Human Rights

Domestication and compliance with international human rights laws are generally conceptualized as endpoints that states linearly strive to achieve. Missing is a consideration of the impact a state’s formal and informal institutional legacies have on both. Legalization and compliance studies also cannot explain why states engage in rule by law practices. Rule by law studies focus on politicians’ use of the law to curb dissent, with little consideration given to the lasting influence of institutions and norms on behavior. Legalization, compliance, (...) and rule by law are better framed as interrelated components of law as practice, which envisages law as a multidirectional process informed by a country’s institutional history. These legacies shape the behavior of those involved in policymaking over time. This study demonstrates that history of authoritarian rule and the genocide in Rwanda continuously obstruct the institutionalization of civil and political rights and enable the government’s selective compliance with same. (shrink)

The deployment of privacy-reducing digital products is a well-known contemporary issue. Multiple conceptual, regulatory, and legal approaches have attempted to address it. This article illuminates a complementary approach yet to be explored: supererogatory consumer choices grounded in the human right to privacy. It argues that the operation of privacy is not limited to vertical relations of power under legal frameworks, but can also operate in horizontal relations of power by way of supererogation as it applies to consumer decision-making about digital (...) products. The analysis posits that for privacy to be operationalized in this way, three prerequisites of related supererogatory decisions need to align, which are the discretion to make an unobligated choice, sufficient personal privilege, and a level of care for ‘reciprocal privacy’ that overcomes any applicable bystander effect. Despite the potential to protect privacy by supererogatory consumer choices, there simultaneously exists scope to abuse this idea via responsibilization. (shrink)

Despite the persistence of violence inside and around prisons, and the dubious adequacy of criminal law to respond to victim–survivors, international human rights (IHR) discourse increasingly promotes the mobilisation of the state’s penal apparatus to respond to human rights violations, including violence against women (VAW). Using an anticolonial feminist approach, this article scrutinises the ontological and epistemological commitments underlying ‘human rights penality,’ by analysing features of the Western-colonial register vis-a-vis more relational worldviews. Separateness, abstraction, and transcendence broadly underpin the exclusion (...) of embodied experience, context, and material reality from the juridical field. In the second part, through discourse analysis of Inter-American and European case law, the author shows the deployment of human rights penality, the displacement of experience, and the disregard of context in IHR discourse. VAW is construed as a procedural and penal matter: it is the absence of a penal process that courts regard as failure to protect women, rather than the state’s inability/unwillingness to address structural subordination. Moreover, the ‘virtues’ attributed to the penal system justify its expansion, which facilitates the continuity of penal violence and debilitates alternative approaches to justice. Finally, the author posits penal abolition as an anticolonial praxis, pointing at examples of anti-carceral feminist work. (shrink)

The behavior of judges on both the U.S. Supreme Court, and on federal and state courts throughout the United States, has changed dramatically in the past decade – polarizing along party lines in ways not visible in decades past. Yet while this pattern in some respects echoes that seen in other constitutional democracies around the world today, American legal polarization has been driven in important part by a specifically domestic conservative legal movement whose role and impact are still only partly (...) understood. This article shows how that movement’s intellectual and strategic features have functioned to challenge long-settled norms of legality in the United States – including norms of judicial stability and impartiality – and are today driving a growing reactive interest in elevating “movement,” or purposefully impartial, judges on the progressive left. Further, drawing on empirical studies of judicial behavior and public opinion, the article considers the hypothesis that the dramatic growth in polarized judicial behavior these movement forces have helped to drive is in turn contributing to a bipartisan decline in public belief in the possibility (or desirability) of judicial impartiality more broadly. While the conservative legal movement is best known for its efforts to shift the substance of liberty and equality protections under American constitutional law, its more profound impact may be of this latter kind – destabilizing norms that have helped to preserve at least the relative autonomy of law from politics in the United States for more than a century. (shrink)

Political polarization has become one of the most significant challenges facing modern democracies, reshaping political discourse, governance, and public trust in institutions. This article explores the nature of polarization, defining it as the deepening ideological and social divide between political factions, often accompanied by hostility and distrust. We examine its primary causes, including economic inequality, media fragmentation, identity politics, and institutional design, all of which contribute to reinforcing divisions and entrenching partisan loyalties. A central argument of this article is that (...) polarization not only exacerbates political conflict but also transforms traditionally neutral institutions into partisan battlegrounds, undermining their credibility and effectiveness. Courts, in particular, have increasingly become the focus of political struggles, as different factions seek to shape judicial rulings to align with their ideological preferences. Ultimately, we argue that the partisanship of institutions is one of the most damaging consequences of polarization, leading to diminished trust in democratic structures and weakening their ability to function effectively. (shrink)

