De Droit Research Articles

Contribution of Islamic law in the discretionary scheme that has implications for corruption

This paper explores the studies of the thin line between discretion (freis ermessen) with a criminal act of corruption, using Islamic law’s perspective as one of the law material in Indonesia. Aim of this paper is to make boundaries between discretion which made based on State Administration Product and regulation and help an officer who does discretion will not be trap in a criminal act of corruption through Islamic law’s perspective. This paper purpose four boundaries. First, the boundaries can be seen through understanding the qawāidul fiqhiyyah especially related to governance. Second, act of detournement de povouir (abuse of authority) and abus de droit (arbitrariness) are contradictive with prophetic’s characteristic such as ṣiddiq (honesty), amanah (accountability), tablig (effective communication), faṭonah (smart and heedful). Third, detournement de povouir or abus de droit can categorized as jarimah takzir which can be punish by the authority above them. Fourth, effort to prevent the criminal act of corruption are with uswah leadership, muraqobah, qanaah, and commitment to take care themselves and their family with halal income. For that, public administration can consider using universal values in Islamic Law to help doing discretion without trapped in criminal act of corruption.

Thinking About the Commons

This article, originally a speech in the conference, Lecons de Droit Compare sur les Communs, Sciences-Po, Paris, explores current developments in theoretical thinking about the commons. It keys off contemporary reconsiderations of Garret Hardin’s “Tragedy of the Commons” and Elinor Ostrom’s response to Hardin in Governing the Commons and later work. Ostrom was among the best-known critics of Hardin’s idea of a “tragedy,” but Ostrom’s own work has also raised some questions in more recent commons literature. One key question is the very uncertain relationship between community-based resource control and democratic rights. A second key question revolves around the understanding of commons on the one hand as limited common regimes, central to Ostrom’s work, or as open access, as espoused by more recent advocates of widespread access to information and communications networks.

All le moto a ces droits: Notes on Hervé Youmbi’s Translation of the Déclaration Universelle des Droits de l’Homme (DUDH)

The following photo essay considers Hervé Youmbi’s 2017 artwork DUDH in the context of the current political crisis in Cameroon. For DUDH, Youmbi translated five articles from the Déclaration Universelle des Droits de l’Homme into Camfranglais and installed them on signs in the quartiers of New Bell Ngangue and Ndogpassi III in Douala, Cameroon. He printed one set of the five articles on a blue background for New Bell and the same articles on green for installation in Ndogpassi III. Youmbi unveiled the signs in December 2017 as part of the Salon Urbain de Douala (SUD) triennial.

Plus ratio quam vis Sprawozdanie SIHDA 2018

W dniach 11 do 15 września 2018 roku 72 już sesja Société Internationale Fernand de Visscher pour Histoire des Droits de l’Antiquité (SIHDA) miała miejsce na Uniwersytecie Jagiellońskim, Wydziale Prawa i Administracji w Krakowie (Polska). Patronat honorowy objął Prezydent Rzeczypospolitej Polskiej, Andrzej Duda. Tematem przewodnim było łacińskie hasło (swoiste motto konferencji) - stanowiące skądinąd od roku 1964 dewizę Uniwersytetu - to Plus ratio quam vis (Rozum przed siłą). Zaproponowana w 1952 roku przez jednego z profesorów uczelni, Karola Estreichera, fraza, znajduje się w jednej z sal Collegium Maius - muzeum Uniwersytetu Jagiellońskiego. Kolejne dni (12-14 września) wypełniły całodzienne obrady odbywające się w dziesięciu panelach. Każdy został poświęcony różnego rodzaju zagadnieniom prawnym z zakresu: filozofii prawa, prawa procesowego, prawa publicznego, nauczania prawa, poszczególnych gałęzi prawa prywatnego, krytycznej analizy historycznych źródeł prawa. Podczas konferencji wygłoszonych zostało 132 referatów przez uczonych przybyłych z Europy, Stanów Zjednoczonych, Ameryki Południowej, Afryki i Azji. W obecnym roku konferencja ma się odbyć w Edynburgu.

