Accused persons who are subjected to a saturation level of negative media coverage may be denied an impartial hearing, which is perhaps the most important aspect of the right to a fair hearing. Despite this, the courts have generally held that the social imperative of prosecuting accused trumps the interests of the accused. The justification for an impartial hearing stems from the repugnance of convicting the innocent. Viewed dispassionately, this imperative is not absolute, given that (...) every legal system condones procedures which result in the conviction of some innocent people. While the importance of guarding against wrongful convictions has been overstated, the imperative to bring to trial all accused has been even more exaggerated. The legal system has displayed a capacity to deal with cases where the guilty walk free. The institutional integrity of the criminal justice system would be significantly compromised by convictions that are tarnished by pre-judgment. Confidence in the criminal justice system is more important than individual criminal accountability. The inability to receive an impartial hearing should result in a permanent stay. The only exception is where the alleged crime has the capacity to cause widespread fear or social unrest. This only applies in relation to serious acts of terrorism. This article focuses on recent legal fair trial developments in Australia, however, the analysis, reasoning and conclusion applies in relation to all jurisdictions where juries determine guilt and innocence. (shrink)

The war in the DRC has resulted in one of the world’s worst humanitarian crisis with over 3.4 million displaced persons scattered throughout the country. An estimated 4 million people have died as a result of the war. The most pressing need to be addressed is the question of justice and accountability for these human rights atrocities in order to achieve a durable peace in the country and also in the Great Lakes region. It is particularly true in post-conflict (...) situations where justice systems have been either partially or completely destroyed, that national courts are not capable of arriving at a uniform stance, or willing to provide justice for atrocities in the immediate future. As a result, international justice seems to be a crucial and last resort that must continue to be fortified against efforts to undermine it. However, even if the ICC achieves its full potential, it faces a number of challenges. Firstly, it is realistically not able to address all situations in which national courts are unwilling or unable to prosecute perpetrators. Secondly, there are temporal and other jurisdictional limitations on what cases the ICC can hear. Accordingly, the ICC will only have the power to try people accused of the gravest human rights violations committed after 1 July 2002; the date the Rome Statute which established the ICC took effect. As a result, only a small number of individuals responsible for the atrocities committed will be tried by this Court. Thirdly, is the establishment, of the Truth and Reconciliation Commission (TRC), one of the civilian institutions that emerged from the peace talks, meant to end impunity or to cover up gross violations of human rights committed in the DRC? It remains to be seen how it will function and interact with the courts. (shrink)

Faith healing deaths occur infrequently in Canada, but when they do they pose a considerable challenge for criminal justice. Similar to caregivers who absent-mindedly and fatally forget a child in a hot vehicle, faith healers do not intentionally harm their children. It can seem legally excessive and unjust to prosecute achingly bereaved parents. But unlike ‘hot-car’ deaths, faith healing parents are not absent minded in the deaths they cause. Rather, significant deliberation and strength of will is necessary to treat (...) their child’s ailment with faith alone. Two different Criminal Code provisions can be brought to bear upon these deaths, namely, s. 215 ‘Failing to provide the necessaries of life’ and s. 219 ‘Criminal negligence’. From a public, medical, and scientific perspective treating potentially fatal ailments with ‘faith’ and ‘prayer’ seems like reckless endangerment, giving apparent justification to the more serious criminal negligence charge. But, the fault element in the criminal negligence offence continues to be a vexing issue in Canadian jurisprudence. People accused of negligence-based offences are commonly held to the standard of what a reasonable person might predictably have done in similar circumstances. While it is unnecessary for the impartial trier of fact to conceive of faith healing as ‘reasonable’, it is an open question whether faith healers are sufficiently unreasonable to warrant serious criminal condemnation and possible incarceration when their course of action causes death. Is it justifiable to think of faith healers who cause death as criminally unreasonable? That is, do they depart markedly enough from the standard that criminal negligence is rightly attributed to them? Public attitudes toward religion, religious fundamentalism, and healthcare must be considered when trying to discern what a reasonable person does when treating an ailing child at risk of death. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:What Does It Mean to "Speak Truth to Power"?Christian UhlPolitical Philosophy in Japan: Nishida, the Kyoto School, and Co-Prosperity. By Christopher S. Goto-Jones. London and New York: Routledge, 2005. Pp. 192.Ever since the end of the "Great East Asian War" in Japan a debate has been smoldering over the contamination of philosophy by politics. This debate was sparked by a series of writings through which the "father of Japanese (...) philosophy," Nishida Kitarō (1870-1945), and some thinkers affiliated with him—the so-called Kyoto School—became involved in the politics connected with the war to establish a "Greater East Asia Co-Prosperity Sphere." The debate over Nishida and the Kyoto School has repeatedly been overshadowed by the debate over Heidegger. Aside from the strategic considerations of those engaged in the prosecution of the Kyoto School, one reason for the "Heidegger factor"1 may have something to do with the fact that philosophical parallels can indeed be drawn between Nishida and Heidegger, and that there are also direct links between Nishida and some of his disciples who studied in Germany. Questions concerning Heidegger's political engagement are still explosive, even twenty years after Farias' attempt to prove Heidegger's entanglement with National Socialism. The publication of Emmanuel Faye's book Heidegger—L'introduction du nazisme dans la philosophie has fired up the debate in French philosophical circles.2 And in the debate concerning Nishida and the Kyoto School there is also recent news: the publication of Christopher S. Goto-Jones' ambitious study Political Philosophy in Japan: Nishida, the Kyoto School, and Co Prosperity."Every inquiry," Heidegger says, "is a seeking [Suchen]. Every seeking gets guided beforehand by what is sought for."3 Goto-Jones' inquiry seeks to explain the nature of Nishida's political engagement in the 1930s and 1940s, and his inquiry is guided by the conviction that Nishida should be exonerated from the charges regarding his alleged complicity with a Japanese wartime regime that was at least militarist if not "fascist." However, the declared intention of Goto-Jones' study is not just another exoneration of Nishida. Goto-Jones contends that Nishida, influenced "particularly [by] Kant" (p. 7), has left behind a still relevant political philosophy that, as some other authors have argued,4 is not only not tainted by any form of narrow-minded nationalism but also provides a philosophical framework for a theory of a globalizing, multicentered, intercultural world:Hence, for Nishida, the nation should not be a rigid institutional structure or an artificially... constructed culture, but rather a moral personality formed through the mutual self-determination [End Page 469] determination of its constituents and in a dynamic relationship with other nations. International relations should be characterized by the development of greater levels of unity, as nations creatively interact with each other, producing public goods and increasing the similarities in their personalities, thus decreasing the salience of their national boundaries. In this model, nationalism, like egoism, becomes a nonsense.(p. 134 n)This political model is what Goto-Jones seeks to recover in Nishida, and this recovery is "what is really intended" (Heidegger) by his book.5Nishida's political philosophy needs to be recovered, because it is buried under false accusations and misunderstandings, produced primarily by Nishida's detractors, whose criticism, as Goto-Jones suggests, is in most cases at best based on a rough selection of citations, torn out of the coherence of their original context. Nishida's defenders, on the other hand, have attempted to safeguard the philosopher against the arguments of his critics by simply calling him a "liberal," a seemingly agreeable but in fact rather misleading label. Furthermore, Nishida's defenders have based their arguments only on biographical material, diary entries, letters, and so on. While the apologists "are right to observe a contradiction between... [Nishida's] private condemnation of the regime and his apparent public complicity, this is not in itself enough to conclude that his public writings meant the opposite of what they seem to say" (p. 4).In fact, this conclusion by Nishida's apologists does raise certain questions. Why did Nishida never give vent to his divergent opinions? Should he not rather have remained... (shrink)

