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Article

Access_open Juveniles’ Right to Counsel during Police Interrogations: An Interdisciplinary Analysis of a Youth-Specific Approach, with a Particular Focus on the Netherlands

Journal Erasmus Law Review, Issue 4 2014
Keywords legal representation, counsel, juvenile justice, police interrogations, children’s rights
Authors Prof. Dr. Ton Liefaard Ph.D. LL.M and Yannick van den Brink
AbstractAuthor's information

    The right to counsel of juveniles at the stage of police interrogations has gained significant attention since the Salduz ruling of the European Court on Human Rights in 2008. The legislative and policy developments that have taken place since then and that are still ongoing – both on a regional (European) and domestic (Dutch) level – reveal a shared belief that juvenile suspects must be awarded special protection in this phase of the criminal justice proceedings. This calls for a youth-specific approach as fundamentally different from the common approach for adults. At the same time, there seems to be ambivalence concerning the justification and concrete implications of such a youth-specific approach. This article aims to clarify the underlying rationale and significance of a youth specific approach to the right to counsel at the stage of police interrogations on the basis of an interdisciplinary analysis of European Court on Human Rights case law, international children’s rights standards and relevant developmental psychological insights. In addition, this article aims to position this right of juveniles in conflict with the law in the particular context of the Dutch juvenile justice system and provide concrete recommendations to the Dutch legislator.


Prof. Dr. Ton Liefaard Ph.D. LL.M
Prof. Dr. T. Liefaard is Professor of Children’s Rights (UNICEF Chair) at Leiden Law School, Department of Child Law; t.liefaard@law.leidenuniv.nl.

Yannick van den Brink
Y.N. van den Brink, LL.M, MA, is PhD researcher at Leiden Law School, Department of Child Law; y.n.van.den.brink@law.leidenuniv.nl.
Article

Access_open False Confessions in the Lab: A Review

Journal Erasmus Law Review, Issue 4 2014
Keywords confession, interrogation, evidence
Authors Eric Rassin Ph.D. and Han Israëls
AbstractAuthor's information

    Intuitively, confession is a strong piece of evidence, because it appears unlikely that a suspect would confess to a crime he did not commit, thereby acting against his own best interest. Surprisingly, experimental studies show that innocent and well-educated individuals do tend to confess falsely when questioned about something they did not in fact do. In this contribution, an overview is presented of the experimental research on confession evidence. Limitations and implications of the scientific insights are discussed.


Eric Rassin Ph.D.
Eric Rassin is Endowed Professor of Legal Psychology at the Faculty of Social Sciences and the School of Law at Erasmus University Rotterdam.

Han Israëls
Han Israëls is Assistant Professor in Legal Psychology at the Maastricht University.
Article

Access_open The First World War and Constitutional Law for the Netherlands Indies

Journal Erasmus Law Review, Issue 2 2014
Keywords Commission of Inquiry, constitutional law for the Netherlands Indies, Dutch colonial thinking, ethical policy, First World War, November promises, People’s Council
Authors Nick Efthymiou Ph.D.
AbstractAuthor's information

    In the nineteenth and part of the twentieth century, the Kingdom of the Netherlands had colonies both in the West Indies and in the East Indies. This article will focus on the Dutch colonies in the East Indies, i.e., the Netherlands Indies – present-day Indonesia, and will discuss whether the First World War had an impact on the constitutional law for the Netherlands Indies.


Nick Efthymiou Ph.D.
Nick Efthymiou is lecturer at the Erasmus School of Law, Erasmus University of Rotterdam.
Article

Access_open The Ambivalent Shadow of the Pre-Wilsonian Rise of International Law

Journal Erasmus Law Review, Issue 2 2014
Keywords American Society of International Law, Peace-Through-Law Movement, Harvard Law Library: League of Nations, President Woodrow Wilson, Pre-Wilsonianism
Authors Dr Ignacio de la Rasilla del Moral Ph.D.
AbstractAuthor's information

    The generation of American international lawyers who founded the American Society of International Law in 1906 and nurtured the soil for what has been retrospectively called a 'moralistic-legalistic approach to international relations' remains little studied. A survey of the rise of international legal literature in the United States from the mid-nineteenth century to the eve of the Great War serves as a backdrop to the examination of the boosting effect on international law of the Spanish American War in 1898. An examination of the Insular Cases before the US Supreme Court is then accompanied by the analysis of a number of influential factors behind the pre-war rise of international law in the United States. The work concludes with an examination of the rise of natural law doctrines in international law during the interwar period and the critiques addressed by the realist founders of the field of 'international relations' to the 'moralistic-legalistic approach to international relations'.