In Search of a Legal Conscience: Juridical Reformism in the Mid-19th Century Peace Movement

The rise of modern international law as an autonomous scientific discipline in the early 1870s can be considered the culmination of multiple legal and extra-legal processes which trace their origins back to much earlier in the century. Several decades before the founders of the Institut de Droit International declared themselves the “legal conscience of the civilized world”, other societal groups had already expressed profound disaffection with the existing law of nations, which they viewed as inherently insufficient to guarantee lasting stability amongst civilized states. The conferences of the “Friends of Peace”, held between 1843 and 1851 in several European cities, featured many jurists who routinely employed legal modes of reasoning to communicate and advance legalistic objectives such as mandatory international adjudication and the codification of international law.

Tobias Asser’s Legacy: The Pertinence of the Institut de droit international to The Hague

This article is occasioned by this year’s visit of the Institut de droit international to The Hague. It addresses the seminal role that the Institut (f. 1875) has played in advancing The Hague to its position as the ‘Judicial Capital’ and the hub of international law. In reviewing the part that Tobias Asser, the co-founder of the Institut, played in the launching of L’Oeuvre de La Haye, it stresses the critical impact of his colleagues at the Institut at all major stages: from the Conference de La Haye (f. 1893) to the Peace Conferences and the Hague Conventions, and along the establishment of the Permanent Court of Arbitration (f. 1900), the Peace Palace and its Library to the implementation of the International Judiciary (f. 1922) and the Hague Academy of International Law (f. 1923). The article reviews the four previous Sessions of the Institut in the Netherlands (1875, 1898, 1925 and 1957) and highlights the role and record of the close to thirty Dutch internationalists who were elected to its membership. The author emphasizes the critical impact of the research body of the Institut on the development of the law and the city’s debt to the scores of members who, over the past century, have graced the arbitral panels and the benches of the International Courts, or served as lecturers at the Hague Academy. The author recommends a comprehensive study of the above tradition for 2023, when the 150th anniversary of the Institut coincides with the Centenary of the International Judiciary in The Hague.

A presença das obras de José de Alencar na França (1863-1907)

A partir do momento em que José de Alencar adquiriu destaque no meio literário brasileiro, houve muitas tentativas fracassadas de tradução e publicação de suas obras em língua francesa. Décadas após a morte desse escritor, quando a sua obra passava para o cânone literário do país, dois de seus romances ingressaram no mercado editorial francês e tiveram publicação em jornais e numa coleção de aventuras. Les aventuriers ou le Guarani foi publicado no jornal Les Droits de l’Homme em 1899 e em livro em 1902, sob o título Le fils du soleil. Já Iracema: conte brésilien apareceu no jornal L’Action Républicaine em 1907, mas sua edição em livro só foi dada à estampa muito posteriormente. Este trabalho tem como objetivo identificar as iniciativas para a tradução das obras de Alencar entre 1863 e 1907 bem como investigar as formas de circulação e recepção das traduções de O Guarani e Iracema na França.

Welfare protection of the animal-athlete in the sports company in light of the evolution of the legal regime for animals.

Neither Labor Law nor Civil Law has yet drawn the legal consequences of the existence of labor relations that unite animals and man. There are no rules protecting animals at work, while their participation in multiple human activities is unequivocal. The use of horses in sports and tourism generates wealth, while the services they provide save or improve lives. While it is easy to with animals, it is true that it is never explicitly recognized that animals with people. Why? Because animals are subject to the legal regime of property. The case of an animal as versatile as the horse leads us to believe that after having inspired numerous animal protection laws, his participation in society through work could be the first to be recognized. A service provider, transporter, plow, therapist, athlete... he has many roles and is recruited according to his personal skills and physical, intellectual or emotional abilities that make him unique. The social fact that animal labor represents prompts us to claim the specific protection of animals in this context, in light of the emergence of their fundamental right to welfare and, therefore, not to be mistreated. Being well treated in the workplace should be considered as a right of the working population, not as a specific human right. Likewise, the protection and monitoring of the health of the sportsperson must be an imperative that goes beyond the species to which the athlete belongs. This contribution was presented during the Symposium organized by the ADDCDA (Association des Doctorants et Docteurs du Centre de Droit des Affaires) on 11 October 2018 at the University of Toulouse 1 Capitole, on the theme of Sport and Business Law. It is part of the DER2015-69314-P project financed by MINECO, on the legal status of animals.

