Journal Description
Laws
Laws
is an international, peer-reviewed, open access journal on legal systems, theory, and institutions, published bimonthly online by MDPI.
- Open Access— free for readers, with article processing charges (APC) paid by authors or their institutions.
- High Visibility: indexed within Scopus, ESCI (Web of Science), RePEc, vLex Justis, CanLII, Law Journal Library, and other databases.
- Journal Rank: JCR - Q1 (Law) / CiteScore - Q1 (Law)
- Rapid Publication: manuscripts are peer-reviewed and a first decision is provided to authors approximately 31.4 days after submission; acceptance to publication is undertaken in 5.6 days (median values for papers published in this journal in the first half of 2024).
- Recognition of Reviewers: reviewers who provide timely, thorough peer-review reports receive vouchers entitling them to a discount on the APC of their next publication in any MDPI journal, in appreciation of the work done.
Impact Factor:
1.3 (2023)
Latest Articles
National Parks and Protected Areas: A Comparison of the Approach Taken in the UK and France for the Protection of Green Spaces
Laws 2024, 13(4), 41; https://doi.org/10.3390/laws13040041 (registering DOI) - 30 Jun 2024
Abstract
Across the globe, national parks are frequently described in terms of their diverse wildlife, spectacular scenery, and cultural heritage. These extraordinary land (and sea) scapes are known to be important for the health and mental wellbeing of the people who visit them, but
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Across the globe, national parks are frequently described in terms of their diverse wildlife, spectacular scenery, and cultural heritage. These extraordinary land (and sea) scapes are known to be important for the health and mental wellbeing of the people who visit them, but for many, they are also the place where they live and work. The COVID-19 pandemic lockdowns of 2020 and 2021 witnessed the importance of being in nature and exercising in green spaces, and part of the COVID-19 inheritance has been the rise of the so-called “staycation”, which has seen people becoming less inclined to travel overseas and more inclined to the explore nature and landscapes closer to home. While this has undoubtedly meant economic benefits to National Parks, it has also brought challenges that are yet to be fully realised and dealt with. This paper considers the laws and regulations in place to protect these special places in two jurisdictions, France and the United Kingdom, through the lens of two of those countries’ National Parks—the New Forest and the Calanques.
Full article
(This article belongs to the Special Issue Global Threats in the Illegal Wildlife Trade and Advances in Response)
Open AccessArticle
A Lived Experience Well-Understood: What Montesquieu’s The Spirit of the Laws Can Tell Us about Civic Learning in Higher Education
by
Constantine Christos Vassiliou
Laws 2024, 13(4), 40; https://doi.org/10.3390/laws13040040 - 27 Jun 2024
Abstract
This article considers how Montesquieu’s theoretical response to his perceived dangers of modern commerce may guide us on teaching citizenship in higher learning today. I argue that a Montesquieu informed framework for civic learning, which primarily stresses a careful study of the nation’s
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This article considers how Montesquieu’s theoretical response to his perceived dangers of modern commerce may guide us on teaching citizenship in higher learning today. I argue that a Montesquieu informed framework for civic learning, which primarily stresses a careful study of the nation’s existing constitutional and positive laws, would (1) entail a baseline level of scientific and economic literacy to deepen our understanding of how commercial modernity’s most recent innovations may undermine the authority of those laws if left unchecked, and (2) cultivate an appreciation for the laws, mores, institutions, and practices that some of these same innovations threaten to dissolve if left unchecked. The article concludes with practical recommendations on how to cultivate resilient future custodians of our self-governing republic. I contend that universities need to provide a learning environment that inspires students to crave different kinds of success or recognition, distinctly highlighting the need for heavy restrictions on the use of electronics in the classroom. I then propose that civics-focused curricula must ensure that students are furnished with the requisite technocratic expertise to (1) recognize how their daily economic decisions as private citizens will impact the public interest and (2) exercise prudent judgment over future legislation aiming to safeguard individual liberties within a techno-mediated twenty-first century commercial world.