The presumption of innocence has often been understood as a doctrine that can be explained primarily by instrumental concerns relating to accurate fact-finding in the criminal trial and that has few if any implications outside the trial itself. In this paper, I argue, in contrast, that in a liberal legal order everyone has a right to be presumed innocent simply in virtue of being a person. Every person has a right not to be subjected to criminal punishment unless (...) and until he or she has done something that is criminally wrong. Since disagreements about allegations of criminal wrongdoing are inevitable, the liberal legal order requires a process for determining whether wrongdoing has occurred. In order to preserve the right not to be punished without wrongdoing, the accused person must be presumed innocent throughout this process. The presumption of innocence is therefore as much a basic human right as, for example, the right to bodily integrity or the right to freedom of expression. Specifications of and limitations on the right should therefore be justified not primarily in terms of their instrumental effectiveness in fact-finding or crime control but in terms of the role of the criminal process in a liberal legal order. I consider some implications of this view of the presumption of innocence for the pre-trial process and for substantive criminal law. I argue that the presumption of innocence, understood as a basic human right, should condition the entire pre-trial process; it has, however, minimal implications for the definition of offences. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:What Does It Mean to "Speak Truth to Power"?Christian UhlPolitical Philosophy in Japan: Nishida, the Kyoto School, and Co-Prosperity. By Christopher S. Goto-Jones. London and New York: Routledge, 2005. Pp. 192.Ever since the end of the "Great East Asian War" in Japan a debate has been smoldering over the contamination of philosophy by politics. This debate was sparked by a series of writings through which the "father of Japanese (...) philosophy," Nishida Kitarō (1870-1945), and some thinkers affiliated with him—the so-called Kyoto School—became involved in the politics connected with the war to establish a "Greater East Asia Co-Prosperity Sphere." The debate over Nishida and the Kyoto School has repeatedly been overshadowed by the debate over Heidegger. Aside from the strategic considerations of those engaged in the prosecution of the Kyoto School, one reason for the "Heidegger factor"1 may have something to do with the fact that philosophical parallels can indeed be drawn between Nishida and Heidegger, and that there are also direct links between Nishida and some of his disciples who studied in Germany. Questions concerning Heidegger's political engagement are still explosive, even twenty years after Farias' attempt to prove Heidegger's entanglement with National Socialism. The publication of Emmanuel Faye's book Heidegger—L'introduction du nazisme dans la philosophie has fired up the debate in French philosophical circles.2 And in the debate concerning Nishida and the Kyoto School there is also recent news: the publication of Christopher S. Goto-Jones' ambitious study Political Philosophy in Japan: Nishida, the Kyoto School, and Co Prosperity."Every inquiry," Heidegger says, "is a seeking [Suchen]. Every seeking gets guided beforehand by what is sought for."3 Goto-Jones' inquiry seeks to explain the nature of Nishida's political engagement in the 1930s and 1940s, and his inquiry is guided by the conviction that Nishida should be exonerated from the charges regarding his alleged complicity with a Japanese wartime regime that was at least militarist if not "fascist." However, the declared intention of Goto-Jones' study is not just another exoneration of Nishida. Goto-Jones contends that Nishida, influenced "particularly [by] Kant" (p. 7), has left behind a still relevant political philosophy that, as some other authors have argued,4 is not only not tainted by any form of narrow-minded nationalism but also provides a philosophical framework for a theory of a globalizing, multicentered, intercultural world:Hence, for Nishida, the nation should not be a rigid institutional structure or an artificially... constructed culture, but rather a moral personality formed through the mutual self-determination [End Page 469] determination of its constituents and in a dynamic relationship with other nations. International relations should be characterized by the development of greater levels of unity, as nations creatively interact with each other, producing public goods and increasing the similarities in their personalities, thus decreasing the salience of their national boundaries. In this model, nationalism, like egoism, becomes a nonsense.(p. 134 n)This political model is what Goto-Jones seeks to recover in Nishida, and this recovery is "what is really intended" (Heidegger) by his book.5Nishida's political philosophy needs to be recovered, because it is buried under false accusations and misunderstandings, produced primarily by Nishida's detractors, whose criticism, as Goto-Jones suggests, is in most cases at best based on a rough selection of citations, torn out of the coherence of their original context. Nishida's defenders, on the other hand, have attempted to safeguard the philosopher against the arguments of his critics by simply calling him a "liberal," a seemingly agreeable but in fact rather misleading label. Furthermore, Nishida's defenders have based their arguments only on biographical material, diary entries, letters, and so on. While the apologists "are right to observe a contradiction between... [Nishida's] private condemnation of the regime and his apparent public complicity, this is not in itself enough to conclude that his public writings meant the opposite of what they seem to say" (p. 4).In fact, this conclusion by Nishida's apologists does raise certain questions. Why did Nishida never give vent to his divergent opinions? Should he not rather have remained... (shrink)

For the purposes of this article, the right to confidentiality of communications between a lawyer and a client (legal professional privilege) is analysed and understood as a rule under which, in judicial or administrative proceedings, the content of communications between a lawyer and his client shall not be disclosed; if this rule is breached, the content of the communications in question is not treated as evidence in the process. Legal professional privilege is related to several articles of the Convention (...) for the Protection of Human Rights and Fundamental Freedoms. The European Court of Human Rights has found that the violation of the right of an accused to communicate with a lawyer without a third party departs from Article 6(3)(c) of the Convention for the Protection of Human Rights and Fundamental Freedoms which entitles to defend oneself in person or through a legal assistant. This kind of communication also relates to the Article 8 of the Convention, which provides a right to respect for private and family life, home and correspondence. In the opinion of the European Court of Human Rights, according to the Convention for the Protection of Human Rights and Fundamental Freedoms there is no difference if a lawyer representing a client is a practitioner or not. However, when dealing with the violations of EU competition law, the Court of Justice of the European Union acknowledges the protection of legal professional privilege only with regard to the communications between an accused companies and an independent lawyer (who does not work for his client on an employment contract basis). When the protection of legal professional privilege is not granted for communications of the accused company with its own legal personnel, a question may arise whether it is considered that sufficient level of confidentiality is ensured for these companies. (shrink)

Principle of equality of arms is part of fair trial concept, which encompasses several guarantees linked to the defence opportunities during the criminal procedure. The accused person is entitled to a fair trial. Balance of rights between the parties is bedrock for procedural fairness and the judge has to perform his competence in providing all necessary preconditions as for the trial to be fair. There are differences between interpretation and implementation of equality of arms in the jurisprudence of European (...) court on human rights and international criminal courts. Decisions of ECtHR are much more similar with domestic understanding of equality of arms as reasonable opportunity of the defence to present the case without disadvantages vis-à-vis the prosecutor, due to inherent inequity between the parties. When analyzing proceeding before the ad hoc Tribunals, there is “more liberal interpretation” of this principle, which allowed the Prosecutor to invoke equality of arms, as well. ICTY Trial Chamber in Aleksovski case concluded that application of the concept of a fair trial in favor of both parties is understandable because the Prosecution acts on behalf of and in the interests of the international community, including the interests of the victims of the offence charged and also has held that it is difficult to see how a trial could ever be considered to be fair where the accused is favored at the expense of the Prosecution. This interpretation has been justified with dependence of the international Tribunals on state cooperation and due to the fact that international criminal courts have no autonomous enforcement agencies at their disposal. Fortunately, ICC Statute considered equality of arms as solely afforded to the defence, or to the Prosecutor on the behalf of accused. (shrink)

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)