Unwritten Constitutional Principles: The Challenge of Reconciling Political and Legal Constitutionalisms

Unwritten Constitutional Principles: The Challenge of Reconciling Political and Legal Constitutionalisms. An article from journal McGill Law Journal / Revue de droit de McGill (Unwritten Constitutional Norms and Principles: Contemporary Perspectives), on Érudit.

Antônio Augusto Cançado Trindade, International Law for Humankind: Towards a New Jus Gentium

1. This monograph is a separately published version of the General Course on Public International Law delivered in The Hague Academy in 2005 by Antônio Augusto Cançado Trindade, now Judge at the International Court of Justice since 2009 and, before that, a judge at the Inter-American Court of Human Rights for many years and its President from 1999 to 2004, and a member of the Institut de Droit International also for many years already. The monograph was published in 2010, but the universalist and humanistic outlook and messages have since grown in stature and importance, especially as they stand in contrast to the tendencies exhibited in the developments in international relations at present in 2018, and the book clearly enjoys an enviable shelf life. A review of the book now is therefore timely, as is this reviewer’s whole-hearted recommendation of the book to all readers and libraries not yet in possession of it.

Rule of Law and United Nations Interoperability

This article considers how a rule of law approach, central to the UN’s activities since 2004, could facilitate the operationalization of interoperability across its agencies. But what is rule of law: the Anglo-American judicalized understanding or the civil law model, l’Etat de droit or Rechtsstaat, that is more rooted in the governance of the State? And while a State that increasingly adopts a rule of law stance will, with the support of the UN, better protect and empower all persons on its territory, the UN itself must also uphold the rule of law. The crucible of displacement is used to put these arguments to the test, since this highlights the essentially Westphalian framework of international law and practice, as it involves more than one State and more than one UN operation.

Claude Lefort e a crítica de “A propósito da questão judaica” de Marx: dialética e ideologia

Como o seu título indica, o texto tem como objeto as considerações críticas de Lefort — ver o ensaio “Droits de l’homme et politique”, incluído em L’Invention Démocratique, les limites de la domination totalitaire — contra a crítica dos direitos do homem, desenvolvida por Marx no seu artigo de juventude “A propósito da questão judaica”, publicado em 1843, nos Anais Franco-Alemães (revista que Marx fundara com o publicista Arnold Ruge). Depois de expor as razões de Marx e de Lefort, o presente escrito envereda por vários caminhos. Há primeiro uma tentativa de expor as duas séries de argumentos em forma, que se pretende, rigorosamente dialética. Segue-se uma apresentação mais histórico-estrutural, que introduz considerações sobre os chamados “dois liberalismos” (revolucionário e utilitarista). Explora-se, em seguida, a filosofia subjacente ao artigo de Marx nos Anais…, o que leva de novo um desenvolvimento teórico-dialético, e depois, histórico, sobre a questão do humanismo e do antihumanismo. Depois de analisar algumas objeções, de marxistas e de liberais, endereçadas à crítica lefortiana, o autor tenta uma avaliação crítica das posições de Lefort, o que conduz ao problema geral das relações democracia/ capitalismo, em Lefort, e para além dele.