Full article
(This article belongs to the Special Issue Civic Engagement, Justice, and the Law in a National and International Context)
Open AccessArticle
Mediation in Criminal Matters: A Perspective from Kosovo
by
Flutura Tahiraj and Emine Abdyli
Laws 2024, 13(4), 39; https://doi.org/10.3390/laws13040039 - 21 Jun 2024
Abstract
As a new alternative, mediation is integrated in the legislation of both developed and develo** countries in Europe. Various researchers in member states of the Council of Europe revealed obstacles, particularly related to the implementation of mediation in criminal matters. They are addressed
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As a new alternative, mediation is integrated in the legislation of both developed and develo** countries in Europe. Various researchers in member states of the Council of Europe revealed obstacles, particularly related to the implementation of mediation in criminal matters. They are addressed through several recommendations and non-binding guidelines. However, there is limited empirical research on how mediation in criminal matters is being implemented in the contexts of develo** countries in south-eastern Europe. Hence, the purpose of this qualitative study is to assess mediation in criminal matters in Kosovo by exploring how the main stakeholders describe the legal basis and implementation process and what it indicates for future practices. The data were gathered through 11 semi-structured interviews with judges, prosecutors, mediation clerks, and mediators. Results show that laws and other guidelines that have been introduced since 2008 constitute a solid legal ground that facilitates mediation in criminal matters. The stakeholders are well aware of the benefits mediation brings and express their willingness to advance its application to criminal matters. Results also indicate uncertainty among judges and prosecutors regarding the assessment and referral of certain criminal offences to mediation. To address it, specialized trainings, exchange programs, and continuous monitoring and evaluation of the process could be supportive.
Full article
Open AccessArticle
Constituting the American Higher-Education Elite: Rush and Jefferson on Collegiate Civic Engagement
by
Luke Foster
Laws 2024, 13(3), 38; https://doi.org/10.3390/laws13030038 - 18 Jun 2024
Abstract
The foundation of new centers for civic education has sparked a new round of debate over the political independence of the public university. Do legal mandates by state legislatures undermine academic freedom? The underlying debate concerns alternative visions of elite formation, as comparing
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The foundation of new centers for civic education has sparked a new round of debate over the political independence of the public university. Do legal mandates by state legislatures undermine academic freedom? The underlying debate concerns alternative visions of elite formation, as comparing Benjamin Rush and Thomas Jefferson’s arguments during the Founding period makes apparent. Both believed that the American constitutional order depended on educated citizens of a certain character, requiring coercive authority in education to instill moral and political commitments. But whereas Jefferson made an exception for educational coercion, Rush viewed education as an aristocratic element that could complement democracy. Rush’s prioritizing of duties over rights offers a more helpful framework for the task of reforming elite education today to restore trust between leaders and people.
Full article
(This article belongs to the Special Issue Civic Engagement, Justice, and the Law in a National and International Context)
Open AccessArticle
Rethinking Just Transition in Investment Law Perspective: Incentives against Climate Crisis between Sustainability, Economic Security, and Strategic Industrial Planning
by
Sara Pugliese
Laws 2024, 13(3), 37; https://doi.org/10.3390/laws13030037 - 18 Jun 2024
Abstract
With the expression “Just transition”, the European Commission refers to a new development model to bring in the environmental and digital transition “leaving no one behind”. From an investment law perspective, it implies the adoption of several incentives to support new green economy
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With the expression “Just transition”, the European Commission refers to a new development model to bring in the environmental and digital transition “leaving no one behind”. From an investment law perspective, it implies the adoption of several incentives to support new green economy activities or the reconversion of old ones into green and energy-neutral production models. Starting from an analysis of the EU just transition strategy, the paper focuses on the Italian case, investigating the interconnection between just transition funds and other measures (the Single Special Economic Zone and National Recovery and Resilience Program) to verify their effectiveness in terms of investment retention and attraction and their effects in terms of strategic industrial planning. Concerning retention, the Sider Alloys and Acciaierie d’Italia case studies are analyzed. Concerning attraction, as the incentives may appeal to aggressive activities dangerous to the EU and Member States’ strategic autonomy, the paper offers an overview of the instruments available for screening and preventing cree** economic operations, especially the proposed reform of the investment screening mechanism and the anti-coercion instrument. In conclusion, the paper proposes the adoption of an ex ante impact assessment, including citizen consultation, aimed at verifying investment concrete capacity to contribute to the just transition process.