Could voluntary or negotiated secession or separation be a solution to the problems of maintaining a single government for a highly polarized polity? Negotiated secession would convert political negotiations over the terms of domestic law into negotiations over the terms of international treaties regulating relations between separate nations. The existence of bilateral and multilateral treaties across a range of topics reduces the costs of individual negotiations because such treaties offer “off-the-shelf” models. Tradeoffs across topics can provide protections for the “minorities (...) within minorities” problems historically associated with secession and separation. The overall model can be described as one in which the parties exchange conditions for concessions. In the end, outcomes will result from relative bargaining power and the related question of the intensity with which the polarized entities hold their views on the list of items on the policy agenda. This is not dramatically different from how outcomes result from bargaining within the polarized polity, with the important exception that secession or separation changes the default outcome from policy paralysis to pursuit of distinct policies within the separated entities. (shrink)

Courts often do not play a significant role in constitutional replacement processes. Observers have identified exceptions and theorized about the courts’ possible functions during and after those processes. However, little has been said about the courts’ work taking place before replacement processes occur. This essay shows that courts can help establish the conditions for constitutional change by encouraging the demand for such change. They can do that by fostering the perception that the Constitution has become a tool to help one (...) side of the political struggle win over politically salient constitutional conflicts, thus contributing to the polarization among competing political groups. Observers have reported that backlash against the courts is possible. I claim that a backlash against the Constitution itself is also possible. Encouraging the losers of the constitutional conflict to either attack the court or the constitution is possibly an unintended consequence of judges deciding cases in politically consequential ways. The implication is that strategic judges must balance the need to resolve cases in ways they perceive correct with the long-term acceptance of the Constitution. Still, a collective action problem makes this task difficult to achieve. The essay explores these ideas using different examples and expands on how the Chilean Constitutional Court contributed to building opposition against the Constitution before the Constitutional Convention was convened. (shrink)

For the second half of the twentieth century and the early years of the twenty-first century, the belief in pancontinental constitutional frameworks boosted the political and legal integration of Europe. In less than twenty years, the scenario has dramatically changed. The belief that the peoples of Europe would proceed through a potentially endless process of harmonization and unification has been replaced by political tensions between those who support integration and those who support state sovereignty. Such tensions have materialized both within (...) the European Union and in the Council of Europe, as the recent clash between the Polish Constitutional Court and the Court of Justice of the EU on one hand and the Russian abandonment of the Council of Europe on the other exemplify. Beneath the surface, the two factions have profoundly different agendas. The supporters of integration often advocate for a progressive and liberal agenda and state power constraints, while conservatives couch their arguments in terms of state sovereignty and domestic political discretion. The net result is a form of vertical polarization – a tension between factions alternatively supporting state or supranational and international frameworks. Such factions often see state claims and supranational and international frameworks claims as irreconcilable, because each level of government would be inextricably associated with a specific political agenda. The article distills the vertical characters of polarization in Europe, explains how political polarization has morphed into strained relations between national, supranational, and international institutions, and considers and criticizes some recent proposals to reinvigorate pan-European integration. It concludes that the survival of pancontinental institutions in Europe can only be achieved by distinguishing between political agendas and constitutional frameworks in largely unprecedented ways: a task that only European legal culture can carry out. (shrink)

Since the adoption of the Vienna Declaration and Programme of Action in 1993, national human rights plans have become a widely used tool for countries to assess and address their human rights situations. Despite the proliferation of these policy instruments, research on their drafting processes and their impact on the meaning of human rights remains limited. This study provides a theoretical analysis of Thailand's National Human Rights Action Plan (NHRAP), focusing on its latest drafting experience through the lens of the (...) deliberative school of thought. By comparing the NHRAP’s outcome with the Universal Periodic Review (UPR) recommendations and international reports, the study evaluates the extent to which Thailand's human rights protections respond to global concerns. The findings highlight shortcomings in the deliberative process of the NHRAP’s drafting. We argue that because the concept of “agreed rights” is central to the deliberative school, human rights in practice will continue to face limited protection in the absence of meaningful structural reforms. (shrink)

This article addresses the moral and legal difficulties sport governing bodies encounter as human rights promoters. The case presented here is the 2023 decision by the International Olympic Committee (IOC) to allow athletes from Russia and Belarus to compete in international sport under neutral colours, after recommending complete exclusion a year before due to the Russian invasion of Ukraine. While IOC’s change of mind was influenced by UN experts on human rights, claiming that the ban discriminated against Russian athletes, the (...) same experts fail to take into account competing human rights elements that could favour the ban. To that end, this article discusses the complexities of prioritizing human rights in an Olympic context and, deriving from that, demonstrates the existence of moral and legal support for upholding the exclusion of Russia. Finally, the analysis of how to prioritize morally and legally between competing human rights offers deliberative material to other sport governing bodies which could be used to carve out preventive measures prior to their next encounter with a similar situation. (shrink)