Corporate Criminal Responsibility for Human Rights Violations: Jurisdiction and Reparations

Modern prosecutions at international criminal courts and tribunals have demonstrated that the resources available for reparations and restitution from individuals convicted of core international crimes is grossly insufficient to meet even basic restitutionary needs. Most of the wealth that might exist as a result of international crimes is likely to be in the hands of corporations or other artificial persons who have gained property and income through human rights violations. None of the international criminal courts and tribunals (ICCTs) has adjudicative jurisdiction over artificial persons of any sort, so that any progress on restitution and restorative justice must come through national tribunals. This applies to both core international crimes and the broader category of human rights treaty crimes which are outside the authority of ICCTs. Many obstacles to reparations for human rights violations related to business activities arise from the international and national laws of jurisdiction. Rules of prescriptive, adjudicative, and enforcement jurisdiction combine with substantive rules of criminal law to make adequate reparations for human rights related business crimes difficult to achieve. The Guiding Principles on Business and Human Rights (the “Ruggie Principles”), adopted by the United Nations Human Rights Council, address prevention, monitoring, and remediation of business participation in human rights abuses of all kinds. Application of several of the Principles can help states provide a jurisdictional framework for reparations for business-related human rights violations. There are some signs of progress in recent decades. More states are now willing to exercise criminal jurisdiction over corporations in the past. New human rights treaties require states to hold artificial persons liable for violations, criminally or otherwise. Objective territorial jurisdiction (sometimes called “effects” jurisdiction) is ever more clearly permissible when outside activity directly causes criminal results in states. Finally, the rule against enforcing criminal law judgments across borders is beginning to decline, making the shielding of assets from claims for restitution and restorative justice through criminal proceedings much more difficult. Nonetheless, many obstacles to transnational enforcement of criminal judgments remain. Given trends in the international law of jurisdiction, it may turn out that civil judgments of restitution and reparation will be easier to obtain and enforce than criminal judgments. This is a Report for “Prosecuting Corporations for Violations of International Criminal Law: Jurisdictional Issues,” Section 4 of the XXth Association Internationale de Droit Penal/International Association of Penal Law Congress.

The Relationship Among the International Rule of Law, Spontaneous Order, and Economic Development

Abstract The Rule of Law and economic development are widely regarded as necessary for a successful society, but defining the international rule of law and explaining the relationship with economic development has proven elusive. This article begins with explanations posited by Hayek and others, but brings a fresh perspective grounded in a multidisciplinary and contextual approach that includes history, philosophy, economics, and law. Properly defined, the rule of law refers to a specific understanding of the relationship between the individual and government. The common law conception of the rule of law (as opposed to the civilian Rechtsstaat or L’État de Droit) is historically more supportive of economic development, but modern international descriptions and definitions confuse the two. Based on empirical economic studies and historical legal anthropology, the common law understanding focused on limited government and individual freedom from interference has proven more likely to encourage entrepreneurship and hence economic development on a long-term basis.

Prinsip Good Governance Dalam Penyalahgunaan Wewenang

governance is a way implemented by the government using political, economic and administrative authority in managing economic and social resources for community development. The term governance is more directed to technical matters of governance in a country. By that, the term governance in relation to good governance is directed more towards legal aspects, especially administrative law which in essence more emphasized public service aspect which is addressed to society. Good governance characteristics include Participation, Rule of law, Transparency, Responsiveness, Consensus orientation, Equity, Effectiveness and efficiency, Accountability, and Strategic vision. These characteristics are legally sourced on two main grounds, namely the principle of the rule of law and the principle of democracy. The principle of the rule of law becomes the foundation of good governance where every act of government should have a legal basis, in the form of authority, procedure and substance and protection of human rights. The principle of a legal state provides the basis of legality in the administration of government, while the principle of democracy as the basis of government openness and community participation. Power or power essentially contains the rights and obligations of the apparatus of government to take certain legal actions, derived from attribution, delegation and mandate. Abuse of power is an act of government that is inconsistent with the purpose of authorization. the form of abuse of power consists of illegal state administration (onrechtmatige overheidsdaad), the misuse of the state administration (detournement de pouvoir or ultra vires) and the arbitrary acts of state administration (abus de droit). Abuse of power may occur against bound and free power. Parameters testing abuse of power from power are tied to the legality of government action, while the abuse of power from free power using the Good Governance Principles (GGP). GGP is the principle of proper administration