The “Universal Declaration of Human Rights” and the “Geneva Declaration” by the World Medical Association, both in 1948, were preceded by the foundation of the United Nations in New York (1945), the World Medical Association in London (1946) and the World Health Organization in Geneva (1948). After the end of World War II the community of nations strove to achieve and sustain their primary goals of peace and security, as well as their basic premise, namely the health of human beings. (...) All these associations were well aware of the crimes by medicine, in particular by the accused Nazi physicians at the Nuremberg Doctors Trial (1946/47, sentence: August 1947). During the first conference of the World Medical Association (September 1947) issues of medical ethics played a major role: and a new document was drafted concerning the values of the medical profession. After the catastrophe of the War and the criminal activities of scientists, the late 1940s saw increased scrutiny paid to fundamental questions of human rights and medical ethics, which are still highly relevant for today’s medicine and morality. The article focuses on the development of medical ethics and human rights reflected in the statement of important persons, codes and institutions in the field. (shrink)

Sexual assault leaves the victims with unbearable emotional pain from the experience. The unwanted aggression against their freewill causes them to suffer physically and mentally. On top of that, they also have to fight to be treated fairly and respectfully during their court trials. There has been some controversy regarding rape prosecution in the Islamic legal system. The reason for this controversy is that the rape victim would usually be either charged with zina because of her confession, or committing qadhf, (...) as a result of her failure to provide four male eyewitnesses. This paper aims at investigating the fundamental legal rights of rape victims who complain of being raped, to be defended fairly, and to get exemption from punishment as provided in Islamic law. This paper also seeks to investigate the admissibility of the individual testimony of the victim against the rapist. This paper suggests that proving rape is not similar to proving zina, because a rape victim who lodges a report or complains of her ordeal of being raped should not be treated the same as a person who confesses to zina. Proving rape is also different from accusing the rapist with committing zina. This study will explore opinions and arguments of classical Muslim scholars of Islamic jurisprudence from various schools of thought. (shrink)

In 2017, the National Prosecution Bureau of Chile created the Special Unit for Human Rights, Gender-Based Violence, and Sex Crimes, becoming a milestone for criminal prosecution policies as the first time a state institution in Chile used the term ‘gender-based violence’ explicitly in its title. There was no law in the country that addressed and sanctioned this behaviour—recognising it as a social phenomenon—at the time of the Unit's creation. What does the creation of this new Unit mean for access to (...) justice from a gender perspective? To answer this question, we have critically analysed the creation of this Unit as a case study from a feminist institutionalist standpoint. We found that this institutional change might bring a broadening in access to justice for women, girls and LGBTQI+ persons by implementing a gender perspective. (shrink)

This note analyses a recent case of the European Court of Justice in which the applicant, a 14-year old rape victim, alleged that Bulgarian criminal law violated her rights under Articles 3 and 8 of the European Convention of Human Rights in pursuing a practice of only prosecuting rape where there was evidence of the use of physical force and active resistance. In upholding the applicant’s claims, the Court re-affirmed the positive obligation on states to adopt measures to ensure that (...) fundamental rights under the Convention were secured. In particular, in the case of rape, this required the enactment and application of criminal laws effectively prescribing all acts of non-consensual sex and not just those involving physical violence. In this way the Court affirmed not only that rape was, in essence, a violation of personal sexual autonomy but also that legal systems which failed adequately to protect against all forms of rape risked operating in breach of Convention obligations. (shrink)

Magna Carta Libertatum is one of the few documents that continuously imply thorough discussions about fundamental principles of the law. In 2011, Lord McNelly, Justice Minister of UK at the time, has emphasized the core and everlasting principles that derived from this document: ᠅ that the power of the state is not absolute ᠅ that whoever governs the state must obey the law ᠅ and that whoever governs the state must take account of the views of those who are governed. (...) These are the fundamental principles of any government that strives to be distinguished as democratic, these are the self-evident truths that have been developed in the theory of social contract that established the modern day democracies. It is very common that article 39 of Magna Carta that provides for the right to due process, as well as article 40 that provides for the right to access to justice and justice itself, to be usually analyzed from the point of view of the rights of the person accused of a crime. However, it must be taken into consideration, that failure to guarantee these two very important human rights makes the accused person a victim of abuse of power. This article aims to analyze the relevance of Magna Carta in the rise of the concept of rights of victims of abuse of power. Although it is a concept developed later in history, the clauses of Magna Carta that remain in power can be directly linked to this category of victims. The thirteenth century provides a very important perspective on the position of the victim of crime and can be analyzed in a comparative aspect regarding the Common Law and the Civil Law historical development. The article will briefly explain the evolution of the concept of victims’ rights throughout these eight centuries to the modern times when these rights have become a crucial part of the national legislations of Western Balkan countries. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Human Dignity, Human Rights, and Religious Pluralism:Buddhist and Christian Perspectives1John D'Arcy MayThe question of how the concept of human rights—so crucially important for the implementation of justice in a rapidly globalizing world—relates to the plurality of cultures and religions has still not been solved. Controversies such as those over land rights in Aboriginal Australia and Asian values in Southeast Asia have shown this repeatedly. In such cases, discussion eventually (...) becomes focused on the universality of human rights, not just the global scope of the idea itself but the universal validity of catalogues of specific rights such as those contained in the United Nations' Universal Declaration of Human Rights (December 10, 1948). There is something arbitrary and unsystematic about such charters, as is shown by the rather different emphases in the African and Islamic documents which were meant to correct the UN's lack of universality.2 But if, in attempting to explore this problem seriously, one appears to tamper with the principle of universality, one can easily be accused of diluting the ethical force of human rights by questioning their applicability to every human being without exception. Nothing could be further from my mind, so before explaining what I wish to do in this paper I shall first set out some presuppositions that I take to be axiomatic:1. Our starting point is the dignity of the human, the unique value of each individual human life as a world constituted by consciousness, an originating source of free acts, which is therefore an end in itself and must never be misused as a means to other people's ends.3 This principle is reflected in formulations such as dignitas humana in the social teaching of the Catholic Church, which goes back to the biblical doctrine of the creation of human beings in the image of God, or in the unique status of the human being in the Buddhist scale of existence, on which neither animals nor gods but only humans are in a position to grasp the reality of their situation and strive for definitive release from the chain of becoming; hence the severity of the prohibition on taking human life as the third of the four cardinal offences (pārājika).42. The concept of "human rights" is one way of acknowledging this unique moral status of human dignity, in that rights accrue to the individual person [End Page 51] simply by virtue of his or her being rational, autonomous, and free. To this extent human rights language belongs within the Western tradition of liberal discourse, which lies at the heart of Western democracies and was profoundly influenced by Christianity. Conceptions of what it is that makes the human uniquely valuable, however, are very differently constructed in different cultural and religious traditions.53. What rights language tries to express in the conceptual framework provided by European culture has universal validity, although it is otherwise expressed in other cultures, for example, in terms of "duty," "obedience," "taboo," and so on. Problematic as it is in the context of postmodern discourse, the sameness-in-difference of the human as the criterion for rights everywhere and without exception is a categorical imperative on which the effectiveness of human rights as an instrument of justice depends.4. Conceptions of universality, however, may themselves be culturally determined and usually arise in contexts of domination: what is taken to be universally valid is often somebody's particular version of the truth of things which by virtue of a claim to universality is then imposed on others as "the" truth. Such conceptions are necessarily generalizations, whereas the moral impulse arises in the face-to-face encounter with the alien, unexpected and unwanted "other," as Levinas has shown.5. Universality is thus not available a priori but remains implicit in the intersubjectivity of human interaction until it is realized through shared practice and the negotiation of meanings; this applies all the more to interactions between religions and across cultures.66. Rights language, though a powerful instrument for the implementation of justice, is thus incomplete unless its Western (and Christian) conceptual presuppositions are complemented by the metaphors, stories, and... (shrink)

