Pub Date : 2017-05-10DOI: 10.18261/ISSN.2387-3299-2017-01-02
E. Friis, Karsten Åström
In the scope of a Swedish research project on expert knowledge as a basis for legal decisions, this article focuses on serious criminal cases. Using a model that describes rhetorical situations as well as empirical material based in 150 court decisions, the aim is to analyze the conditions surrounding the use of expert evidence in criminal law processes, to what extent and by whom such evidence is used, and how it affects the outcome of the cases.The rhetorical situation in criminal case is reconstructed to include the urgent issue and the thereby related discourse, in order to retrieve relevant conditions, which could be identified as evidentially favorable or unfavorable to the suspect and the prosecutor respectively. It is concluded that there is a theoretical imbalance between the parties’ to the benefit of the defendant. Empirically grounded analysis of the criminal cases shows, however, that the defendant’s theoretical advantage does not correspond to the actual situation in court. The results indicate that the defendant usually adopts a passive stance and therefore does not use favorable constraints effectively. The study has also shown that the defendant’s options to win the case increase when they actually use written expert evidence and expert witnesses. (Less)
{"title":"Expert Knowledge as a Condition of the Rhetorical Situation in Criminal Cases","authors":"E. Friis, Karsten Åström","doi":"10.18261/ISSN.2387-3299-2017-01-02","DOIUrl":"https://doi.org/10.18261/ISSN.2387-3299-2017-01-02","url":null,"abstract":"In the scope of a Swedish research project on expert knowledge as a basis for legal decisions, this article focuses on serious criminal cases. Using a model that describes rhetorical situations as well as empirical material based in 150 court decisions, the aim is to analyze the conditions surrounding the use of expert evidence in criminal law processes, to what extent and by whom such evidence is used, and how it affects the outcome of the cases.The rhetorical situation in criminal case is reconstructed to include the urgent issue and the thereby related discourse, in order to retrieve relevant conditions, which could be identified as evidentially favorable or unfavorable to the suspect and the prosecutor respectively. It is concluded that there is a theoretical imbalance between the parties’ to the benefit of the defendant. Empirically grounded analysis of the criminal cases shows, however, that the defendant’s theoretical advantage does not correspond to the actual situation in court. The results indicate that the defendant usually adopts a passive stance and therefore does not use favorable constraints effectively. The study has also shown that the defendant’s options to win the case increase when they actually use written expert evidence and expert witnesses. (Less)","PeriodicalId":36793,"journal":{"name":"Oslo Law Review","volume":"4 1","pages":"28-47"},"PeriodicalIF":0.0,"publicationDate":"2017-05-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49371432","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2017-05-10DOI: 10.18261/ISSN.2387-3299-2017-01-01
Kjersti Lohne, K. Sandvik
Over the past few years, the study of humanitarianism has emerged as an interdisciplinary subfield in international political sociology. This article maps out some preliminary ideas about the role of legal sociology in this project. The study of international humanitarian law has overwhelmingly been the terrain of doctrinal legal scholars, while the apparent lack of other law has meant that, until recently, legal sociologists have paid little attention to the humanitarian sector. There has also been little scholarly concern regarding the consequences of not asking questions about the role of law in the humanitarian project. We argue that legal sociology helps us understand how rules, standards and norms shape and are shaped by practices and interactions within and across humanitarian spaces globally, and how law contributes to humanitarian governance.
