Law and Ethics of Human Rights最新文献

{"title":"Stability and Change under the Global Model of Constitutional Rights: A Reply to Vanessa MacDonnell","authors":"K. Möller","doi":"10.1515/lehr-2018-0004","DOIUrl":"https://doi.org/10.1515/lehr-2018-0004","url":null,"abstract":"Abstract The essay responds to a challenge posed by Vanessa MacDonnell and examines the question of stability and change under the global model of constitutional rights. Constitutionalism offers the promise of both stability and justice, but it may seem that there will often be a tension between these values. While some have accused the global model, and in particular proportionality, of overemphasizing justice at the cost of stability, MacDonnell claims that it underemphasizes the necessity of social change. In this response, I argue that in the long run the push for social change and towards justice can be realized only when there is also a certain stability, namely the stubborn democratic insistence that any state action must be reasonably justifiable to those affected by it in terms of their freedom and equality. This conviction lies at the core and will be reinforced by the endorsement of the global model of constitutional rights.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/lehr-2018-0004","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66987389","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}

{"title":"Dworkin’s Theory of Rights in the Age of Proportionality","authors":"Kai Möller","doi":"10.1515/lehr-2018-0011","DOIUrl":"https://doi.org/10.1515/lehr-2018-0011","url":null,"abstract":"Abstract There is probably no conceptualization of rights more famous than Ronald Dworkin’s claim that they are “trumps.” This seems to stand in stark contrast to the dominant, proportionality-based strand of rights discourse, according to which rights, instead of trumping competing interests, ultimately have to be balanced against them. The goal of this article is to reconcile Dworkin’s work and proportionality and thereby make a contribution to our understanding of both. It offers a critical reconstruction of Dworkin’s theory of rights which does away with the misleading label of rights as “trumps” and shows that, far from being in conflict with proportionality, properly understood Dworkin’s work supports and supplements that doctrine and provides a much-needed account of its moral foundation as being about human dignity, freedom, and equality.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2017-06-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/lehr-2018-0011","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66987445","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}

{"title":"Synagogue and State in the Israeli Military: A Story of “Inappropriate Integration”","authors":"Karin Carmit Yefet","doi":"10.1515/lehr-2016-0008","DOIUrl":"https://doi.org/10.1515/lehr-2016-0008","url":null,"abstract":"Abstract The encounter between synagogue and state in Israel’s military context raises a variety of complex questions that defy conventional paradigms. While religious liberty continues to occupy a special place in most liberal democratic thought, the legal and philosophical literature pondering its various dimensions has largely lost analytic sight of the fascinating intersection of military and religion. This article embarks on analyzing the appropriate integration between loyalty to God and to country, and between religious male and secular female soldiers. Evaluating examples of synagogue-state tensions and accommodationist policies, this article explores the manner and extent to which the Israeli military (IDF) responds to the observant soldier’s multiple identities as a religious minority member and a faithful citizen of the larger secular polity. Against this backdrop, the article analyzes the vexed challenges posed to multicultural theory by the equivocal status of the Orthodox community as a numerical minority but “power majority” within the military, and by the IDF’s unique exercise of multiculturalist protection, termed herein “external restrictions,” imposed on majority group members. It concludes that the ongoing “religionization” of the IDF through the 2002 “Appropriate Integration” regulation has served as a powerful counterforce to gender equality, fostering a growing practice of female exclusion through which women are disenfranchised from core, non-negotiable protections of citizenship. The article identifies as the prime casualty of this aggressive multicultural accommodation not only secular women’s hard-won equality of opportunity, but also the very rights and status of minority women within their own religious community.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/lehr-2016-0008","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66987338","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}

{"title":"Moving Migrants, States and Rights. Human Rights and Border Deaths","authors":"T. Spijkerboer","doi":"10.2139/SSRN.2097748","DOIUrl":"https://doi.org/10.2139/SSRN.2097748","url":null,"abstract":"This article looks at the number of migrants who die while trying to reach Europe. It includes a methodological paragraph on how more precise data about this phenomenon can be collected; this paragraph is based on field work on Southern Sicily in November 2011. Furthermore, it analyses how a mainstream approach to human rights would assess the phenomenon, and explores in which ways human rights analysis would have to be amended in order to make the human rights normative framework relevant for border deaths.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2013-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67909632","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}

