This review essay examines the contribution of Legislated Rights (Webber et al, Cambridge 2018) to a central issue in constitutional theory: namely, how the institutional division of labour between the legislature and the judiciary with respect to the task of giving effect to constitutional rights is best understood and conceived. In doing so, the essay situates the work within contemporary scholarship and adopts a broadly comparative lens — a perspective that is mindful of key developments in constitutional (...) law and theory over the past several decades. Ultimately, it is suggested that a critical weakness of the capacity of Legislated Rights to contribute to contemporary debates about judicial review is its lack of engagement with these developments. As a result, the work’s intervention largely misses its mark. It speaks to an outdated view that does not reflect contemporary constitutional practice or scholarship. (shrink)

Legislated Rights: Securing Human Rights through Legislation aims to correct certain imbalances in constitutional thought and scholarship that burden the legislature and rights with misconceptions...

The study is an attempt to understand the prevailing discourse in India on education as a right by closely reading the parliamentary debates on The Right of Children to Free and Compulsory Educatio...

This is a book review of Grégoire Webber, Paul Yowell, Richard Ekins, Maris Köpcke, Bradley W. Miller, and Francisco J. Urbina, "Legislated Rights" (Cambridge U. Pr., 2018).

In England and Wales, there is significant controversy on the law related to abortion. Recent discussions have focussed predominantly on the health professional's right to conscientious objection. This article argues for a comprehensive overhaul of the law from the perspective of an author who adopts the view that all unborn human beings should be granted the prima facie right to life. It is argued that, should the law be modified in accordance with this stance, it need not imply that health (...) professionals should enjoy an unqualified right to object to participating in the provision of abortion. Indeed, it is proposed that – in some situations – women should be granted a positive right to abortion. While the focus of this article is on changing the law in England and Wales, it is hoped that the position developed here will also inspire legal debate and reform elsewhere. (shrink)

In this paper I argue, from the point of view of a legal positivist conception of law and its associated approach to legal interpretation, that having a ‘democratic Bill of Rights’ as a basis for enacting ‘human rights legislation’ is more legitimate and likely to be more effective with respect to promoting human rights than the contemporary model of using ‘juridical Bills of Rights’ as a basis for modifying or overriding enacted legislation.Resumen:Desde una concepción positivista del (...) derecho y su respectivo enfoque hacia la interpretación jurídica, en este artículo se argumenta que el tener un “Bill of Rights democrático” como base para expedir una “legislación de derechos humanos” resulta ser más legítimo y más efectivo para la promoción de los derechos humanos, que el modelo contemporáneo de “Bill of Rights jurisdiccionales” que sirve para modificar o invalidar la legislación promulgada. (shrink)

Assisted dying is a divisive and controversial topic and it is therefore desirable that a broad range of interests inform any proposed policy changes. The purpose of this study is to collect and synthesize the views of an important stakeholder group—namely people with disabilities —as expressed by disability rights organisations in Great Britain. Parliamentary consultations were reviewed, together with an examination of the contemporary positions of a wide range of DROs. Our analysis revealed that the vast majority do not (...) have a clear public stance; those that do exhibit a significant diversity of opinion. DROs opposing legislation on assisted dying have argued that it would be premature, misguided, inequitable and culturally undesirable. Some specify conditions that would have to be satisfied before they could support legalisation, such as radical improvements in health and social care services and the elimination of discrimination against PwD. DROs supporting assisted dying maintain that a change in the law would promote autonomy, end intense suffering, can be delivered safely and is supported by the DRO’s membership. The discussion considers the reasons why several DROs adopt a neutral stance and the argument is made that, whatever their overarching stance on the issue, DROs need to be involved in the policy debate so that the crucial perspectives of PwD are heard and addressed. This is an important message for countries around the world that permit, or are considering legalising, assisted dying. (shrink)

This paper is emphatically focused in the analysis on the indigenous problem such as it had been ruled by law in the different Venezuelan Constitutions since the foundation of the Republic in 1811. Our purpose does not go as far as to treat the ancestral indigenous problem in Venezuela because this would exceeds the limits of our study; although, we will do some references in relation to this question.