The article explores the right to cultural identity, advocating for the freedom to choose and change cultural affiliations as a critical human right. It emphasizes that while cultural identity is essential for human dignity and personal freedom, this right remains underexplored in contemporary human rights discourse, leading to the essentialization of culture and neglecting its dynamic nature. By promoting the recognition of the freedom to redefine cultural identity, the article positions this freedom as crucial to human rights. It supports this (...) view with key international legal instruments and examines relevant case law from the European Court of Human Rights and other bodies. Significant cases, including Ciubotaru v. Moldova and Sandra Lovelace v. Canada, illustrate the challenges individuals face in changing their identities and highlight existing legal protections. Ultimately, recognizing this right ensures respect for personal growth and evolving worldviews under human rights law. (shrink)

Enforced disappearances occur almost every year in democratic Argentina (over 200 since 1983). Yet Argentina has made extensive legal commitments to end the practice and its strong human rights movement has pushed for these commitments and subsequent compliance. So, why has compliance been so difficult to achieve in Argentina? I argue that enforced disappearances in democracy produce powerful government counterframes that significantly impede human rights advocates’ efforts to ensure treaty compliance. These counterframes are reinforced by judicial ambiguity and fragment human (...) rights advocates’ responses. This article contributes to the literature on how countries move from human rights commitment to compliance. It is based in a qualitative case study of Argentina, drawing on an analysis of 3,565 news articles on five cases of enforced disappearance that occurred under democratic governments, 22 in-depth interviews, secondary material, and two decades of research on police violence in Argentina. (shrink)

The United States is only one of eight countries, and the only Western democracy, that has not ratified the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Due to the failure of the US to ratify CEDAW, the Cities for CEDAW campaign encourages US municipalities to adopt the CEDAW framework locally through municipal ordinances and resolutions. This article provides a descriptive overview of CEDAW cities. Our descriptive approach will provide a comprehensive and accurate account of (...) CEDAW cities and serve as an important and essential step for more in-depth analysis of CEDAW cities in the future. First, we identify a total of 61 CEDAW cities. Next, we ask if CEDAW cities share common characteristics. Our analysis shows that while Cities with ordinances are larger and tend to lean more Democratic, the entire universe of CEDAW cities contains significant variation. (shrink)

Many post-conflict and post-transition countries use truth commissions to address the legacy of the past. However, truth commissions are products of the political context and often reflect the power balance at the time of creation. More than half of truth commissions show some form of one-sided treatment. To what extent does this matter? Has the public priced in the political circumstances or does a one-sided truth commission damage expectations of peace? Using an experiment to deal with the endogeneity between the (...) truth commission and context, I examine this question in an original survey in Northern Ireland. The findings show that one-sided processes significantly reduce support for the institution and the perceived prospects of reconciliation, with some support for a normative heuristic of fairness, while mechanisms of ethnic identity and victimization do not explain the differences. The research demonstrates the significance of implementing transitional justice in a just and equitable way. (shrink)

Dignity often serves as the cornerstone for a justification of rights. However, it has been criticised for its exclusion of nonhuman animals and many human individuals: dignity is traditionally grounded in a capacity that some but not all humans and animals possess, e.g. rationality. To successfully overcome this problem of exclusion, this article argues that we should adopt an account of sentient dignity, i.e. an account of dignity based on sentience alone. The article thus makes three contributions. First, it demonstrates (...) that the basis of dignity has yet to receive a plausible justification. To illustrate this, it outlines the problem of exclusion, and it exposes three problems with a prominent solution offered by Pablo Gilabert. According to Gilabert's view, dignity should be based on several valuable capacities including rationality, sentience and cooperation, among others. However, basing dignity on several capacities (i) risks over-inflating the scope of dignity, (ii) struggles to account for internal complexity, and (iii) produces problematic moral distinctions. Second, the article argues that sentient dignity overcomes these three problems whilst being plausibly inclusive. Finally, it contends that an account of sentient dignity vindicates the non-redundancy of dignity, renders sociopolitical discourse philosophically coherent, and harnesses dignity's potential strategic value. (shrink)

