The right to be protected against discrimination, which is enshrined in international and national human rights catalogues, pertains to us all as individuals. And this fits the ambition of the... Show moreThe right to be protected against discrimination, which is enshrined in international and national human rights catalogues, pertains to us all as individuals. And this fits the ambition of the modern human rights discourse to protect everyone against the power of public institutions as well as private persons and groups. But in many liberal democracies there are often only some groups protected against discrimination and merely in certain situations. This entails both legal-theoretical and practical dilemmas. In the first place because such provisions transgress the boundaries of legitimate state conduct as provided by our rights. But also because many people who need protection against discrimination will lack it. In addition, there is the risk that old stigmas are enforced or new one’s created. Moreover, such a course of action suggests a hierarchy of suffering wherein the suffering of some has priority over that of others. Last but not least, group-based protection against discrimination might engender a struggle within and between groups for the available assistance. On account of the foregoing, one may recommend that the Dutch hate speech ban, quota laws, and institutional opinions that speak out against discrimination – which are currently group-based – can benefit from a more general approach. Show less
This research identifies a model for the interpretation of a contract under Dutch law. The model answers the question of which method should be applied to interpret a contract in the contest of a... Show moreThis research identifies a model for the interpretation of a contract under Dutch law. The model answers the question of which method should be applied to interpret a contract in the contest of a specific case, considering existing legislation, case law and legal doctrine. The model indicates which method of interpretation (e.g., the objective-oriented method of interpretation) is applicable, based on a case specific selection and assessment of sources of interpretation (such as ‘the linguistic meaning of the wording’, ‘the pre-contractual phase’ or ‘trade usages’) by using contextual factors (e.g., ‘the nature of the contract’, ‘the nature and knowledge/experiences of the parties to the contract’ and ‘the manner of the formation of the contract’). A suitable method of interpretation can be identified and applied by selecting and balancing sources of interpretation in light of contextual factors. The model provides guidance on contract interpretation to parties engaged in a dispute about the meaning of the contract, and persons who need to solve such a dispute, such as judges and arbitrators. The law of evidence will also be considered. The model, as identified under Dutch law (see Chapters 2 to 5) will be evaluated and both foreign legal systems (English and French law) and transnational principles (the PECL, the DCFR and the PICC; see Chapters 6 to 8) will be considered. Show less
The right to free movement and the mobility of people as guaranteed by the Schengen Agreement have given rise to challenges regarding transnational organised crime and particularly migrant... Show moreThe right to free movement and the mobility of people as guaranteed by the Schengen Agreement have given rise to challenges regarding transnational organised crime and particularly migrant smuggling and human trafficking. Against the backdrop of processes of globalization and securitization of irregular immigration, the adoption of the United Nations Convention against Transnational Organised Crime in 2000 established a strict dichotomy between migrant smuggling and human trafficking. The distinction has led to different protective frameworks provided to (worthy) victims of human trafficking versus (undeserving) objects of migrant smuggling. This research addresses this legal dichotomy and unpacks the blurred boundaries between the two phenomena. Taking Belgium, a country of transit, as a case study, the work focuses on the sensitive topic of unauthorised ‘secondary migration movements’ taking place within the Schengen Area. Relying notably on semi-structured expert interviews, this socio-legal research empirically examines the functioning of the Belgian legal approach to deal with aggravated forms of migrant smuggling which allows victims to access the protective legal status usually strictly reserved to human trafficking victims. The research shows how this unique protective approach affects the governance of transit migration in Belgium, and more generally, unveils the real-life consequences of rigid legal categories. Show less
Legal professionals spend up to a third of their time doing research. During this research legal information retrieval (IR) helps users find information that is relevant for them. These legal IR... Show moreLegal professionals spend up to a third of their time doing research. During this research legal information retrieval (IR) helps users find information that is relevant for them. These legal IR systems are important because the number of legal documents published online is growing exponentially.This research addresses the question: how can bibliometrics improve common ranking algorithms in legal information retrieval?Chapter 2 focuses on the users of legal IR systems. Users were surveyed to determine whether legal practitioners (searching for themselves) and information professionals (searching for others) have the same perception of