Law Commons^™

Jurisdiction Devolution: An Interim Transitional Arrangement On The Road To Indigenous Self-Government, Nicole Spadotto

Dalhousie Law Journal

Indigenous self-government is a key component of reconciliation between Canada and Indigenous Nations. The negotiation of self-government agreements and exercise of self-government should occur on Indigenous Peoples’ own terms. Negotiations, however, can be lengthy. There are more immediate power-sharing alternatives. These include recognition legislation, where federal and provincial governments recognize Indigenous Peoples’ inherent right to self-government over certain affairs, thus creating space for Indigenous Nations to exercise their inherent self-government rights. They also include jurisdictional devolution, a fuller form of delegation, which might include law-making and enforcement powers. This latter option is “somewhat unpalatable” because the source of the governance …

Genocide Memorialization Through Law In Bosnia And Herzegovina: Reconciling The Irreconcilable?, Carna Pistan

Genocide Studies and Prevention: An International Journal

This article focuses on the law banning genocide denial and other war crimes and the glorification of convicted war criminals imposed in Bosnia and Herzegovina by the former High Representative Valentin Inzko in mid-2021 to facilitate the country’s reconciliation process. It first positions the genocide denial ban into the vast category of memory laws by examining its content and scope, as well as the reactions and consequences it has provoked up to now. The article maintains that an internationally imposed memory law cannot create reconciliation in a deeply divided society. It shows, on the contrary, that the imposed legislation has …

“Home Court Advantage: Comparing International Criminal Tribunals To Domestically-Grown Reconciliation”, Elise Treon

Honors Thesis

Scholars have studied wars and their causes for centuries, but what happens when the tanks roll out and the guns stop firing? The concept of reconciliation is a relatively new field of study in international relations, and the scholarship of specific transitional justice mechanisms remains underdeveloped. I comparatively analyze the differences between external and internal peacebuilding strategies – specifically the effectiveness of international tribunals in establishing long term deep reconciliation. In defining internal and external transitional justice mechanisms, I differentiate between a reconciliation process that prioritizes rebuilding citizens’ lives over one that prioritizes the desires of the international community. It …

The Post-Ongwen Case Period And The Reconciliation Process In Northern Uganda: Local Communities As A Site Of Knowledge, Christelle Molima Bameka

Scholarly Articles

By providing victims with more space in the Ongwen case, the International Criminal Court (icc) has significantly contributed to the healing of the trauma and community reconciliation in northern Uganda. That said, this court has also raised issues that could affect local efforts to achieve peace, namely the positioning of victims of child soldiers vis-à-vis criminal child soldiers. Drawing on qualitative data collected through focus group discussions with some community members from locations under investigation by the icc, this sociolegal study examines the victims’ narratives about child soldiers and the different ideas of human rights that emerge. Then, it explores …

Evidence-Based Transitional Justice: Incorporating Public Opinion Into The Field, With New Data From Iraq And Ukraine, Mara Revkin, Ala Alrababah, Rachel Myrick

Faculty Scholarship

The field of “transitional justice” refers to a range of processes and mechanisms for accountability, truth-seeking, and reconciliation that governments and communities pursue in the aftermath of major societal traumas, including civil war, mass atrocities, and authoritarianism. This relatively new field emerged in the 1980s as scholars, practitioners, and policymakers looked for guidance to support post-authoritarian and post-communist transitions to democracy in Eastern Europe and Latin America. Since then, the field has grown rapidly—so rapidly that it is outpacing its capacity to learn from past mistakes. Recent methodological advances in the study of public attitudes about transitional justice through quantitative …

Reconciliation In Tax Crimes: A Study Under Egyptian And Emirati Laws, Ahmed Aldalgawy

UAEU Law Journal

This study seeks, through the descriptive, analytical and comparative method, to reveal the role of reconciliation in tax crimes in achieving a balance between considerations of criminal law intervention and taking into account the special nature of the tax crime, as well as revealing the extent to which the reconciliation system can be introduced in the United Arab Emirates tax system, especially since this system is applied In many comparative legislations, including the Egyptian legislation, and to achieve these goals, the study was presented to determine the nature of criminal tax reconciliation, then the study presented the tax interests worthy …