Tämä artikkeli esittelee utilitaristisen valistusliberalismin käsityksen sananvapaudesta. Sen perusväite on, että tiedonhaluinen, kehittyvä ja demokraattinen yhteiskunta hyötyy pitkällä tähtäimellä enemmän laajan sananvapauden sallimisesta kuin sen maltillisestakin rajoittamisesta. Tämän näkökulman mukaan haitallisen puheen – kuten vihapuheen ja muun loukkaavan puheen – tukahduttaminen on epätoivottavaa mutta tilannekohtaisesti hyötylaskelmien mukaan perusteltavissa, jos laajan sananvapauden pitkän tähtäimen hyödyt on otettu riittävästi huomioon. Ongelma onkin siinä, että näitä pitkän tähtäimen hyötyjä ei yleensä ole otettu riittävästi huomioon. Sananvapauden haitat ovat kiistattomia, joten sananvapauden uskottavan puolustuksen tulee (...) lähteä tämän todellisuuden hyväksymisestä. Sen tulee tarjota uskottava teoreettinen vaihtoehto houkutteleville valtiollisille ratkaisuille, kuten kohdennetulle vihapuhelainsäädännölle. Väitän, että radikaalin valistusliberalismin esittämä laajan sananvapauden malli tarjoaa tällaisen vaihtoehdon. (shrink)

Miten ajattelu oikeuksista pohjautuu antiikin ja varhaisen keskiajan filosofiaan ja yhteis­kunnalliseen kehitykseen? Mitä tarkoittaa, että jollakulla on oikeus johonkin, ja kenellä oikeuksia voi olla? Entä mihin universaalit ihmisoikeudet perustuvat? Julkisuudessa ja politiikassa puhutaan yhä useammin oikeuksista. Turvapaikanhakijoiden kohtelusta keskusteltaessa esiin nostetaan etenkin ihmisoikeudet. Huoli ilmaston­muutoksesta on kiihdyttänyt pohdintaa eläinten ja luonnonympäristön oikeuksista. Kiivasta väittelyä synnyttää myös sanan­vapauden ja vihapuheen rajoittamisen suhde. Mitä oikeudet ovat? -teoksessa oikeuden käsitettä ja kehitystä pohtivat niin oikeus­tieteilijät kuin filosofitkin. Se on ensimmäinen suomenkielinen kirja, jossa näiden (...) kahden tieteenalan edustajat keskustelevat oikeuksista saman pöydän ääressä. Miten ajattelu oikeuksista pohjautuu antiikin ja varhaisen keskiajan filosofiaan ja yhteis­kunnalliseen kehitykseen? Mitä tarkoittaa, että jollakulla on oikeus johonkin, ja kenellä oikeuksia voi olla? Entä mihin universaalit ihmisoikeudet perustuvat? Teoksessa pureudutaan muun muassa näihin kysymyksiin niin juridisesta kuin filosofisestakin näkö­kulmasta. Monet luvuista muodostavat parin, jotka argumentoivat toisiaan vastaan. Avoimella ja väittelyyn kannustavalla otteellaan teos kutsuu lukijankin mukaan keskusteluun oikeuksista. (shrink)

The Human Agenda is the first Special Edition of The Cambridge Journal of Law, Politics, and Art (CJLPA), an interdisciplinary journal founded at the University of Cambridge. Focused on the unique intersections of law, politics and art in the context of human rights, contributors to the Special Edition include David Baragwanath, Luis Moreno Ocampo, Nadia Murad, Nancy Hollander, Andrew Clapham, Vladimir Osechkin, Mansour al-Omari, and many others. A full table of contents is available through the publication's own page.

The discourse inside and outside of sport in Australia and abroad on the participation of transgender women in female sport focuses on the principles of fairness, equity and the safety of competitors. These concerns commonly materialise (with little evidence) labelling transgender women as ‘cheats’, dominating female sport, strategically being coached in collision sports to intentionally hurt opponents or fraudulently transitioning with the sole aim of competing in elite women’s sport. Our research examines the process by which the Australian Football League (...) (AFL) grappled with these competing narratives in developing a policy to permit the participation of transgender and gender diverse athletes in community and ‘elite’ competitions. It will be argued that the initial AFL process lacked consideration of the human rights of transgender women and did not provide the necessary resources required to ensure a safe and inclusive process for transgender women to engage with the AFLW competition. This article will also identify lessons which other sport governing organisations should heed in developing and implementing policies for the inclusion of transgender women in sport. (shrink)