The present article is aimed at substantiating the differentiation of the criminal procedure involving the disabled persons as well as at assessing some standards of protection of rights of the latter participants of the procedure, established in the Code of Criminal Procedure of the Republic of Lithuania. The provisions of the Constitutional Court of the Republic of Lithuania, given in the present article, enabled generalizing the following two aspects. The first aspect covers the substantiation of the criminal procedure relating (...) to the criminal acts that the physically or mentally disabled persons are suspected (accused) of and application of compulsory medical measures. Specific form of criminal procedure – procedure of application of compulsory medical measures – institution of criminal procedure, covering several closely interdependent legal norms, establishing particular legal specifics of investigation of criminal act and hearing, is established in the separate structural part (Chapter XXIX) of the Code of Criminal Procedure of the Republic of Lithuania. Moreover, though the criminal procedure relating to the acts that the physically or mentally disabled persons are suspected (accused) of is not governed in one place of the Code of Criminal Procedure, it is deemed to be a specific form of criminal procedure, since it constitutes particular related legal norms of criminal procedure, determining the exceptions of the general criminal procedure. The second aspect, related to the constitutional doctrine concerning the equality principle, enabled substantiating the specific legal regulation, established and applied to the disabled participants (suspected persons, accused persons, witnesses, aggrieved persons) in the Law on Criminal Procedure. (shrink)

Part 1. Plan of This Commentary -- From an Epigram by Filangieri against Improvement in the Art of War -- On Encouragements for Agriculture -- On the Conversion of Rulers to Peace -- On the Salutary Revolution Which Filangieri Foresaw -- On the Union of Politics and Legislation -- On the Influence Which Filangieri Attributes to Legislation -- On the State of Nature, the Formation of Society, and the True Goal of Human Associations -- On Errors in Legislation -- Some (...) Remarks by Filangieri on the Decline of Spain -- On Filangieri's Observations about France -- On the Decline Filangieri Predicted for England -- Part 2. Object of this Second Part -- On the Black Slave Trade -- On Population -- Continuation of the Same Subject -- On Malthus's System Relating to Population -- Some Writers Who Have Exaggerated M. Malthus's System -- On a Contradiction by Filangieri -- On the Division of Properties -- On the Grain Trade -- On Agriculture as a Source of Wealth -- On the Protection Given Industry -- A New Proof of Filangieri's Fundamental Mistake -- On Guilds and Masters -- On Privileges for Industry -- On Taxation -- Part 3. On Criminal Prosecution Confided Exclusively to a Magistrate -- On Secret Indictments -- On Denunciation -- New Thoughts on the Idea of Giving Each Citizen the Right to Prosecute -- New Thoughts on the Idea of Giving Each Citizen the Right to Prosecute -- On the Right to Prosecute Given to Servants, When It Is a Question of Crimes against Society -- That the Prosecuting Magistrate Should Be Responsible, If Not for the Truth, at Least for the Legitimacy of the Accusation -- On Prisons -- On the Shortening of Legal Procedures -- On Defense Witnesses -- On Judgment by Juries -- On the Death Penalty -- On Convict Labor -- On Deportation -- Part 4. On Education -- On Religion -- Of the Growth of Polytheism -- On the Priesthood -- On the Mysteries -- Conclusion. (shrink)

Place mouse over image continent. 2.1 (2012): 36–39. From an ethical and political perspective, people and property can hardly be separated. Indeed, the modern political subject – that is, the individual, the person, the self, the autonomous actor, the rational self-interest maximizer, etc. – has taken shape in and through the elaboration, institutionalization, and enactment of that which rightfully belongs to it. This thread can be traced back perhaps most directly to Locke’s notion that the origin of the political state (...) occurs when people rise above the state of nature by ceding the power to prosecute offenses. The rule of law begins then with a defense of the right to property. People become subjects by adhering to the social contract, which they do by deferring the defense of their own property to the state. In this light, the response of the United States federal government to the financial crisis of 2008 appears to many as a breach of the social contract. The chant “banks got bailed out, we got sold out” states the claim plainly. Why exactly did some subjects (e.g., the banks) have their property defended by the state (i.e., through the variety of programs including TARP, the discount window at the US Federal Reserve, etc.), when other subjects (e.g., homeowners) found themselves without protection of their property rights, forced to default on mortgage debts and face dispossession? Even if the rhetoric about “too big to fail” can be believed, and the collapse of the financial system would lead to negative consequences for people who had little or no connection to the activities that brought it about, such consequences need not call into question the notion that everyone stands equally before the law. To occupy, then, appears as a form of civil disobedience, an intentional, retaliatory breach of the social contract by those who feel that they have lost the support of the state to which they ceded their power as sovereign agents. The visible and the invisible The violation of property rights of people who have recognition, protection and power under the law destabilizes their very status as citizens and tests the limit of democracy. Does the financial system force the dematerialized victimization of individuals? Do people become numbers, or worse still, percentages of unemployed, tranches of defaulted mortgages and foreclosures? Are they perhaps instead disenfranchised prospectively from the privileged position occupied by virtual entities and actors such as those involved in the derivatives markets, always already exiled back into the physical, visible realm? The line of conflict appears to be drawn between invisibility/absence/deferral and visibility/presence/realization. The demonstrators occupy an excess property of those subjects, namely, the banks and financial elite, who did receive recognition and protection under the law. By domesticating this excess property, rendering its invisibility visible within the political economy, the protesters raise a new form of threat to the hegemonic order. To occupy, then, involves a rejection of the order under which the “99%” have been subjected to erasure. The occupation seeks creatively to establish a new means of communication and law for its subjects. In the face of an existing power structure that is increasingly disenfranchising the majority of people while consolidating nodes of power and influence, the “occupation”, or the work of the Occupy movement, involves seizing a space that refuses the rules of the existing, allegedly corrupt sovereign state. This refusal of governance extends even to include a steadfast refusal to articulate a strategy, to formulate a list of demands, to converse with the sovereign power on the grounds of its own conventions, to put forth a leader, to resolve the ambiguity of the movement into a discreet identity, face, or voice. Do these tactics provide a resolution to the problem that was its genesis? Not in such a direct and easily resolved manner, but it remains difficult to imagine a direct and simple resolution to the problematic of the breach of the social contract. The ambiguity of the situation has generated significant interest within the broader populace, though many people sympathetic to the cause appear to be frustrated because the movement has not simply put forward a short list of concrete demands, or even a set of leaders and spokespeople, much less a resolution. And yet, this lack of coherence appears as a resolution of a problem generic to protest movements in the past, where individual leaders can be removed or discredited, and lists of demands can be co-opted by others holding more political power. Meanwhile, the ambiguity has compelled imitations on a global scale, with the Occupy Wall Street participants consciously taking actions that can be replicated by anyone anywhere without significant cost. These actions have taken place not in a peripheral location such as a parking lot in New Jersey, but instead close to the centers of power and governance, adjacent to Wall Street, close to the White House, on college campuses, etc. This spontaneous archipelago of protests becomes an irritant, a negation of the accepted order of protests, but when the protesters themselves move outside of their encampments, they are escorted by the police, constantly monitored and maintained so that a permanent state of paranoid persecution takes hold. To occupy, occupying, occupation – these actions involve a variable degree of danger – are you willing to step into a different space, where the rule of law is unclear and evolving? Are you presenting yourself as a representative of the majority, the 99%? Who has a sense of belonging to the 99%? This previously invisible population becomes a focal point of political power, garners increasing public support, infects the public dialogue. The government recognizes this population by forcing it from the occupied space, removing the element of possession of property. It is at this point of conflict, in the struggle to hold the physical property, where the greatest friction and violence occurs. Scaling the rule of law While occupied, the property calls for a redress of grievances, a restoration of the rule of law. The Occupy movement does not select and put forward individuals or leaders, it puts forward places – the occupied property represents the point of conflict, not the individual. And it is this very property that the government then tries to reclaim. The movement remains faceless, anonymous, uncounted, or rather counted only as a mass, the self-labeled mass of 99%. These spaces are like refugee camps or favelas, but constructed to unite the political life and private life of the protesters. This objective is presented as a tactical necessity, as all other means of protest and communication have failed, leaving only the option of seizing, holding, occupying a property. But to what end, exactly? Can anyone deliberately return to the prior social contract, embrace, affirm, and govern in strict accordance with the earlier relationship to property, following the logic of Locke’s arguments? In this respect, the contemporary crisis indicates a new, transitional phase in the way that property operates, or rather, in the balance between real and virtual value. The roots of the crisis lay in the massive overvaluation of property caused by lax lending practices, as more people were encouraged to borrow more money, which drove up the prices of property. At the same time, these individual properties, these mortgages for homes actual families lived in and worked to support, were bundled into securities that could be bought, sold, and speculated on. The reduction of a physical house or piece of real estate to an almost incalculably small element in an investment vehicle appears as a scaling of the hedge that radically diminishes the value of any individually owned property. Moreover, a number of recently-innovated financial products allow investors to hedge in new ways, to deliberately spread risk around a portfolio in hopes of bringing returns even when the individual mortgage defaults. At the level of the ‘free’ market, these virtual negative valuations are designed to balance the physical positive valuation, though many of the biggest lenders are now being investigated for controlling both sides of this valuation, the positive and the negative, to facilitate both the creation and failure of the investments and to profit from both. The ability to benefit from both the negative and positive value of an investment is a result of a technologically enabled capacity to operate within a complex field. These layered and scaled investment vehicles and the simultaneous negation of their value together represent a commingling of the virtual and physical existence that is both complex and multiple. The valuation of a virtual property has tremendous power to change the valuation of the physical - either injecting it with or depriving it of funds, pumping in or draining life and energy. This situation has roots of its own – the notion of property advanced e.g., throughout the enclosure movement in Britain was, from the outset, an imposition of virtuality (i.e., the concept of law, the institutions associated with ownership, etc.) on the physical reality of land. 1 The difference today is that technological trading platforms combined with innovations within the financial services industry have enabled the reduction of each individual property receiving or losing value in scale to an almost atomic level. In turn, the number of properties held simultaneously and valued as a massive, multiple wholes – i.e., the derivatives market in mortgage-backed securities – is a new phenomenon made possible through the application of similar technologies and institutional structures. And those actors who can trade in these layers of complexity can then profit from the new phase of disassociation of the virtual and the physical – unconcerned with and operating at such a virtual distance from the individual residing physically on a particular piece of real estate that they no longer feel the tug of the physical tying them back to the physical, operating literally as in a video game, in a virtually distanced world. What can or should be done about this situation? Answers lie outside the scope of this current essay, but merit consideration in the near future… NOTE 1) Hernando de Soto has emphasized this dimension by empirically demonstrating its non-existence in many countries in The Mystery of Capital. (shrink)