Name der Zeitschrift: Semiotica Jahrgang: 2016 Heft: 209 Seiten: 167-185.

In lieu of an abstract, here is a brief excerpt of the content:Contradiction and Legislation Regarding the Right to LifeKevin L. Flannery, S.J.Unborn Human Life and Fundamental Rights: Leading Constitutional Cases under Scrutiny. Edited by Pilar Zambrano and William Saunders, with concluding reflections by John Finnis. Berlin: Peter Lang, 2019.The most fundamental principle of law is the principle of non-contradiction. This is Thomas Aquinas's position in the seminal article on the natural law, Summa theologiae I-II, question 94, article 2, (...) where, citing Aristotle, he formulates the principle as, "One should not simultaneously affirm and negate." Lafter in the same article, Thomas offers a practical formulation of the same principle, "Good is to be done and pursued and evil avoided"; but in law, since it is contained in propositions (airmations and negations) as distinct from ideas regarding the pursuit of goods, the prior formulation is the more immediately relevant of the two.The book under review is important in that, by going through the legal history regarding abortion and related issues in a number of different countries—the United States, Canada, Italy, Spain, Poland, Ireland (Eire), Costa Rica, Argentina, Chile, Mexico, and Peru—it causes to emerge any number of times the realization that legislation and judicial decisions in favor of abortion "rights" invariably infect a legal system with contradictions and inconsistencies of various sorts. The present essay is, therefore, not your typical book review. Its objective is simply to list some of the legal contradictions and inconsistencies identified by the book's various authors as they describe the legal status of the unborn in their respective nations. [End Page 1323]William Saunders's very clear and comprehensive first chapter is entitled, "Judicial Interference in the Protection of Human Life in the United States: Actions and Consequences." In it, he describes, among other things, the Human Cloning Prohibition Act passed by the U.S. House of Representatives in 2003, which prohibited "any person or entity, public or private" from performing human cloning (23). He speaks also of a bill proposed in the U.S. Senate once the Human Cloning Prohibition Act had passed in the House of Representatives. This Senate bill (which was entitle, "The Human Cloning Ban and Stem Cell Research Protection Act") would have prohibited "any person or other legal entity" from conducting human cloning, even while allowing nuclear transplantation, which it defines as "transferring the nucleus of a human somatic cell into an oocyte from which the nucleus... ha[s] been... removed or rendered inert." The problem here, as Saunders explains, is that this latter definition "is the very definition of cloning" (25). In other words, in the same year, two pieces of legislation were considered in the Congress of the United States, both purporting to ban human cloning, one of which would have permitted what the other described (correctly) as human cloning and so prohibited.In the second chapter, "Whither United States Abortion Law?" by Gerard V. Bradley, discussed, among other things, is the inconsistency between the United States Supreme Court's pro-abortion decision Roe v. Wade and various laws, both state and federal, prohibiting feticide. Bradley says of the 2004 federal Unborn Victims of Violence Act that, "in pertinent part it says that 'whoever' 'causes the death of or bodily injury to,' a 'child who is in utero' is guilty of an offense apart from any accompanying offense against the woman carrying the child." The penalty for such an act is the same as would be imposed if the act were inflicted upon the unborn child's mother: if, for instance, the mother was killed. "A child in utero," reports Bradley, "is defined as a member of the species homo sapiens, at any stage of development, who is carried in the womb'" (37).The problem here is that prosecutable under this law are acts identical with those performed legally by abortionists. Bradley mentions two cases in which a woman's male partner—in one case the woman's husband—effected by stealth the abortion of her child. In one case, the male purchased abortion pills and affixed to their container a pharmacy label indicating that it contained a common antibiotic; in the other, the husband obtained the same type of... (shrink)