{"title":"Bringing Law into the Political Sociology of Humanitarianism","authors":"Kjersti Lohne, K. Sandvik","doi":"10.18261/ISSN.2387-3299-2017-01-01","DOIUrl":"https://doi.org/10.18261/ISSN.2387-3299-2017-01-01","url":null,"abstract":"Over the past few years, the study of humanitarianism has emerged as an interdisciplinary subfield in international political sociology. This article maps out some preliminary ideas about the role of legal sociology in this project. The study of international humanitarian law has overwhelmingly been the terrain of doctrinal legal scholars, while the apparent lack of other law has meant that, until recently, legal sociologists have paid little attention to the humanitarian sector. There has also been little scholarly concern regarding the consequences of not asking questions about the role of law in the humanitarian project. We argue that legal sociology helps us understand how rules, standards and norms shape and are shaped by practices and interactions within and across humanitarian spaces globally, and how law contributes to humanitarian governance.","PeriodicalId":36793,"journal":{"name":"Oslo Law Review","volume":"4 1","pages":"4-27"},"PeriodicalIF":0.0,"publicationDate":"2017-05-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46372712","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2017-05-10DOI: 10.18261/ISSN.2387-3299-2017-01-03
D. Schartum
In this article, it is argued that legislation must be drafted clearly, simply and precisely, especially when it pertains to ordinary citizens. This involves ensuring that the legislation sets out clear procedures so that those applying it know how they should act in order to attain legally correct and valid results. To illustrate the potential benefits of this ‘procedural approach’ to legislative drafting, the article focuses on the General Data Protection Regulation (GDPR) enacted by the European Union in 2016. The article explores hidden and tacit procedural questions related to the parts of the Regulation that deal with the legal basis for processing personal data, in particular the use of data subject consent as one such basis. The article shows how it is possible to restructure these parts of the Regulation so that they are less fragmented and more intelligible. Another core point made by the article is that a ‘procedural approach’ to legislative drafting is highly desirable for the development of computerised decision-support systems. A non-procedural, fragmented approach to drafting legislation, as is manifest in the GDPR, must be abandoned if the legal system is to become an integral part of a computerised society.
{"title":"Intelligible Data Protection Legislation: A Procedural Approach","authors":"D. Schartum","doi":"10.18261/ISSN.2387-3299-2017-01-03","DOIUrl":"https://doi.org/10.18261/ISSN.2387-3299-2017-01-03","url":null,"abstract":"In this article, it is argued that legislation must be drafted clearly, simply and precisely, especially when it pertains to ordinary citizens. This involves ensuring that the legislation sets out clear procedures so that those applying it know how they should act in order to attain legally correct and valid results. To illustrate the potential benefits of this ‘procedural approach’ to legislative drafting, the article focuses on the General Data Protection Regulation (GDPR) enacted by the European Union in 2016. The article explores hidden and tacit procedural questions related to the parts of the Regulation that deal with the legal basis for processing personal data, in particular the use of data subject consent as one such basis. The article shows how it is possible to restructure these parts of the Regulation so that they are less fragmented and more intelligible. Another core point made by the article is that a ‘procedural approach’ to legislative drafting is highly desirable for the development of computerised decision-support systems. A non-procedural, fragmented approach to drafting legislation, as is manifest in the GDPR, must be abandoned if the legal system is to become an integral part of a computerised society.","PeriodicalId":36793,"journal":{"name":"Oslo Law Review","volume":"4 1","pages":"48-59"},"PeriodicalIF":0.0,"publicationDate":"2017-05-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46925984","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Fifteen years ago, the digitalisation of civil procedure was put on the agenda in Norway by the new Dispute Act. Only now, though, does e-justice appear to be gaining ground. The article sketches out the existing e-justice elements in the Dispute Act and outlines the new test schemes for electronic communication and paperless court hearings. It then tries to explain why so little has happened over the last 15 years. Against this background, the potential of e-justice reform of Norwegian civil procedure is discussed, along with the challenges it faces.
