Law and Ethics of Human Rights最新文献

{"title":"The Idea of Socratic Contestation and the Right to Justification: The Point of Rights-Based Proportionality Review","authors":"M. Kumm","doi":"10.2202/1938-2545.1047","DOIUrl":"https://doi.org/10.2202/1938-2545.1047","url":null,"abstract":"The institutionalization of a rights-based proportionality review shares a number of salient features and puzzles with the practice of contestation that the Socrates of the early Platonic dialogues became famous for. Understanding the point of Socratic contestation, and its role in a democratic polity, is also the key to understanding the point of proportionality based rights review. To begin with, when judges decide cases within the proportionality framework they do not primarily interpret authority. They assess reasons. Not surprisingly, they, like Socrates, have been prone to the charge that they offend the values and traditions of the community.The article discusses four types of pathologies that occasionally infect democratic decision-making that rights-based proportionality review is particularly suited to identify. But more basic and equally important is a second kind of justification: Proportionality-based judicial review institutionalizes a right to contest the acts of public authorities and demand a public reasons-based justification. Having a legal remedy that allows for the contestation of acts by public authorities before an impartial and independent court and demanding its justification in terms of public reason is as basic a commitment of liberal democracy as the right to vote. The real question is not whether judicial review is democratically legitimate, but how judicial institutions ought to be structured to best serve their democracy-enhancing and rights protecting purpose. If Socrates was right to insist that the practice of contestation he engaged in deserves the highest praise in a democratic polity, it is equally true that a well structured and appropriately embedded court engaged in rights based proportionality review deserves to be embraced as a vital element of liberal constitutional democracy.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2010-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1047","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68764037","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":"Balancing, Subsumption and the Constraining Role of Legal Text","authors":"F. Schauer","doi":"10.2139/SSRN.1403343","DOIUrl":"https://doi.org/10.2139/SSRN.1403343","url":null,"abstract":"Robert Alexy has for many years been a prominent analyst of the role of principles in legal argumentation, and an equally prominent defender of the rationality of balancing and proportionality modes of legal decision-making. But although Alexy's defense of proportionality and balancing against charges by Jurgen Habermas and Justice Antonin Scalia that balancing is essentially an irrational process is sound, Alexy in the process is too quick to collapse the important differences between the process of balancing competing principles and the process of interpreting a canonical written text. Although both can be and are frequently rational, rationality is not the same as external constraint, and the ability of canonical texts to provide a degree of external constraint on legal decision-making that cannot be provided by open-ended principles is a difference that should not be lost in the well-aimed efforts to demonstrate that both can be rational and both have important places in legal argumentation and decision-making.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2010-04-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68175880","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 Democratic Defense of Constitutional Balancing","authors":"Stephen A. Gardbaum","doi":"10.2202/1938-2545.1045","DOIUrl":"https://doi.org/10.2202/1938-2545.1045","url":null,"abstract":"We all live in the age of constitutional balancing. Abstracting away differences of nuance and doctrinal detail, balancing is a common feature of the structure of rights analysis across contemporary constitutional systems. Indeed, abstracting just a little further still, balancing is an inherent part of the near-universal general conception of a constitutional right as an important prima facie claim that nonetheless can in principle be limited or overridden by certain non-constitutional rights premised on conflicting public policy objectives.It is not surprising, then, that a significant literature about balancing has developed at both domestic and comparative levels. What is surprising is that so little of this literature has attempted to present the normative case for constitutional balancing or the general structure of rights analysis of which it is an inherent part. Rather, the existing scholarship has mostly focused on five other tasks: (1) describing and comparing first-order practices of balancing; (2) providing second-order conceptual analyses; (3) explaining balancing's rise to dominance; (4) advancing critiques of balancing; and (5) rebutting these critiques.In this article, I attempt to present one particular normative justification of constitutional balancing; namely a democratic justification. I argue that balancing appropriately bolsters the role of majoritarian decision-making about rights within a system of constitutional democracy. It thereby renders entrenched rights enforced by the power of constitutional or judicial review more consistent with certain enduring democratic concerns. I also explain the implications of this justification for how courts should exercise their powers of review.