Discrimination as Negligence

2010 ◽  
Vol 36 ◽  
pp. 123-149 ◽  
Author(s):  
Sophia Moreau
Keyword(s):  
Human Rights ◽  
Distributive Justice ◽  
Equal Treatment ◽  
Equal Access ◽  
Philosophical Literature ◽  
Equality Rights ◽  
Social Goods ◽  
Principles Of Justice

There is a rich philosophical literature on the value of equality: on whether and why it matters, what its “currency” ought to be, and whether it should be balanced against other important values, such as freedom, or conceptualized in terms of equal access to them. Most of this literature is a contribution to debates about distributive justice: it is concerned with how we should understand equality when our aim is to arrive at general principles of justice that could guide social or political authorities in distributing goods under their control. But there is also a different context in which we can, and do, ask about equality. Sometimes, when we ask whether someone has been treated equally, our aim is to assess whether they have faced discrimination. This is, of course, what courts and human rights tribunals do when interpreting constitutional or statutory equality rights – for these rights are usually understood not as general rights to equal treatment in the distribution of social goods, but rather as rights not to be discriminated against on the basis of a select number of prohibited grounds.

The Impact of Anti-Discrimination Law in the Netherlands

2019 ◽  
pp. 233-243
Author(s):  
Titia Loenen
Keyword(s):  
Human Rights ◽  
The Netherlands ◽  
Muslim Women ◽  
Equal Treatment ◽  
Equal Access ◽  
Religious Minorities ◽  
Starting Point ◽  
The Impact ◽  
Positive Force

Dutch anti-discrimination law has been quite a positive force in combating discrimination on grounds of religion in employment by contributing to an approach to manifestations of religion in the workplace that takes accommodation of religious expressions rather than prohibition as its starting point. In this way, anti-discrimination law has promoted equal access to employment for religious minorities, in particular for Muslim women. A major role in this development has been played by the primary supervisory body of anti-discrimination law, the former Equal Treatment Commission and its successor, the National Institute of Human Rights, whose decisions are analysed in the chapter.

Global distributive justice? State boundaries as a normative problem

2012 ◽  
Vol 1 (2) ◽  
pp. 261-277 ◽  
Author(s):  
ANDREAS FOLLESDAL
Keyword(s):  
Human Rights ◽  
Distributive Justice ◽  
International Institutions ◽  
Basic Structure ◽  
Life Plans ◽  
Global Distributive Justice ◽  
International Obligations ◽  
Normative Problem ◽  
State Boundaries ◽  
Principles Of Justice

AbstractShould state borders matter for claims of distributive justice? The article explores, only to reject, the best reasons for an ‘Anti-Cosmopolitan’ position which grants some minimum international obligations, including social and economic human rights. At the same time this Anti-Cosmopolitanism rejects distinctly distributive principles of justice, familiar from discussions of justice among compatriots: There are no further limits on permissible global inequalities. ‘Anti-Cosmopolitans’ do not deny that the tangled web of domestic and international institutions has a massive impact on individuals, their life plans and opportunities, albeit often indirectly and surreptitiously. What they deny is that claims to equality or limits to inequality should apply across state borders. The article explores what it is about states that can justify such a disjunct in the normative claims individuals have against each other. Several arguments about such alleged salient aspects of states and their constitutions are considered, but are found lacking. The main conclusion is to challenge the reasons Anti-Cosmopolitans offer against bringing distributive principles to the ‘Global Basic Structure’.

The Social and Institutional Bases of Distributive Justice

2018 ◽  
Author(s):  
Samuel Freeman
Keyword(s):  
Distributive Justice ◽  
Division Of Labor ◽  
Political Institutions ◽  
Social Cooperation ◽  
Economic Production ◽  
Political Cooperation ◽  
The Social ◽  
Principles Of Justice ◽  
Trade And Exchange ◽  
Cooperative Institutions

This chapter argues that distributive justice is institutionally based. Certain cooperative institutions are basic: they are necessary for economic production and the division of labor, trade and exchange, and distribution and consumption. These background institutions presuppose principles of justice to specify their terms, allocate productive resources, and define fair distributions. Primary among these basic institutions are property; laws and conventions enabling transfers of goods and productive resources; and the legal system of contract and agreements that make transfers possible and productive. Political institutions are necessary to specify, interpret, enforce, and make effective the terms of these institutions. Thus, basic cooperative institutions are social; they are realizable only within the context of social and political cooperation—this is a fixed empirical fact about cooperation among free and equal persons. Given the nature of fair social cooperation as a kind of reciprocity, distributive justice is primarily social rather than global in reach.

Introduction

2018 ◽  
Author(s):  
Samuel Freeman
Keyword(s):  
Distributive Justice ◽  
Economic Systems ◽  
Classical Liberalism ◽  
Market Socialism ◽  
Central Values ◽  
Moral Conception ◽  
The Difference ◽  
Principles Of Justice

This introductory chapter begins with a discussion of liberalism, which is best understood as an expansive, philosophical notion. Liberalism is a collection of political, social, and economic doctrines and institutions that encompasses classical liberalism, left liberalism, liberal market socialism, and certain central values. This chapter then introduces subsequent chapters, which are divided into three parts. Part I, “Liberalism, Libertarianism, and Economic Justice,” clarifies the distinction between classical liberalism and the high liberal tradition and their relation to capitalism, and then argues that libertarianism is not a liberal view. Part II, “Distributive Justice and the Difference Principle,” analyzes and applies John Rawls’s principles of justice to economic systems and private law. Part III, “Liberal Institutions and Distributive Justice,” focuses on the crucial role of liberal institutions and procedures in determinations of distributive justice and addresses why the first principles of a moral conception of justice should presuppose general facts in their justification.