Is it self-evident that every Kenyan adult citizen should have the right to vote at national and civic elections or referenda? This is not always the case: certain segments of the population are expressly or implicitly excluded by law or practice from the franchise. This paper suggests that the concept of unsoundness of mind should no longer be the basis for excluding persons with disabilities generally, and those with intellectual disabilities in particular, from voting. It traces provisions in (...) law that disenfranchise persons adjudged to be of unsound mind; and provides interpretation using national law as well as international human rights norms to infer that general or automatic disenfranchisement is a human rights violation. It concludes that Kenya’s electoral authorities must ensure that neither their policies nor the practices of their officials disenfranchise some Kenyan adults from voting by equating such persons’ mental illness or intellectual disabilities with “unsoundness of mind”. (shrink)

R. A. Duff has revived the tradition of “answerability” for crime. In this philosophical and jurisprudential tradition, a person is answerable to the criminal law of a state and the process of that state’s courts only if there is some appropriate relationship between the state and the person. Duff’s great contribution has been to develop the idea of accountability of persons to a state or other polity as a philosophical notion which, he argues, underlies all just implementations of criminal (...) law. Duff has centered his views around the relationship between the citizen and the polity (in today’s world, the state) to which the citizen belongs. His focus has been on insiders, rather than outsiders.This article argues that, in the current world, the relationship among cocitizens, outsiders, and the state is based in part on the moral idea that the state exists to protect citizens from evil acts, specifically those that we call public and criminal wrongs, wherever the acts originate. Outsiders understand this, and understand that states other than their own use criminal law to protect their citizens.Duff’s writings contain an idea which turns out to be very useful in cases of outside acts, even though he does not apply it directly to them. Some states or other entities may have only an incomplete relationship with an accused person (compared with the relationship of citizen and state), but nonetheless may have the moral and political authority to try her for crime. This paper extends this notion to show that such incomplete relationships exist in a great many common cases of outsiders (noncitizens who act outside the territory of a state) who commit crime. These relationships support criminal prosecution of outsiders, so long as we admit that protection of persons from crime is a legitimate goal of the criminal law. (shrink)

The subject of this article is the Rawlsian right to personal property. Adequate discussion of this right has long been absent from the literature, and the recent rise in interest in other areas of Rawlsian thought on property makes the issue particularly pertinent. The right to personal property as proposed by orthodox Rawlsians – in this article, the position is represented by Rawls himself – is best understood, I claim, either as a right to be able (...) to privately own housing and personal items or as a right to actually own these things. I argue, however, that the resources of a Rawlsian theory cannot justify a basic right to property which is as extensive as this. Instead, what can be justified is a more limited set of rights, comparable with the rights we have over objects that we rent. Rawlsian justice, then, has a more radical implications in terms of basic property rights than has previously been thought. (shrink)

On 26 February 2020, the German Constitutional Court rejected a law from 2015 that prohibited any form of ‘business-like’ assisted suicide as unconstitutional. The landmark ruling of the highest federal court emphasised the high priority given to the rights of autonomy and free personal development, both of which constitute the principle of human dignity, the first principle of the German constitution. The ruling echoes particularities of post-war Germany’s end-of-life debate focusing on patient self-determination while rejecting any discussion of active assistance (...) to die through a lethal injection administered by a doctor. This brief report discusses the ruling in the light of the broader sociopolitical and historical context of the German end-of-life debate. (shrink)

Recent developments in criminal legislation of the Republic of Lithuania among other significant novelties include the criminalization of illicit enrichment as criminal offence. Such offence presents new legal instrument for the law enforcement in dealing with individuals who acquire property in doubtful ways. The crime of illicit enrichment is rather a novelty within the context of criminal legislation. Such novelty was largely based upon the requirements of United Nations Convention against Corruption, which stipulates the implementation of such legal measure. According (...) to the article Twenty of the convention, “Subject to its constitution and the fundamental principles of its legal system, each State Party shall consider adopting such legislative and other measures as may be necessary to establish as a criminal offence, when committed intentionally, illicit enrichment, that is, a significant increase in the assets of a public official that he or she cannot reasonably explain in relation to his or her lawful income”. While the convention was undoubtedly major factor for making grounds for said developments the need to widen the scope of confiscation of property and impound illegally acquired wealth were the driving forces behind the political will to support amendments to the Criminal Code. At same time the new offence of illicit enrichment presents significant challenges for the investigative bodies with the prosecution as well as the courts establishing such offences. First and foremost, the techniques of criminalization and legal wording of the offence are new and do not go well with the established principles of criminalization. Unnatural features of the corpus of the crime listed in the code (article No. 1891 of the Criminal Code of Lithuania) involve criminal act lacking attributes illegitimacy, complications regarding guilt of the accused. In addition, doubts and questions regarding the fundamental principles of criminal procedure, due process concerns, and problems of the balance of the rights of the accused with the right of the society to recover illicitly acquired wealth. The relationship of illicit enrichment to other criminal acts committed by the same accused is also of a great importance in establishing sources of such enrichment. As for the time of submission of present article, one hundred and seven interrogations on the illicit enrichment were on and lasting while only three simplified judgments and one proper court sentence were passed. The reasons for such slow implementation of the law are the ambiguities of the definition of law, as well as limitations of regulations, insufficiencies in asset declaration systems, lack of theoretical background and complete absence of court practice on such cases. Two of the existing convictions are analyzed from the point of view of establishment of guilt, the evidence set in the case, the grounds of adequacy of such convictions. The examples presented give basis to judge the adequacy of the new law an opportunity to predict the future rulings of the courts. Necessity of the improvements of the law becomes quite obvious on the basis of the analysis. Strong criticisms, various scientific suggestions on the improvements of the regulations, namely on the constitution of guilt, wording of the criminal act are presented by the author. (shrink)