Full article
(This article belongs to the Special Issue The Climate Change International Investment and Trade Disputes: Legal and Political Implications)
Open AccessArticle
An Artificial Review of Jesus’s Torah Compliance and What That Might Mean for Jews and Gentile Christians
by
Jonathan Dawayne Brackens
Laws 2024, 13(3), 36; https://doi.org/10.3390/laws13030036 - 10 Jun 2024
Abstract
The Torah is central to Judaism. Jesus’s relationship with it sparks conflict with Christianity. Some Jews think that Jesus violated the Torah, while some Christians believe that he sinlessly followed it. This clash escalated on 22 June 2023, when Ultra-Orthodox Jews protested a
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The Torah is central to Judaism. Jesus’s relationship with it sparks conflict with Christianity. Some Jews think that Jesus violated the Torah, while some Christians believe that he sinlessly followed it. This clash escalated on 22 June 2023, when Ultra-Orthodox Jews protested a Messianic convention in Jerusalem. Social media videos and comments highlighted Jesus’s purported Torah compliance, placing Matthew 5:17 at the center stage. The comments proved indicative of the gaps within the literature as neither determined all the unique Written and Oral Torahic/legal issues raised within the Gospels nor quantified the extent of Jesus’s compliance. To address these gaps, this study employs artificial intelligence (LDA), statistics, and legal analysis and exegesis to determine Jesus’s compliance with the Torah, Mishnah, Talmud, and Mishneh Torah. The findings show the Gospels’ consensus: Mark, Luke, and John reflect that Jesus was non-Torah-compliant (14.80, 43.80, and 0.00%, respectively); Matthew states otherwise (70.80%). Overall, the study revealed that Jesus kept 79 of 162 Written and Oral Torah laws (48.80%). This study has significant implications for Christian doctrines, the definition(s) of sin, and the missionizing ethnoreligion members and serves as a case study that illustrates AI’s impact on religious authority (i.e., clergy, scholarship, and doctrines).
Full article
(This article belongs to the Special Issue AI and Its Influence: Legal and Religious Perspectives)
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Open AccessArticle
Facial Recognition Technology in Policing and Security—Case Studies in Regulation
by
Nessa Lynch
Laws 2024, 13(3), 35; https://doi.org/10.3390/laws13030035 - 7 Jun 2024
Abstract
Technology-enabled state surveillance has evolved rapidly to allow real-time remote tracking and surveillance of people and vehicles and the aggregation of vast amounts of data on people and their movements, networks, and relationships. Facial recognition technology (FRT) comprises a suite of technologies that
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Technology-enabled state surveillance has evolved rapidly to allow real-time remote tracking and surveillance of people and vehicles and the aggregation of vast amounts of data on people and their movements, networks, and relationships. Facial recognition technology (FRT) comprises a suite of technologies that allows verification, identification, and categorisation by analysing a person’s facial image. Such technologies impact fundamental rights, such as privacy, freedom of expression, and freedom of assembly, but can also be used to detect, investigate, and deter serious crime and harm and to counter threats to security, thus promoting collective interests in security and public safety. These impacts have been considered in terms of scholarship and advocacy, but the shape of principled regulation is less well traversed. This contribution examines three contemporary case studies of the regulation of FRT in policing and security to analyse the challenges in regulating this technology.