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2010-04-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1045","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68764464","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":"Genealogies of Balancing as Discourse","authors":"J. Bomhoff","doi":"10.2202/1938-2545.1046","DOIUrl":"https://doi.org/10.2202/1938-2545.1046","url":null,"abstract":"The language of balancing and proportionality figures increasingly, often in judicial and academic constitutional legal reasoning in Western democracies. The spread of this particular form of discourse raises important methodological and substantive issues for scholars of comparative law. While the dominant narrative in the relevant lines of scholarship has long been one of similarity and convergence, this article argues that not enough attention has been paid to the possibility of difference—the idea that references to balancing might mean very different things in different settings. In Parts I and II, the article suggests that a methodological shift—from a focus on balancing as doctrine to a focus on balancing as legal argument—will be necessary to bring out these different meanings. Based on a case study of early and mid-twentieth century practices in Germany and the United States, it is argued that one crucial difference in the local meanings of balancing in these settings relates to the extent to which choices of legal form are locally expected to have inherent substantive implications (Parts III and IV).","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2010-04-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1046","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68764015","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":"Investor-State Arbitration: Proportionality's New Frontier","authors":"Alec Stone Sweet","doi":"10.2202/1938-2545.1044","DOIUrl":"https://doi.org/10.2202/1938-2545.1044","url":null,"abstract":"The arbitral world is at a crucial point in its historical development, poised between two conflicting conceptions of its nature, purpose, and political legitimacy. Formally, the arbitrator is an agent of the contracting parties in dispute, a creature of a discrete contract gone wrong. Yet, increasingly, arbitrators are treated as agents of a larger global community, and arbitration houses concern themselves with the general and prospective impact of important awards. In this paper, I address these questions, first, from the standpoint of delegation theory. In Part I, I introduce the basic “Principal-Agent\" framework [P-A] used by social scientists to explain why actors create new institutions, and then briefly discuss how P-A has been applied to the study of courts. Part II uses delegation theory to frame discussion of arbitration as a mode of governance for transnational business and investment. In Part III, I argue that the International Center for the Settlement of Investment Disputes (ICSID) is presently in the throes of judicialization, indicators of which include the enhanced use of precedent-based argumentation and justification, the acceptance of third-party briefs, and a flirtation with proportionality balancing. Part IV focuses on the first wave of awards rendered by ICSID tribunals pursuant to Argentina's response to the crushing economic crisis of 2000-02, wherein proportionality emerged, adapted from the jurisprudence of the Appellate Body of the World Trade Organization.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2010-04-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1044","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68764359","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":"Incommensurability, Proportionality, and Rational Legal Decision-Making","authors":"Paul-Erik Veel","doi":"10.2202/1938-2545.1048","DOIUrl":"https://doi.org/10.2202/1938-2545.1048","url":null,"abstract":"Courts frequently engage in the weighing of competing values; perhaps most obviously, such balancing constitutes an integral aspect of proportionality analysis in many states’ constitutional law. However, such balancing raises a difficult theoretical question: What does it mean that one value “outweighs” another in any particular case? If the values at issue are incommensurable — as they often will be — such balancing may appear to break down. As Justice Scalia has stated, balancing in the presence of incommensurable values “is more like judging whether a particular line is longer than a particular rock is heavy.” It may appear that if a judge is asked in a particular case to decide, for example, whether a state interest is sufficiently strong to justify the limitation of a constitutional right, he will be forced to a) either abandon the notion of a genuine plurality of values, or b) make an arbitrary decision.This article argues that neither of these options need be accepted and that rational choice is indeed possible in the presence of incommensurable values. Specifically, it contends that the Nash bargaining solution provides a means, at least in certain circumstances, of rationally understanding and undertaking the weighing of distinct and mutually irreducible values which adjudication frequently requires. The Nash framework can both elucidate proportionality analysis by providing a social choice-based framework for understanding the structure of proportionality analysis and also justify proportionality analysis by demonstrating that the weighing of competing values is not necessarily mere judicial hand-waving.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2010-01-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1048","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68764119","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":"What is International Labor Law For?","authors":"Brian a. Langille","doi":"10.2202/1938-2545.1030","DOIUrl":"https://doi.org/10.2202/1938-2545.1030","url":null,"abstract":"This Paper suggests that the answer to the question “what is domestic labor law for?”—commonly regarded as securing “justice against markets” or a justified tax on market activity—has informed the search for the answer for the question “what is international labor law for.” This is reflected in what this Paper refers to as P2, which provides that “the failure of any country to adopt humane conditions of labor is an obstacle in the way of other nations which desire to improve the conditions in their own countries.” P2 envisions a “race to the bottom” by rational states trapped in a Prisoner’s Dilemma game. The author maintains that this cannot be the objective of ILO which cannot stop “the race” given its deficient enforcement mechanisms to ensure compliance. This Paper suggests an alternative raison d’etre for the ILO, which is called P1, namely social justice: “universal peace can only be established if it is based upon social justice.” P1 reflects what states actually seek to achieve. Following Sen, this Paper suggests that there is no tradeoff between social justice and economic efficiency. Therefore the promotion of labor rights by the ILO will contribute both to social justice and to economic success. Thus the ILO should promote international labor law so as to lead member states to pursue their self-interest which is consistent with the collective goal of humanity.