Volume 3, Issue 1

Using historical analogies to China and its suppression of the Treasure Fleets of the 15th century and to the adoption of the “Progress of Science” clause of the United States Constitution in 1789, this article explores the cultural attitudes of risk-amplifiers and risk-minimizers about agricultural biotechnology in Europe and the United States. The article explores these attitudes regarding the nature of agricultural biotechnology, the precautionary approach and precautionary principle, and food labels. The article ends by discussing the domestic and international risks that Europe is taking by its political opposition to agricultural biotechnology. More particularly, the article contrasts these European risks with the technological stances toward agricultural biotechnology in the United States, China, and India.

The use of Internet by employees at the workplace involves risks both for the employer and the employees. As recent studies show, employees use their business computer to surf the web for personal purposes during the working hours. This lead to a supplemental cost for their employer. In addition, the networks are infested by viruses and business spies attracted by the data of the company for different reasons. Considering the risks, the employer has legitimate interests in monitoring his employees during the working hours but the use of poweful monitoring programs results in a high risk of invasion of employee's privacy. In the USA, constitutional and common law doctrines provide protection for employee privacy right. In France, employee's privacy right are ensured both by the 1950 treaty of the European Council, the Constitution and the civil code. Although both the USA and France protect employee's privacy rights at the workplace by similar rules, French and American courts have adopted opposite views on the subject of employee's privacy right at the workplace. This essay aims at comparing the differences between the French and US system of laws in balancing the employers' interest versus that of the employee.

In this paper I would like to elaborate on the interaction between law and language. The use of the different (legal) languages of the European Union Member States is one of the most practical and most difficult problems in the process of European integration. In February 2003 the Commission launched an Action Plan on European Contract Law. On of the official aims will be the preparation of a common frame of reference, providing a pan-European terminology and rules. Still not solved is the question, if this common frame of reference will be accessible in all Member State languages or only in some selected languages. This article will reflect the need of a better and more coherent legal language use on a European Union level and describe the linguistic instruments offered by national States and the European Union itself.

Hassan El Menayawi seeks to briefly describe the characteristics of two legal regimes: the no-fault compensation and tort liability. No-fault compensation is primarily characterized by the compensation of any person who experiences personal injury without having to demonstrate that it is caused by the fault of another person. On the other hand, in tort liability, the decision whether to compensate a plaintiff is determined primarily on the basis of whether the defendant committed a fault. After examining the advantages and disadvantages of each regime, he seeks to demonstrate that it is possible to combine the advantages of no-fault compensation and tort liability in an alternative, third regime that he calls "public tort liability". Public tort liability is premised on the idea that the state ought to compensate all victims of injury regardless of whether they committed a fault, but also pursue those who committed a wrong in order to hold them accountable.

Etude en l'honneur du Professeur John Kirkpatrick, à paraître dans les "Mélanges J. Kirkpatrick", Bruylant, Bruxelles, 2003

American lawyers who live in Europe will often note that they find themselves in the line-of-fire of their European colleagues who expect them to explain the sometimes bizarre twists of law and politics in the U.S.A. This article deals with one of many topics which arise in these discussions, the topic of punitive damages. Unfortunately, the U.S. system of laws regarding punitive damages is widely misunderstood. It is the author’s proposition that much of the misunderstanding in Europe can be traced to examples in the European press. Here, there is a tendency to take highly publicized trial-level decisions, extrapolate from them, and incorrectly interpret them as a full function of U.S. law. This phenomenon is not unlike the many “urban legends” which have recently given rise to many popular books and web sites on urban legends. The article discusses the facts and dispels many of these cases, notably the fictional pet in microwave case, and the “real” but legally irrelevant McDonald’s coffee spill case. Examples of false reports in the European press are discussed. To help bring clarity to the topic of punitive damages, the author discusses in detail the case law arising from the U.S. Supreme Court case BMW v. Gore. This Supreme Court decision demonstrates that there are legally binding standards in the U.S. for the application of punitive damages. The author proposes that the case of BMW v. Gore is a much better example of the full-functioning of the U.S. legal system than the far more popular McDonald’s case and others which make sensational headlines, but which have no jurisprudential value.

In this article, the Author discusses the system of judicial review in Brazil from a comparative viewpoint. One of the most distinctive features of the Brazilian legal system is the coexistence of decentralized and centralized models. Brazil has followed the decentralized American model in the sense that private parties bring constitutional issues before ordinary courts in regular judicial proceedings. At the same time, Brazil has another type of judicial review; that is, certain authorities have competence to bring actions in relation to constitutional issues directly to a special decision-making organ.