It has often been argued that charitable donations are not a sufficient response to global poverty; individuals need to address structural injustice. Proponents of the Effective Altruism (EA) movement have raised two main problems with this focus on structural injustice. In this paper, we respond to these concerns. The first problem raised by EA proponents is that focusing on structural injustice absolves individuals of any responsibility other than political ones. In response, we argue that discharging this duty requires more commitment (...) than EA defenders think, and we do so by framing individual responsibility in global structural injustice through the lens of Robin Zheng’s Role-Ideal Model (RIM). The second response given by EA proponents is that a focus on structural injustice does not provide concrete ways for any given individual to discharge such duties. To address this worry, we argue that RIM can be complemented with the Rawlsian account of moral maturation. This new framework makes it clear how individuals can form the right concept of justice and become responsible citizens who act in accordance with RIM. (shrink)

I will show that there are mainly two different, mutually contradictory approaches taken by philosophers in trying to answer the question: “Who or what is to blame for the Holocaust?” The first answer, offered by radical critics of Enlightenment (Adorno/Horkheimer, Saul, Heidegger), blames one of the following: Reason, Modernity, the State, Industrial Society, Bureaucratic Management and/or Technocratic Efficiency. On the other side, we have the answer given by liberal-democratic defenders of Enlightenment (Arendt, Habermas, Rawls): It claims the Holocaust was caused (...) the upsurge of anti-rational, irrational or pre-rational forces and a deep rejection of the humanistic principles and ethical values that underpin modernity. In this study, I want to analyze these two perspectives, comparing and contrasting their respective merits. (shrink)

This argument demonstrates that suppressing protests undermines societal progress, destabilizes governance, and erodes public trust. It emphasizes protests as intrinsic expressions of human dignity and societal evolution, supported by historical evidence and ethical reasoning. The argument offers practical solutions for governments to engage constructively with dissent, fostering justice, harmony, and progress.

Die Frage nach der universalen Gültigkeit der Menschenrechte ist nicht nur ein akademisches Problem. So steht sie auch immer wieder im Zentrum erbitterter internationaler politischer Auseinandersetzungen. Dabei kritisieren nicht nur Despoten die Ansprüche auf Allgemeingültigkeit als verdeckten Kulturimperialismus und kaschiertes Hegemonialstreben. Wie jedoch jeder weiß, kann ein Schutz der Menschenrechte zur Überlebensfrage werden. Zu aller Zeit und in allen Kulturen waren Menschen nur zu schnell zur Grausamkeit bereit. So wird ein Desiderat erfüllt, wenn eine Buchreihe den damit angesprochenen Fragen nachgeht (...) und begründete realistische argumentative Lösungsversuche bietet. (shrink)

The World Bank and International Monetary Fund (IMF) have been criticised for their weak commitment to human rights, with the World Bank subject to greater scrutiny and criticism than the IMF and despite significant progress since 2015 in linking its policies and operations to international human rights law. In this light, we explore the extent to which the IMF meets its responsibilities under international human rights law. We focus on IMF conditionality, on the conditions attached to IMF loans to countries (...) in the global South. Using QDA Miner Lite, and a system of interpretive coding, we explore the extent to which international human rights standards are reflected in IMF loan conditions on the basis of inter-temporal and cross-country comparisons. We find that human rights are increasingly reflected in IMF conditionality, but also that it continues to undermine human rights, for instance, by unduly constraining the fiscal space available to sovereign governments. The IMF, we conclude, continues to compare unfavourably to other multilateral institutions, warranting enhanced scrutiny by organs of the UN Human Rights Council and by human rights NGOs. (shrink)

There has been an alarming increase in the numbers of illicit massage businesses (IMB) in the United States and the revenue generated by this illegal industry. Although empirical research on IMBs is scant, it is well documented that most of the women exploited in IMBs are immigrant women entrapped in trafficking situations involving commercial sex and/or labor exploitation. First, our research comprises an exploratory study of women exploited in US illicit massage parlors using a sample of news articles highlighting law (...) enforcement raids in the US. Next our research adopts a novel theoretical perspective to develop a conceptual framework of trauma proliferation experienced by these women. Our theoretical analyses build on the literature related to migration, as well as homelessness, to present a framework of trauma proliferation in IMBs. Implications for theory and practice, and how this research has implications towards promoting just and inclusive societies are discussed. Particularly, this work has implications for the well-being and cultural integration of women exploited in IMBs. We also make recommendations for inclusive clinical practices, services, and support resources. (shrink)

