields. American legal theory concerning the role of the courts’ functions is a frame of reference for the analysis. In the light of a quantitative paradigm, first, the judicial domain is represented in figures and demarcated with respect to the domains of other relevant activities and participants. The social role of courts in the Dutch legal system is then considered in the light of a qualitative paradigm, focusing on the influence of the judge and the impact of his judgments. These lines of thought are brought together in the description of a few possible scenarios for the development of the judicial domain in the Netherlands in the years to come. A few conclusions round off this investigation.
Current efforts at performance measurement in the state courts are described, situated in a global and historical context, using the framework of Pollitt and Bouckaert (2000). The structure of state courts in the US is described, with attention given to structural issues that affect implementation of performance measurement at the state and local levels. The history of prior attempts at court performance measurement is reviewed, along with current efforts in several states to implement performance measures based on the CourTools performance measures designed by the National Center for State Courts. General findings on the measurement of access and fairness and court employee satisfaction are presented. Challenges for ongoing court performance measurement are described.
In this contribution we argue 'that juries make sense'. By this we mean that it makes sense to introduce or sustain lay participation in judicial decision making, and that this is the case because juries in fact 'make sense' because they generate new common sense concerning the case at hand. Referring to the deficits of contemporary democratic politics, we explore John Dewey's theory of democracy, which centres on the construction of concerned ‘publics’. A recent example of such ‘publics’ under construction are the citizens' juries that are involved in participatory Technology Assessment (pTA). Our claim is that both trial juries and pTA citizens' juries can be understood as democratic practices that cannot be explained with reference to traditional aggregative or deliberative models of democratic theory. We discuss Chantal Mouffe's agonistic theory of democracy and Rip's agonistic learning processes to advocate the importance of collective decision-making processes, which form the core of jury deliberation. To produce robust outcomes, the principles that constitute the procedure of the fair trial are advocated as constraints that generate sound consensus.
The rapid development of information and communication technologies (ICT) opens up new opportunities to significantly improve the administration of justice. The availability of web services, the use of electronic filing, the electronic exchange of legal documents, the possibility of on-line legislation and case law are only some examples that are spurring judicial administrations around the world to rethink their current functions and activities. ICT can be used to enhance efficiency, access, timeliness, transparency and accountability, thus helping judiciaries to provide adequate services. As many empirical examples show, this is, however, not always the case. The interaction between technology and highly regulated organisations, such as courts, may often lead to unexpected results. Europe, with its different institutional settings and experiences, allows the exploration of a variety of solutions that can be implemented to support the administration of justice. Most importantly, it also provides the opportunities for a unique insight into the dynamics and problems that may characterize such experiences. This article seeks to provide an empirically derived account on the uses of ICT within the courts and for judicial data interchange. The article is based on data collected through several research projects by the Research Institute on Judicial Systems of the Italian National Research Council, in partnership with other European institutions, including Universities and Ministries of Justice.
Since the late 1980s we have been witnessing a movement towards reform of the judicial system on a global scale. Recently, the justice administration management reforms became one of the main investments in several European countries. Among these kinds of measures are the redefinition of the territorial jurisdiction and the organizational structure of the judiciary. In this paper, based on the judicial organization reform process in Portugal, I address the main policies that must guide the redefinition of territorial jurisdiction. Most of the concerns discussed are common to the large majority of European countries with a civil law tradition and may very well also apply to them.
This study considers court reform programmes sponsored by the IMF and World Bank in Indonesia and Venezuela. It aims to broaden the frame of reference of ‘globalisation’ in law beyond the two traditional sites of human rights and trade. Drawing on a tradition of legal pluralism, it investigates the various sources of ‘global’ or universalising pressures on the law. The sources and impacts of these efforts may derive from and benefit or disadvantage specific groups in various locations. They will also promote or inhibit particular political, social or economic projects. The study concludes that various constituencies and impulses to reform refer to different versions of the ‘universal’ for their conception of right and legitimacy. These are neither inherently local nor unambiguously global. Local religious or egalitarian movements may refer to universal religious or political values just as interests in fair commercial dealing can call on international legal norms. In contrast to the local sites where law is performed, these universal sites exist in a multitude of indigenous, religious, political and legal imagined communities, each of which may be invoked in attempts to reform local practice.
This article aims to make some introductory remarks concerning the phenomenon of the circulation of ‘foreign law’ between constitutional courts. A convenient setting for some considerations regarding this legal phenomenon is the South African constitutional jurisprudence, since Section 39 of the 1996 Constitution enables the Constitutional Court to ‘consider foreign law’ when interpreting the Bill of Rights. This provision has led to the wide use of foreign jurisprudence and legislation, as well as extra-systemic parameters, that have formed the basis for models of legal argumentation. The article explores what appears to be a recurring ‘patterns’ of legal argumentation based on foreign law used by the Court which has been defined ‘probative importation’.