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Recent years have seen multiple controversies between the EU and its member states that revolve around different conceptions of what kind of polity the EU is, and what it should be. These controversies are particularly heated when fundamental democratic values are at stake. In this article, we address the fundamental tension between the assertion of common EU values and the pluralistic character of the EU polity, both among and within member states. The driving question of this article is how we can understand controversies between the EU and its member states in light of the presence of alternative conceptions of the EU and its democratic and pluralistic character. We reconstruct two opposing conceptions of the EU – the intergovernmental and the cosmopolitan conception – and then analyse how the disagreement between these fundamental conceptions plays out in five key controversies. We argue that the disagreement over what the EU is, and what it should be, is inherent to EU politics. The EU can only become democratic if it recognizes these conflicting understandings and provides political arenas in which the disagreements between them can be articulated, confronted, and resolved.

This contribution questions the conception of normative theory that Martijn Hesselink seems to embrace in Justifying Contract in Europe. The question it asks is ostensibly simple and straightforward: what is normative theory? And: what does Hesselink mean when he speaks of normative theory? By connecting the method and approach of Justifying Contract in Europe to the question of delimitation, the article raises several concerns with the reasons Hesselink offers for excluding feminist and Marxist theory, including their heterogeneity and presumed hostility to normative questions and approaches. The article suggests that these reasons point to a broader and more profound difficulty with Hesselink’s understanding of normative theory, which rests on a problematic distinction between normativity and critique. To this, the article responds that critique and normativity (moral philosophy), properly understood, are intimately related – in fact: inseparable – and that one without the other leaves us with a significantly impoverished and unduly narrow understanding of both normativity and critique.

Net-zero targets play an important role in public and private climate governance. The concept of net zero implies that emissions can be outbalanced by compensatory activities such as greenhouse gas removals and offsetting. However, emissions and compensation measures are not equivalent in terms of their climate impact. The climate benefits of currently available compensation practices are more uncertain and less permanent than the harm caused by emissions. From a legal perspective, two problems can be observed. First, aggregating emissions and non-equivalent compensation measures may violate the requirement that greenhouse gas inventories should be accurate. Second, it may conflict with the principle that only effective mitigation measures should count towards emission reduction targets.

This article aims to provide a semiotic analysis of environmental law and youth protests. More precisely, drawing on speech act theory this article regards both as types of communication and teases out the inherent voice and message, specifically with regard to the interests of future generations. The argument unfolds in three steps. First, the article looks into speaker and speech of environmental law and argues that it speaks, as legislation does, in the first-person plural voice of a ‘we’. Second, the article examines a speech of Greta Thunberg through the lens of Stanley Cavell’s theory of passionate utterances. This interpretation will unlock the political stakes of Thunberg’s speech as she claims standing with those responsible for enacting environmental law. Finally, the consequences of this reading will be analysed by relating message and voice of environmental law. As youth protests question ordinary forms of political representation, new ways of safeguarding the interests of future generations are called upon.

The free movement protocols of the Economic Community of West African States (ECOWAS) have never been fully implemented, yet within the region people have continued to move relatively freely. At the same time, the original aim to improve mobility appears to be changing to one of control over mobility. Drawing on fieldwork data as well as a collaborative, deliberative process of uncovering what free movement means in conversations with a group of West African scholars and activists, this article seeks to better understand free movement in the region, despite all its paradoxes. It shows how formal free movement is undermined by several regional and national impediments, including weak ECOWAS institutions, divergent national interests among individual member states and infrastructural challenges like accessing ID cards, as well as external influence from the EU. These however work in convergence with a practice of everyday mobility within socio-political spaces that cross borders.

Complexity science permeates the policy spectrum but not antitrust. This is unfortunate. Complexity science provides a high-resolution screen on the empirical realities of markets. And it enables a rich understanding of competition, beyond the reductionist descriptions of markets and firms proposed by neoclassical models and their contemporary neo-Brandeisian critique. New insights arise from the key teachings of complexity science, like feedback loops and the role of uncertainty. The present article lays down the building blocks of a complexity-minded antitrust method.