One of the principles underlying the Canadian Charter of Rights and Freedoms and the Basic Law of the Federal Republic of Germany, if not the most fundamental one, is the concept of human dignity, shared as a common value by western democracies. During the 20th century, it has become a concept of international and domestic law. In this paper, some of the many questions arising out of the concept of human dignity will be addressed by tracing the approach to human dignity taken in the Charter jurisprudence of the Supreme Court of Canada and of the German Bundesverfassungsgericht. To facilitate the conceptualization of human dignity it is defined in the constitutional context, its legal nature is examined, as well as its purpose and function within our constitutional framework. An analysis of the personal and substantive scope of human dignity follows. It will be shown that human dignity is a complex and multi-facetted concept of both Canadian and German constitutional law. In other words, human dignity is a highly abstract concept generating differences in opinion in all but the clearest cases when applied to the concrete situation of a constitutional dispute. It is apparent that the differences between the Canadian and German views are closely linked to the textual basis of human dignity in the written constitution - or absence thereof. In light of the prominent position of the human dignity guarantee in Art. 1(1) of the Basic Law it was easy to construe human dignity not just as a fundamental value, but as the core value of the constitutional value system, as a binding objective principle of constitutional law and as an individual right. Lacking a similar textual inducement, the Canadian approach is much more reserved. In essence, human dignity is a fundamental value exerting its influence indirectly, specifically on the interpretation of the fundamental rights and freedoms in the Charter. In summary, human dignity is an indispensable compass in our continuing journey to promote and protect the rights and freedoms of the individual. We may not always know where it will take us, but the fundamental value of human dignity will always remind us where we are coming from.

This Article argues that recent developments in economic theory provide a new rationale for the dichotomous approach of land use arrangements in the law of servitudes that is almost universal in the modern Western legal tradition. The treatment of certain land-related promises as enforceable contracts between parties, rather than real rights that run with the land in perpetuity, can be explained as an attempt to minimize the transaction and strategic costs resulting from dysfunctional property arrangements. As demonstrated by the Authors, benchmark doctrines such as ‘touch and concern,’ and the civil law principles of ‘prediality’ and numerus clausus, have served as instruments to limit excessive or dysfunctional fragmentation of property rights. Section I of this Article describes the dichotomous approach of land use arrangements in the law of servitudes in Common Law and Civil Law systems. Section II provides a functional explanation of the legal rules in this area. Section III documents and explains the changing approach to land use law in both Common Law and Civil Law jurisdictions. Section IV discusses the role of property law in a changing economy. Section V reflects on the appropriate scope of freedom of contract in the law of servitudes. Section VI concludes.

The law governing servitudes might seem to resist principled explanation. It varies, not only between civil and common law jurisdictions, but within them. One might wonder how any principles that could explain the law of one jurisdiction could not explain that of others. This Essay claims that there is a principle that explains when the law should allow a landowner to create a servitude. The variety and confusion arise because the principle is hard to translate into a clear legal rule. Nevertheless, the principle itself is fairly simple. A servitude is created by parties who believe that it will serve their mutual interest. They expect the cost or inconvenience to the owner of the burdened property to be less than the advantage that the servitude confers on whomever it benefits. Therefore, the beneficiary is willing to pay an amount that compensates the owner of the burdened property for the cost or inconvenience. What matters in principle is whether this relationship is likely to persist: whether the advantage of the servitude those who succeed to its benefits will continue to outweigh the cost or inconvenience to those whom it burdens. If so, in principle, the law should recognize and enforce the servitude. Otherwise it should not. The first part of this Essay will take a comparative look at the law of servitudes. It will be seen that even the variety and confusion is understandable in light of the underlying principle. The Essay will then go on to explain why the Author finds his explanation of this principle in terms of fairness more compelling than Depoorter and Parisi’s economic explanation.

Le premier chapitre, intutilé Pour connaître Bancoumana, dresse une présentation du village qui apparaît comme un système dont les parties (j’aurais pu dire les sous-systèmes) sont les structures sociales, les organes de gestion et le droit foncier local. Le deuxième chapitre, L’Etat et la question foncière : entre mépris et réalisme, montre comment l’Etat qui s’est mis au centre du système foncier national et qui l’a toujours géré en fonction de ses intérêts, n’a jamais pu trouver les formules adéquates pour encadrer le foncier rural malgré les codes successifs. Le troisième chapitre, La décentralisation administrative et foncière sur fond de compromis, met en lumière les premières tendances d’une politique dont le caractère principal semble être la négociation pour la prise en compte des divers intérêts. Le quatrième chapitre, Quelques questions plus théoriques, aborde un certain nombre de questionnements à propos des méthodes socio-juridiques, de l’ordre jurique du Mali et du rôle des juristes maliens.