Editorial of the Dossier “A Comparative Analysis of Negotiated Justice Systems”: an introductory overview.

Background: The enforcement of personal status judgments poses unique legal and procedural challenges, particularly in jurisdictions where family law is deeply intertwined with religious and cultural principles. The United Arab Emirates (UAE) has introduced a specialised execution judge for personal status matters to enhance procedural efficiency and safeguard family stability. This reform represents a significant departure from traditional execution mechanisms, granting the judge discretionary powers to modify enforcement conditions while addressing the sensitivities of family-related disputes. However, questions arise regarding the scope of judicial intervention, the adequacy of procedural safeguards, and the compatibility of this system with established legal principles, particularly in cases involving foreign judgments. This study critically evaluates these aspects and conducts a comparative analysis of the French legal system to explore best practices. Methods: This research employs a doctrinal legal methodology, analysing statutory frameworks, judicial precedents, and legislative intent behind introducing the personal status execution judge in the UAE. A comparative legal analysis is conducted with the French legal system to examine procedural safeguards, jurisdictional limitations, and the role of judicial discretion in enforcing family law judgments. Special focus is given to the legal implications of modifying visitation rights, travel restrictions, and enforcement conditions, particularly in cross-border cases. Results and Conclusions: The findings reveal that the appointment of a specialised execution judge for personal status matters offers notable advantages, including expedited enforcement, enhanced confidentiality, and tailored procedural mechanisms aligned with the unique nature of family disputes. However, the discretionary authority granted to the execution judge—particularly in modifying visitation schedules and prohibiting travel—raises concerns regarding the stability of judicial decisions and acquired rights. Additionally, the research highlights challenges in enforcing foreign personal status judgments, emphasising the need for clearer legislative provisions to address conflicts of laws. The comparative analysis with the French legal system underscores the importance of judicial expertise in family affairs and the necessity of integrating procedural safeguards to uphold fairness and legal certainty. The study recommends refining the scope of the execution judge’s powers, strengthening procedural protections, and reconsidering specific legislative terminologies to ensure a balanced approach between judicial efficiency and fundamental legal principles.

El Estado colombiano está inmerso en el proceso de paz y posconflicto, si llegara a concretarse tal acuerdo, razón por la cual debe enfrentar una etapa de transición continua en la que se replanteen aspectos como el modelo de justicia que se ha venido aplicando y que terminará por modificar el sistema jurídico y las políticas públicas que hasta la fecha se han venido ejecutando. Es por ello que, a la hora de plantear políticas públicas cuyo objetivo sea la consecución de la paz, estas deben ser entendidas desde la esfera de la sana convivencia y la aceptación del otro. Todo aquello se lograría a partir de una evolución del sistema jurídico y cultural de la sociedad colombiana que permita incluir la moral jurídica, la cual, tiene como requisito fundamental el reconocimiento recíproco entre personas y se materializa con un sistema jurídico que abarque más allá de una simple protección a los derechos humanos. Lo anterior hace referencia a la pluricultural existente en todo el territorio nacional, por ejemplo, las minorías étnicas gitanas, afrodescendientes, etc. y a cómo deben ser incluidas de forma efectiva en un modelo social sostenible.

Aim: Recent technological developments and their potential consequences pose novel challenges to criminal justice. Digital transformation is a necessary consideration for a modern and effective justice system; however, the rise of information technologies must also be reconciled with procedural safeguards that ensure the right to a fair trial. The aim of this study is to shed light on certain aspects of how digital technologies might affect our interpretation of some of the basic principles of criminal procedure, with an emphasis on the taking of evidence, where such fundamental requirements as the principle of immediacy have perhaps recently been somewhat neglected in favour of conducting the procedure within a reasonable timeframe.Methodology: Our legal framework and justice system must adapt to the advent of the digital age. Certain phenomena, such as Big Data analysis, social media, data and privacy protection, cryptocurrencies, as well as artificial intelligence have recently attracted special attention from legal scholars from all fields of law. The findings of this study are based on the review of the relevant literature in the field of digital technologies and law, as well as legislation and case law from the last few decades and potential future developments.Findings: The expansion of digital technologies into nearly all aspects of our lives is ever-present in our global collective awareness. The digital revolution challenges our previous concepts about communication, access to information and data protection, and has also already changed the way we think about work, education, or commerce. Technology has a massive potential for criminal justiceas well, including the right to a fair trial within a reasonable time. However, it may also contribute further to recent tendencies in the taking of evidence where procedural safeguards such as the principle of immediacy are sacrificed in favour of efficiency.Value: Digital technologies open a vast array of possibilities for criminal justice, however, also allow for new forms of criminality to emerge. Digitalisation and criminal procedure have numerous implications beyond the scope of this study (e.g. predictive policing) that merit further research.