{"title":"Press Performance, Human Rights, and Private Power as a Threat","authors":"C. E. Baker","doi":"10.2202/1938-2545.1058","DOIUrl":"https://doi.org/10.2202/1938-2545.1058","url":null,"abstract":"The essay concerns the manner private power threatens the proper democratic role of the press or mass media. But first, Part I examines two preliminary conceptual matters involved in locating this discussion in the context of a conference on private power as a threat to human rights: 1) the relation of human rights to private power in general. This relation is complicated due to fact that human rights can themselves be seen as the assertion of private power against government or against collective power while, depending on how conceptualized, human rights can be improperly threatened by private power even while private power operates in a generally lawful manner; 2) involves the relation of press freedom and human rights. Here I argue that human rights are ill-conceived if offered as embodying any particular right in respect to the press—more specifically, I argue that a free press is not a human right—but argue instead that an ideal media order that is embodied in a broad conception of free press provides the soil in which human rights can flourish and the armor that offers them protection. Both government power and private power are necessary for and constitute threats to these supportive roles of a free press.Political-legal theory—or in constitutional democracies, possibly constitutional theory—should offer some guide to how the tightrope between government as threat and government as source of protection against private threats ought to be walked. That is, the goal is to find both proper limits on government power and proper empowerment of government to respond to private threats. Part II examines the variety of private threats to the proper role of the press. It focuses on two forms of threats: first, market failures that can be expected in relatively normal functioning of the market; second, problems related to the purposeful use of concentrated economic power. Responsive policies are multiple—no magic bullet but varying different governmental (as well as private) responses are appropriate. However, Part III illustrates this point by considering only two types of governmental policies, both of which I have recently been involved in advocating: first, government promotion of dispersal of concentrated power by means of ownership rules and policies; second, tax subsidies in the form of tax credits for a significant portion of journalists salaries as a means to correct for underproduction of journalism on theory that this journalism generally produces significant positive externalities.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2011-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1058","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68764818","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}

{"title":"Advertisements and the Public Discourse in a Democracy","authors":"Yoav Hammer","doi":"10.2202/1938-2545.1059","DOIUrl":"https://doi.org/10.2202/1938-2545.1059","url":null,"abstract":"Modern advertisements contain little information and expose few arguments. They rarely describe the product and its usage or compare it to similar products. Yet, advertisements convey many messages—they attach meaning to products, suggest values, and spread a particular view of life. Advertisements create a failure in the democratic process; through advertising, commercial corporations intervene in the democratic discourse. Citizens are intensively exposed to the consumerist worldview while alternative points of view are scarcely presented in the communicative sphere.But commercial corporations are not legitimate participants in the public discourse in a democracy since they do not represent the political support of citizens. Presently, courts grant advertisements freedom of speech protection based on the importance of providing information for viewers. But by doing this, courts ignore the value suggesting messages prevalent in modern advertisements.For many years the law in the domain of campaign finance has restricted the speech of corporations in order to prevent distortion of the political discourse prior to elections. Similarly, we should allow the State to intervene to repair the failure in the public discourse created by advertisements. The law regarding informative messages and value-suggesting messages contained in advertisements should treat each separately, and advertisers should not be permitted to convey messages of the latter.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2011-09-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1059","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68764891","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}

{"title":"Multiculturalism and the Mass Media","authors":"Yoav Hammer","doi":"10.2202/1938-2545.1005","DOIUrl":"https://doi.org/10.2202/1938-2545.1005","url":null,"abstract":"In light of the importance of culture for the autonomy, sense of identity, and self-respect of individuals, cultural minorities have a right that their cultures flourish. Since cultural minorities are frequently in a disadvantaged position in the cultural market-place, a commitment to equality implies that the state ought to take steps to assist these minorities in preserving their cultures. This Article examines the ways the mass media can assist cultural minorities in preserving their cultures. For instance, when the media present contents that relate to the cultures of minorities, individual members of the minority group are exposed to their culture; media designated for cultural groups facilitate dialogue between group members, thus enabling the cultural group to determine which parts of its culture to retain and which parts to change. With that said, contemporary media frequently provide insufficient cultural contents due to the influence of commercial operational logic. This Article examines why the motivation for profit leads to under-production of cultural materials for minorities and to insufficient inclusion of cultural minorities in the public discourse. It is argued that the inequality caused by the media—which provide minorities with too little of the cultural contents so pertinent to the realization of their right to culture—merits corrective intervention. The Article examines possible forms of State intervention with the media on behalf of cultural minorities, taking into consideration that such intervention is a sensitive issue, since it has ramifications concerning the scope of the freedom of the press. Accordingly, it is argued that the State ought to be permitted to create legislation which intervenes, mainly by means of subsidies and structural regulation, to improve the manner in which the media fulfill their roles in a multicultural democracy. In contrast, there should be sparse use of conditionality in the issue of licenses for media operators.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2011-09-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1005","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68762698","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}