Institut de droit international: Resolution Adopted by the Institute at its Hyderabad Session 8 September 2017

Institut de droit international: Resolution Adopted by the Institute at its Hyderabad Session 8 September 2017

Wette, wedding

The hereby accomplished publication of a short summary of a talk that Marcel Mauss gave at the Société d’histoires du droit on May 10, 1928, is a continuation of a recent trend aimed to make more of Mauss’ work available to scholars who are unable to read French. The talk was originally published in 1928 in Revue Historique de Droit français et étranger, quatrième série, Vol. 7: 331–333. The original in French is also reproduced below.

Introduction: Reflecting on the human right to social security

AbstractThe United Nations Universal Declaration of Human Rights of 1948 asserts that social security is an inalienable human right. Realizing this human right is often considered, simply, as a matter of political will and of administrative aptitude. In these terms, the progressive realization of the human right to social security may be viewed as the outcome of an appropriately‐resourced political and bureaucratic process. Such a perspective, however, is clearly inadequate. Characteristically, bureaucracies are designed to cater to the needs of all, based on common procedures and common deliverables designed for the “typical” case. Yet such approaches often lack the necessary flexibility and resources to make a distinction between individuals, which acknowledge their respective differences and needs. To meet the international commitment to progressively realize universal social security coverage, social security administrations are key actors. However imperative this role may be, if the pursuit of this commitment fails to respect people's differences this will put at risk the meeting in full of what is envisioned by the human right to social security. To this end, this special issue aims to foster an understanding that the goal of universal coverage must necessarily also respect and respond to the individual needs of each and every person.

Intelligence reform and the transformation of the state: the end of a French exception

ABSTRACTThis article argues that the intelligence sector is a privileged vantage point to observe and analyse a transformation of the State in France, as this transformation deeply affects the heart of the executive power and the French intelligence and security apparatus. Traditionally, intelligence was not conceived in France as a functional tool in the hands of the decision-maker but was rather defined as a ‘regalian power’. Intelligence activities were derived from a very specific conception of the State, and especially the particular notion of ‘reason of State’ (raison d’État). The current intelligence reform prompts speculation as to whether it represents more than a ‘simple’ functional reorganisation or in fact could signify that intelligence is now recognised as a tool in the hands of a ‘État de droit’ (‘liberal state’). The idea of a French ‘exceptionalism’ is addressed through a theoretical approach of the way France redefines intelligence and surveillance in relation with a major evolution of the notion of ‘reason of State’ itself. Then the article illustrates the assumption of a ‘lost tradition’ of reason of State through an analysis of the current reform of the intelligence sector in France. This reform is based on processes of rationalisation, centralization, modernisation and normalisation of both intelligence activities and intelligence services in France. As a conclusion, the article addresses the reactions to the January and November 2015 terrorist attacks in Paris, and asks whether resilience towards terrorism requires to accelerate the pace of the transformation of the French intelligence sector.

The International Rule of Law and Economic Development

The Rule of Law and economic development have long been recognized as being inter-related – a successful society has both. The question is how the two are related. Some scholars, whether in philosophy, law, history, or economics, argue that common law is more supportive of economic development, while others reject the distinction between common law and civil law as in any way affecting economic development. This multidisciplinary article approaches the question from a new contextual perspective that includes economics, philosophy, history, and law. It posits that while they are similar, the civilian term, Rule through Law (Rechttsstaat or L’Etat de Droit) wherein government is supposed to limit itself is historically less effective at being supportive of economic development for understandable reasons. This study does NOT argue that Common Law is ‘better’ than Civil Law. This study does show, however, that the common law is traditionally premised on a different relationship between the individual and government, and it is this non-instrumental relationship focused on problem-solving that encourages entrepreneurship and hence economic development.