This article examines the extent to which the principle of the best interests of victims is accommodated within the legal frameworks for protecting victims of sexual violence in Muslim-majority countries. It critically explores the normative and practical gap between Islamic legal principles—particularly the protection of life (ḥifẓ al-nafs) and honor (ḥifẓ al-‘irḍ)—and the operation of positive law in Indonesia, Malaysia, and Egypt. The central questions addressed are how victim protection is conceptualized and regulated within the legal systems of these three countries, and whether the best interests of victims have been established as the primary normative and policy orientation. This study employs a normative juridical method, utilizing comparative and conceptual approaches, and analyzes statutory regulations, legal doctrines, court decisions, and relevant academic literature. The findings reveal that, despite recent legal reforms, existing regulatory frameworks remain predominantly perpetrator-oriented. Victim protection is often treated as supplementary rather than foundational, resulting in limited access to justice, insufficient recovery mechanisms, and weak institutional responsiveness to victims’ needs. Building on a Maqāṣid al-Sharī‘ah perspective, this article proposes a legal reconstruction that re-centers the protection of victims as a core objective of Islamic and national legal systems. It argues that the principle of the best interests of victims is not only compatible with Islamic law but is inherently embedded within its ethical and purposive framework. Accordingly, the study recommends strengthening substantive legal norms, procedural safeguards, institutional coordination, and legal culture to ensure holistic and equitable victim protection. The academic contribution of this article lies in its integration of Maqāṣid al-Sharī‘ah with comparative victimology, offering a normative framework that bridges Islamic legal theory and contemporary human rights discourse. It advances the discussion on victim-centered justice by providing a contextualized Islamic legal justification for prioritizing victims’ interests within modern legal systems.

This PhD thesis explores the various conceptualisations of the right to a fair trial.This thesis focuses on the right to a fair trial and more specifically on Article 6 (3) (c) of the European Convention on Human Rights which relates to the right to have counsel and representation at all stages of the trial. A central theoretical basis for this thesis is that the concept of what constitutes equality of arms is at a cross roads in the European legal tradition and it is by drawing on the experiences of other jurisdictions we might draw closer to understanding of this concept. Certain European States have better incorporated a system whereby access to legal representation is safeguarded. The thesis will also discuss other relevant instruments which serve to protect and uphold the right to a fair trial within their own jurisdictions as a means of comparative analysis. It will be asserted that practices which have developed so far as a means by which to secure a fair trial, if not appropriately handled will actually serve to undermine the sanctity of the right to a fair trial, the very thing that they are suppose to be upholding. One such practice which will form the basis of the comparative research of this paper is plea bargaining and its derivatives in Europe.The practice of plea bargaining challenges the very premise of the trial; which is to find the truth and see justice done. This thesis proposes to examine the tensions between the state and the defendant when it comes to the protection of defendant's fair trial rights. This was achieved employing both a normative and comparative approach to the subject. The normative methodology provided the basis from which the comparative approach was adopted. The comparative methodology took into consideration not only the legal principles which have developed with regards to plea bargaining but also considered the appropriateness of translations and transplants. The divergent implementations will be looked at in the wider European context as to what mechanisms have been put in place such as the European Union Stockholm Programme (2009-2014) and its Roadmap which are being used as the vehicle by which to regain the ground lost to defendants right to legal representation. The thesis will also consider the relationship between plea bargaining and the principle of equality of arms. Equality of arms acts as a safeguard whereby we try to protect the defendant from being incarcerated from something they did not do and or becoming the victim of a miscarriage of procedural justice. The ECtHR has established a two-stage test, the appearance test and the substantial disadvantage test, for assessing the adherence of the principle of equality of arms. Equality of arms establishes that access to a lawyer is an integral element of the right to a fair trial. The other two elements of an effective defence and participation are where the member states are becoming unstuck with regards to the practical application of the ECHR and the ECtHR's decisions. This PhD thesis will argue that we have a legal system which is outdated as compared to our now modernistic views of what constitutes truth. If this is the case then how or should the justice system adapt its pretence of pursuing the truth when it so clearly does not do this when employing alternatives to justice such as plea bargaining. It is increasingly evident from the emerging case law of the ECtHR that the ECHR does not cover all aspects of effective criminal defence. This results in varying practices across the different member states. In the countries examined in this thesis there are shortcomings when it comes to ensuring an effective defence for the defendant. In addition to these discrepancies between the spirit of the ECHR and its application there have also developed other limitations on the effective criminal defence. Tactics have developed which are employed to emphasis the efficiency of the trial at the expense of the defendant's procedural safeguards or the use of pre-trial detention as a mechanism by which to secure an admission of guilt. The ECtHR has addressed the issue of plea bargaining in terms of causing possible violation of the ECHR for the applicant rather than the content, matter and practice of plea bargaining . Despite the evident positives for both sides engaging in this practice there still remain numerous pitfalls. The most evident concern is that innocent defendants will plead guilty to a crime they did not commit. The thesis will conclude that the abrogation of the right to an effective and fair legal defense is an endemic issue which is rife not only throughout Europe but also in America...