{"title":"Is E-justice Reform of Norwegian Civil Procedure Finally Happening?","authors":"H. Fredriksen, Magne Strandberg","doi":"10.5617/oslaw4079","DOIUrl":"https://doi.org/10.5617/oslaw4079","url":null,"abstract":"Fifteen years ago, the digitalisation of civil procedure was put on the agenda in Norway by the new Dispute Act. Only now, though, does e-justice appear to be gaining ground. The article sketches out the existing e-justice elements in the Dispute Act and outlines the new test schemes for electronic communication and paperless court hearings. It then tries to explain why so little has happened over the last 15 years. Against this background, the potential of e-justice reform of Norwegian civil procedure is discussed, along with the challenges it faces.","PeriodicalId":36793,"journal":{"name":"Oslo Law Review","volume":"3 1","pages":"72-88"},"PeriodicalIF":0.0,"publicationDate":"2017-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47307550","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article compares the legal protection of privacy and personal data principally in common law jurisdictions. It points out that the growth of privacy law in these jurisdictions has traditionally centred on the ability of individuals to bring claims to court, with claims largely dealt with as a matter of common law (i.e. judge-made law). However, the absence of a generally accepted principle that individuals should be free to bring a claim in court for a breach of a statute has worked to limit the development of (statutory) data protection norms in the common law world. Nevertheless, the situation now appears to be changing with some recent cases.
{"title":"The Battle for Rights – Getting Data Protection Cases to Court","authors":"M. Richardson","doi":"10.5617/OSLAW2350","DOIUrl":"https://doi.org/10.5617/OSLAW2350","url":null,"abstract":"This article compares the legal protection of privacy and personal data principally in common law jurisdictions. It points out that the growth of privacy law in these jurisdictions has traditionally centred on the ability of individuals to bring claims to court, with claims largely dealt with as a matter of common law (i.e. judge-made law). However, the absence of a generally accepted principle that individuals should be free to bring a claim in court for a breach of a statute has worked to limit the development of (statutory) data protection norms in the common law world. Nevertheless, the situation now appears to be changing with some recent cases.","PeriodicalId":36793,"journal":{"name":"Oslo Law Review","volume":"2 1","pages":"23-35"},"PeriodicalIF":0.0,"publicationDate":"2017-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41858205","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The crime against humanity of apartheid has been widely neglected: jurisprudence is non-existent and the academic discourse modest. The International Criminal Court (ICC) is the first international criminal tribunal to include the crime against humanity of apartheid in its statute, notwithstanding the controversy of this crime. According to critics the crime is a South African phenomenon that has not reached the status of customary law. The provision on apartheid in the Rome Statute of the ICC builds on the Apartheid Convention, which is highly contentious and not signed by any Western State. All the more, it is surprising that apartheid was included in the Statute. Despite the fact that the crime of apartheid has never been prosecuted, this article argues that its inclusion into the Rome Statute raises some unique and interesting questions. It shows the international community’s belief in the deterrent effect of this crime, as well as its continued importance. This article will scrutinise the elements of the crime and reveal definitional challenges. It will, in particular, discuss potential contemporary situations of apartheid. The ICC Prosecutor will have to release apartheid from its historical connection in order to bring to justice perpetrators of systematic racial oppression.
{"title":"The Crime against Humanity of Apartheid in a Post-Apartheid World","authors":"Carola Lingaas","doi":"10.5617/OSLAW2566","DOIUrl":"https://doi.org/10.5617/OSLAW2566","url":null,"abstract":"The crime against humanity of apartheid has been widely neglected: jurisprudence is non-existent and the academic discourse modest. The International Criminal Court (ICC) is the first international criminal tribunal to include the crime against humanity of apartheid in its statute, notwithstanding the controversy of this crime. According to critics the crime is a South African phenomenon that has not reached the status of customary law. The provision on apartheid in the Rome Statute of the ICC builds on the Apartheid Convention, which is highly contentious and not signed by any Western State. All the more, it is surprising that apartheid was included in the Statute. Despite the fact that the crime of apartheid has never been prosecuted, this article argues that its inclusion into the Rome Statute raises some unique and interesting questions. It shows the international community’s belief in the deterrent effect of this crime, as well as its continued importance. This article will scrutinise the elements of the crime and reveal definitional challenges. It will, in particular, discuss potential contemporary situations of apartheid. The ICC Prosecutor will have to release apartheid from its historical connection in order to bring to justice perpetrators of systematic racial oppression.","PeriodicalId":36793,"journal":{"name":"Oslo Law Review","volume":"2 1","pages":"86-115"},"PeriodicalIF":0.0,"publicationDate":"2017-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47005950","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
As with other family law regimes, Muslim family law in Egypt plays an important role in shaping gender norms. In this article, I discuss adjudication by family courts during the period 2008-2013. I argue that the most important developments in this regard are: (1) standardisation of the way in which court rulings are written down, which contributed to a normalisation of the male-dominated nuclear family; and (2) the significant inclusion of Islamic sources in court rulings. A central question in this regard is how judges without a background in classical Islamic jurisprudence have applied the modern legal codes derived from shari‘a. I argue that a move towards greater standardisation of practice has taken place through a closer union between law and religious morality, with Quranic verses and the Sunna being used by judges in creative ways. Thus, shari‘a is continuously reinscribed in state law and its meaning construed in ways which differ from classical Islamic jurisprudence (fiqh). I also highlight the importance of key contextual factors, such as judicial training, time pressure, and the influence of computer technology, behind these developments.