This article explores some of the benefits and pitfalls of applying rights language and legislation to the debate over whether to consecrate women as bishops in the Church of England. Secular feminists have pointed out tensions between the concept of women's rights and religious freedom which highlight conflicts in law between religious and gender identities. Women priests have not, as yet, used equal opportunities legislation as a tool to allow women to be consecrated as bishops and faith communities (...) are exempt from this legislation. Wood argues that this exemption is not entirely `safe' due to the established status of the Church of England but the question remains as to whether equal opportunities legislation is the best basis for consecrating women as bishops. (shrink)

Plant variety rights legislation, now enactedin most Western countries, fosters the commodificationof plant varieties. In this paper, we look at theconceptual issues involved in understanding andjustifying this commodification, with particularemphasis on Australian legislation. The paper isdivided into three sections. In the first, we lay outa taxonomy of goods, drawing on this in the secondsection to point out that the standard justificationof the allocation of exclusionary property rights byappeal to scarcity will not do for abstract goods suchas plant varieties, (...) since these goods are not madescarcer through consumption, and consideringalternative – economically consequentialist –justifications. In the third section, we considerthese justifications as they apply to the particularcase of the commodification of plant varieties, andthe legislation which fosters it. A definitive answerto the question of whether this legislation isadvantageous awaits further empirical information, butwe point to several intrinsically problematic aspectsof it. (shrink)

The American states have demonstrated varying levels of support for animal rights legislation. The activities of interest groups, including pressures from competing groups, help to explain the presence or absence of ten pro-animal regulations and laws. This article analyzes and ranks each of the fifty states with regard to ten key areas of animal protection and welfare legislation. The analysis reveals that states with a more agricultural economic base are less likely to provide protection to animals. In addition, states (...) with a more traditional political culture are less likely to have pro-animal legislation in place. (shrink)

In recent case-law under the Human Rights Act 1998, the senior judiciary have reiterated the view that their task under section 3(1) of the Act is one of ‘interpretation rather than legislation’. This article has two main aims. The first is to provide a general, theoretical analysis of the extent to which it is possible (if at all) to distinguish between interpretation and legislation. The second is to examine the judicial understanding of this distinction, as revealed through judgments in (...) the HRA case-law. (shrink)

This study assesses the extent to which job application forms violate the New Zealand Human Rights Act. The sample for the study includes 229 job application forms, collected from a variety of large and small, public- and private-sector organizations that together employ approximately 200,000 workers. Two hundred and four or 88% of the job application forms contain at least one violation of the Act. One hundred and sixty five or 72% contain two or more and 140 or 61% contain (...) three or more violations. The most common violations concern age, gender, nationality, and disability. The least common concern political opinion, ethical belief, religious belief, and sexual orientation. Despite widespread violations, many forms do have non-discriminatory questions that yield the same kind of useful information as discriminatory questions. Employers could incorporate these into their job application forms to bring themselves into compliance with the law. The same lessons also generally apply to North American employers, given the high degree of comparability between American, Canadian, and New Zealand anti-discrimination laws. (shrink)

Lack of understanding about the relationship between federal and state educational institutions brings confusion into discussions of democracy, equity and equality in schools. The 'right to education' continues to be espoused by American society as a birthright, yet it does not figure in federal documentation. This matter has repeatedly come to the attention of legislative courts, who have insisted that the question of education as a fundamental right be addressed. Numerous court cases have attempted to bring closure on this issue, (...) on the basis of such abstractions as national rights, equal access, opportunity and economic disparity among the petitions. However, legal judgments remain inconclusive, reiterating that education remains a state legislative issue. This paper explores the implications of a fundamental right to education through an examination of federal and state legal litigation, discussing the philosophical and ideological roots of discussion of rights and democratic values, and evaluating how federal and judicial participation contributes to overall misunderstanding regarding public schooling. (shrink)

A Moral Justification for Gay and Lesbian Civil Rights Legislation.