Whether and how the GCM will impact national migration orders depends crucially on whether and how both governments and non-state actors engage with it in practice. This article takes Morocco as a case study and focuses on the role of the government and civil society. It asks how far their practices regarding the GCM support its potential as a soft law instrument to impact national migration orders. To undertake a more fine-grained analysis, the article includes an analysis of the implementation of Objective 15 (provision of basic services) as a test case. The paper draws on government reports, civil society reports and semi-structured interviews with policy makers and members of civil society. It identifies good conditions for the GCM to have an impact, in particular Moroccan claimed leadership in migration affaires in Africa; its engagement with the GCM’s review mechanism, and its reliance on the GCM to legitimise migration policies even if some of those policies, as shown by the test case regarding objective 15, are not fully in conformity with the GCM. As to the role of civil society, its impact on the implementation of the GCM is hampered by the sceptical view of most non-governmental organization regarding the GCM. The majority of civil society considers the GCM’s content very problematic and even if a small number of NGOs is positive about (parts of) it, not all of them invoke the GCM in their daily work. The test case regarding Objective 15 shows that NGOs monitoring access to services do not rely on this Objective. Combined with the lack of formal involvement in the national review process, civil society actors are so far unable (or unwilling) to exploit the political potential of the GCM.

In recent years, a platform economy has emerged that is dominated by undertakings such as Google, Amazon, Facebook, Apple, and Microsoft. They have established a form of private governance vis-à-vis their consumers and customers by means of standard terms that create a risk of exploitation. This trend clashes with the internal market effort of the EU that is predicated on consumer rights and fair competition to address market failures such as market power, information asymmetry, and asymmetrical contractual dependency. In this article we examine how the resulting tensions can be addressed by means of EU competition and contract law. This is based on enforcing fairness by requiring (1) the implementation of proportionality—balancing interests—and (2) respect of the duty of care, in the sense of compliance by design. Jointly this can be seen as an expression of accountability that needs to be made explicit. Apart from pre-existing case law and legislation, we take into account the December 2020 Commission proposals for platform regulation, as well as behavioural insights into consumer behaviour.

In the Middle Ages, goods washed up on the beach or fished up from the sea were an important economic asset. The customs and rules that determined the status of these goods are referred to as the ‘law of wreck’ or ‘right of wreck’. Several competing interest groups were involved: the local inhabitants as salvagers, finders or beach combers; merchants, skippers and ship-owners; landowners and the prince. Seventeenth century Dutch lawyers like Hugo Grotius and Johan van Heemskerk painted a favourable picture of the law of wreck in the Dutch Republic by pointing to the greed of the medieval counts of Holland who would only have exploited the misery of castaways. This article shows how the law of wreck developed in Holland and Zeeland in the late Middle Ages and how its rules were applied in the stewardship of North Holland between 1340 and 1400. Although the preserved accounts of the stewardship show that the count did take advantage of washed up goods, the count also had drowned people found on the beach buried and allowed merchants who could prove their goods had washed up on the Dutch beach to recover them.

This contribution discusses the Dutch possibilities of collective redress in the domain of labour law. More specifically, it examines the legal options of bringing collective actions and obtaining collective redress in Dutch courts in labour cases, and elaborates on the relevant legal framework as well as the extent to which these opportunities have been used in practice. Findings imply that the Netherlands was among one of the first European countries to introduce a general collective action system. This general collective action regime allows unions and other interest groups to raise cases to protect workers’ rights, even outside the scope of collective labour agreements. Such a collective action regime, however, is not commonly used in practice. Nevertheless, as of January 2020 the admissibility criteria for this general collective redress mechanism have been expanded and it has become an ‘opt-out’ regime, without the need for individual workers to initiate individual follow-up proceedings in the event of a successful case. The latter could improve the effective enforcement of workers’ rights in practice and could provide an incentive for trade unions and other organisations that are active in the protection of workers’ rights to incite a collective action.

This book focuses on border deaths at sea. It unravels how the interplay of the law of the sea and rules on jurisdiction widen the opportunity for states to make and enforce rules outside their territory, and questions whether this is also accompanied with an obligation to respect the right to life under the European Convention on Human Rights (ECHR) when doing so.By embarking upon the challenge of analysing a cross-border phenomenon in which direct encounters between state agents and the victims are few through the lens of legal obligations, the book unearths avenues for arguing that the ECHR is applicable to border deaths on the high seas and showcases the Court’s creativity in bridging the gap between the Convention and people in need of protection. Furthermore, it demonstrates that the ECHR is applicable to border deaths occurring within the territorial seas of states. It discusses the right to life, as well as the specific obligations of states in respect to border deaths at sea, and demonstrates that in many instances, EU policies fall short of the standards set under the right to life.This book will be of key interest to scholars, students and practitioners in migrant rights, international human rights law, public international law including, refugee and migration law, maritime law, and security studies.