In India, consistent marginalization of women suggests that broader societal transformation is needed to transcend gender stereotypes and foster gender equality. Effective school curriculum and textbook content can influence and revitalize mindsets to respect and uphold women’s rights (WR). This research examines the manifestation and extent to which WR is addressed in Indian school social science textbooks using qualitative content analysis. Data from official primary and secondary school textbooks published between 2006 and 2013 and reprinted between 2017 and 2019 were (...) analyzed, based on the components of WR prescribed by the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), using descriptive statistics (frequency and percentage). The results indicate that there is negligible focus on WR in textbooks at the elementary level. While both explicit and implicit focus on WR increased at the secondary and senior secondary levels, some vital aspects were either marginally represented or completely missing. (shrink)

AI-enabled State surveillance capabilities are likely to exert chilling effects whereby individuals modify their behavior due to a fear of the potential consequences if that behavior is observed. The risk is that chilling effects drive individuals towards the mainstream, slowly reducing the space for personal and political development. This could prove devastating for individuals’ ability to freely develop their identity and, ultimately, for the evolution and vibrancy of democratic society. As it stands, human rights law cannot effectively conceptualize this cumulative, (...) longer-term, harm, and so cannot accurately evaluate the cost/benefit of AI tools, risking irreparable harm. As chilling effects impact individuals’ ability to live a good, self-determined life, the concept of human flourishing is relevant. This article engages with Aristotelian naturalism, the life-satisfaction approach, and the capabilities approach to determine which best resonates with the concept of identity as relevant to chilling effects and human rights law. It concludes that the capabilities approach may overcome some of the problems associated with the human rights law approach and may provide a framework capable of capturing both the intricate processes of free identity development and of conceptualizing the harm linked to AI surveillance. The challenge, however, is to ‘operationalize’ this approach. (shrink)

Advertisers in Israel routinely omit representation of women and girls as a form of adaptation to norms prevalent among ultra-Orthodox Jewish communities, by which the representation or allusion to a woman’s body, voice, or garments is considered immodest and distracting. What, if any, should be the response of antidiscrimination law to exclusionary advertisements, and why is this question worth exploring? This article argues that laws banning discrimination in the provision of products and services should also apply to advertisements that categorically (...) refrain from presenting women. Beyond protecting individual members of vulnerable groups, antidiscrimination law should partake in freeing the public sphere of messages that reinforce discriminatory values. The intended, overt, and complete denial of women’s existence merits the law’s intervention in commercial speech. After conceptualizing the harm caused to unspecified individuals and defining discriminatory advertisements, we outline the considerations that should guide the designing of rules against discriminatory ads and apply them to a set of real-life incidents of exclusionary advertisements, demonstrating how to assess the severity of discrimination in each case. Finally, we consider the free speech implications, as well as the argument that liberal multicultural accommodation renders “modest” advertisements legitimate. (shrink)

Israel’s conduct in the Occupied Territories in recent decades has been profoundly affected by three theologies: the messianic-kabalistic theology of Rabbi Abraham Yitzhak Ha-Cohen Kook and his son Rabbi Zvi Yehuda Ha-Cohen Kook; the messianic-Hasidic-kabalistic-racist theology of Rabbi Yitzhak Ginsburg; the violent, racist theology of Rabbi Meir Kahane. In the spirit of the three theologies, Israeli politics of the past four and a half decades has set the continuous possession of Judea and Samaria, and the deepening and expansion of the (...) settlement project therein, as the supreme goal of Zionism, Jewish nationalism. Moreover, the three theologies dictated much of the settlement policies of the government. Additionally, the three theologies have dictated much of the daily practices to which the Palestinian residents of the Territories have been subjected. All of this means that soldiers who are required to serve in the Occupied Territories, to die in them, and to kill Palestinians in the course of their military service therein, have been subjected to a politics motivated, to a substantial extent, by a religious culture premised on religious theologies. If such soldiers wish to refuse to abide by the orders given them to serve in the Occupied Territories, they can resort to the two traditional doctrines recgnized by liberal jurisprudence: the doctrine of civil disobedience and the doctrine of conscientous objection (Often there is an overlapp between the two defences). I argue that in addition to these two traditional doctrines, secular soldiers who are asked to serve in the Occupied Territories may resort to a doctrine I call “culture-based refusal.”. (shrink)

This article argues that the notion that state and religion should be strictly separated, resulting in a condition that is often captured by the metaphor of the “public-private divide,” is both unfounded and dangerous. It is unfounded in the sense that at least in modern functional democracies, the state and religion are not actually separated but are in fact constantly interacting and affecting one another. It is dangerous in the sense that if church and state could truly be separated, it (...) would pose an existential threat to modern democratic-constitutional governance. (shrink)