Full article
(This article belongs to the Special Issue Law and Emerging Technologies)
Open AccessArticle
Child Welfare, Immigration, and Justice Systems: An Intersectional Life-Course Perspective on Youth Trajectories
by
Marsha Rampersaud, Kristin Swardh and Henry Parada
Laws 2024, 13(3), 34; https://doi.org/10.3390/laws13030034 - 29 May 2024
Abstract
This study explores how racialized migrant youth navigate Ontario’s child welfare, criminal justice, and immigration systems. Insights from youth, academics, practitioners, lawyers, policymakers, and social workers were gathered from a conference and contextualized using the Intersectional Life Course Theory and a critical phenomenological
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This study explores how racialized migrant youth navigate Ontario’s child welfare, criminal justice, and immigration systems. Insights from youth, academics, practitioners, lawyers, policymakers, and social workers were gathered from a conference and contextualized using the Intersectional Life Course Theory and a critical phenomenological framework. Our analysis focuses on timing, locally and globally linked lives, social identities, and resilience, and emphasizes the interconnectedness of individual experiences within societal structures. We review systemic challenges and ethical dilemmas for young migrants, particularly concerns about fairness in potential inadmissibility or deportation consequences. We propose systemic support measures to foster resilience and disrupt adverse trajectories in order to mitigate discriminatory practices and provide targeted support for youth within these systems.
Full article
(This article belongs to the Special Issue The Human Rights of Migrants)
Open AccessArticle
Redefining Boundaries in the Metaverse: Navigating the Challenges of Virtual Harm and User Safety
by
Mohamed Chawki, Subhajit Basu and Kyung-Shick Choi
Laws 2024, 13(3), 33; https://doi.org/10.3390/laws13030033 - 24 May 2024
Abstract
This paper analyses sexual crimes within the Metaverse to develop an effective legal framework. The aim is to enhance safety in virtual realities, ensuring the Metaverse remains a secure, respectful, and liberating environment for all users. As the Metaverse continues to evolve, merging
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This paper analyses sexual crimes within the Metaverse to develop an effective legal framework. The aim is to enhance safety in virtual realities, ensuring the Metaverse remains a secure, respectful, and liberating environment for all users. As the Metaverse continues to evolve, merging augmented physical reality with digital existence, it introduces new opportunities for socialisation, commerce, education, and entertainment. However, this digital realm also faces significant challenges, particularly the increase in sexual violence. This article evaluates the development of the Metaverse and its impact on sexual offences. It provides an overview of the Metaverse, followed by an in-depth exploration of the nature of sexual violence in this virtual space, its effects on victims, and the resulting legal and ethical issues. Additionally, this article examines the complexities of combating sexual violence within the Metaverse, reviewing the legal frameworks in various jurisdictions, including the United States, the European Union, the United Kingdom, and South Korea. These examinations reveal a range of legal viewpoints and possible solutions. This article outlines a proposed legal framework, highlighting key strategic areas for mitigating sexual violence in the Metaverse. The primary objective is to enrich the discourse on the Metaverse, pushing for strong, flexible, and holistic legal measures. Through this research, we aim to contribute to the creation of protective mechanisms against sexual violence in these emerging virtual landscapes.
Full article
(This article belongs to the Topic Emerging Technologies, Law and Policies)
Open AccessArticle
Incentivizing Civic Engagement at Public and Private Universities: Tax Exemptions, Laws, and Critical Dialogues
by
Eric Morrow, Casey Thompson, Payton Jones and Boleslaw Z. Kabala
Laws 2024, 13(3), 32; https://doi.org/10.3390/laws13030032 - 22 May 2024
Abstract
What are the differences in how public and private institutions of higher education, with religious schools as a subset of private colleges and universities, approach on-campus protests in a framework of civic engagement? Unfortunately, public, private, and religious schools have all restricted opportunities
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What are the differences in how public and private institutions of higher education, with religious schools as a subset of private colleges and universities, approach on-campus protests in a framework of civic engagement? Unfortunately, public, private, and religious schools have all restricted opportunities of speech, assembly, and protest, despite in many cases state and federal courts ruling that this is against the law. With the goal of increasing the civic capacities of students at all institutions of higher education, we propose a mechanism of partial revocation of tax exemptions at universities that do not currently uphold a robust understanding of civic engagement opportunities for all students, which will apply to any college or university receiving federal funding, consistent with the constitutional tradition of free speech still exemplified by Brandenburg v. Ohio and the “national policy” test of Bob Jones University vs. United States. In doing so, we build on the critique of exemptions in the recent work of Vincent Phillip Munoz on religious liberty. By opting only for incentives and by not even incentivizing private institutions that continue to restrict civic engagement but that do not accept federal dollars, we affirm and support a mutually beneficial ongoing dialogue among public, private, and religious schools. This dialogue, as it is sharpened and maintained in place by our recommended policies, is also consistent with pluralism as conceptualized by Jacob Levy.