In the period 2014–2019, the Dutch authorities governed the duration of asylum procedures in order to control the influx of asylum seekers. They prioritised and accelerated cases with poor chances of success, while they deprioritised cases with good chances of success. This resulted in long asylum procedures for asylum seekers with a likelihood of success and short asylum procedures for those with a poor chance of success. This article contends that this Dutch policy is an illustration of ‘temporal governance’: a governmental strategy to control and discipline migrants by means of time. This form of governance is based on a detailed knowledge of processes of asylum procedures, which enables qualification, categorisation and differentiation between different groups of asylum seekers. The focus of this research is on how such temporal governance functions and how it relates to law. A traditional understanding of law and sovereign power entails that law legitimates and restricts power. Strikingly, temporal governance regulating the asylum procedure seems to have a different relationship to law. This article demonstrates that legal standards, in this case the standards of European Union legislation, provide Member States a large amount of room (temporal discretion) to apply temporal governance. Moreover, only a few limited legal remedies remain available, if the duration of the asylum procedure appears unlawful. Instead of limiting temporal governance, law provides ample opportunity for the acceleration and deceleration of asylum cases in order to delay due process of asylum seekers and deter others from arriving. We cannot prove that the Dutch government aimed at deprioritising and decelerating complex asylum cases and cases with good chances of success – which would have been unlawful. However, this was the net result of their chosen policy. We illustrate that instead of a legitimation and restriction of sovereign power to govern the asylum influx by means of time, law can function as a set of tactics to pursue policy aims by employing ‘temporal governance’.

This article compares trade-union activity in support of the rights of domestic workers in the Netherlands, Germany and France. Even though trade-union membership among domestic workers is very low, trade unions have taken action to defend the rights of domestic workers in all of these countries. However, such actions have been only partial, and have not comprehensively included the needs and rights of all domestic workers. Comparing trade-union activity shows that actions in support of domestic workers have been encouraged by transnational advocacy in all three countries. While inclusive institutions have facilitated actions in France, in Germany and the Netherlands, trade-union actions have been constrained by the persistently “informal” characteristics of domestic work and by the hesitancy of trade unions to engage comprehensively with the issue of migrants’ rights.FrançaisUn plaidoyer inclusif ? Mobilisations syndicales pour les droits des travailleuses et travailleurs domestiques en Europe continentaleCet article compare l'activité syndicale en faveur des droits des travailleuses [1] domestiques aux Pays-Bas, en Allemagne et en France. Même si le nombre de travailleuses domestiques syndiquées y est très faible, les syndicats ont développé des actions pour défendre les droits de ces travailleuses dans ces trois pays. Toutefois, ces actions n'ont été que partielles et n'ont pas pris en compte de manière exhaustive les besoins et les droits de toutes les travailleuses domestiques. La comparaison de l'activité syndicale montre que les actions en faveur des travailleuses domestiques ont été encouragées par le plaidoyer transnational dans les trois pays. De plus, alors que des institutions inclusives ont facilité les actions en France, au contraire, en Allemagne et aux Pays-Bas, les actions syndicales ont été limitées par les caractéristiques "informelles" persistantes du travail domestique et par l'hésitation des syndicats à s'engager de manière globale dans la question des droits des migrants.

In het kader van ontwrichtende criminaliteit ontstaat steeds meer aandacht voor de gebruikerskant. Zo ook voor de harddrugsgebruiker, die een ontwrichtende invloed heeft op de samenleving. Dit artikel beantwoordt de vraag of strafbaarstelling van harddrugsgebruik legitiem en rechtvaardig is. Teneinde deze vraag te beantwoorden wordt in het artikel getoetst aan de criteria voor strafbaarstelling en worden de argumenten die ten grondslag liggen aan de strafbaarstelling van de prostituant die misbruik maakt van prostituees die slachtoffer zijn van mensenhandel ter inspiratie gebruikt.

Rubriek: RegelMaat.