Procedural Safeguards in Adult Guardianship Measures Adult guardianship measures can provide essential support and protection for individuals with impaired decision-making capacity, while also potentially imposing significant limitations on their autonomy. The European Convention on Human Rights (ECHR) and the UN Convention on the Rights of Persons with Disabilities (CRPD) establish key procedural safeguards to ensure that guardianship measures are necessary, proportional and tailored to individual needs. Despite their importance, limited comparative research has examined the extent to which European legal systems meet the human rights requirements of the CRPD and ECHR for procedural safeguards. Drawing on country reports from legal experts within the Family Law in Europe (FL-EUR) network, this article aims to address this gap by examining the alignment of 28 European jurisdictions with eight core procedural safeguards for initiating guardianship measures. These safeguards include the use of detailed evidence to justify guardianship, the requirement for a personal hearing, the access to legal representation and legal aid, the ability to lodge an appeal, the duration and regular reviews of measures and the respect for an individual’s wishes in selecting a guardian. The findings indicate that certain safeguards, such as the requirement of a personal hearing and the right to appeal, are reflected in the legal frameworks of many jurisdictions, reflecting a broad recognition of their significance. However, other safeguards, such as the provision of legal representation, are not uniformly mandated across Europe. Furthermore, practical barriers, including inadequate accommodations, may undermine the effectiveness of some safeguards in practice. These findings underscore the need for further research into the gap between legal frameworks and their practical application.

Objective: This study aims to contribute further discussions on solutions to enhance the quality of the legal system in the context of Vietnam advancing to stage 2 (stage 1 being the quantitative aspect) of the process of perfecting its legal system. Theoretical Framework: This research adopts the ROCCIPI model theory to identify several solutions for improving the Vietnamese legal system within the context of the requirements for building a rule-of-law state in Vietnam, as embodied in Resolution No. 27. Research Methods: This paper employs methods such as the analysis of written laws, document analysis, and comparative analysis. Results and Conclusion: The research results indicate that after prolonged efforts to build a legal system almost from scratch, Vietnam now has a legal framework and procedural system that covers most social relations, gradually replacing arbitrary measures previously imposed by public entities. However, the Vietnamese legal documents system exhibits numerous inadequacies and lacks stability. One of the causes is the involvement of multiple intermediaries in the law-making process, leading to a multi-layered legal system with various procedures (often referred to as "sub-licenses") that interfere with the effectiveness of regulations. Despite modernization efforts, Vietnam's legislative techniques have not significantly improved the quality of legal documents. Therefore, this study proposes solutions focusing on addressing these issues based on the ROCCIPI model approach, which the author believes is suitable for Vietnam's political and legislative realities. Research Implications: This study is set against the backdrop of the Communist Party's continued emphasis on legal formalization, reflecting a consistent policy direction towards building a state that upholds the rule of law. The author agrees that building and perfecting the legal system in any country must begin with an awareness of the law's position and role in social life, from the perspective of the entity controlling and regulating society. Therefore, this research, premised on the consistent guiding capacity of the Communist Party and the State of Vietnam in the legislative process, will discuss ways to progressively perfect the legislative process with strong leadership and constructive roles from these two entities. Originality/Value: Since the promulgation of the Law on Promulgation of Legal Documents in 2008 , issues regarding efficiency, rationality, inflation, and overlap of legal documents have not been resolved. Numerous studies have identified causes, consequences, and proposed legislative solutions to optimize the legislative process and establish a legal life for the documents. The contribution of this study, beginning with a hypothesis about the strong regulatory role of political and social management entities, with an awareness of the law's role in this process, will provide solutions focusing on three aspects of the legislative process: reducing intermediary layers between rules and social life; continuing to emphasize the stability of rules with the central regulatory role of the state; and finally, the techniques of drafting documents, which can be frequently adjusted to meet the two aforementioned objectives.