relevance. This was done by comparing the factors of relevance they consider then evaluating search results. We found no reason to distinguish between these user groups. With regards to the distinction between legal scholars and legal practitioners, it was determined in Chapter 3 that the usage and citations between scholarly and non-scholarly publications show no reason to create separate rankings users based on their affiliation.Chapter 3 regards the documents in the legal IR system. The citation and usage analysis provided the theoretical insight that citations in legal documents measure part of a broad scope of impact, or relevance, on the entire legal field. Using this information a bibliometric-enhanced ranking variable was created.There are several challenges to evaluating a live domain specific IR system. Chapter 4 deals with these challenges and why common evaluation methods in IR are not applicable. In the end, in Chapter 5, a cost based model is used for evaluation, which shows a reduction of cost for the user.Combining all this information this thesis shows that a bibliometric-enhanced ranking feature that takes into account both usage and citations (two flavors of impact relevance), and increases in influence as the reliability of the data grows (in combination with a recency feature that gives new documents the benefit of the doubt and decreases at the same rate as the bibliometric feature increases), can reduce the cost required from legal professionals (whether practitioner, scholar or legal information professional) to find the point of satisfaction in the completeness ideal/research reality trade-off. Show less
Wrongful moderation deals with internet intermediary service providers allowing users to provide and receive user-provided information. The central question in this dissertation is how these... Show moreWrongful moderation deals with internet intermediary service providers allowing users to provide and receive user-provided information. The central question in this dissertation is how these providers are provided with a legal incentive to overregulate or underregulate user-provided information based on its content. Providers that offer functionalities for user-provided information are criticised for failing to counter illegal content and overregulating content that is not illegal but considered harmful by the provider. In the United States of America and the European Union, legislation is proposed to remedy such overregulation and underregulation. Overregulation and underregulation could be tied to how the liability of service providers is regulated. Overregulation and underregulation may even occur when the provider is exempted from liability for the content of user-provided information – especially when this exemption is conditional. The central question in Wrongful moderation is to what extent the liability regimes in the e-Commerce Directive (EU) (enacted in 2000) and Section 230 of the Communications Decency Act (CDA) (enacted in 1996) (US) provide a legal incentive to overregulate or underregulate user-provided information. The focus lies on providers that offer an online platform to share and receive user-provided information because these providers are best placed to intervene in the content of user-provided information. Because of this intermediary position, these providers are the most popular targets for (state) regulation. Show less
Worldwide, the legalisation of customary land rights has become a strategy for resolving land conflicts between local communities with companies and state agencies. In Indonesia, NGOs have been... Show moreWorldwide, the legalisation of customary land rights has become a strategy for resolving land conflicts between local communities with companies and state agencies. In Indonesia, NGOs have been promoting that strategy through campaigns for changing the legislation and directly assisting adat communities in concrete cases of land conflicts. However, success has been limited.Using a socio-legal research method, this book demonstrates the complexity of the legal recognition process of customary land rights in land dispute settings. It shows how the state legal framework deliberately repressed customary land rights over time, from the colonial period to the present. Detailed case studies also reveal competing interests among community members and their changing strategies in facing land conflicts. Finally, the book explores what happened in practice after communities did obtain legal recognition and whether that indeed solved their land problems.This dissertation invites indigenous rights activists and scholars to rethink the efficacy of the legal recognition strategy in using customary land rights claims as a solution to land conflicts. Show less
This thesis deals with three restrictions on freedom of expression, namely 1) lèse-majesté (the insult to the national head of state; the monarch in a monarchy, or the president in a republic), 2)... Show moreThis thesis deals with three restrictions on freedom of expression, namely 1) lèse-majesté (the insult to the national head of state; the monarch in a monarchy, or the president in a republic), 2) the defamation of foreign heads of state, and 3) blasphemy (insulting religion or religious symbols). This thesis examines the background of these speech crimes, their (international) legal status, as well as their relationship to democratic free speech theory. Show less