We speak of the right to know with relative ease. You have the right to know the results of a medical test or to be informed about the collection and use of personal data. But what exactly is the right to know, and who should we trust to safeguard it? This book provides the first comprehensive examination of the right to know and other epistemic rights: rights to goods such as information, knowledge and truth. These rights (...) play a prominent role in our information-centric society and yet they often go unnoticed, disregarded and unprotected. As such, those who control what we know, or think we know, exert an influence on our lives that is often as dangerous as it is imperceptible. Beginning with a rigorous but accessible philosophical account of epistemic rights, Lani Watson examines the harms caused by epistemic rights violations, drawing on case studies across medical, political and legal contexts. She investigates who has the right to what information, who is responsible for the quality and circulation of information and what epistemic duties we have towards each other. This book is essential reading for philosophers, legal theorists and anyone concerned with the protection and promotion of information, knowledge and truth.. (shrink)

The right to bodily integrity (RBI) may seem inapt for inclusion in this volume, which is supposed to address new human rights, for as A. M. Viens notes, the RBI is a long-standing fixture in the philosophical and legal discussion of rights. However, Viens does, I think, make a good case for the right’s inclusion here. Not only does he note the increasing recognition of a new right to genital integrity derived from the more general RBI, he (...) also argues for a new conceptualisation of the RBI itself: he argues that we ought to decompose the RBI into several constituent rights, delineated according to the different values from which they derive – rights to bodily autonomy, bodily dignity, bodily ownership, well-being, and so on. (shrink)

Poland has faced two waves of migration: the first was of irregular asylum seekers, which led to the humanitarian crisis on the eastern EU–Belarusian border since 2021; the second was of Ukrainians fleeing the Russian invasion. Although there are noticeable differences between these situations, and between the different reactions of the Polish authorities, it is possible to juxtapose them in terms of the right to health. The normative content of refugee and human rights law is the starting point for (...) reconstructing the meaning of the terms ‘refugee’ and ‘right to health’. A refugee is a person who needs international protection because of a well-founded fear of harm, which is not limited to persecution as defined by the Refugee Convention but also includes situations of international and non-international armed conflict. The right to health, which includes, inter alia, entitlements to a ‘system of health protection’ and ‘underlying determinations of health’, is reconstructed on the basis of human rights law and refugee and migration law. There are no legal and moral grounds to grant the right to health differentially to different groups of refugees. Nondiscriminatory health policy requires that refugees have the same access to health care as nationals, although their specific health needs resulting from past experiences and refugee situation require special treatment, that is, an appropriate refugee health policy. The broad understanding of the underlying determinants of health demonstrates the importance of overall migration policy for refugees’ health, which can jeopardise the fragile good of refugee health. (shrink)

This chapter contains sections titled: The Higher‐Level Account: Consequentialist Virtues The Higher‐Level Account: Deontological Virtues References.

Under the UDHR, all persons have the right to "seek and to enjoy . . . asylum from persecution." From this designation as fundamental followed codification of the right in the 1951 Convention relating to the Status of Refugees and the 1967 Protocol Relating (collectively 'the Convention'), the "centrepiece" of treaties and customary norms that make up international refugee law. It defines and regulates the status and rights of refugees; its purpose is to safeguard the basic rights (...) of persons "outside their country of origin," who have fled due to a legitimate fear of persecution. Fundamentally, it guarantees that asylees and refugees enjoy rights without discrimination; without penalization for illegal territorial entry; and, without expulsion or return to "territories where . . . life or freedom would be threatened on account of . . . race, religion, nationality, membership of a particular social group or political opinion," —or 'non-refoulement'. What follows is background on development of the principle of non-refoulement, evasive US Asylum Cooperative Agreements ('ACAs') and implementing legislation, and the resulting erosion to the right to asylum. (shrink)

Challenging popular and philosophical views, I argue for three main claims. First, political leaders’ worldviews have a deep and underappreciated influence on their official conduct. Second, citizens have a robust claim right to inquire into leaders’ worldviews, and leaders have a corresponding moral duty to provide responses to such inquiries. Third, it is worthwhile for citizens to engage in such inquiry. A citizenry that took this argument seriously would engage in far more searching political inquiry.

The article deals with the constitutional right of a person to apply to court. While construing this constitutionally entrenched right of a person, one analyses the doctrine of the right of a person to apply to court, which was formed in the jurisprudence of the Constitutional Court of the Republic of Lithuania. The right of a person to court is entrenched expressis verbis in Paragraph 1 of Article 30 of the Constitution whereby the person whose constitutional (...) rights or freedoms are violated shall have the right to apply to court. The doctrine of the Constitutional Court derives this right also from the constitutional principle of a state under the rule of law. The right of a person to court is inseparable from other norms and principles of the Constitution, which are equality of rights, the right to compensation of damage, the right to a proper court process, etc. (shrink)

The purpose of this chapter is to consider the question of whether respect for persons requires toleration of the expression of any extremist political or religious viewpoint within public discourse. The starting point of my discussion is Steven Heyman and Jonathan Quong’s interesting defences of a negative answer to this question. They argue that respect for persons requires that liberal democracies should not tolerate the public expression of extremist speech that can be regarded as recognition-denying or respect-denying speech (...) – that is, speech or other expressive conduct that expresses viewpoints that explicitly reject that all persons should be regarded and treated as free and equal persons or citizens. According to Heyman and Quong, recognition-denying speech falls outside the scope of the right to participate in public discourse (i.e. what it is a right to). In contrast to Heyman and Quong, one can argue that a strong case can be made for viewpoint neutrality on the basis of what can be called a libertarian or Nozickean status-based theory of rights. According to this theory, toleration in a liberal democracy requires respect for the status of persons as thinking agents, and respect for thinking agents and their sovereignty over their own mind requires viewpoint neutrality – that is, a basic right to participate in public discourse as speakers and listeners free from state-imposed viewpoint-based restrictions. All persons should have a basic right to express, hear and consider any viewpoint within public discourse. This doctrine of viewpoint neutrality requires that citizens in liberal democracies ought to have a legal free speech right to do moral wrong – that is, a legal right to express and defend any viewpoint within public discourse, even if it is morally wrong to express, or expose others to, such views. (shrink)

In their article, ‘The Two Front War on Reproductive Rights,’ Minkoff, Vullikanti, and Marshall (2024) highlight the challenges faced by pregnant persons following the overturn of Roe v. Wade (Dobb...