This essay discusses the ethical challenges and dilemmas in allocating scarce medical resources during the COVID-19 pandemic, using the German legislative process as a starting point. It is guided by the right to non-discrimination of people with disability and generally contrasts utilitarian and rights-based principles of allocation. Three approaches that were suggested in the German discussion, are presented, the lottery principle, the first come first served principle and the probability to survive principle. Arguments in favour and against each principle (...) are discussed. The focus is on the utilitarian probability to survive principle, which was adopted in German legislation in 2022, and its discriminatory potential against people with disability. The essay suggests ways to mitigate the concerns of discrimination related to the probability to survive principle. It concludes that resolving the triage dilemma requires a balanced approach between utilitarian and rights-based concerns, which promotes both maximising the number of patients surviving and the right not to be discriminated against and be treated equally. It calls for a further debate on how many ethical values such as equity, fairness and non-discrimination we are willing to sacrifice for a higher number of survivors and when we are willing to sacrifice survivors to secure ethical values. (shrink)

The unmatched technological achievements in artificial intelligence (AI), robotics, computer science, and related fields over the last few decades can be considered a success story. The technological sophistication has been so groundbreaking in various types of applications that many experts believe that we will see, at some point or another, the emergence of general AI (AGI) and, eventually, superintelligence. This book examines the impact of AI on human rights by focusing on potential risks and human rights legislation and (...) proposes creating a Universal Convention for the Rights of AI Systems (AI Convention). (shrink)

Defenders of legislative supremacy against judicial review have primarily invoked various virtues of legislative process – in particular, its deliberative qualities, the diverse perspectives and inputs it allows, and especially, its connection to a principle of democratic equality. However, I argue that such virtues have been overemphasised as justifications for legislative supremacy. Instead, I argue that insufficient attention has been paid to the form of legislation as a justification for giving legislatures the ‘final say’ on issues of fundamental rights. (...) Firstly, I argue that legal philosophy has underemphasised the extent to which legislative form, rather than legislative process, can mediate ‘majoritarian’ rule, and how this undermines the most commonplace arguments for rights-based judicial review of parliamentary legislation. Secondly, I suggest that the same formal attributes give legislation a virtue of political transparency which can be contrasted with the esotericism of constitutional jurisprudence, itself considered as a distinctive species of political domination. (shrink)

This thesis aims to critique the Universal Declaration of the Rights of Mother Earth and its underlying moral justification in order to provide a stronger and improved version of both. In Chapter 1 I explore what sort of moral justification is necessary to establish the Universal Declaration on firm grounds and explore its relation to environmental ethics and rights discourse. I argue that a non-anthropocentric perspective is necessary to justify the Universal Declaration’s rights. In Chapter 2 I (...) explore the underlying justification of the Universal Declaration as discovered in the works of Cormac Cullinan and Father Thomas Berry. I argue that their ethical framework is indeterminate, has many ambiguities and uncertainties, and, among other problems, it does not provide a clear action-guiding framework. In Chapter 3 I develop an alternative justification for the Universal Declaration. I argue against many predominant moral theories, that in light of our best scientific and moral understanding we should expand the realm of moral concern to include all living beings, a moral theory I call Life’s Imperative. In Chapter 4 I illustrate that Life’s Imperative is a much stronger, more coherent justification for the Universal Declaration, one that coheres with both our best understanding of the natural world and our relation to it, and to an environmental ethic reflective of that relationship. Unfortunately many of the weaknesses in the current implicit justification of the Universal Declaration have also led to it enshrining rights that are themselves problematic. In order to address these issues, I revise its rights to accord with the stronger justification that I established in Chapter 3. The end result of doing so is a revised version of the Universal Declaration. (shrink)

LB.2 This proposition implies that you hold it to be at least possible that some four hundred men should, by some process or other, become invested with the right to make laws of their own – that is, laws wholly of their own device , and therefore necessarily distinct from the law of nature, of the principles of natural justice; and that these laws of their own making shall be really and truly obligatory upon the people of the United States; (...) and that, therefore, the people may rightfully be compelled to obey them. (shrink)