California Assembly Bill 3121’S Claim For Black Redress: The Case For A State Truth And Reconciliation Commission And Housing Vouchers, Jessica Robertson

San Diego Law Review

On September 30, 2020, Assembly Bill 3121 (AB 3121) established the Task Force to Study and Develop Reparation Proposals for African Americans (Task Force). AB 3121 charges the Task Force with three duties: (1) identify and synthesize evidentiary documentation of “[t]he institution of slavery . . . that existed within the United States and the colonies that became the United States from 1619 to 1865, inclusive”; (2) recommend ways to educate the public of its findings; and (3) recommend “appropriate remedies in consideration of the task force’s findings on the matters described in this section.” Per these duties, the Task …

Re-Imagining Indigenous Consultation: An Examination Of Canada’S Duty To Consult, Paul Hansen

Electronic Thesis and Dissertation Repository

This examination of Canada’s duty to consult doctrine advances two arguments. First, the doctrine may not be serving the interests of some consultation participants effectively. Second, the existing literature does not address the challenges posed by multi-jurisdictional projects or the Crown’s decreased involvement in consultations adequately. Consequently, our understanding of the doctrine is incomplete and our ability to improve its efficacy may be restricted.

This dissertation explores the doctrine’s principles, strengths, and weaknesses to identify opportunities for improvement. It re-imagines the doctrine, identifying specific ways to improve its efficacy. At bottom, this dissertation considers three questions. First, to what extent …

Writing And Resisting Colonial Genocide, Heidi Matthews, Luann Good Gingrich, Joel Ong

Articles & Book Chapters

Canada has pursued policies of Indigenous assimilation and annihilation, many of which continue today. Among others, these include ‘Indian residential schools’, the Indian Act, welfare-state child removals, the Sixties Scoop, the prohibition of cultural practices, forced sterilization and environmental destruction. We are scholars co-leading a large interdisciplinary programme of research studying ‘colonial genocide’. Our research seeks to understand how historic colonialism and its contemporary manifestations rely on genocidal logic for power and profit. While we begin in Turtle Island, our work has global application. The act of naming is a powerful analytical and political tool, and ‘genocide’ is one of …

A Christian Case For Racial Reparations, Daniel Philpott

The Journal of Social Encounters

National healing for the persistent wounds of racism, America’s original sin, can be advanced through a national apology, reparations and forgiveness. The frequent practice of apologies and reparations around the world in the past generation provide precedent for such measures. Christianity’s teaching of reconciliation and accompanying notions of sin, repentance, forgiveness, and atonement provide a strong moral basis for these measures and resonate with the rationales through which the United States’s greatest champions of civil rights and equality have fought against racism and slavery. Because racism and slavery were supported with the sanction of the state, in the name of …

Post-Conflict Reconciliation In Ukraine, Elena Baylis

Articles

Reconciliation mechanisms should be a core component of transitional justice in Ukraine. The nature of this conflict as a war justified by claims about history, identity, and legitimacy suggests that there will be a need for post-war reconciliation initiatives. Such reconciliation measures would be intended to enable Ukraine’s Russian, Ukrainian, and other communities to live together constructively within the same state. The goals of social reconciliation also converge with Ukraine’s long-term, political aims vis-à-vis both Russia and the European Union. This paper addresses three types of reconciliation measures that are important for post-conflict Ukraine. Instrumental mechanisms to engage post-conflict social …

A Mixed Bag: Critical Reflections On The Revised Ethical Principles For Judges, Richard Devlin, Jula Hughes, Pooja Parmar, Stephen Ga Pitel, Amy Salyzyn

Articles, Book Chapters, & Popular Press

In 2021 the Canadian Judicial Council completed a multi-year review and update of Ethical Principles for Judges (EPJ), the ethical and professional guidance for all federally-appointed judges in Canada. The revisions address issues such as case management and settlement conferences, technological competence and the use of social media, interactions with self-represented litigants, professional development for judges, confidentiality, and the return of former judges to the practice of law. In this article, five directors of the Canadian Association for Legal Ethics/Association canadienne pour l’éthique juridique analyze the revised EPJ and offer their observations.