“Something has to change”

Applying Procedural Justice Theory to Law Enforcement's Response to Persons With Mental Illness

ELIHU INSELBUCH [*] I INTRODUCTION Many consumer organizations, public advocates, labor unions, and plaintiffs' lawyers view the United States' system of contingent fees as nothing less than the average citizen's key to the courthouse door, giving all aggrieved persons access to our system of justice without regard to their financial state. [1] Others, including some defense counsel and academics funded by or speaking for corporations and their insurers, view them as the bane of our legal system, the source of frivolous and expensive litigation that lines the pockets of the claimants' lawyers with unwarranted and extravagant fees. [2] Despite a 1994 formal opinion of the American Bar Association finding contingent fees to be squarely within the bounds of American legal ethics, [3] they remain subject to attack by their critics. [4]As Congress and some state legislatures continue to debate the subject of reform, [5] however its advocates may define it, contingent fees will almost certainly remain among the primary targets of the cries for change. Most of the calls to limit or eliminate contingent-fee compensation are at best misguided. If there are real inefficiencies associated with litigation, they do not arise out of the actions of injured plaintiffs and their attorneys, who have no motive to make litigation slower or more expensive. Rather, it is the manufacturers, their insurers, and their attorneys whose economic self-interest leads to prolonged litigation and, in the process, makes the system cumbersome and expensive. This article reviews the role of contingent-fee compensation in the United States' legal system, considers the criticisms leveled against it, and offers alternatives to the critics' suggestions on how to redress the problems that, according to their claims, are the products of such fees. [6] II THE ROLE OF THE CONTINGENT FEE In theory, any litigant may retain counsel on a contingent fee basis to pursue or defend against most actions. [7] Plaintiffs retain counsel on a contingent fee basis to pursue a wide variety of claims outside the arena of tort law, such as actions based on the violation of federal civil rights, antitrust, and securities statutes, and even garden variety collection cases. But the overwhelming number of contingent-fee retentions occur in tort cases, and so for the most part, it is the contingent-fee contract between a tort plaintiff and counsel that has drawn the most attention from the bar and commentators. For at least a century, the use of contingent-fee contracts for legal services has been an accepted practice in the United States. [8] In this respect, the system of justice in the United States has parted company with its English counterpart, which does not permit contingent-fee contracts. [9] The English common law considered them illegal on the ground that they were champertous. [10] The ban appears to have survived in present-day England in large part because of a perception that contingent fees are responsible for excesses resulting from the commercialization of American jurisprudence, [11] as well as the relative reluctance of British subjects to resort to the legal system to redress wrongs. [12] It is perhaps ironic that American critics of the contingent-fee contract cite England as the preferred model. [13] What they ignore is that in England, a plaintiff with limited means and a claim to assert has recourse to that country's substantial Legal Aid program, which is financed by the government. [14] The United States, of course, has no comparable nationally financed legal aid program for providing counsel to aggrieved persons in civil cases. Because the United States lacks such a system, the contingent-fee contract is widely recognized as the means by which all Americans may retain counsel to seek legal assistance, no matter what their means may be. Critics in the United States do not suggest the substitution of a nationwide government-funded legal aid system for the contingent fee. …

This chapter presents a cross-cutting comparative analysis of how property rights may be restricted through expropriation in three legal systems in Southern Europe (Italy, Portugal, and Spain). In particular, the research is focused on the crucial role that the administrative expropriation procedure plays when a public authority decides to deprive a party of his or her property rights. By conducting this analysis, the author identifies the judicial remedies and procedural safeguards (including those established at constitutional level) which are foreseen in the three legal systems selected, drawing some conclusions on the differences and similarities amongst them.