Full article
(This article belongs to the Special Issue Civic Engagement, Justice, and the Law in a National and International Context)
Open AccessArticle
Algorithmic Exploitation in Social Media Human Trafficking and Strategies for Regulation
by
Derek M. Moore
Laws 2024, 13(3), 31; https://doi.org/10.3390/laws13030031 - 20 May 2024
Abstract
Human trafficking thrives in the shadows, and the rise of social media has provided traffickers with a powerful and unregulated tool. This paper delves into how these criminals exploit online platforms to target and manipulate vulnerable populations. A thematic analysis of existing research
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Human trafficking thrives in the shadows, and the rise of social media has provided traffickers with a powerful and unregulated tool. This paper delves into how these criminals exploit online platforms to target and manipulate vulnerable populations. A thematic analysis of existing research explores the tactics used by traffickers on social media, revealing how algorithms can be manipulated to facilitate exploitation. Furthermore, the paper examines the limitations of current regulations in tackling this online threat. The research underscores the urgent need for collaboration between governments and researchers to combat algorithmic exploitation. By harnessing data analysis and machine learning, proactive strategies can be developed to disrupt trafficking networks and protect those most at risk.
Full article
(This article belongs to the Topic Emerging Technologies, Law and Policies)
Open AccessArticle
Law, Technology, and Our Governance Dilemma
by
Roger Brownsword
Laws 2024, 13(3), 30; https://doi.org/10.3390/laws13030030 - 10 May 2024
Abstract
This article highlights a dilemma that we face when we turn to new tools that promise to improve on law’s imperfect governance. On the one hand, our discontent with law’s governance is both broad and deep, and much of it is rooted in
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This article highlights a dilemma that we face when we turn to new tools that promise to improve on law’s imperfect governance. On the one hand, our discontent with law’s governance is both broad and deep, and much of it is rooted in the human nature of the legal enterprise. Yet, we remain attached to the essentially human nature of law’s governance. On the other hand, we recognise the potential benefits in technological governance but not without some displacement of the human element. Caught on the horns of this dilemma, we attempt to limit the loss of the human element by insisting that governance must be compatible with human rights or human dignity, or, more directly, that governance must limit the applications of technology so that they remain human-centric. Given a demand for human-centric applications of technologies, we consider how far humans might, and should, go in deploying new tools with a view to improving law’s imperfect governance. Should these tools be limited to assisting humans? Or, might they replace humans? Or might we even govern by technological management of places, products, and processes so that reliance on both humans and rules is reduced? It is concluded that, in all spheres of governance and in all human communities, the one thing that is essential is that the applications of new technologies are controlled so that they do not undermine the generic conditions which are presupposed by viable groups of human agents.
Full article
(This article belongs to the Special Issue Law and Emerging Technologies)
Open AccessArticle
Establishing Boundaries to Combat Tax Crimes in Indonesia
by
Dwi Nurferyanto and Yoshi Takahashi
Laws 2024, 13(3), 29; https://doi.org/10.3390/laws13030029 - 4 May 2024
Abstract
Enforcing criminal tax law in Indonesia presents a critical yet challenging task, because of the intricate interplay between tax and criminal law interests. The Indonesian Government has introduced leniency in tax criminal law enforcement, guided by the ultimum remedium principle, where criminal sanctions
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Enforcing criminal tax law in Indonesia presents a critical yet challenging task, because of the intricate interplay between tax and criminal law interests. The Indonesian Government has introduced leniency in tax criminal law enforcement, guided by the ultimum remedium principle, where criminal sanctions are considered as a last resort. Under this policy, tax offenders can absolve themselves from legal liability. However, such leniency throughout the enforcement process can lead to perceptions of injustice within society. This research uses descriptive, evaluative, and normative juridical methods to examine Indonesia’s approach to enforcing criminal tax laws within the framework of tax and legal interests. Our findings reveal that the current policies heavily favor taxpayer interests by providing numerous concessions to offenders. This trend is concerning, as it may result in a surge of tax crime cases. Conversely, adopting the primum remedium principle, where criminal sanctions are the initial response, poses the risk of harsh legal consequences. In light of these challenges, we propose a balanced approach incorporating elements of both ultimum and primum remedium principles to establish clear boundaries and provisions within criminal tax law enforcement policies. By doing so, we aim to accommodate tax interests while upholding legal interests.