This article defends the classical liberal view of human interactions that gives strong protection to associational freedom except in cases that involve the use of force or fraud or the exercise of monopoly power. That conception is at war with the modern antidiscrimination or human rights laws that operate in competitive markets in such vital areas as employment and housing, with respect to matters of race, sex, age, and increasingly, disability. The article further argues that using the “human (...) class='Hi'>rights” label to boost the moral case for antidiscrimination laws gets matters exactly backwards, given that any program of forced association on one side of a status relationship (employer, not employee; landlord, not tenant) is inconsistent with any universal norm governing all individuals regardless of role in all associative arrangements. The articled also discusses the tensions that arise under current Supreme Court law, which protects associational freedom arising out of expressive activities (as in cases involving the NAACP or the Boy Scouts), but refuses to extend that protection to other forms of association, such as those involving persons with disabilities. The great vice of all these arrangements is that they cannot guarantee the stability of mandated win/lose relationships. The article further argues that a strong social consensus against discrimination is insufficient reason to coerce dissenters, given that holders of the dominant position can run their operations as they see fit even if others do otherwise. It closes with a short model human rights statute drafted in the classical liberal tradition that avoids the awkward line drawing and balancing that give rise to modern bureaucracies to enforce modern antidiscrimination laws. (shrink)

It is a widely supported claim that liberal democratic institutions should treat citizens with equal respect. I neither dispute nor champion this claim, but investigate how it could be fulfilled. I do this by asking, as a sort of litmus test, how liberal democratic institutions should treat with respect citizens holding minority convictions, and thereby dissenting from a deliberative output. The first step of my argument consists in clarifying the sense in which liberal democracies have a primary concern for the (...) respectful treatment of citizens qua self-legislating persons. Taking the second step, I address critically the common tendency in the literature to concentrate on what I have termed the ex ante legem phase, focusing solely on the structure of institutionalized decision-making processes. I submit, rather, that the principle of equal respect for persons demands more of liberal democratic institutions to enhance citizens' chances to give voice to their consciences and influence, on that ground, the formulation of the rules to which they should conform. Fulfilling this commitment requires democratic theorizing to go beyond the ex ante legem phase and regard forms of ex post legem contestation as an extension of citizens' right to political participation. Against this backdrop, I take the third and last step and argue that a promising way forward consists in the adoption of an ex post legem version of conscientious exemptionism, granting citizens a conditional moral right to request exemptions on the grounds of conscience from certain controversial legal and political provisions. (shrink)