This book explores the effects of war and displacement on the South Sudanese Zande, a people frozen in time by the classical anthropology of Edgar Evans-Pritchard. The research started in Western... Show moreThis book explores the effects of war and displacement on the South Sudanese Zande, a people frozen in time by the classical anthropology of Edgar Evans-Pritchard. The research started in Western Equatoria State, South Sudan, at a time of hopeful reconstruction (2014-2015). Yet after war resumed in 2015, nearly a million South Sudanese refugees fled to neighbouring Uganda – and so the study continues with South Sudanese Zande refugees there (2015-2019). Based on hundreds of inter views with refugees and stayees, chiefs and elder s, government officials and former combatants, and ordinary people, this book places conflict, confusion, and the search for continuity at the heart of the historical ethnography of the South Sudanese Zande. The book focuses on the ties between people, between people and land, and the competing efforts to control those ties. These three foci relate to proto-legal questions that underpin human society: Who are we? To whom and where do we belong? And whose authority do we accept? This study shows that these foundational questions gain new salience in times of crisis, as people turn to nostalgia and utopia to escape present despair. Show less
In Senegal, questions of gender, notably the regulation of marital relations, are hotly debated, and pit Islamic authorities against the government. While the Family Code of 1972 promotes women’s... Show moreIn Senegal, questions of gender, notably the regulation of marital relations, are hotly debated, and pit Islamic authorities against the government. While the Family Code of 1972 promotes women’s rights to get a divorce in court, local social realities are different. This study explores the public debate about family law and provides an ethnography of family law practice. It shows how women navigate thecontested spaces of family law as they try to change the terms their marriages or obtain divorce. The role of family is key. Women must work their kin to mobilize support. They may also interact with local authorities – the imam, the chef de quartier, the House of Justice, and the judge. This study shows that women draw on multiple and overlapping sets of norms and tend to invoke the state only as last resort. Behind the polarized debate hides a practice that is fluid. This is reflected in the relations between local authorities, who recognize and respect each other’s roles, even if they work from competing claims to authority. Show less
By the second century AD the Roman empire had grown into a vast multilingual and pluriform empire. Unlike in the Roman West, where the lingua franca was Latin, the inhabitants of the Roman East... Show moreBy the second century AD the Roman empire had grown into a vast multilingual and pluriform empire. Unlike in the Roman West, where the lingua franca was Latin, the inhabitants of the Roman East predominantly spoke Greek. From a legal perspective, these inhabitants of the Roman East lived in a legal culture not dominated by Roman law, but by norms from an Hellenistic legal culture. To resolve their legal controversies, these inhabitants of the Roman East, sometimes, asked advice from renowned jurists from the Roman West. Twenty-six cases of questions based on Greek documents from an Hellenistic legal culture can be seen in the Justinianic Digest. These cases were taken from three Roman jurists, namely Scaevola, Paul and Modestin.In this book, the legal strategies, which these three jurists used to come to an advice on cases from the Roman East, are examined. Did the jurists only apply Roman law or did they take the Hellenistic legal culture from which these cases originated into account? Furthermore, in this book the question is answered whether from these cases influences from Hellenistic legal cultures on Roman law can be demonstrated. Show less
The Weimar Republic, founded in November 1918, was the first real democracy on German territory. It didn’t last long. On the 23th of March 1933, Hitler took power and abolished democracy to start... Show moreThe Weimar Republic, founded in November 1918, was the first real democracy on German territory. It didn’t last long. On the 23th of March 1933, Hitler took power and abolished democracy to start building his totalitarian Third Reich. Since then, the Weimar Republic became famous – or rather infamous – for being a ‘failed democracy’. In this research, the downfall of Weimar’s democracy is of central interest. After broadly stating the historical reality of the first Germany democracy, this thesis focusses on the juridical and philosophical concepts underlying the Weimar democracy to answer the question to what extent they offered real possibilities to defend the democratic state. It answers this question for the dominant philosophical school in Germany when the Weimar Constitution was drafted: legal positivism, for the Weimar Constitution itself as well as for Hans Kelsen, Carl Schmitt, Hermann Heller and Rudolf Smend. Show less