Irregular migrants in Europe are increasingly subjected to state coercion, surveillance and spatial restrictions, such as containment, dispersal and forced transfers. Lawyers usually evaluate such practices in the light of human rights law, which only provides limited protection. For this reason, I propose an alternative normative framework to evaluate and assess coercive state practices towards irregular migrants: the concept of freedom as non-domination. In this article, I conceptualize non-domination from a rule of law perspective. To this end, I start from Lovett’s procedural account of arbitrariness; and complement this with Benton’s focus on unaccountable power and Palombella’s argument for ‘duality of law’. In the second part of this article, I apply this normative framework to coercive practices in shelters for irregular migrants in the Netherlands. This allows me to demonstrate the practical relevance and consequences of the theory. It discloses how the protection of freedom as non-domination, conceptualized from a rule of law perspective, sets more demanding criteria for the (courts of) law than the protection of human rights. At the same time, it does not require non-interference or elaborate positive obligations from the state. For irregular migrants, who do not have the right to reside in the territory, but who are entirely under the control of state power, non-domination as conceptualized in this paper provides, in my view, a necessary framework of review that ensures a kind of protection that is currently lacking.

Millions of human biological samples are stored worldwide for medical research or treatment purposes. These biospecimens are of enormous potential value to law enforcement as DNA profiles can be obtained from these samples. However, forensic use of such biospecimens raises a number of ethical questions. This article aims to explore ethical issues of using human bodily material in medical biobanks for crime investigation and prosecution purposes. Concerns about confidentiality, trust, autonomy and justice will be discussed. We explore how to balance these concerns against the importance of crime solving. Relevant case examples of forensic use of medical biobanks show that requests by law enforcement to access biobanks are handled in disparate ways. We identify some core ethical issues and conclude that further research on these issues is needed to provide ethical guidance.

Dit artikel bespreekt de mogelijkheden om strafrechtelijke aansprakelijkheid te vestigen voor fraude op online handelsplatforms, in het bijzonder de strafbaarstelling van verkoopfraude op handelsplatforms en het voorstel tot strafbaarstelling van fraude met nieuwe betaalmethoden. Het artikel maakt inzichtelijk hoe onze (analoge) wetgeving steeds verder wordt aangepast op gedragingen die zich afspelen in de digitale wereld, maar laat tevens zien dat deze ‘nieuwe’ gedragingen in de kern niet veel afwijken van de bestaande gedragingen in de offline wereld.

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Contains fulltext : 248085.pdf (Publisher’s version ) (Open Access) Een overheidslichaam dat een onroerende zaak wil verkopen, moet ruimte bieden aan (potentiële) gegadigden om mee te dingen naar deze onroerende zaak indien er meerdere gegadigden zijn voor de aankoop daarvan. Dat heeft de Hoge Raad in het recente Didam-arrest geoordeeld, zich daarbij baserend op de jurisprudentie van de Afdeling bestuursrechtspraak van de Raad van State over de rechtsgrondslag voor de verdeling van schaarse vergunningen. De Hoge Raad onderzoekt die rechtsgrondslag zelf niet. In dit artikel worden de grondslag en de ratio van de verplichting tot het bieden van mededingingsruimte onder de loep genomen. Het Didam-arrest roept ook een aantal belangrijke vragen op die verband houden met de reikwijdte en operationalisering van de verplichting tot het bieden van mededingingsruimte. Ten slotte is er de vraag of en in hoeverre het Didam-arrest consequenties zou moeten hebben voor de (door)ontwikkeling van het domein van de overheidsinkoop. 8 p.

Objective: We assessed how police officers’ review of body-worn camera (BWC) footage, either before or after writing an initial report, affects subsequent police reports. Hypotheses: We had competing hypotheses regarding the effect of BWC footage review before writing a police report on the total amount of informa-tion reported (Hypothesis 1) but expected it to increase “on-camera” details while reducing “off-camera” details (Hypothesis 2) and increase the accuracy of reports (Hypothesis 3). We predicted that footage review after writing an initial report would result in more complete and more accurate revised reports (Hypothesis 4). Method: We conducted a field experiment with 102 Dutch police officers taking part in a training exer-cise in which they responded, in pairs, to an emergency call about physical abuse. One of the pair members wore a BWC. After interacting with and arresting the suspect, the officers went into separate rooms to write individual police reports. One pair member first watched the BWC footage and then wrote the report (watch first condition); the other pair member first wrote the report, then watched the footage and could revise the original report (write first condition). Results: Surprisingly, reports in the watch first condition did not differ significantly in amount, observability on footage, or accuracy from original or revised reports in the write first condition. However, police officers in the write first condition significantly improved both the amount and accuracy of their reports after footage review, though effect sizes were small (amount: d =.13, 95% CI [.08,.18]; accuracy: d =.20, [.05,.36]). Conclusions: We recommend that police officers watch BWC foot-age only after they have written down their memories of the incident. If they revise their report after watch-ing the footage, they should clearly identify the revisions made alongside the source of those revisions.