{"title":"Inscribing Islamic Shari‘a in Egyptian Divorce Law","authors":"M. Lindbekk","doi":"10.5617/OSLAW4081","DOIUrl":"https://doi.org/10.5617/OSLAW4081","url":null,"abstract":"As with other family law regimes, Muslim family law in Egypt plays an important role in shaping gender norms. In this article, I discuss adjudication by family courts during the period 2008-2013. I argue that the most important developments in this regard are: (1) standardisation of the way in which court rulings are written down, which contributed to a normalisation of the male-dominated nuclear family; and (2) the significant inclusion of Islamic sources in court rulings. A central question in this regard is how judges without a background in classical Islamic jurisprudence have applied the modern legal codes derived from shari‘a. I argue that a move towards greater standardisation of practice has taken place through a closer union between law and religious morality, with Quranic verses and the Sunna being used by judges in creative ways. Thus, shari‘a is continuously reinscribed in state law and its meaning construed in ways which differ from classical Islamic jurisprudence (fiqh). I also highlight the importance of key contextual factors, such as judicial training, time pressure, and the influence of computer technology, behind these developments.","PeriodicalId":36793,"journal":{"name":"Oslo Law Review","volume":"3 1","pages":"103-135"},"PeriodicalIF":0.0,"publicationDate":"2017-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44840185","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article concentrates on certain consumer protection issues in Estonian and Norwegian law in proceedings for the enforcement of security rights in residential immovable property. These issues are discussed in the context of European Union (EU) law as the recent Aziz case of the Court of Justice of the European Union (CJEU)and the new Mortgage Credit Directive (MCD) have begun to set new standards for enforcement proceedings which Member States must follow. The authors conclude that no legislative amendments are currently required in either of the two countries: the Estonian and Norwegian rules on acceleration and default interest clauses, as well as on enforcement proceedings, seem to be well in line with the requirements set by Azizand by the MCD. Some of the national provisions allow for rather wide discretion, however, and it is possible that the future case law of the CJEU regarding the Unfair Terms Directive, the MCD and the Charter of Fundamental Rights will continue to create new standards for the effective protection of consumers in the enforcement of security rights. The current wave of developments seems to include a growing fundamental rights aspect as the individual’s right to housing is being increasingly promoted through consumer protection norms.