In illiberal contexts, religion can be mobilized to support conservative legal reforms in the areas of gender, sexuality, and reproduction. However, the role of religion in illiberal agendas that roll back the rights of women and LGBTQ populations is unclear and the subject of scholarly debate. This article seeks to add a greater level of granularity to these discussions. It takes the role of “Christianity” in illiberal contexts in Europe as a case study and triangulates three theoretical perspectives. A first (...) perspective stresses the contribution of Christianity to anti-gender backlash (doctrinal, institutional, and material); a second one highlights the distinct contribution of illiberal politicians; a third one tackles the problem by collapsing binary oppositions under a queer theory framework (such as that between gender and religion, and illiberal politicians and their followers). Ultimately, adding granularity to these discussions can help make sense of the current moment. (shrink)

A central task of comparative constitutional law scholarship is categorization and classification of constitutions. Recent scholarship, no doubt informed by the populist tide, has sought to develop the concept of a mixed constitution. Broadly speaking, a mixed constitution is a constitution that integrates liberal and illiberal elements, elements that are usually separate and not found under the same constitution. The study of “mixed constitutions” encompasses both descriptive and normative aspects. First, an attempt to ascertain what, exactly, makes a constitution “mixed.” (...) Second, an attempt to analyze either the desirability of such a system or an attempt to figure out how to harness mixed constitutions in the service of particular normative goals, for example the protection of human rights. This article has two goals. First, an inquiry into the descriptive aspect of mixed constitutions. My aim is to show that given the seeming consensus of what constitutes a mixed constitution, the category itself might encompass many more constitutions than is often acknowledged, to the point that many constitutions are likely to be mixed to a certain extent. My second goal is to demonstrate that given this definitional consensus, what makes a constitution mixed is not necessarily because the constitution itself is mixed, but because sub-constitutional norms shape our constitutional understanding. Put differently, the meaning of a constitution is not determined exclusively through an analysis of the constitution, but also by shifts in sub-constitutional understandings. If this is correct, then it turns out that the universe of mixed constitutions is much larger than thought, which casts doubt on the utility of the category of mixed constitutions. (shrink)

This article provides the first-ever comprehensive analysis of how the relationship between the Chinese and Hong Kong legal orders has morphed in nature since China’s resumption of sovereignty over Hong Kong in 1997. It argues that the relationship has evolved from a form of legal pluralism found in the European Union to a monist but bifurcated system—to a “dual state,” to borrow from Ernst Fraenkel’s theory. Recent events, including Beijing’s imposition of a national security law on Hong Kong and its (...) overhaul of Hong Kong’s election methods, have consolidated that evolution. The analysis herein not only enables us to make sense of the developments in the China-Hong Kong relationship, but has five wider theoretical implications. First, it suggests a way of distinguishing a dual state from a fully liberal legal system. Second, it discerns the similarities and differences between legal pluralism and dual state. Third, it connects the literature on theories of legal order and that on the dual state. Fourth, it clarifies the relationship between theories of legal order and regime types. Finally, Hong Kong’s experience reveals the challenges of and potential mechanisms for maintaining liberal values in an authoritarian regime. (shrink)

In this article, I consider a curious blind spot in constitutional scholarship concerning the resurging rural/urban divide—a readily evident phenomenon closely associated with political resentment and anti-establishment sentiments—and how we may begin to address that challenge through creative constitutional designs. Specifically, I draw upon insights from comparative constitutionalism to discuss four main areas of constitutional law and theory that appear to hold some intellectual promise in this context: (i) formal constitutional commitment at the national level to recognizing the urban/rural divide (...) and commitment to addressing it; (ii) creative electoral system designs that take into account the spatial dimension of politics; (iii) spatial pluralization based on concepts such as “mixed constitutions,” “community standards,” and “margin of appreciation”; and (iv) rethinking elements of equalization and fiscal federalism more generally. Taken together, the four directions I discuss here offer a repertoire of constitutional design possibilities that hold promise in mitigating the resurging rural/urban gulf. More generally, they serve as an invitation to constitutional thinkers to shake up the rather stagnant constitutional thought of spatial governance, and to think creatively about the ever-expanding urban/rural divide and its consequences for the theory and practice of 21st century constitutional democracy. (shrink)