Defaming the Freedom of Religion or Belief: A Historical and Conceptual Analysis of the United Nations analyses the development of and the controversy around the formulation and interpretation of... Show moreDefaming the Freedom of Religion or Belief: A Historical and Conceptual Analysis of the United Nations analyses the development of and the controversy around the formulation and interpretation of the freedom of religion or belief as a universal right within the United Nations. The legal, philosophical, and political dimensions of the subject are discussed.This study demonstrates that the universality, content, and non-discriminatory implementation of the freedom of religion or belief has been questioned since its drafting process, not only on a theoretical level by postmodern views, but also, throughout the years, from a legal and political perspective within the UN. From various angles, these actors seem to ‘defame’ the freedom of religion or belief—hence the title of this study—and have succeeded in changing the provision by interpreting it differently than its original 1948 objectives. These developments have continued and will most likely continue to lead to a diminishment of the normative force of the legal provisions regarding the freedom of religion or belief. Various topics, such as religious tolerance, blasphemy, defamation of religion, and apostasy, are discussed in this context. Show less
This study gives a comprehensive account of the public prosecutor’s role in post-authoritarian Indonesia, both in promoting the rule of law and in maintaining the political status quo. It traces... Show moreThis study gives a comprehensive account of the public prosecutor’s role in post-authoritarian Indonesia, both in promoting the rule of law and in maintaining the political status quo. It traces the development of the Indonesian prosecution service, historically and politically, exploring what and who influences its performance, as well as how public prosecutors work in practice.This research is a socio-legal study of the criminal justice system. It contributes to a number of broader debates about post-authoritarian public prosecutors and their role in promoting the rule of law. By combining criminal law, criminology, political science and anthropological theory, it provides an important framework for the analysis and critique of conditions for, impacts of, and possibilities for prosecution services in post-authoritarian countries.The case of Indonesia constitutes an example of the way in which prosecution services evolve in countries marked by authoritarian tendencies. It shows how various regimes position public prosecutors as ‘justice postmen’, who deliver cases based on the government’s interests, as well as on the interests of other powerful actors, such as political parties, companies, or the police force. Such situations are commonly seen in authoritarian countries, where the executive dominates political power, and public prosecutors have become tools of the government in maintaining political order. Show less
This study on regulatory compliance in the logging sector in Ghana, attempts to understand how and why the key logging actors in the Ghana’s timber industry (i.e., licensed logging firms and... Show moreThis study on regulatory compliance in the logging sector in Ghana, attempts to understand how and why the key logging actors in the Ghana’s timber industry (i.e., licensed logging firms and chainsaw operators) respond to regulations in the sector and the extent to which the Forestry Commission, the main state regulatory institution, enforces these regulations to ensure compliance.For licensed logging firms, the study found that economic gains and societal pressures including demands from the local communities for developmental assistance and illegal activities of chainsaw operators influenced them to violation. Contrary, deterrence from third party non-state actors, particularly the EU market actors and forest certification bodies produced better compliance than the state sanctions. Also, for some firms, it was their religious beliefs including hope in eternal life, rather than deterrence from the state or non-state actors, that motivated them to comply. Regarding chainsaw operators, the violating activity was basically poverty-driven in the sense that it provides them with livelihood support. It also accounts for the bulk of lumber consumed locally and attracts low sanctions when violators are caught. Again, the study found that, the general socio-politico-economic context of the regulated actors and regulators exhibits traits that undermined compliance and enforcement efforts.All these demonstrate that enhancing compliance is a complex phenomenon and not just a straight forward calculation of increasing sanctions to achieve a higher level of compliance, as deterrence theory would like us to believe. More than that, compliance has other dimensions as well including social and normative motivations, and capacity to comply. What is important then for policymakers and practitioners to enhance compliance among various regulated actors is to understand how different actors respond to different compliance motivations under various socio-politico-economic and cultural settings. Show less
Land tenure issues in Timor-Leste are complex and deeply shaped by the nation’s history. Taking an insider’s perspective, this socio-legal research studies the development of the Timorese formal... Show moreLand tenure issues in Timor-Leste are complex and deeply shaped by the nation’s history. Taking an insider’s perspective, this socio-legal research studies the development of the Timorese formal land tenure system from independence in 2002 to 2018. It shows how political, legal, and administrative decisions on land administration are made, what and who influences them, which problems and dilemmas politicians and state officials face, and how the formal land tenure system works in practice. It does so through the investigation of five analytical themes: political environment, lawmaking, legal framework, institutional framework, and social relationships and practices. The result is a portrait of a young nation grappling with the enormous task of creating a land tenure system that can address the needs of its citizens in the wake of centuries of socio-political tumult and huge fluctuations in resources, while seeking to find its place on the world stage as a new nation.By studying the development of the Timorese formal land tenure system, this book engages in the larger academic debate about the role of state systems in addressing – but also causing or aggravating – various social problems, such as insecurity, poverty, inequality, destruction of nature, and cultural and social estrangement. Show less