This research paper presents a comparative analysis of the legal frameworks governing post-arrest bail in India and Pakistan, with a focus on the statutory provisions, judicial interpretations, and procedural safeguards that are involved. Although both states share a common legal heritage which is rooted in British colonial law, however, they have diverged in their approaches to bail, which are influenced by their respective constitutional mandates, legislative developments, and sociopolitical landscapes. This comparison is essential in order to understand how these legal systems are balancing individual rights with societal security and how judicial discretion are shaping bail in each country. For this purpose, this paper examines constitutional provisions besides main statutory provisions of the Indian and Pakistani criminal procedural laws, the role of judicial discretion and evolving jurisprudence of the post-arrest bail. This study offers insights into potential legal reforms, with an aim to enhance fairness and consistency in bail practices, through juxtaposing these principles in India and Pakistan. This study concludes that Pakistan should consider restructuring its bail procedural laws and system, and it suggests reforms taking into account the benefits of India’s progressive legal framework, to ensure consistency, fairness, and the protection of individual rights. This research also recommends future studies on balancing bail and incarceration, through focusing on judicial discretion and the application of the principle of proportionality.

Contesting Immigration Policy in Court. Legal Activism and Its Radiating Effects in the United States and France. By Leila Kawar. Cambridge: Cambridge Univ. Press, 2015·.Leila Kawar has published a thoughtful, well-researched and at times provocative comparison of immigration-related litigation in France and the United States. She analyzes the radiating effects of such litigation on immigration policy in both countries, and thus critiques the litigation efforts of lawyers who try to shape such policy. Such an approach is particularly welcome now, as executive orders and other policy pronouncements limiting immigrant and refugee rights in the United States, as well as the resurgence of nationalist sentiment in numerous countries, will likely lead to an increase in immigration-related litigation and other forms of legal advocacy for the foreseeable future.Lawyers and other immigration advocates typically-and out of necessity-focus exclusively on the here and now, and on the country in which they operate. Kawar's book places their work in historical and comparative perspective, and in doing so sheds light on the question of how we got here. It will help lawyers, as well as sociolegal scholars, understand why the everyday battles over immigration policy are often about seemingly trivial details related to one's immigration status. This might provide some comfort, or at least an explanation, to those cause lawyers who pursue immigration advocacy because they want to help bring about significant social change and feel frustrated by the minutia of much immigration law practice.Kawar's book covers a range of important issues, including the interaction between rights-based litigation and social movements, how constitutional court dialogue about rights can have a strong influence on policymaking, and how globalization has not necessarily led to a homogenization of legal contestation. And from a methodological perspective, she offers creative insight into the contributions that non-native researchers can bring to empirical research.Kawar's methodological approach is rigorous and thorough. Over a period of seven years, she conducted voluminous archival research (including media reports) and interviewed numerous key actors in the immigrant rights legal community and jurists in each country. Kawar is transparent in acknowledging the difficulties inherent in doing this kind of study across national borders, especially within different legal systems. She is careful not to fall into the trap of making assumptions about a particular legal system, and the lawyers who populate it, based on the system with which she is most familiar (i.e., the United States). She is sensitive to distinctions in legal cultures, and how they affect both participants and observers. Kawar also avoids tortured comparisons between the United States and French legal systems; where appropriate, she acknowledges the differences and leaves them be.One of Kawar's qualitative empirical methods that was particularly impressive is her idea of eliciting of from her interviewees. This approach conveys a lack of agenda or assumptions on the part of the researcher; on the contrary, it turns the interview over to the interviewee from the start. As Kawar notes, requests for such snapshots often elicit the longest pause between question and answer in an interview-which, from an empirical research perspective, is generally a good thing.On substance, Kawar notes that litigation has had relatively little influence over immigration policy over the past several decades. This is a well-taken critique, especially when one considers the significance of several U.S. Supreme Court decisions in other eras, most notably the late nineteenth and mid-twentieth centuries, which coincided with the spike in labor-based immigration to the American West following the Gold Rush, and concern about foreign influence during World War II and the Cold War, respectively. …