We should now be able to come to some general conclusions about the main lines of Cuvier's development as a naturalist after his departure from Normandy. We have seen that Cuvier arrived in Paris aware of the importance of physiology in classification, yet without a fully worked out idea of how such an approach could organize a whole natural order. He was freshly receptive to the ideas of the new physiology developed by Xavier Bichat.Cuvier arrived in a Paris also torn (...) by many overlapping debates on the nature of classification, and in particular that between the natural and artificial systems. The very validity of the enterprise of classification was questioned in many quarters. Cuvier's achievement on his entry into the Parisian world of science was not simply to establish himself as a highly competent anatomist: far more important, he also began to use ideas from many different specialties to change completely the notion of what was involved in natural history.124 At the same time that he himself swung away from the guiding image of the field naturalist as the ideal of the specialty, he took ideas from the new physiology to answer questions about the order of the animal world, and from comparative anatomy to resurrect extinct creation — and to come to conclusions from that creation about the history of the forms of life and the manner of their succession. He showed himself able to alter the relationships between natural history and many other fields of study in a way that implied, rightly or wrongly, his own complete mastery over such a movement. Partly he was able to do this because the ideas he borrowed were not themselves logically articulated and thus could be easily adapted and refocused for many different specific purposes. The value of the heuristic possibilities inherent in the idea of life, for example, far outweighed its inability to generate full systems of classification. Cuvier also consistently refused to consider in science matters relating to the first causes of events. Freed from the consideration of first-order phenomena, he was able to use second-order explanations across a far wider field of applicability. Personal doubts about the validity of a theology that had used science in order to bolster its own claims were combined here with the strong influence of the Kantian critique of the limits of human reason.125Cuvier's characteristic mode of procedure was that of intellectual appropriation and a bold capacity for altering the relationships between different fields of knowledge, rather than, with the exception of taxonomy, the technique of expanding their subject matter. His claims to originality came, first, from this reappropriation and reorientation and, second, from the sheer scope of his work, which aimed at nothing less than the cataloging and classification of all animate objects.126 They rested also on his acute use of his assertion of a certain relationship with the past of his subject. Very often he would present this history in such a way as to obscure his own intellectual genealogy, and often too he would give differing accounts of the priority of use of an idea in order to distract attention from the questionable exactitude of his own claims to originality. Cuvier came to Paris at precisely the time when society and institutions were most profitably malleable for a newcomer; it was also a time when many scientific disciplines had reached a stage advanced in terms of their factual content, yet relatively inadequate in conceptual organization. They were ripe for takeover by large-scale organizing ideas such as the animal economy and the subordination of characteristics. Paleontology is a particularly good example of a specialty in this particular form of underdevelopment in 1795.Cuvier paid a high price for his initial success. His electic applications of large-scale organizing ideas tended to mean that little of his own work had complete coherence at all levels. Ideas, as we have seen, that proved capable of providing a complete reform of the larger groups of the animal kingdom were incapable of producing its detailed working-out in the taxonomy of smaller groups, which had to be supplied from observed analogical correlations. Further, his physiological approach to classification involved the breakdown of strict correspondence between organs and functions, which left the way open for workers such as Geoffroy St. Hilaire gradually to tilt the balance away from the study of the correlations of hierarchies of functions, and toward morphology as the basis of the order of nature. Cuvier's brilliant appropriations from physiology from the beginning, therefore, contained the seeds of conflict with Geoffroy.Cuvier's eclectic approach made it very nearly impossible for him to present a clear idea of the ways in which the life sciences could be said to be lawful. In spite of his efforts to assimilate them to the position of the physical sciences in this respect, he was forced in the end to accord only an ambiguous status as “laws” to observational correlations. From this area of failure came much of the attempt to give his own two laws — the correlation of parts and the subordination of characteristics — predictive qualities, particularly in relation to paleontological research.It is not surprising that Cuvier's title as the “legislator” of natural history should represent more a claim than a reality. How, then, was he able to emerge as the leading French naturalist of his day? First of all must be adduced the sheer scale of his undertakings. Then comes his expertise as a practical anatomist, and the range of different topics toward which he turned his interest. His collaborators cannot be given credit for his output nor, as we have seen, for slavish adherence to his ideas. Cuvier was able to successfully claim to have dominated the underdeveloped specialties, such as paleontology, and turned them into a major heuristic input into both geology and comparative anatomy; but in other fields, such as physiology, he appropriated concepts and encouraged research but made little impact on the field himself. His attempts in 1812 to head off, or neutralize and absorb the growth of morphological studies landed him in a dangerously rigid position, which despite his encouragement of the new physiological research under the Restoration made further elaboration of his own conceptual underpinnings almost impossible.Cuvier's authority in the scientific world would in any case have been great because of his substantive achievement in taxonomy, but the rest of his work had enough ambiguities and dislocations for it to need the support of his political and social power. Cuvier's detractors seized on a vital fragment of the truth when they accused him of finding the political dimension all-important: it obscured the disjunctions in his theories and at the same time gave him the authority to make new claims for the status of the observational sciences - and for their relations of power with their surrounding specialties. Cuvier's science both thrived on and was halted by the power games of intellectual appropriation, manipulation of the past to confirm the present, and continual claims for hegemony. (shrink)