The article covers five important topics. On impartiality, …

The Power Of Reciprocity: How The Confederated Salish & Kootenai Water Compact Illuminates A Path Toward Natural Resources Reconciliation, Michelle Bryan

Faculty Law Review Articles

This article chronicles the negotiation and passage of the Confederated Salish & Kootenai Tribes Water Compact, ratified in 2020, which has created one of the most innovative water management regimes envisioned among sovereigns. The Compact’s journey toward ratification is extraordinary, as the parties over the span of three decades worked to overcome historically entrenched racism and political opposition to craft a model that would provide enough water for all peoples and the fishery. Compounding the challenge, the Flathead Reservation itself contains vast swaths of checkerboard land held by non-Indians and a major federal irrigation project that has permanently altered the …

Aboriginal Rights, Legislative Reconciliation And Constitutionalism, Naiomi Metallic

Articles, Book Chapters, & Popular Press

This paper sketches out the idea of ‘legislative reconciliation’ – governments in Canada using their legislative powers to recognize and protect the inherent rights of Indigenous peoples. Legislative reconciliation is needed because the existing approaches to the implementation of inherent rights—negotiation and constitutional litigation—have been insufficient on their own to bring about a mutually respectful relationship between Indigenous and non-Indigenous peoples. Despite the entrenchment of s 35, state governments have not seen themselves as having a role in its implementation in the same way they do for Charter rights. In particular, Canadian governments have not felt compelled to legislate to …

Mediation Is A Means Of Settling Family Disputes: Study On The Jordanian Personal Status Law, Mohamed Khalaf Bani Salama

UAEU Law Journal

The mediation gained great interest recently by jurists and scholars in order to search for the best ways to relieve on the convict and liabilities alike, the mediation association has resulted in all fields of life, especially in family life.

This study examined about the history of mediation, identity, types, advantages and objectives of the mediation, also it talked about the mediation as an alternative means to settle family disputes in the Jordanian Personal Status Law.

The researcher found in this study that the practice of the mediation is the strongest single administration in the dispute settlement movement, and that …

Baton Rouge Collective Healing Initiative: Final Report, Jada Thomas-Smith, Judith F. Rhodes, Kristie Perry

Reports

In response to recent and historic traumatic events that caused distrust and strained relationships between law enforcement and their communities, the U. S. Department of Justice, Office of Victims of Crime (OVC), selected five demonstration sites to invest in restorative and healing activities to repair community-police relationships.

The International Association of Chiefs of Police (IACP) worked closely with the sites over the three-year grant period to improve relations through evidence-based interventions, technical assistance, and peer learning. The program, Law Enforcement and the Communities They Serve: Supporting Collective Healing in the Wake of Harm began in the selected cities, which included …

Law School News: Remembering John Lewis 07-18-2020, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Ecumenical Evangelical Legal Thought: The Contributions Of Robert F. Cochran, Jr., William S. Brewbaker Iii

Pepperdine Law Review

This Essay organizes an assessment of Robert F. Cochran’s scholarly contributions around the theme of “ecumenical evangelical legal thought.” Professor Cochran’s work bears the hallmarks of evangelicalism in its emphasis on the Bible, its practical focus, and its willingness to cross institutional and theological lines. The Essay recounts some formative influences on Professor Cochran, discusses his methodology as a Christian scholar and specifically his use of the Bible in thinking about law, his work in legal ethics, and his work as a movement-builder. It concludes with some observations about the reconciliation of ecumenism and evangelicalism in Cochran’s work and its …