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2009-02-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1030","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68763399","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":"Comment on Brian Langille: \"What is International Labor Law For?\"","authors":"E. Benvenisti","doi":"10.2202/1938-2545.1031","DOIUrl":"https://doi.org/10.2202/1938-2545.1031","url":null,"abstract":"This comment on Brian Langille's article agrees with Langille's claim that inter-state competition should not be viewed as the main challenge to the global efforts to regulate labor rights. The comment suggests, however, that there is another type of competition that poses a challenge, namely a transnational competition which takes place among sub-state actors. Focusing on this \"transnational conflict paradigm,\" the ILO has the tools to engage domestic constituencies in an effort to promote labor rights within the respective member states.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2009-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1031","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68763463","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 Right to Work? A Right to Leisure? Labor Rights as Human Rights","authors":"Mathias Risse","doi":"10.2202/1938-2545.1028","DOIUrl":"https://doi.org/10.2202/1938-2545.1028","url":null,"abstract":"Labor rights are the first to come up for criticism when accounts of human rights are offered in response to philosophical questions about them, and notoriously so Article 24, which talks about `rest and leisure' and `period holidays with pay.' This study first tries to make it plausible why labor rights would appear on the Universal Declaration, and next articulates some philosophical objections to their presence there. The interesting question then is not so much how one could respond to the objections, but to explore what commitments one needs to make to answer our question in a satisfactory manner. To make progress, we can contrast the idea of human rights with conceptions of them. Such conceptions offer answers to a set of philosophical questions about human rights. It would be rather unlikely for any such conception to emerge as the uniquely best philosophical account of human rights since disagreements among different conceptions (each of which requires commitments to a range of issues) are complex. What is sensible to ask then is what a conception of human rights would have to be like to count labor rights as human rights, and whether there is a conception of that sort. I offer one conception that I take to be plausible overall, and that does count labor rights as human rights. Or, that is: it does count a right to work as a human right, alas not in the strong interpretation according to which states must create jobs but in the weaker sense that states need to make sure people are not systematically excluded from employment, and are treated in certain ways at their place of work, and it does count a right to leisure as a human right, alas not a right to paid vacations.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2009-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1028","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68763269","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 Blessing of Departure: Acceptable and Unacceptable State Support for Demographic Transformation: The Lieberman Plan to Exchange Populated Territories in Cisjordan","authors":"T. Waters","doi":"10.2202/1938-2545.1021","DOIUrl":"https://doi.org/10.2202/1938-2545.1021","url":null,"abstract":"What limits ought there be on a state’s ability to create a homogeneous society, to increase or perpetuate non-diversity, or to create hierarchies within existing diversity? This article examines those questions with reference to the Lieberman Plan—which proposes to transfer populated territories from Israel to the Palestine in exchange for Jewish settlements on the West Bank— as an abstract exercise in demographic transformation by the state. First the article considers if the Lieberman plan would “work”: Would it create the alterations it proposes, and would those changes achieve a stable, peaceful, perhaps even just settlement? It finds that though there is debate about the range of effect, there is little doubt that transfer would alter the state’s demography. It then turns to the international standards that might govern the transfer of territory and the denaturalization of citizens, to see how they would characterize such a plan. It finds that comparisons to ethnic cleansing are inapposite, and that norms protecting citizenship are considerably more complex than they first appear—even allowing ethnically targeted denaturalization in some cases.The article then analyzes the loyalty provisions of the Lieberman Plan, and notes that, contrary to the usual normative assumption that citizenship is tied to the state, the foundations of citizenship are actually a habitual or formative link to a given territory, which in turn creates a right to citizenship not in any particular state, but in the one that incidentally is sovereign over that territory. This interaction of citizenship and territory, when considered together with norms requiring equal protection for all citizens, suggests that the polity has an interest in defining its own territorial scope, and thereby its membership. The legal regime is ambiguous, and therefore deliberations about this question are in the realm of politics. The article demonstrates how transfer’s assimilation to existing norms suggests a novel interpretation of selfdetermination with far-reaching consequences for both sides of the conflict.Finally, the article notes that international law, though it polices excesses, is largely silent on the principal determinant of demography: the fact of state control over territory.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2008-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1021","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68763431","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}