Full article
(This article belongs to the Section Criminal Justice Issues)
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Open AccessArticle
The Challenge of Defining the Secular
by
Georgina Clarke and Renae Barker
Laws 2024, 13(3), 28; https://doi.org/10.3390/laws13030028 - 2 May 2024
Abstract
Judges have long wrestled with the gigantean task of defining religion, with some describing the task as being ‘called upon to ponder the imponderable’, an impossible task, and even misguided. Despite these sentiments, and comments in almost every legal definition expressing the impossibility
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Judges have long wrestled with the gigantean task of defining religion, with some describing the task as being ‘called upon to ponder the imponderable’, an impossible task, and even misguided. Despite these sentiments, and comments in almost every legal definition expressing the impossibility of the task, judges have, in fact, been able to come up with numerous legal definitions for religion. These have been applied in myriad circumstances to define the outer limits of the rights and responsibilities of states, religious communities, organisations, and individuals. By contrast, the term secular has rarely been judicially defined. However, it is no-less important in defining the rights and responsibilities of states and their citizens and residents, particularly in light of the number of states that claim, implicitly or explicitly, to be secular. This paper, therefore, (re)examines the definition of the secular as it pertains to the concept of the secular state. It considers the need for a legal definition of the secular with particular reference to constitutional and other legal instruments that include the term. It then examines the difference between the terms secular, secularisation and secularism, noting the often erroneous conflation as well as the inevitable interaction and overlap between these key concepts. Finally, drawing on existing classifications of legal definitions of religion, the paper classifies definitions of the secular into three overarching classifications, namely ‘historical’, ‘substantive’ and ‘characteristic’.
Full article
Open AccessArticle
The Danger of the Interpretation of Facts: Legal Uncertainty in the Spanish Saga Cases
by
Nataša Rajković
Laws 2024, 13(3), 27; https://doi.org/10.3390/laws13030027 - 28 Apr 2024
Cited by 1
Abstract
Enhancing legal certainty is one of the main values that are sought in the investor–state dispute settlement system. The importance of legal certainty is strengthened in the case of renewable energy investments, which are in the global public interest, long-term and capital-intensive up-front.
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Enhancing legal certainty is one of the main values that are sought in the investor–state dispute settlement system. The importance of legal certainty is strengthened in the case of renewable energy investments, which are in the global public interest, long-term and capital-intensive up-front. The first part of the paper presents the importance of legal certainty in investment arbitration in general, its limits and its importance in the context of the green energy transition. In addition, it addresses the special features of renewable energy investments. The second part of the paper analyses from the perspective of legal certainty the Spanish renewable energy cases initiated under the Energy Charter Treaty (ECT), which deal with similar factual and legal issues. In this respect, the paper presents the varying weight tribunals gave to the important facts that led them further to conclude whether Spain breached the fair and equitable treatment standard, and if so, whether the investor was entitled to full compensation or a reasonable rate of return. In addition, it presents different approaches to perceiving the stability provision of Article 10 (1) of the ECT. The paper concludes that it remains uncertain to what extent RE investors will be protected under the ECT’s stability condition in the case of fundamental or small-scale changes. Although one group of arbitrators may argue that the fundamental change triggers per se a breach of a stability condition, others may argue that for the breach to be established, the host state’s measures must be arbitrary, unreasonable or discriminatory. Moreover, the threat to legal certainty might not only be the vague provisions of the ECT but also the significant discretion tribunals have towards the interpretation of facts, leading to different outcomes. Indeed, it is at the discretion of arbitrators to consider whether the timing of investment, presence of evidence indicating possible regulatory changes, and the reasonable rate of return prescribed in Spain’s domestic law will be relevant or irrelevant.