Recognition And Positive Freedom, David Ingram

Philosophy: Faculty Publications and Other Works

A number of well-known Hegel-inspired theorists have recently defended a distinctive type of social freedom that, while bearing some resemblance to Isaiah Berlin’s famous description of positive freedom, takes its bearings from a theory of social recognition rather than a theory of moral self-determination. Berlin himself argued that recognition-based theories of freedom are really not about freedom at all (negatively or positively construed) but about solidarity, More strongly, he argued that recognition-based theories of freedom, like most accounts of solidarity, oppose what Kant originally understood to be the essence of positive freedom, namely the setting of volitional ends in accordance …

The Morning After: A Phenomenological Approach To Understanding The Process Of Repair And Reconciliation In The Aftermath Of Clergy Sexual Misconduct, Damion Taj Quaye

Department of Conflict Resolution Studies Theses and Dissertations

American religious institutions are expected to be free from the unsettling behaviors found in secular institutions. However, scandals in churches have revealed a difficult truth; the people who operate these faith institutions are just as flawed as those who do not. This hermeneutic phenomenological study explored the damage caused by clergy sexual misconduct. Congregations, families, religious organizations, and the concept of the Christian church suffer because of clergy sexual misconduct. There are significant barriers to repair and reconciliation. Cases of clergy sexual misconduct in the Roman Catholic Church have received much of the attention, but the problem is bigger than …

Creative And Responsive Advocacy For Reconciliation: The Application Of Gladue Principles In Administrative Law, Andrew Martin

Articles, Book Chapters, & Popular Press

A s a response to the estrangement and alienation of Indigenous peoples from the Canadian justice system, Gladue principles are central to reconciliation in sentencing and other criminal law contexts. However, the role of Gladue principles in administrative law more broadly remains uncertain. In this paper, I argue that the factors underlying Indigenous peoples’ estrangement and alienation from the justice system indicate estrangement and alienation from the administrative state itself, and thus Gladue principles appropriately apply in administrative law contexts. Using the results of a comprehensive search of reported decisions by tribunals and by courts on judicial review, I analyze …

Communicative Justice And Reconciliation In Canada, Alice Neeson

New England Journal of Public Policy

Communicative justice co-exists with other dimensions of justice and emphasizes the importance of fair communicative practices, particularly after periods of direct or structural violence. While intercultural dialogue is often assumed to be a positive, or even necessary, part of reconciliation processes, there are questions to be asked about the ethicality of dialogue when one voice has been silenced, misrepresented, and ignored for decades. This article draws on twelve months of ethnographic research with reconciliation activists and organizations in Canada and considers the potential for communicative flows to help compensate for structural inequalities during processes of reconciliation.

Rehumanization Among Veterans Of The Yugoslav Wars: Rethinking Reconciliation And Post-Conflict Justice, Jordan N. Kiper

Biennial Conference: The Social Practice of Human Rights

Rehumanization is a central element in powerful social movements after war. Drawing from ethnographic fieldwork in the Balkans, I consider the convergence and divergence between notions of rehumanization found in human rights literature and the role of rehumanization among veterans in Bosnia-Herzegovina and Serbia. Rehumanization plays a prominent role among these veterans because of the International Criminal Tribunal for the former Yugoslavia (ICTY), which has had varied social effects on Balkan communities. By supporting the ICTY, veteran associations have vetted themselves of potential war criminals, and thereby developed overlapping justice discourses that converge on the notion of reconciliation. There are …

Ending Piecemeal Recognition Of Indigenous Nationhood And Jurisdiction: Returning To Rcap’S Aboriginal Nation Recognition And Government Act, Naiomi Metallic

Articles, Book Chapters, & Popular Press

Most Indigenous groups in Canada are not self-governing. While the last two decades have seen an increase in laws and policies that provide some Indigenous groups greater control over their territories and citizens, overall these have been ineffective in achieving transformative change. What has transpired in Canada over the last twenty years can be characterized as ‘piecemeal recognition’—discrete recognition of Indigenous control here and there in a case, policy or statute—and implemented in a patchwork fashion. In 1996 the Royal Commission on Aboriginal Peoples report advanced a very reasonable proposal for national legislation recognizing the right of Indigenous peoples to …