Introduction When the Charter of Rights and Freedoms became part of the Canadian Constitution there was a great deal of speculation over the effect it would have on legal rights in Canadian society. In the search and area, some questioned whether an individual's right against unreasonable search or seizure would be protected to a greater extent simply because the Charter placed limitations on such criminal procedures previously left to the discretion of government (Manfredi 1993). Conversely, others wondered whether the Supreme Court would fail to take a strong comprehensive approach to the s. 8 provision because Canadian society did not have a strong historical tradition of protecting individuals from unreasonable searches and seizures. In analyzing this question, one might turn to the theoretical paradigms of criminal justice first articulated by Herbert Packer (1968). Prior to the adoption of the Charter, the Canadian Court had historically adhered to the Crime Control Model (one of Packer's models) in the search and area (Manfredi 1993; Lipset 1990). According to Packer, this approach to criminal procedure is based on the belief that the repression of criminal activity is the most important function of the criminal system. Thus, societies that advocate the use of this model, such as Canada, tend to believe that strict law enforcement is critical in order to maintain public order and safety. By contrast, Packer argued that societies that value human freedom, such as the United States, are more likely to adhere to the Due Process Model, which is based on the belief that it is just as important to protect the innocent as to convict the guilty in the criminal justice system. Cultures that adhere to this doctrine demand that an individual be presumed innocent until proven guilty beyond a reasonable doubt and, thus, procedural safeguards are employed at every stage of the judicial process to help protect the criminally accused from unjust confinement. Having said this, it is important to realize that prior to the Charter's adoption the presumption of innocence was a hallmark of common-law doctrine, though it was not constitutionally enshrined. Still, Packer's two theoretical models provide a valuable interpretive framework for assessing how the Canadian Court has approached search and cases after the adoption of the Charter. Packer's two models of criminal justice highlight an ongoing debate over the extent to which Canada's political culture is truly more communitarian than that of the U.S. While some scholars have suggested that Canada's political ideology may be as liberal and individualistic as that found in the United States (Ajzenstat and Smith 1995; Bell 1991; McRae 1964), others have contended that communitarian values have played a critical role in shaping a unique Canadian political identity (Ostberg 1995; Glendon 1991; Lipset 1990; Monahan 1987; Horowitz 1966). For example, Lipset has argued that Canada's commitment to community values and the collective good can be traced to its founding counter-revolutionary traditions. Meanwhile, Horowitz has suggested that these same values are embodied in the socialist traditions that have been a political force in Canadian national politics (see also Monahan 1987, 92). Most notably for the purposes of this article, these communitarian strains are clearly reflected in Canada's traditional adherence to the Crime Control Model in the legal arena, which places heavy emphasis on the maintenance of public order through strict law enforcement (Manfredi 1993; Lipset 1990). In short, advocates of the communitarian hypothesis believe that Canadian politics has a rich and historic commitment to collectivist values, which in turn could have important implications for the nature of judicial review under the Charter. This paper addresses the fundamental question: How has the Supreme Court of Canada responded to the addition of constitutional safeguards in a society that many believe fits Packer's Crime Control Model? …

This study aims to compare the legal systems of Indonesia and France in handling civil disputes involving the government and individuals. The research highlights challenges related to judicial independence, procedural efficiency, and fair trial accessibility for private individuals in both countries. This study assesses legislative developments and procedural safeguards in both countries, examining their effectiveness in resolving disputes and identifying strengths and weaknesses. In Indonesia, the dual judiciary system separates the General Courts, which handle both civil and criminal cases, from the Administrative Courts, dedicated to disputes involving government bodies. In contrast, France’s integrated legal approach under its administrative law tradition, overseen by the Conseil d’État, emphasizes separation of powers and judicial oversight to ensure government decisions comply with the rule of law. The French system incorporates corrective justice principles, offering comprehensive remedies to address losses in civil disputes, which differ significantly from Indonesia’s approach. It underscores Indonesia’s ongoing legal reforms aimed at enhancing judicial independence and France’s robust administrative jurisprudence that checks executive power, offering insights to improve administrative justice and protect individual rights in various legal contexts.