Full article
(This article belongs to the Special Issue The Climate Change International Investment and Trade Disputes: Legal and Political Implications)
Open AccessArticle
The Judicialisation of Parliamentary Privilege in Canada: A Cautionary Tale
by
Lorne Neudorf
Laws 2024, 13(3), 26; https://doi.org/10.3390/laws13030026 - 26 Apr 2024
Abstract
Over the past few decades, Canadian courts have exerted strong influence over the meaning and operation of parliamentary privileges. Starting with a television producer’s Charter rights claim to access a provincial legislature’s public gallery and followed by an employment law claim made by
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Over the past few decades, Canadian courts have exerted strong influence over the meaning and operation of parliamentary privileges. Starting with a television producer’s Charter rights claim to access a provincial legislature’s public gallery and followed by an employment law claim made by the chauffeur to the Speaker of the House of Commons, the Supreme Court of Canada has articulated an approach under which judges closely scrutinise privileges invoked by legislatures when defending themselves against litigated claims. By applying the doctrine of necessity, Canadian courts make authoritative rulings on what counts as a valid legislative function and the processes and activities needed to fulfil those functions. Canadian courts also require the scope of parliamentary privileges to be pleaded in narrow terms that correspond to the details of a plaintiff’s claim, which has resulted in a hollowed-out conception of privilege over time. In scrutinising the necessity and scope of privilege, Canadian courts have chipped away at the separation of powers. Further, the Canadian approach unjustifiably prioritises the judicial vindication of private rights over the institutional needs of the legislature. Courts in other jurisdictions should reject the Canadian approach and avoid scrutinising the propriety of the exercise of privilege through a necessity test. Instead, courts should engage in a more limited jurisdictional test to confirm the availability of a relevant category of parliamentary privilege in law or historical practice. Judicialising parliamentary privileges weakens the autonomy and vitality of legislative institutions, with the Canadian approach serving as a cautionary tale. Ultimately, the legislature is accountable to the electorate for the exercise of its privileges. To promote fairness and reduce the risk of court interference, parliaments should strengthen the accountability and transparency associated with the exercise of their privileges, including by develo** guidelines for their appropriate use.
Full article
Open AccessArticle
Human and Divine Law at the Secular University: The Divide between Classical Liberalism and Post-Classical Liberalism
by
Owen Anderson
Laws 2024, 13(3), 25; https://doi.org/10.3390/laws13030025 - 24 Apr 2024
Abstract
The American university has been guided by classical liberalism in its defense of the freedom of speech and academic freedom. The idea is that a university is a place where all ideas and perspectives can be debated. However, this idea is increasingly being
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The American university has been guided by classical liberalism in its defense of the freedom of speech and academic freedom. The idea is that a university is a place where all ideas and perspectives can be debated. However, this idea is increasingly being challenged by those who want the secular university to be a place that advances a social philosophy that promises to transform society by dismantling structural racism and providing for greater equity. In this article, I will argue that both of these models have been shaped by democratic legal ideals and both share a common skeptical assumption about the basic questions of meaning that each person must answer. The legal structures developed by Westphalian modernity attempt neutrality on questions about meaning. This can be seen even in recent Supreme Court decisions affirming the individual’s right to determine meaning for themselves. This skeptical root has produced the conflict between classical liberals and the social transformation that we are witnessing at our universities. I argue for a third option that I find in the Declaration of Independence, which affirms that we can and should know the answers to basic questions which then provide the foundation for education and law.