One of the most iconic and concrete encounters one can have with international law is to visit its institutional buildings. This article aims to shed light on the ambivalent aspirations reflected by the architectural design of the International Criminal Court in The Hague and the European Union buildings in Brussels. It provides a sightseeing tour through the architectural landscape of these two ‘legal capitals’ and explores the architectural embodiment of international law’s imaginaries through discussing three main issues: (1) the representation of values and needs; (2) embeddedness within the city; (3) audience expectations. It argues that the physical sites of institutional buildings and the public events that take place at these sites are not trivial to the practice of international law. These sites and the activities and interactions on their grounds (re)produce stories that affect our understanding of what international institutions are and what they mean to us. In particular in the international setting, where institutional legitimacy is not a given, the building’s architecture is an important means of communication. This article explores how the architectural design invites or discourages engagement and how it facilitates an encounter between the institutions and their multiple audiences.

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These things also require their material forms, their easily recognizable visible symbols, their homes. . . . [With the Peace Palace,] international justice between nations has moved into a splendid home. The proud building is standing now, visible, and tangible: Temple, symbol and workplace. At least the spirit of peace is no longer homeless.1.

This paper aims to contribute to The History of the Family by researching the historical relationship between family and state, and the roles that the concepts of 'race' and 'mixture' played. To this end, it analyzes the regulation of Chinese–Dutch marriages in the interwar period and Second World War in the Netherlands. It argues that the ways in which these interracial marriages were regulated were informed by colonial discourses on the Chinese as racialized others. This resulted in a systematic pattern of exclusion of Chinese migrants in the Netherlands, in which they were registered, fingerprinted, counted and deported. Part of these discourses focused on Chinese 'interracial' marriages with Dutch white women. This resulted in the 'regulation of mixture' in which state officials aimed to prevent such marriages, through migration law, document requirements and premarital counseling. During the war, these marriages were considered a 'racial shame' and relationships were broken up by arresting Chinese husbands before marriage. More research is needed to learn more about the extent of these practices and to know whether they were applied to racialized groups other than Chinese.

Currently, the Council of the European Union is negotiating the European Commission’s recent proposal on cross-border mobility. This paper provides an overall assessment based on the proposal’s central pillars: freedom of establishment and protection of the interests of creditors, shareholders, and employees. The proposed directive meets a real necessity for regulation on a European level and pursues an ambitious agenda. While the general approach is excellent, there is room for improvement on some issues of importance.

The chapter provides a Kantian reading of EU internal market law and the refugee crisis of 2015. The chapter argues that the EU should be viewed as a cosmopolitan union. The authors ask whether EU law, understood as positive cosmopolitan law, can be qualified as an extension of the legal condition, and whether it can be viewed as consistent with the other two parts of public law, especially with the freedom of EU member states which also depend on the possible connection to global, much less extensive, systems of positive cosmopolitan law such as migration law.

Artificial intelligence (AI) is transforming the space industry by offering unprecedented possibilities for space related activities. AI applications in space include from analyzing large amounts of space data, enabling deep-space missions, mitigating the effects of climate change, combating space pollution, toassisting astronaut crews during their daily operations. In the context of building future human societies on the Moon, AI systems will play a double role: an ex-ante preparation role and a societal consolidative role. AI systems used in the ex-ante preparation phase include various applications used for explorationinvestigations and they will be decisive for the scientifical understanding of the future Lunar habitat. Once the habitats will be settled, AI systems will contribute for consolidation, playing an assistive role, among others. AI systems will be able to offer support in daily activities, including offering mental health assistance. Similar systems have already been successfully deployed on the International Space Station, for crew assistance.The introduction of AI systems as part of future Lunar habitats does not come without corresponding risks, especially from a legal perspective. Several legal challenges may appear in the context of a high reliance on these systems, such as: who will be liable in case an AI system will be involved in accidents causing economic losses or loss of human lives? What type of legal framework will be required to mitigate such risks? Will the existing body of laws representing international space law remain sufficient for addressing these challenges?In such context, the purpose of this paper is to critically analyze the above-mentioned legal risks and to propose corresponding mitigating actions for ensuring long-standing future Lunar societies.