{"title":"A Nuanced Approach to the Privatization Debate","authors":"Talia Fisher","doi":"10.2202/1938-2545.1053","DOIUrl":"https://doi.org/10.2202/1938-2545.1053","url":null,"abstract":"Current framing of the debate over the privatization of the State’s legislative and adjudicative functions masks the fact that there are distinct and conflicting versions of privatization of law. The different privatization models diverge on fundamental questions relating to the ontology of law, the role of social cooperation mechanisms in the lives of people, as well as the types of private legislative and adjudicative institutions that ought to replace the State’s legal system. In light of such conflicting normative premises, the distinct models of the privatization of law pose different kinds of challenges to both proponents and opponents of the privatization of law. At the outset, the Article juxtaposes two distinct visions regarding the privatization of law and adjudication—the market-based privatization model versus the community-based model. This analytical framework is then used to offer a fresh look at the privatization of law debate. The Article shows that the distinctions between the privatization models, especially with respect to the depiction of the social agents that are to replace the state’s lawmaking capacity, have great bearing on the advantages and disadvantages associated with privatization of law, and generate different types of costs and benefits. More specifically, the Article shows that the market-based model has greater susceptibility to market failures and to the under-provision of the public goods associated with the enterprise of law than the community-based paradigm. In addition, the market-based model runs a higher risk of corrupting the prevailing understanding of law as a collective, meaning-creating enterprise. The community-based model, on the other hand, has a greater vulnerability for coercion and is also more prone to political failures and public choice problems.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2011-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1053","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68764294","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}

{"title":"Privatization and Delegation of State Authority in Asylum Systems","authors":"T. Kritzman-Amir","doi":"10.2202/1938-2545.1057","DOIUrl":"https://doi.org/10.2202/1938-2545.1057","url":null,"abstract":"One of the measures taken by states to relieve the burden of providing for asylum seekers and refugees is privatization and delegation of asylum regimes. I analyze the privatization and delegation of authority that is taking place within asylum systems and describe three tiers of privatization/delegation: 1. admission at points of entry or criminalization of undocumented entry, 2. status determination, 3. social integration and provision of social and economic rights and benefits. I then ask why states are privatizing and delegating authority within the context of asylum systems and argue that privatization and delegation of authority are intended to be used to maintain control and reduce immigration and integration of asylum seekers. Governments are often helpless in their attempts to manage refugee migration and need to recruit other sectors to assist them in regaining control over immigration. This “tool” is particularly instrumental as it allows governments to maintain—to a large extent—control of immigrations and at the same time distance themselves from their responsibilities, from human rights violations, etc. Governments attempt to have private or other actors carry out acts that they cannot—whether because of practical reasoning or due to legal constraints. Finally, I argue that asylums systems are a special locus; thus, special care, great caution, much regulation, or complete refrain from privatizing at all, is paramount since privatization of asylums systems carries unique and severe consequences.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2011-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1057","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68764139","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}

{"title":"The Private Prison Controversy and the Privatization Continuum","authors":"D. Barak-Erez","doi":"10.2202/1938-2545.1055","DOIUrl":"https://doi.org/10.2202/1938-2545.1055","url":null,"abstract":"Imprisonment calls into question the institutionalized violence of the state and its organs. It touches on the very core of the meaning of state sovereignty and concerns one of the most disempowered groups of society: indicted criminals. Therefore, privatization of prisons signals the willingness to apply privatization policies almost with no limitations. Private prisons have become a known phenomenon in many countries. After the debate on this issue seemed to lose its pragmatic value—in contrast to its importance on the theoretical level—privatization of prisons reemerged as an issue of legal debate due to the Israeli Supreme Court decision that declared a law authorizing the establishment of a private prison unconstitutional.The following analysis evaluates this decision using it as a microcosm for studying the role of law in regulating privatization policies. The Article starts by studying the full range of privatization policies, in order to offer an analysis that would be relevant also to other cases along the privatization spectrum. It then challenges the traditional premise of public law that the move to privatization is merely a matter of policy and not of law. More concretely, the Article offers an analysis based upon distinguishing among three distinct spheres of discussion: the boundaries of privatization, the privatization process, and the regulation of privatized actions. This model of analysis is then applied to the case-study of prison privatization as decided by the Israeli Supreme Court.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2011-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1055","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68764488","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}