Two right-to-die organisations offer assisted suicide in Switzerland. The specific legal situation allows assistance to Swiss and foreign citizens. Both organisations require a report of the person’s health status before considering assistance. This qualitative study explored these reports filed to legal authorities after the deaths of individuals in the area of Zurich. Health status reports in the legal medical dossiers of the deceased were analysed using content analysis and Grounded Theory. From 421 cases of assisted suicide (2001–2004), 350 reports (...) on health status were filed. Many cases contained diagnosis lists only. Other reports had more elaborate reports revealing that some physicians were aware about the patient’s death wish and the intention to solicit assisted suicide. Physicians’ attitudes ranged from neutral to rather depreciative. Few physicians openly referred the patient to the organisations and supported the patient’s request by highlighting a history of suffering as well as reporting understanding and agreement with the patient’s wish to hasten death. In the health status reports five categories could be identified. Some files revealed that physicians were aware of the death wish. The knowledge and recognition of the patient’s death wish varied from no apparent awareness to strongly supportive. This variety might be due to difficulties to discuss the death wish with patients, but might also reflect the challenge to avoid legal prosecution in the country of origin. To require comparable health status reports as requirements for the right-to-die organisations might be difficult to pursue. (shrink)

Very few scholars discuss the moral basis of the right of persons accused of crimes to be supplied with attorneys if they cannot afford them. More discussion of the topic is needed, in particular because political theorists who prefer a minimal state deny that indigent persons have such a moral right. This article addresses their contentions by developing three arguments for supplying poor persons accused of crimes with defense attorneys. First, doing so will (...) prevent state officials from becoming emboldened in their dealings with the poor, such that they might come to pose a threat to the non-poor. Second, poor persons who believe that the state does not treat them fairly will have reduced incentives to abide by the law, which will, in turn, increase the cost of the minimal state. Third, the better off should show solidarity with the poor in demanding that the minimal state honor all citizens’ rights to life, liberty, and property. Crucial to these arguments is the claim that a right of indigent defense is unlike other welfare rights in that securing it protects other basic moral rights that minimal statists acknowledge. (shrink)

Governments and majoritarian political formations often present police violence as nationalist media spectacles, which marginalize the rights of the accused and normalize the discourse of majoritarian nationalism. In this study, we explore the public discourse of how the State and political actors repeatedly labeled a college-going student Ishrat Jahan, who died in a stage-managed police killing in India in 2004, as a terrorist. We draw from Derrida’s ethics of unconditional hospitality to show that while police violence is aimed at (...) constructing safety for the cultural majority, in reality, it reveals discourses of anxiety and precariousness. The unethicality of police violence lies in the enlargement of recognition in vicariously blaming the person who has been killed for being involved in several terror attacks. We show that police violence is premised on the temporal structure of majoritarian nationalism, the prevalence of gender inequity, and the call to breach the secular framework of law. (shrink)

This chapter sides with those who believe that a right to stay should be counted among fundamental human rights. However, it also acknowledges that there are good reasons for objecting to the most popular justifications of the right to stay, which are based on the assumption that people have valuable ties to their community of residence and that people’s life plans are located where they live. In response to these qualms, this chapter argues that the best way to (...) make sense of the right to stay is to conceive it as belonging to the category of “control rights”; these are the rights that protect people’s control over their own bodies and personal space, which is an essential condition for personhood and human dignity. This account of the right to stay can overcome the most pressing objections to its recognition as a fundamental human right. (shrink)

Hunger strikes are commonly repressed in prison and seen as disruptive, coercive, and violent. Hunger strikers and their advocates insist that incarcerated persons have a right to hunger strike, which protects them against repression and force-feeding. Physicians and medical ethicists generally ground this right in the right to refuse medical treatment; lawyers and legal scholars derive it from incarcerated persons’ free speech rights. Neither account adequately grounds the right to hunger strike because both misrepresent (...) the hunger strike as noncoercive and nonviolent. I articulate an alternative, dual account of the right to hunger strike. On the remedial argument, the right to hunger strike should be legally protected as a right to petition for redress, in light of incarcerated people’s structural vulnerability to abuse and given inadequate grievance mechanisms. The constructive argument derives the right to hunger strike from the right to resist oppression and stresses the normative permissibility of the use of coercive tactics to defend one’s liberty interests in the face of carceral oppression. -/- . (shrink)

Major considerations of disability studies—such as provision of care, accommodation for disabled people, and issues surrounding institutionalization—have been consistently marginalized in American bioethical discourse. The right to die, however, stands out as a paradigmatic bioethical debate. Why do advocates for expanding the volition and self-direction of disabled people emerge from the periphery only to help those disabled people who choose death? And why do the majority of people assume an unrealistically low quality of life for those with disabilities? This (...) paper will argue that the dominance of the Western liberal tradition in American culture motivates both these phenomena: by emphasizing individual rights over duties and responsibilities, assuming the isolated and independent rights-bearer as the prototypical person, and evoking an unrealistically atomistic view of human interaction. As an alternative, I offer a framework rooted in feminist ethics that emphasizes context, gives moral weight to human relationships, abandons the problematic ideal of a lone rights-bearer, and emphasizes the mutual vulnerability of embodied individuals. (shrink)

The bioethical principle of autonomy is of paramount importance within medical practice. The extent to which a patient’s autonomy overlaps or conflicts with the physician’s duty of beneficence and non-maleficence, however, is not so clear cut, especially for those cases in which the patient’s request for medical intervention goes against the physician’s advice, either because of personal belief or because there is uncertainty regarding the therapeutic approach. Body integrity dysphoria (BID) is a condition that has been included recently in the (...) International Classification of Diseases, 11th edition (ICD-11). It may lead an affected individual to develop an intense desire to remove a specific body part in order to restore congruity between their body and their mind. Thus, its occurrence creates challenging moral and ethical dilemmas for the medical world (Loriga, 2023). The aim of this study was to investigate how Czech physicians understood, assessed and supported patient autonomy regarding requests for invasive body modifications. The objective was to produce a blueprint regarding how much a patient could influence the medical treatment they could gain within the Czech medical system and to develop a comparison with the ethical challenges of BID. A five-section survey was designed and submitted to Czech physicians on topics relevant to the BID debate. On the surface, the results showed an apparent predisposition toward collaboration between doctors and patients. However, further investigation showed that this supposed collaboration crumbled as the physiological risk-reward ratio moved further toward risk, which caused physicians progressively to rely less on the patient’s opinion and psychological needs. Moreover, a strongly authoritarian approach was evident, which became overwhelming in cases of amputation requests and removed, a priori, any collaboration. The results indicate that the Czech medical system does not accept or comprehend fully patients’ psychological needs, and therefore the BID phenomenon is a long way from being understood, which requires a fundamental paradigm shift. (shrink)

I argue that the moral right to privacy is the moral right to consent to access by others to one’s personal information. Although this thesis is relatively simple and already implicit in considerations about privacy, it has, nevertheless, been overlooked by philosophers. In the paper, I present and defend my account of the moral right to privacy, respond to possible objections to it, and attempt to show its advantages over two recent accounts: one by Steve Matthews and (...) the other by Adam Moore. I also offer reasons to think that my account can be assimilated into a broad range of fundamental ethical approaches (i.e., a variety of consequentialist,deontological, and natural law approaches). Given the number and variety of such approaches, however, I can only attempt to make a prima facie case for the adaptability of the proposed account. (shrink)

"Is higher education a right, or a privilege? This author argues that all citizens in a free and open society should have an unconditional right to higher education. Such an education should be costless for the individual and open to everyone regardless of talent. A readiness and willingness to learn should be the only qualification. It should offer opportunities that benefit citizens with different interests and goals in life. And it should aim, as its foundational moral purpose, to (...) help citizens from all walks of life live better, freer lives. Using concepts and ideas from liberal political philosophy the author argues that access to educational goods and services is something to which all citizens have a right over a full life. Such goods, it is argued, play a key role in helping citizens realize self-determined goals. Higher education should therefore be understood a basic social institution responsible for ensuring that all citizens can access such 'autonomy-supporting' goods. The book examines the implication of this justification of the right to higher education for questions of educational justice, political authority, distributive justice, civic education, and personal autonomy"--. (shrink)