Algorithms are the basic engine of AI and are increasingly supporting and channelling the outcome of deciscion making in all kind of different areas . Algorithms will drive many different applications, from industrial products to administrative and governmental decision making. This includes relevant legal decisions that will require information for data-subjects. The GDPR requires transparency of decision-making and explainability as well as information to the datas-subjects. In what respect and to what extent is this demand feasible? Must algorithms always be explainable or do we accept the black box to be black for different functionalities. Is a separate legal framework for algorithms necessary? It is not always necessary to know what is under the hood of the car to drive...

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To meet the goal set by the Paris Agreement, greenhouse gas emissions must be reduced by as much as 45% by 2030. Fossil industry advertising subverts this objective: It stimulates continued demand for fossil fuels, and creates doubts about their enormously harmful effects. Misleading advertising is prohibited under the Unfair Commercial Practices Directive, as well as other regulatory instruments. This article explores under which circumstances fossil fuel advertising must be regarded as misleading, and thus prohibited. Drawing from the example of tobacco regulation it will be argued that advertising is misleading if it "normalizes" a harmful commodity, i.e., if it portrays its production and use as acceptable and normal. It will then be shown that fossil industry advertising systematically "normalizes" fossil fuel products in such a manner, and must therefore typically be understood as misleading.

In het wetsvoorstel voor de Wet toekomst pensioenen is voorgesteld de overdracht van opgebouwde pensioenaanspraken naar het nieuwe pensioenstelsel te laten plaatsvinden met afschaffing van het nu in de Pensioenwet opgenomen individueel bezwaarrecht. In dit artikel worden voorstellen gedaan voor een alternatief in plaats van het afschaffen van het bewaarrecht, omdat deze afschaffing op veel verzet lijkt te stuiten.

ispartof: Handicap & Recht issue:1 pages:23-31 status: published

Even though the Netherlands was one of the founding fathers of the CoE, the impact of CoE conventions and soft law on Dutch administrative law and the development of the principles of good administration is rather patchy and uneven. This ‘Dutch paradox’ can be explained by the much more significant and direct impact of the European Convention on Human Rights on both substantive and procedural national administrative law. At least partly, this impact can be explained by the existence of a coherent body of ECtHR case law that is relevant to almost all areas of administrative law and that can be readily and easily applied on the national level. Nevertheless, the chapter concludes that it might be useful for Dutch authorities to keep an eye on other CoE instruments that may be relevant for the development of general administrative law, especially because the ECHR provides for minimum protection only.

Introducing the special issue David Luban's paper on 'The Enemy of All Humanity', we point out how the notion of an ‘enemy of all humanity’ challenges the very foundations of international (criminal) law. We also give an overview of the other contributions.

The consequences of a prolonged non-accession of the European Union to the European Convention on Human Rights following Opinion 2/13 of the Court of Justice of the European Union may very well affect the longer-term effectiveness and viability of the Convention system. This contribution gives a succinct analysis of the institutional link between the Convention system and the EU legal order, and of the more recent interaction between the two systems, arguing that both were on what seemed to be a collision course until recently. The author stresses the continued need for an institutionalised arrangement between both regional courts working in the same geographic area interpreting similar human rights standards.