Dr Ignacio de la Rasilla del Moral Ph.D.
Ignacio de la Rasilla del Moral is Lecturer in Law at the Brunel Law School of Brunel University, London. In the Spring of 2014 he served as Visiting Research Fellow at the Lauterpacht Research Centre for International Law of the University of Cambridge as recipient of a British Academy/Leverhulme Small Research Grant.
Article

Access_open How Law Manifests Itself in Australian Aboriginal Art

Journal Erasmus Law Review, Issue 3/4 2013
Keywords legal pluralism, native title, reconciliation, indigenous people of Australia, Aboriginal art
Authors Dr. Agnes T.M. Dr. Schreiner
AbstractAuthor's information

    The article How Law Manifests Itself in Australian Aboriginal Art will discuss two events at the Aboriginal Art Museum Utrecht from the perspective of a meeting between two artistic and legal cultures. The first event, on the art and law of the Spinifex people, will prove to be of a private law nature, whilst the second event, on the art and law of the Wik People, will show characteristics of international public law. This legal anthropological contribution may frustrate a pluralistic perspective with regard to the coexistence of Western law and Aboriginal law on the one hand and of Utrecht's Modern Art Museum and the presented Aboriginal Art on the other. It will show instead the self-evidence of art and law presented and their intertwined connection for the Aboriginal or indigenous peoples of Australia.


Dr. Agnes T.M. Dr. Schreiner
Agnes T.M. Schreiner studied Law and is Lecturer on several themes of the General Jurisprudence at the Law Faculty, University of Amsterdam, The Netherlands. Within the Masterprogram European Private law she teaches the course Anthropology of European Private Law. She received her Ph.D. in 1990. She has specialized in a series of subjects: Law & Media, Law & Arts, Law & Rituals, Law & Culture, Law & Semiotics and Law & Social Sciences.
Article

Access_open Imagining the Rule of Law in Nineteenth-Century Britain: Liberal Society and the Dialectic of the Clan

Journal Erasmus Law Review, Issue 3/4 2013
Keywords clan, rule of law, Albert Venn Dicey, Walter Scott, legal memory
Authors Dr. Mark S. Weiner
AbstractAuthor's information

    In this essay, I provide a historical and theoretical framework for understanding the imaginative relation between the liberal rule of law and the kin-based form of socio-legal organization I call ‘the rule of the clan’ – a classic example of law created ‘from below’. Specifically, I believe that a culturalist disciplinary perspective reveals that the modern liberal state and its more centralized rule of law always stand in an ironic, dialectical relation to the rule of the clan as a legal form. Liberal society, that is, nurtures itself through an anti-liberal utopian imaginary. This article provides an intellectual history backdrop for theorizing that dialectical relationship by examining two contrasting ways in which nineteenth-cen‍tu‍ry British intellectuals imagined the rule of law. Following the work of Charles Taylor and, more specifically in the legal field, Paul Kahn, my goal is to depict a social imaginary of modern liberalism that has been neglected within contemporary liberal theory – and, in doing so, pro‍vi‍de a way to appreciate the cultural foundations of liberal legality. The article considers the stories that nineteenth-century British intellectuals told about the relation between the rule of law and the rule of the clan as a way to think about the rule of law today. It thus tacks between three different shores: the world of legal pluralism (the rule of the clan), the world of nineteenth-cen‍tu‍ry British analysis of the rule of the clan and the contemporary relation between culture and modern liberal society.


Dr. Mark S. Weiner
Mark S. Weiner is author of Black Trials: Citizenship from the Beginnings of Slavery to the End of Caste (New York: Alfred A. Knopf, 2004), recipient of the Silver Gavel Award of the American Bar Association, and Americans without Law: The Racial Boundaries of Citizenship (New York: New York University Press, 2006), winner of the President’s Book Award of the Social Science History Association. He received an A.B. in American Studies from Stanford University; a Ph.D. in American Studies from Yale University; and a J.D. from Yale Law School. He blogs at Worlds of Law (www.worldsoflaw.com).
Article

Access_open A Turn to Legal Pluralism in Rule of Law Promotion?

