Laws Of General Applicability Research Articles

Discrimination as the touchstone of persecution in refugee law

The touchstone of refugee law is the concept of persecution. The concept is poorly defined. The courts have suggested that it includes several elements, including discrimination, systematic conduct, motivation and causation. In the context of distinguishing between prosecution and persecution, other criteria that have been employed include the notion of `a law of general application’ and the legitimate and appropriate and adapted test. These concepts are often overlapping and some are superfluous. This paper proposes a new test for persecution. The best way forward to unify and inject coherency, consistency and certainty into this area of the law is to make discrimination the sole criterion of persecution. The (exhaustive) test for persecution that is proposed is as follows: 1. Does the law on its face impose an additional burden for a Convention reason? 2. If the answer is no, it is necessary to examine if the practical effect of the law is to impose an additional burden on people for a Convention reason either because the law selectively targets people for a Convention ground or disproportionately applies against people for a Convention ground? 3. If the answer to both questions is ‘no’, the law does not constitute persecution. 4. If the answer to question 1 or 2 is ‘yes’, then the law will constitute persecution unless there is a relevant basis for causing serious harm to people for a Convention reason.

10.1023/A:1005961330620

It is commonly supposed that citizens of a reasonably just state have a prima facie duty to obey its laws. In recent years, however, a number of influential political philosophers have concluded that there is no such duty. But how can the state be a legitimate authority if there is no general duty to obey its laws? This article is an attempt to explain how we can make sense of the idea of legitimate political authority without positing the existence of a general duty to obey the law. The explanation makes use of a distinction between laws of general application, on one hand, and on the other the particularized, directed efforts by state officials to channel and resolve disputes (including those arising from violations of the law). A state's legitimate authority entails a general duty to cooperate in the latter type of effort, rather than upon a dubious general duty to obey the law.

Are the Expectations for the Religious Freedom Restoration Act Being Realized?

When President Clinton signed into law the Religious Freedom Restoration Act1 (RFRA) on 16 November 1993, there was jubilation among the dozens of civil liberties groups that worked on this legisla tion—a measure unique in the entire history of U.S. church-state rela tions. At the same time, many observers who participated in the evolution of RFRA and saw the overwhelming margins by which it passed the House and the Senate had to wonder whether a law related to such a complex and contested area could have much bite if it was adopted with virtual unanimity. Three years later that problem remains. Questions continue to rise and multiply. Was the law oversold? Did it get watered down on the way to passage? Did the framers and the promoters of the law have clear and precise objectives? Could they have framed a measure that is too vague to be really meaningful? RFRA was the product of the anger that exploded when the Supreme Court decided Employment Division v. Smith;2 that still dreaded opinion held 5 to 4 that the courts could not invalidate a law of general applicability even if the law made the observance of the reli gious freedom of an individual or a group more difficult or impossible.3 Over fifty law professors including this author submitted a brief asking the Supreme Court to review its ruling; the request was denied.

Formalism, First Amendment Expression, and the General Law Doctrine

The U.S. Supreme Court has long held that the press is not exempt from laws of general application that apply to all citizens equally, particularly when those laws affect media business operations. In cases where content or newsgathering have been implicated, the Court has avoided a rigid application of the general law doctrine, preferring to protect expression through more rigorous means. However, in recent cases involving First Amendment rights, the Court has moved toward aformalistic view of the general law doctrine. This legal formalism, a jurisprudential approach that values syllogistic reasoning over close inquiry into the effects of particular restrictions on expression, is a development that could endanger First Amendment values.

The Benelux Uniform Law on Private International Law

On July 3, 1969, a treaty was signed in Brussels by the governments of Belgium, Luxembourg, and the Netherlands, entitled, Treaty Concerning a Uniform Law on Private International Law.' The Treaty contains in appendix a Uniform Law on Private International Law, which the Parties undertake to enact as part of their domestic law.2 The Uniform Law's provisions become law of general application; that is, they will not be restricted in their application to Benelux relations.3 Thus the outer world has a direct interest in the Treaty which becomes effective six months after it has been ratified by all three States.4 Treaty and Uniform Law are in Dutch and French; an English translation prepared by the present writer appears at the end of this paper. This Comment is designed to give background information on the venture but also makes some general remarks concerning the desirability of the codification of rules of conflicts. The three governments involved have published a supporting Joint Memorandum with comments on the articles of the Treaty and the Uniform Law. While Treaty and Uniform Law stand on their own, the official comments must be consulted for questions of construction. They will be referred to where proper.

THE PORTUGUESE SYSTEM OF PROTECTING NATIVE LANDED PROPERTY1

Public Administration and DevelopmentVolume 9, Issue 1 p. 16-22 Article THE PORTUGUESE SYSTEM OF PROTECTING NATIVE LANDED PROPERTY1 Dr. A. de Sousa Franklin, Dr. A. de Sousa Franklin Intendente, Portuguese Overseas Civil ServiceSearch for more papers by this author Dr. A. de Sousa Franklin, Dr. A. de Sousa Franklin Intendente, Portuguese Overseas Civil ServiceSearch for more papers by this author First published: 01 January 1957 https://doi.org/10.1002/j.1099-162X.1957.tb01085.x 1 This article is an abridgement of the authorised translation of a paper prepared by the author for the Seventh Cambridge Summer Conference on African Administration, August 1956, which the writer attended as the observer of the Portuguese Government. The word ‘native’ has been used throughout this article as the translation of the Portuguese word ‘indigeno’ and has been preferred to ‘African’ since the laws of general application described apply in the non-African Portuguese territories. ‘Native’ therefore bears throughout the connotation of ‘indigenous person‘. (Editor). Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinkedInRedditWechat Volume9, Issue1January 1957Pages 16-22 RelatedInformation