Stephen Darwall’s The Second Person Standpoint is built around an analysis of the “second-person standpoint,” which he argues builds in a series of presuppositions which help shape (and perhaps even give content to) morality. This paper argues that there is a kind of paradox tied up in the two central claims at the heart of this project – that second-personal address directs one practically rather than epistemically by giving reasons for action one otherwise would not have had, and that all (...) moral obligation is second-personal in precisely this way – that I will argue forces us onto the horns of a dilemma. Two possible solutions to this dilemma are analyzed, one drawing on the Kantian notion of a “regulative ideal,” the other on Michael Thompson’s concept of “bipolar normativity.” Ultimately, I argue, neither is successful. (shrink)

Does a human right to healthcare imply individual obligations to healthy behavior? Or put another way: Is a self-induced condition a relevant criterion for some sort of restriction of this right—like withholding or modifying treatment in circumstances where choices have to be made? For instance, should a drunk driver bear the costs of medical care that he needs after a car accident he has caused? Should there be a difference in healthcare entitlements between the smoker with a heart (...) attack who is seriously overweight and the 60-year old man who has always taken excellent care of himself and is suddenly stricken by leukemia? And how should we think about the risk-taking behavior of all the persons going on a skiing holiday or an exotic hiking trip? a. (shrink)

It has been debated whether the so-called attention economy, in which the attention of agents is measured and sold, jeopardizes something of value. One strand of this discussion has focused on so-called attention rights, asking: should attention be legally protected, either by introducing novel rights or by extending the scope of pre-existing rights? In this paper, however, in order to further this discussion, we ask: How is attention already protected legally? In what situations does a person have the right (...) to attention under current law? -/- Unlike (Chomanski, Neuroethics 16:1–11, 2023), who discusses an overall right to attention, or (Puri, Rutgers Law Record 48:206–221, 2021), who discusses an overall right to attentional privacy, in this paper we focus on two types of situations in which a person’s attention is already protected by legal regulation. Sustained attention-requiring tasks can be jeopardized by distractions whereas attentiveness to certain kind of stimuli can be jeopardized by immersive stimuli. That is why distractions are regulated in situations where an agent has what we call a concentration right and immersive stimuli are regulated in situations where an agent has what we call a duty to be attentive. The further analysis of these situations provides an understanding of the legal means by which attention is already regulated, which can be helpful when thinking about how it should be regulated in the future. (shrink)

The privacy concerns discussed in the 1990s in relation to the New Genetics failed to anticipate the relevant issues for individuals, families, geneticists and society. Consumers, for example, can now buy their personal genetic information and share it online. The challenges facing genetic privacy have evolved as new biotechnologies have developed, and personal privacy is increasingly challenged by the irrepressible flow of electronic data between the personal and public spheres and by surveillance for terrorism and security risks. This book considers (...) the right to know and the right not to know about your own and others’ genomes. It discusses new privacy concerns and developments in ethical thinking, with the greater emphasis on solidarity and equity. The multidisciplinary approach covers current topics such as biobanks and forensic databases, DIY testing, group rights and accountability, the food we eat and the role of the press and the new digital media. (shrink)

Regulation No 17: First Regulation implementing Articles 85 and 86 of the Treaty set out that in carrying out the duties assigned to it by Article 89 and by provisions adopted under Article 87 of the Treaty, the officials authorized by the EU Commission were empowered inter alia to enter any premises, land and means of transport of undertakings. Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 (...) and 82 of the Treaty has expanded Commission’s powers stating that Commission can by decision order an inspection to be conducted in any other premises, land and means of transport, including the homes of directors, managers and other members of staff of the undertakings and associations of undertakings concerned. Such an expansion of the investigative powers of the Commission raises a question of the balance between effectiveness of the EU competition law and a person’s right to privacy, which is guaranteed to everyone by the Article 8 of the European Convention on Human Rights. Nevertheless this right is not absolute and the conditions for the possible limitations of the exercise of it are enshrined in paragraph 2 of the same article. For this reason the aim of this article is to find out whether Commission’s power to carry out searches in private homes meet the requirements set in Article 8(2) of the Convention, i.e., whether the Commission’s power to conduct such searches could be justified under the ECHR Article 8(2). In this study, the authors analyse the Commission’s extended investigative powers, clarify what is covered by the concept of “privacy”, evaluate the requirements set in Article 8(2) of the Convention, analyse conditions of exercising Commission’s extended investigative power and thus qualify if the latter satisfies the requirements set in Article 8(2) of the ECHR. (shrink)

Catholic doctrine’s strict prohibition on abortion can lead clinicians or institutions to conscientiously refuse to provide abortion, although a legal duty to provide abortion would apply to anyone who refused. Conscientious refusals by clinicians to end a pregnancy can constitute murder or reckless homicide under American law if a woman dies as a result of such a refusal. Such refusals are not immunized from criminal liability by the constitutional right to the free exercise of religion or by statutes that (...) confer immunity from criminal homicide prosecution. Core principles of the rule of law require the state to protect the lives of all persons equally and to place the life and health of persons above any the interests of providers have in moral integrity or in respecting the moral status of prenatal humans. In some states criminal liability related to conscientious objection also applies to corporate hospital officials. (shrink)

: The rights to liberty championed by classical liberal and libertarian theorists may be supported as products of practical reason. The foundations for these rights rest initially on the idea that the separateness of persons is embedded in the circumstances of life that make justice a meaningful concept. We can discover the duties justice imposes […].

The right to resist and the right to rebel have again become relevant as legal problems. Their justifications traditionally derive from natural law, human rights, the principle of the lesser evil or of the social contract. Interpretation of the right to resist expresses the tendencies to the law of people, in particular, the right to self-determination, distinguishing national and international understanding, and underscores the special nature of such right. Also, two-level research of the right (...) to resist should be distinguished research of the right to resist – the first is a debate about the nature character and legislative consolidation of this right, partly focused on preventive-limiting its properties, whereas the second one is updated at the time of social upheaval and legal concerns, and it contains not only the evaluation of the events, but sometimes attempts to justify ex post risk of abuse and original post-legitimation of public authorities. An important condition for the existence of the right to resistance is a legitimate aim. This could be called the internal condition, which is provided by those who implement this right. Other condition (which can be called external) and the base of implementation should recognize certain actions, acts or decisions by public authorities – those that violate human rights are illegal and unfair. At the same time, the purpose and result of the right to resistance may be changes in the public authorities, the termination of abuse of authority and violation of human rights by its agents, return to democratic legal regime or change in the constitutional system, aimed at creating a state of law, as well as in some cases, when combined with the right to self-determination, – the achievement of independence. The author of the present paper considers that the right to resist is an individual right, a human right. The author inclines to the idea of the collective nature of the right to resist implementation, but warns against simply counting the number of persons engaged in it. In other words, it does not matter how many people commit acts, but it does matter how many people support them. Considering the modalities of implementing the right to resist, it should be noted that these forms can be active or passive, expressed in actions directly or indirectly. The right of rebellion is an extreme form of the right to resist, which is carried out in case if the non-violent means of resistance are exhausted or proved ineffective. The conditions (and bases) of the right of rebellion are phenomena, such as the following: (1) massive human rights violations by public authorities (quantitative criterion); (2) systematic human rights violations by public authorities (accumulating criterion); or (3) extraordinary human rights violations by public authorities (criterion by serious, explicit and violent nature of the violation). Ambiguous is an issue of the limits of the right of rebellion, its permission and proportion, as well as whether it is possible to develop a mechanism for exercising this right. (shrink)