The article analyzes the system of legal regulation of the higher education in Lithuania with the purpose to determine the boundaries of exercising the discretionary powers of the executive institutions in the field of higher education. The article is made of two parts. Discretionary powers of the executive institutions in legislative field are discussed in the first part. The power of legislative discretion is described as a right to set the legal regulation by way of a subject who is granted (...) such discretionary power. Problems may arise in cases when the law granting such discretionary powers is too abstract or declarative. The main criteria in determining the boundaries of exercise of discretionary powers are the provisions of Constitution and laws, and constitutional law principles. The system of delegation of legislative powers in the field of regulation of the higher education in Lithuania is analyzed in the second part of the article. The permanent changes in administrative legal regulation of higher education and studies determined by a vast amount of subjects issuing post-legislative legal acts in this field, as well as rather tedious legal regulation which, in turn, calls for frequent changes in legal acts, raises doubts regarding a possibility to implement main principles of the studies, such as freedom of creation and scientific research or academic freedom and autonomy. (shrink)

0n a lucid, concise volume, Jeremy Waldron defends the role of legislation, presenting it as an important mode of governance. Aristotle, Locke and Kant emerge as proponents of the dignity of legislation. Waldron's arguments are of obvious importance and topicality, especially in countries that are considering the introduction of a Bill of Rights. The Dignity of Legislation is original in conception, trenchantly argued and very clearly presented, and will be of interest to a wide range of scholars and thinkers.

At 2.00 am on the morning of May 24, 1995 the Northern Territory Legislative Assembly Australia passed the Rights of the Terminally Ill Act by the narrow margin of 15 votes to 10. The act permits a terminally ill patient of sound mind and over the age of 18 years, and who is either in pain or suffering, or distress, to request a medical practitioner to assist the patient to terminate his or her life. Thus, Australia can lay claim (...) to being the first country in the world to legalise voluntary active euthanasia. The Northern Territory's act has prompted Australia-wide community reaction, particularly in South Australia, Tasmania and the Australian Capital Territory where proposals to legalise euthanasia have already been defeated on the floor of parliament. In New South Wales (NSW) the AIDS Council of NSW has prepared draft euthanasia legislation to be introduced into the Upper House as a Private Member's Bill some time in 1996. In this paper, we focus on a brief description of events as they occurred and on the arguments for and against the legalisation of euthanasia which have appeared in the media. (shrink)

Legislated Rights is a welcome contribution to constitutional theory. The book’s overall aim is to rehabilitate the role of legislation and legislatures in ‘securing human rights’. 1 A major...

Recently (2010–2011) new criminal legislation to combat illegal income and corruption was passed and publicly discussed in Lithuania. Within the list of the new legal measures, special attention should be paid to criminalisation of illicit enrichment, establishment of a model of extended property confiscation, reinforcement of responsibility for corruption-related offenses, a provision that not only property but also personal benefits may constitute a bribe. It can be seen from the explanatory letters attached to the draft laws and the political debate (...) that the new regulation is expected to achieve decisive breakthrough in the fight against corruption and illegal income. However, without any doubt as to the necessity to fight against those social evils, the author presents critical evaluation of the reform by applying the test of principles of criminal law, legal language and practical effectiveness. By making critical conclusions that the new criminal legislation deliberately lightens the prosecution’s goal of incrimination and the burden of proof, the author warns about the purposive instrumental nature of the new laws, which are balancing on the threshold of legitimacy. In the article the author reveals crucial shortcomings of the new legislation: in some aspects it lacks legal certainty, in other aspects it ignores the principles of guilt, presumption of innocence and proportionality as well as the conception of criminal law as a last resort (ultima ratio). As a result, the new legal means against illegal income and corruption leave space for applying inadequate repression beyond their intended purpose, in addition, they criminalise human conduct that is insufficiently dangerous and create preconditions for senseless criminal prosecutions and violation of human rights. (shrink)