Journal Erasmus Law Review, Issue 3/4 2013
Keywords legal pluralism, rule of law promotion, legal reform, customary law, non-state legal systems, donor policy
Authors Dr.mr Ronald Janse
AbstractAuthor's information

    Over the past 25 years, international organizations, NGOs and (mostly Western) states have spent considerable energy and resources on strengthening and reforming legal systems in developing countries. The results of these efforts have generally been disappointing, despite occasional successes. Among donors, one of most popular explanations of this failure in recent years is that rule of law promotion has wrongly focused almost exclusively on strengthening the formal legal system. Donors have therefore decided to 'engage' with informal justice systems. The turn to legal plu‍ra‍lism is to be welcomed for various reasons. But it is also surprising and worrisome. It is surprising because legal pluralism in developing countries was a fact of life before rule of law promotion began. What made donors pursuing legal reform blind to this reality for so long? It is worrisome because it is not self-evident that the factors which have contributed to such cognitive blindness have disappeared overnight. Are donors really ready to refocus their efforts on legal pluralism and 'engage' with informal justice systems? This paper, which is based on a review of the literature on donor engamenet with legal pluralism in so-called conflict affected and fragile states, is about these questions. It argues that 7 factors have been responsible for donor blindness regarding legal pluralism. It questions whether these factors have been addressed.


Dr.mr Ronald Janse
Ronald Janse is Associate Professor of Law, University of Amsterdam, The Netherlands.
Article

Access_open Unity in Multiplicity: Shared Cultural Understandings on Marital Life in a Damascus Catholic and Muslim Court

Journal Erasmus Law Review, Issue 3/4 2013
Keywords Syria, personal status law, Eastern Catholic law, patriarchal family, marital obligations
Authors Esther Van Eijk Ph.D.
AbstractAuthor's information

    Family relations in Syria are governed by a plurality of personal status laws and courts. This plurality manifests itself on a variety of levels, including statutory, communal and individual. In this article, the author argues that, albeit this plurality, Syrian personal status law is also characterised by the prevalence of shared, gendered norms and views on marital life. Based on fieldwork conducted in a Catholic and a shar’iyya personal status courts in Damascus in 2009, the author examines the shared cultural understandings on marital relationships that were found in these courts, and as laid down – most importantly – in the respective Catholic and Muslim family laws. The article maintains that the patriarchal family model is preserved and reinforced by the various personal status laws and by the various actors which operated in the field of personal status law. Finally, two Catholic case studies are presented and analysed to demonstrate the importance and attachment to patriarchal gender norms in the Catholic first instance court of Damascus.


Esther Van Eijk Ph.D.
Esther Van Eijk is a postdoc researcher at Maastricht University, The Netherlands. She recently defended (September 2013) her Ph.D. thesis entitled ‘Family Law in Syria: A Plurality of Laws, Norms, and Legal Practices’ at Leiden University, the Netherlands. This study is based on her PhD fieldwork (including interviews and participant observation) conducted in March-April 2008, and October 2008-July 2009 in Syria.

Simone Glanert
Senior Lecturer in French and European Comparative Law, Kent Law School, Eliot College, Canterbury, Kent, CT2 7NS, UK; S.Glanert@kent.ac.uk. I presented early formulations of this argument at the RELINE Network for Interdisciplinary Studies in Language and the Law Seminar, Faculty of Law, University of Copenhagen, on 25 October 2011; at the Faculté de Droit, Université de Montréal, on 27 January 2012; at the 4th Annual Meeting of the Irish Society of Comparative Law (ISCL), Faculty of Law, University of Cork, on 2 March 2012; and at the Faculté de Droit, Université de Grenoble, on 22 March 2012. I am grateful to Anne Lise Kjær, Jean-Franois Gaudreault-DesBiens, Bénédicte Fuller-Sage and David Dechenaud for their kind expression of interest in my work and generous invitations.

Michael G. Faure
Michael G. Faure is Professor of Law and Economics at the METRO Institute, University of Maastricht and at the Rotterdam Institute of Law and Economics (RILE), School of Law, Erasmus University Rotterdam. I am grateful to Roger Van den Bergh and to an anonymous referee for useful comments on an earlier version of this paper.
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