The Forest And The Trees: What Educational Purposes Can A Course On Christian Legal Thought Serve?, Randy Beck

Journal of Catholic Legal Studies

(Excerpt)

In this short essay, I want to consider the educational purposes a course in Christian legal thought might serve. How could having such a course in the curriculum help accomplish the goals of legal education? One can understand why a law school with a Christian identity would want to offer this sort of course. Such law schools embrace a theology that helps adherents make sense of the world, including the world of human law. The less obvious question I want to consider is why a law school that does not subscribe to a particular theological understanding of the world …

Volume 1, Issue 2 (2017) Inaugural Issue

International Journal on Responsibility

Contents:

Introduction: Terry Beitzel, Types of Responsibility: Challenges and Opportunities

3 – 5 Howard Zehr, Restorative Justice and the Gandhian Tradition.

6 – 26 Richard E. Rubenstein, Responsibility for Peacemaking in the Context of Structural Violence.

27 – 64 Marc Pufong, Terror, Insecurity, State Responsibility and Challenges: Yesterday and Today?

65 – 77 Ron Kraybill, Responsibility, Community and Conflict Resolution in an Age of Polarization.

78 – 96 John Fairfield, Beyond non-violence to courtship.

97 – 98 Call for papers for forthcoming issues of the International Journal on Responsibility and instructions for authors.

Book Review, Jamie Rowen, Searching For Truth In The Transitional Justice Movement (2017) & Leonie Steinl, Child Soldiers As Agents Of War And Peace: A Restorative Transitional Justice Approach To Accountability For Crimes Under International Law (2017), Mark A. Drumbl

Scholarly Articles

Why do truth commissions emerge following some conflicts but not others? Jamie Rowen tackles this question in Searching for Truth in the Transitional Justice Movement. Rowen approaches this topic through a detailed study of three jurisdictions: the former Yugoslavia, Colombia, and the United States. Although truth commissions did progress in Colombia, they stalled in both the former Yugoslavia in the wake of the Balkan Wars as well as in the United States in regard to the conduct of US officials after the events on 11 September 2001. Rowen unpacks what happened and what failed to happen — and why …

Justice As Harmony: The Distinct Resonance Of Chief Justice Beverley Mclachlin's Juridical Genius, Marcus Moore

All Faculty Publications

Chief Justice McLachlin’s juridical work has earned special praise, but what specifically distinguishes it among the work of other leading jurists has proven elusive for lawyers and social scientists to identify. My experience as a law clerk to McLachlin CJC suggested a distinct approach never comprehensively articulated, but intuitively well-known and widely-emulated among those in her sphere of influence. Drawing on the Chief Justice’s public lectures—where she often explained and offered deeper reflection on the McLachlin Court’s defining jurisprudence—I make the case in this article that at the heart of that approach is a quality best described as the pursuit …

Current Status Of Realisation Of Restorative Justice In Criminal Cases Respect To Minors: Analysis Of Domestic And Foreign Practice, M. Nodirov

Review of law sciences

In this article, the domestic and international experience on the production of restorative justice in criminal cases in relation to minors has been studied, on the basis of which the optimal and justified proposals were drafted.

Skirmishes On The Temporal Boundaries Of States, Meir Dan-Cohen

Meir Dan-Cohen

Seeks to better understand conflict resolution via the vehicle of time. The future is the tool by which resolution may be achieved, provided the past is also considered, and not allowed to form a barrier. To this end, looks at the reductionist answer to resolution, which the author finds lacking in effectiveness. Two other approaches to considering damage caused in the past are the ontological and epistemological, both which also have their shortcomings. The author suggests rather that by the vehicles of apology and forgiveness, reparations, and other means of contrition, the disparity between, say, two nations, may be alleviated …