{"title":"Enforcement of Security Rights in Residential Immovable Property and Consumer Protection: An Assessment of Estonian and Norwegian Law","authors":"K. Sein, Kåre Lilleholt","doi":"10.5617/OSLAW978","DOIUrl":"https://doi.org/10.5617/OSLAW978","url":null,"abstract":"This article concentrates on certain consumer protection issues in Estonian and Norwegian law in proceedings for the enforcement of security rights in residential immovable property. These issues are discussed in the context of European Union (EU) law as the recent Aziz case of the Court of Justice of the European Union (CJEU)and the new Mortgage Credit Directive (MCD) have begun to set new standards for enforcement proceedings which Member States must follow. The authors conclude that no legislative amendments are currently required in either of the two countries: the Estonian and Norwegian rules on acceleration and default interest clauses, as well as on enforcement proceedings, seem to be well in line with the requirements set by Azizand by the MCD. Some of the national provisions allow for rather wide discretion, however, and it is possible that the future case law of the CJEU regarding the Unfair Terms Directive, the MCD and the Charter of Fundamental Rights will continue to create new standards for the effective protection of consumers in the enforcement of security rights. The current wave of developments seems to include a growing fundamental rights aspect as the individual’s right to housing is being increasingly promoted through consumer protection norms.","PeriodicalId":36793,"journal":{"name":"Oslo Law Review","volume":"1 1","pages":"20-46"},"PeriodicalIF":0.0,"publicationDate":"2017-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41835684","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In Google Spain, the Court of Justice of the European Union ruled that, in certain circumstances, the operator of a search engine is obliged to remove search results from the list of results displayed following a search made on the basis of a person’s name. In respect of implementation of this “right to be forgotten” – or more accurately “right to delisting” – one of the most important issues relates to the geographical scope of the delisting; that is, once it is decided that certain search results should be delisted, what is the appropriate geographical scope of the delisting? Google is currently only delisting in relation to EU domains such as .es, .nl and .de. However, in sharp contrast, the EU’s Article 29 Working Party on data protection wants global blocking so as to ensure that EU law is not ‘circumvented’. This article canvasses the contours of this issue and attempts to advance its resolution by proposing a Model Code for Determining the Geographical Scope of Delisting Under the Right To Delisting. While the Model is presented in the EU context, it can easily be transplanted into other jurisdictions as well.
{"title":"Limitless Borderless Forgetfulness? Limiting the Geographical Reach of the ‘Right to be Forgotten’","authors":"D. Svantesson","doi":"10.5617/OSLAW2567","DOIUrl":"https://doi.org/10.5617/OSLAW2567","url":null,"abstract":"In Google Spain, the Court of Justice of the European Union ruled that, in certain circumstances, the operator of a search engine is obliged to remove search results from the list of results displayed following a search made on the basis of a person’s name. In respect of implementation of this “right to be forgotten” – or more accurately “right to delisting” – one of the most important issues relates to the geographical scope of the delisting; that is, once it is decided that certain search results should be delisted, what is the appropriate geographical scope of the delisting? Google is currently only delisting in relation to EU domains such as .es, .nl and .de. However, in sharp contrast, the EU’s Article 29 Working Party on data protection wants global blocking so as to ensure that EU law is not ‘circumvented’. This article canvasses the contours of this issue and attempts to advance its resolution by proposing a Model Code for Determining the Geographical Scope of Delisting Under the Right To Delisting. While the Model is presented in the EU context, it can easily be transplanted into other jurisdictions as well.","PeriodicalId":36793,"journal":{"name":"Oslo Law Review","volume":"2 1","pages":"116-138"},"PeriodicalIF":0.0,"publicationDate":"2017-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47640930","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article grows out of a symposium on the experiences of the judicial system in Norway and other countries during the Second World War. It considers the experience of Fascist Italy and the Nordic countries (Denmark, Norway and Sweden) during this period, with a special emphasis on anti-Jewish laws and persecutions. The article also considers the role of legal positivism, if any, in contributing to the abuses of this period, and the lessons for future lawyers.
{"title":"History, Memory and the Problem of ‘Bad Laws’: Reflections on the Italian and Nordic Experience","authors":"Michael A. Livingston","doi":"10.5617/OSLAW4080","DOIUrl":"https://doi.org/10.5617/OSLAW4080","url":null,"abstract":"This article grows out of a symposium on the experiences of the judicial system in Norway and other countries during the Second World War. It considers the experience of Fascist Italy and the Nordic countries (Denmark, Norway and Sweden) during this period, with a special emphasis on anti-Jewish laws and persecutions. The article also considers the role of legal positivism, if any, in contributing to the abuses of this period, and the lessons for future lawyers.","PeriodicalId":36793,"journal":{"name":"Oslo Law Review","volume":"3 1","pages":"89-102"},"PeriodicalIF":0.0,"publicationDate":"2017-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44149063","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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