Full article
(This article belongs to the Special Issue Civic Engagement, Justice, and the Law in a National and International Context)
Open AccessArticle
Reconciling International Climate Law and the Energy Charter Treaty through the Use of Integrative Interpretation in Arbitration
by
Eike Hinrichsen
Laws 2024, 13(2), 24; https://doi.org/10.3390/laws13020024 - 22 Apr 2024
Abstract
The conflicting objectives of the Energy Charter Treaty’s (ECT) protection of fossil fuel investments and climate change mitigation can reveal themselves in investor state dispute settlement (ISDS). As neither the modernization nor the termination of the ECT is likely, ECT arbitration will continue
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The conflicting objectives of the Energy Charter Treaty’s (ECT) protection of fossil fuel investments and climate change mitigation can reveal themselves in investor state dispute settlement (ISDS). As neither the modernization nor the termination of the ECT is likely, ECT arbitration will continue to exist. This article, therefore, examines the reconciling potential of integrative interpretation in climate relevant ECT arbitrations. An integrative interpretation is not only prescribed by the international rules of treaty interpretation, but can also be found in the practice of international dispute settlement. However, international climate law has not yet been taken into account by a single ECT tribunal. Although some hurdles and uncertainties remain in practice, examples of extraneous treaty use, as well as the reasoning of the judgments of recent climate litigation, show that ECT ISDS has the potential to reconcile climate change and energy investment interests in the future.
Full article
(This article belongs to the Special Issue The Climate Change International Investment and Trade Disputes: Legal and Political Implications)
Open AccessEssay
Influence of the Cultural Defence on Conduct and Culpability in South African Criminal Law
by
Jacques Matthee
Laws 2024, 13(2), 23; https://doi.org/10.3390/laws13020023 - 1 Apr 2024
Abstract
South African criminal law has no separate, distinct, or novel cultural defence. Such a defence could negate or mitigate an accused’s criminal liability for a culturally motivated crime. Whether South Africa’s criminal law could adopt such a defence requires understanding its influence on
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South African criminal law has no separate, distinct, or novel cultural defence. Such a defence could negate or mitigate an accused’s criminal liability for a culturally motivated crime. Whether South Africa’s criminal law could adopt such a defence requires understanding its influence on the requirements for criminal liability. This article evaluates the influence of the cultural defence on the elements of conduct and culpability. The first part deals with the cultural defence and voluntary conduct. The discussion then turns to culpability, which consists of criminal capacity and fault (mens rea). The third part considers the cultural defence’s influence on criminal capacity, while the fourth considers its influence on fault. More specifically, the article evaluates how the existing types of defence that can negate conduct and culpability in South Africa’s criminal law can accommodate arguments of an accused’s cultural background, values, and beliefs to determine whether there is a gap that only a separate, distinct, or novel cultural defence can fill. The article concludes that South Africa’s principles of conduct and culpability are already flexible enough to accommodate such arguments, obviating the need for introducing a separate, distinct, or novel cultural defence.
Full article
(This article belongs to the Section Criminal Justice Issues)
Open AccessArticle
The Invocation of the Precautionary Principle within the Investor–State Dispute Settlement Mechanism: Not Seizing the Occasion
by
Naimeh Masumy and Sara Hourani
Laws 2024, 13(2), 22; https://doi.org/10.3390/laws13020022 - 28 Mar 2024
Abstract
The principal purpose of this article is to demonstrate how the precautionary principle can be included in the investor–state dispute settlement (ISDS) deliberative process by providing a legal solution that would permit the invocation and implementation of this concept within the ISDS operational
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The principal purpose of this article is to demonstrate how the precautionary principle can be included in the investor–state dispute settlement (ISDS) deliberative process by providing a legal solution that would permit the invocation and implementation of this concept within the ISDS operational framework. The precautionary principle has been widely applied in the environmental management field, yet its role within the ISDS framework has remained relatively underutilised. To analyse this issue, this paper first explores the operational justification of the precautionary principle and how decision-makers should endorse it in order to fully recognise and address environmental concerns on a legal level. Next, the article proceeds to examine recent ISDS cases in which the precautionary principle was invoked and compares various risk assessment techniques to illustrate how it may be incorporated into the deliberative process and harmonised with other standards. The paper suggests that the forward-looking nature of the precautionary principle has paramount importance in disputes involving oil and gas, particularly in cases where oil and gas activities are believed to contribute to greenhouse gas emissions that could worsen global warming. This paper advances the argument that a wider application of the principle could better equip ISDS tribunals to address the limitations of scientific knowledge, especially under circumstances where significant or irreversible environmental damage may occur.
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(This article belongs to the Special Issue The Climate Change International Investment and Trade Disputes: Legal and Political Implications)
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