Over the past few years, over a dozen states have proposed, and almost as many have passed, something referred to as the Pain-Capable Unborn Child Protection Act, a piece of legislation that makes abortion impermissible once fetal pain is possible and that further stipulates the fetus can feel pain at or before 20 weeks of gestation. Some very important questions immediately relevant to the abortion debate, perhaps even to the more complex issue of fetal rights, are raised by this (...) legislation, especially because it would impinge on the second-trimester abortion rights guaranteed by Roe. We first inquire whether the claim of fetal pain perception at or before 20 weeks is true and how such a claim should be substantiated. Next, we inquire whether the fetal capacity to experience pain, at whatever stage of development, reflects on the morality of abortion and whether it should be at all relevant to determining its legality. Finally, we would like to explore the implications that a commitment to a pain-related or sentience criterion of rights might have for a pro-life agenda. (shrink)

Natural death act legislation which is intended to assist patients who wish to refuse or limit medical treatment may actually erode patients' rights. By use of a 'living will' the legislation intends to extend the patients' role in decision-making to the time when patients can no longer speak for themselves. However, the legislation erodes and constricts the right of refusal. The erosion is the result of two sets of conditions found in the legislation. The first requires that the patient (...) be qualified and certified by others before interventions can be withdrawn or withheld. The second delineates the physical condition which must be present before a living will can be followed. Patients have had to seek the assistance of the courts to enforce their common law rights of refusal of treatment against these requirements. Legislation is needed, but greater care must be taken to avoid the creation of a Kafkaesque legal nightmare for those we intend to assist. (shrink)

The first IVF baby was born in the 1970s. Less than 20 years later, we had cloning and GM food, and information and communication technologies had transformed everyday life. In 2000, the human genome was sequenced. More recently, there has been much discussion of the economic and social benefits of nanotechnology, and synthetic biology has also been generating controversy. This important volume is a timely contribution to increasing calls for regulation - or better regulation - of these and other new (...) technologies. Drawing on an international team of legal scholars, it reviews and develops the role of human rights in the regulation of new technologies. Three controversies at the intersection between human rights and new technology are given particular attention. First, how the expansive application of human rights could contribute to the creation of a brave new world of choice, where human dignity is fundamentally compromised; second, how new technologies, and our regulatory responses to them, could be a threat to human rights; and, third, how human rights could be used to create better regulation of these technologies. (shrink)

In 2006, a WHO survey found evidence of a substantial increase in patient-led litigation against health authorities and funders over access to medicines around the world. New Zealanders have seldom litigated denials of access to health care. Part of the explanation lies in the fact that New Zealand has a legislated patients' "bill of rights", with enforcement through a complaints mechanism. Although the separate regime does not afford patients substantive legal protection in respect of complaints about lack of (...) access to care, this form of alternative, low-level resolution of health care disputes does condition disgruntled patients not to turn to the courts for legal redress in relation to their rights. But given the increasing need for prioritization arising from serious concern about the sustainability of the public health system, as well as a trend towards greater explicitness when it occurs, increased disappointment on behalf of patients and the public when care is denied or limited seems inevitable. This may well translate into increased patient-led litigation against health boards and funders. Part 1 provides an overview of the New Zealand health system, with a focus on the points at which resource allocation decisions are made, the identity of the decision-maker, and the methods by which priority-setting occurs. Part 1.1 describes inequalities between population groups in New Zealand, both in health outcomes and in access to health care. Part 2 describes the legal framework surrounding the health and disability sector, and discusses the lack of legislated rights to health and the limited right of access to health care in legislation, despite the existence of a legally enforceable Code of Health and Disability Services Consumers' Rights. (shrink)

ABSTRACTEnvironmental ethics research pays much attention to the rights of individuals, future generations, and nonhuman stakeholders to have a clean environment. Moral condemnation is directed at polluters for violation of stakeholder rights. However, little consideration is given in the research literature to those who are harmed by well‐intended progressive environmental legislation. This article addresses the moral entitlements of small, remote resource‐based communities not to be harmed by environmental legislation that results in the elimination of the major employer that (...) economically sustains them. It is argued that these communities are morally entitled to the best attempt by a government to mitigate the harm or compensate for it. The article shows how a government can go beyond compensation to form collaborative public–private partnerships to promote strategically viable future directions for communities. (shrink)