This research is about the actions taken by lawyers in Indonesia to win land rights for corporations. In order to perform these actions, they not only deploy the weaknesses in the law, but their... Show moreThis research is about the actions taken by lawyers in Indonesia to win land rights for corporations. In order to perform these actions, they not only deploy the weaknesses in the law, but their strategies are supplemented with an acquired structural advantage: social capital in the form of loyalty of others they have vetted, such as judges, policemen and prosecutors.The dissertation gives a comprehensive account of the field that makes the strategies possible from multiple angles, such as courts, business actors, the condition of the rules, and then continues to expose the strategies. It is concluded by highlighting the specifications to the condition of the Rule of Law in Indonesia which need special attention and offer suggestions for substantive and sustainable legal reform. Show less
Since at least the time of the French Revolution there has been an identifiable tradition of conspiracy theorizing that posits the existence of a powerful secret network that has either taken over... Show moreSince at least the time of the French Revolution there has been an identifiable tradition of conspiracy theorizing that posits the existence of a powerful secret network that has either taken over the world or is about to take over the world through deception under the guise of championing enlightenment, freedom, self-government, and liberalism. This thesis charts the development of this idea - called the Grand Conspiracy Theory - and examines some of the impact of this idea and demonstrates that it is a cohesive tradition that has had a decisive impact on world affairs. This is especially evident in its role in inspiring violent subversive groups, including with Nazis and radical Islamists, to engage in “counter-conspiracies” against the evil imaginary enemy. This thesis also establishes the crucial importance of propaganda campaigns in shaping and spreading the idea of the Grand Conspiracy Theory. Show less
The dissertation examines the justification and conditions of global citizenship and the relation between global citizenship education and education in general. An applicable concept of... Show moreThe dissertation examines the justification and conditions of global citizenship and the relation between global citizenship education and education in general. An applicable concept of cosmopolitanism is derived from both a historical and conceptual analysis and by means of a comparative method lessons are drawn from (the history of) Afghanistan and the detrimental effects of foreign intervention on the formation of a democratic nation-state. The case for new forms of a cosmopolitan concept of democracy is made, applicable to an interdependent and globalising world. This philosophical analysis is applied to the present-day educational systems of both the Netherlands and Afghanistan. From this a starting point for a proposal towards world citizenship education is derived. In this research the case of the human rights violation of Farkhunda is used as a benchmark for the validity of the discussed theories. Show less
In the recent international campaigns against child marriage, there is a puzzle of agency: while international human rights institutions celebrate when girls exercise their agency not to marry,... Show moreIn the recent international campaigns against child marriage, there is a puzzle of agency: while international human rights institutions celebrate when girls exercise their agency not to marry, they do not recognize their agency to marry. ‘Child marriage’, defined as “any formal marriage or informal union where one or both of the parties are under 18 years of age”, is considered always forced, assuming that children are not capable of consenting to marriages. In order to re-examine, reflect, and discuss this approach to agency, this dissertation offers empirical evidence of child marriage, based on findings from the author’s fieldwork in Indonesia. Why children marry and how this practice both informs, and is treated within, multiple competing normative frameworks in place? The dissertation starts from analysing child marriage discourse at the international level, moves to discuss the political contestation over child marriage at the national level (Indonesia), and then investigates child marriage as a social practice on the Indonesian island of Bali.This is a socio-legal study of international human rights, which contributes to the scholarly field of human rights and children’s rights by using ideas from the other disciplines in social science. Show less
This is a study on the Dutch private law doctrine of the indivisibility of the security rights pledge (pand) and hypothec (hypotheek). It deals with the roots of this doctrine in roman law, ius... Show moreThis is a study on the Dutch private law doctrine of the indivisibility of the security rights pledge (pand) and hypothec (hypotheek). It deals with the roots of this doctrine in roman law, ius commune and French customary law. Show less