This article uses Ernst Fraenkel’s concept of the “dual state” as the vehicle for examining the role of “lynch law” as a mode of governance of African Americans in the United States from 1865 to 1940 (roughly). It begins with a largely jurisprudential inquiry placing my interpretation of Ernst Fraenkel’s distinction between the normative state and the prerogative state in dialogue with a version of American Legal Realism, in which law consists entirely of “moves” such as permissible distinctions and analogies (...) that are treated (sociologically) as acceptable by relevant professional communities. Seen through that lens the distinction between the normative state and the prerogative state thins out. The arbitrariness Fraenkel associates with the prerogative state infects the normative state and the prerogative state is pervaded by norms that aren’t mere simulacra of legal norms. The two kinds of state are different in degree rather than in kind—but differences in degree can matter. Part II uses the revised distinction in a preliminary examination of lynch law in the U.S. South. Lynch law was not an example of Fraenkel’s prerogative state; the norms enforced through lynch law might have been popular versions of norms drawn from the prerogative state. And yet “lynch law” was different not only in content from the rules of law formally applicable to all people in the United States but also in the lived experience of those subject to lynch law. Lynch law might not have been arbitrary in the sense that it had no knowable normative content, but, perhaps because the norms were popular rather than legislated or formal, it was substantially vaguer than the formal law and significantly less able to guide the choices made by those subject to it. (shrink)

This article uses Ernst Fraenkel’s dual-state framework as an analytical tool to study those conflicting imperatives and constitutional tensions with a focus on the power to detain. This article makes the argument that China has emerged as a dual state with a normal state that functions increasingly with a rule-based government in inter-personal matters and a prerogative state that solidifies control in areas that are regarded as political sensitive. Overall, while the equilibrium between the normative and prerogative states has been (...) evolving in China, it has remained stable. The Party has been able to build a relatively self-defined and self-referencing legal system to provide the certainty and order that the Chinese political economy demands while maintaining a zone of exception, expansive and continuing to evolve, for the prerogative state to safeguard authoritarian rule. (shrink)

In this article, we study Latin American populist constitutions and their uses, seeking to analytically understand whether populist constitutionalism is, indeed, a thing. We posit that Latin American populist constitutionalism is a particular form of mixed constitutionalism in three senses: first, as a specific combination of substantive traits that includes both empowering and (some) constraining devices; second, as a peculiar politics of constitutional change that incorporates popular mobilization against pre-existing institutions as a key trait; and third, as a particular practice (...) of constitutional enforcement that involves weak and selective implementation, often through institutional capture. By considering not only the texts of constitutions but also the ways in which they are changed and implemented, we hope to complement legal perspectives of mixed constitutions with a sociopolitical analysis of practices and contexts. By capturing the distinctive contribution of Latin American populism to the discussion of mixed constitutions, we seek to challenge both legal conceptions of constitutionalism that reduce it to negative or constraining features, and political conceptions of populism that simply equate it to authoritarian rule. (shrink)

It was in ancient Greek philosophy where the idea arose that there is a supreme law before which any civil law created by human societies has to be justified. Since then the concept of natural law not only remained one of the paradigms of Western civilization but has shaped the development of international legislation in general. The understanding of the significance of the idea of a natural law for the philosophical presuppositions of our current concepts of human rights and human (...) dignity is still dependent on the analysis of its relation to the different cultures and civilizations on earth. (shrink)

This paper explores the significance of dignity for our understanding of the rights of workers. It surveys important uses of the idea of dignity in several discursive contexts, and offers an interpretation that illuminates the content, scope, and normative force of labor rights. The discursive contexts considered include human rights, socialism, Kantian practical philosophy, and Christian social thought. The interpretation of dignity offered illuminates basic rights to decent conditions in which workers for example choose their occupation, receive adequate remuneration, and (...) are able to form unions to defend their interests. It is also illuminates more ambitious rights to work in ways that fully further workers’ interests in flourishing and involve avoidance or minimization of their domination, exploitation, and alienation. (shrink)

This paper investigates necessary conditions for developing a participatory, rightsholder-driven approach to remedy for business-related human rights abuses by analyzing findings from a case study with the Fair Food Program. With the inclusion of human rights into discussions of business ethics and CSR, scholars and practitioners have made calls for participatory approaches to remedy to address cases of human rights abuses. However, a gap remains in our understanding of how to operationalize participatory approaches in a manner that empowers rightsholders, particularly (...) within contexts of severe power imbalances. The paper puts forth a rightsholder-driven theoretical framework for remedy, grounded on critical dialogic accountability principles and integrated with empirical analysis from the Fair Food Program case study. This framework defines remedy as a system comprising reinforcing aspects rather than standalone mechanisms. The critical dialogic accounting and accountability framework provides a theoretical framing of engagement that enables the inclusion of multiple, divergent voices and aims toward meaningful engagement with marginalized groups. The analysis of findings from the case study identifies enforcement and education as necessary conditions for effective and empowering rightsholder-driven approaches to remedy. The paper deconstructs these conditions to develop an understanding of the program’s unique approach to enforcement and education. The paper concludes by discussing the implications of rightsholder-driven remedy for Business and Human Rights and business accountability. (shrink)