Wat is een ‘goede wet’ voor de Nederlandse rechter vanuit het EU-recht en het EVRM bezien? Een ‘goede wet’ – daaronder mede begrepen de toelichting bij de wet – stelt de rechter afdoende in staat om (1) de verenigbaarheid van een wet met het EU-recht of het EVRM te beoordelen en (2) potentiële conflicten met het EU-recht of het EVRM constructief op te lossen zonder te hoeven grijpen naar ‘zware’ opties. Maar hoe, en tot op welke hoogte, kan of moet de wetgever rekening houden met de Europese taak en habitat van de Nederlandse rechter, zowel qua inhoud als qua motivering van wetgeving? En welke wetgevende kreukelzone mag de rechter onder Europees recht en het EVRM aan de wetgever laten alvorens in te grijpen? Ter beantwoording van deze vragen gaat deze bijdrage in op de verschillende vereisten die het EU-recht en het EVRM stellen aan goede wetgeving, waarbij mede wordt ingegaan op de structuur van de stapsgewijze toetsing door de Europese Hoven van nationale wetgeving.

The individualisation of punishment is a key element in liberal narratives about international law and international relations. This narrative has become an integral part of positive international law, especially the regimes governing the use of force and the prosecution of an international crimes. Rather than punishing states or entire societies, liberals claim, punishment has become restricted to those who incurred individual guilt. To liberals, the individualisation of punishment is part of a larger process of enlightenment and civilisation that has helped to fence atavisms like revenge. We do not question the emergence of an ever more sophisticated system of individual punishment in international law. However, we argue that punitivity has been more difficult to fully channel towards individuals and away from collectives than claimed. To be sure, punitive language has by and large been banned from the laws of armed conflict. We argue, however, that the absence of a punitive vocabulary does not equal the absence of punitivity. In contrast, current state practices of using armed force are still imbued with punitivity, however silenced in the current legal framework and thus pushed underground. Realising the presence of a punitive undercurrent, we argue, adds to a more comprehensive understanding of contemporary state practices.

This article argues that due to their position and task in society, legal professionals are confronted with specific difficulties connected to contemporary circumstances. To outline these circumstances, this article draws on the work of Ulrich Beck and Zygmunt Bauman and places both theories within the late modernity. Lawyers need to be able to deal with the difficulties late modernity poses and are therefore in need of appropriate knowledge and skills. Law schools should offer relevant schooling so that their students are equipped to deal with the difficulties confronting them in late modernity’s society. This article offers a first inquiry into the challenges that lawyers currently face, alongside anticipating alteration of academic law school programs by clarifying the challenges caused by two societal processes in late modernity, namely (1) the increase of technological possibilities and, simultaneously, the demystification of science; and (2) globalization. These processes lead to a complex society ruled by uncertainty that faces the challenge of allocating responsibility. In addition, some initial suggestions are presented regarding the conceivable adjustments to academic legal education in late modernity.

Hoewel je zou denken dat we na decennia aan wetgevingsbeleid zo ongeveer alle instrumenten wel uitgedacht én besproken hebben, blijkt de creativiteit van de wetgevingsjurist toch altijd net weer wat groter te zijn. Een mooi voorbeeld daarvan is het right to challenge.1 Menig lezer zal nu de wenkbrauwen fronsen: ‘Wat is dat nou weer voor iets nieuws en waarom nou weer een Engelse term?’ Om met het laatste te beginnen: het right to challenge is (met name) vanuit het Verenigd Koninkrijk komen overwaaien. De letterlijke Nederlandse vertaling – uitdaagrecht – zien we wel steeds meer verschijnen,2 maar zij is nog geen gemeengoed.3 En over het eerste: zo nieuw is het instrument als zodanig nu ook weer niet. Een vorm van het right to challenge staat al jaren in het Bouwbesluit 2012, alleen niet onder die term. Daarnaast heeft de term het jongste regeerakkoord gehaald: ‘Het kabinet biedt ruimte aan initiatieven van burgers en verenigingen in de samenleving. In overleg met gemeenten willen wij daarom via een Right to challenge-regeling burgers en lokale verenigingen de mogelijkheid geven om een alternatief voorstel in te dienen voor de uitvoering van collectieve voorzieningen in hun directe omgeving. Daarbij gaat het om zaken als het onderhoud van een park, het beheer van sportvelden of andere maatschappelijke voorzieningen. Daarnaast gaan we samen met enkele gemeenten experimenteren met een recht op overname, waarbij lokale verenigingen of buurtbewoners het eerste recht krijgen om maatschappelijke voorzieningen over te nemen en de bijbehorende functie voort te zetten.’Er zijn ook enige websites over het right to challenge, zoals (hoe kan het ook anders) www.righttochallenge.nl. Tijd dus voor RegelMaat om er aandacht aan te besteden.