Debt Crisis and Learning – Replying to Two Stimulating Reviews

2020 ◽  
Vol 0 (0) ◽  
Author(s):  
Juan Pablo Bohoslavsky ◽  
Kunibert Raffer
Keyword(s):  
Human Rights ◽  
Sovereign Debt ◽  
Debt Crisis ◽  
Equal Treatment ◽  
Human Rights Law ◽  
Policy Space ◽  
Debt Crises

AbstractThis piece tackles Barrio Arleo and Lienau’s comments on Sovereign Debt Crises: What Have We Learned? while tries to further develop some ideas and discussions proposed in the book. This piece deals with existing alternatives to overcome debt crises, the link between sovereign policy space and the principle of creditors’ equal treatment, who the target of the book is (and should be), whether “learning is enough”, and the potential policy and legal role of human rights law in debt restructurings.

The concept of human dignity in the case-law of the Supreme Court of Canada on Charter Equality Rights

2021 ◽  
Vol 30 (5) ◽  
pp. 118-137
Author(s):  
Tatiana Vasilieva ◽  
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Supreme Court ◽  
Human Dignity ◽  
Case Law ◽  
Supreme Court Of Canada ◽  
Equality Rights ◽  
The Supreme Court ◽  
Additional Burden ◽  
The Impact

This article explores the evolution of the Supreme Court of Canada’s approach to the application of the concept of human dignity in constitutional equality cases. Traditionally, in human rights cases, this concept serves only to strengthen the argument, to show that the violation affects the person’s intrinsic worth. It is only in Canada and in South Africa that there is experience in applying the concept as a criterion for identifying discrimination. In 1999, in Law v. Canada, the Supreme Court recognized the purpose of Article 15(1) of the Canadian Charter of Rights and Freedoms of 1982 to be the protection of human dignity and stated that discrimination must be established based on assessment of the impact of a program or law on human dignity. However, in 2008, in R. v. Kapp, the Court noted that the application of the concept of human dignity creates difficulties and places an additional burden of prove on the plaintiff. It is no coincidence that victims of discrimination have preferred to seek protection before human rights tribunals and commissions, where the dignity-based test is not used. Subsequently, the Supreme Court of Canada rejected the use of the concept of human dignity as a criterion for identifying discrimination. The unsuccessful experience of applying the concept of human dignity as legal test has demonstrated that not every theoretically correct legal construction is effective in adjudication.

Libertŕ e diritti tra India ed Europa. Un approccio genealogico ai valori culturali

2009 ◽  
pp. 541-563
Author(s):  
Clelia Bartoli
Keyword(s):  
Human Rights ◽  
Cultural Values ◽  
Cultural Relativism ◽  
Sanskrit Text ◽  
Philosophical Literature ◽  
Bhagavad Gita ◽  
Interesting Idea ◽  
Rights Discourse ◽  
Bhagavad Gītā ◽  
Human Rights Discourse

- This paper will deal with the issue of human rights and multiculturalism away from cultural relativism and universalism while taking inspiration from Nietzsche's Moral Genealogy. In particular, the concepts of karma, dharma and trivarga (an indian traditional form of particularism in the law) will be explained as they are expressed in the Bhagavad Gita, one of the most important texts of Indian philosophical literature. From this analysis it will emerge the impossibility of deducing the idea of human rights from the Sanskrit text. Not because the Bhagavad Gita adopts a communitarian conception of the self but because it entails a very complex and interesting idea of freedom which is little compatible with contemporary human rights discourse. Then, it will be quoted a criticism against the Bhagavad Gita based on the historical genealogy of cultural values, as it was formulated by B.R. Ambedkar - Chairman of the Drafting Committee of Indian Constitution. Finally, this writing will highlight some of the misunderstandings revolving around human rights and multiculturalism. This will be done while suggesting a genealogical approach where different intellectual and law traditions challenge and implement each other, rather than being locked in a sterile mutual respect.

L'azione dell'Unione europea contro le discriminazioni basate sulla religione: l'impatto della giurisprudenza della Corte europea dei diritti umani

2012 ◽  
pp. 475-511
Author(s):  
Federico Casolari
Keyword(s):  
Human Rights ◽  
General Framework ◽  
Case Law ◽  
Legal Order ◽  
Equal Treatment ◽  
Freedom Of Religion ◽  
Eu Law ◽  
The Right ◽  
The Impact ◽  
The Eu

Law Although EU law has established a general framework concerning the fight against discriminations on the grounds of religion (namely as far as equal treatment in employment and occupation is concerned), the related ECJ case law is not very rich. This article tracks and evaluates the impact of the ECHR case law devoted to the freedom of religion on the interpretation and application of EU law concerning religion discriminations. It argues that the ECHR case law may contribute to identify the notion of ‘religion' which is relevant for EU law, while several arguments may be put forward against the application of the Strasbourg approach to the balancing between the right to quality based on religion and others human rights into the EU legal order.

Court of Justice of the European Union (Seventh Chamber) Kerly Del Rosario Martinez Silva v Instituto nazionale della previdenza sociale (INPS) Comune di Genova

2018 ◽  
Vol 20 (3) ◽  
pp. 357-363
Author(s):  
Bjarney Friðriksdóttir
Keyword(s):  
European Union ◽  
Human Rights ◽  
Case Report ◽  
Fundamental Rights ◽  
Equal Treatment ◽  
Preliminary Ruling ◽  
The European Union ◽  
Labour Law ◽  
Court Of Justice ◽  
Charter Of Fundamental Rights

Abstract This case report provides an account of the issues addressed in the preliminary ruling of the CJEU in Martinez Silva vs. Italy. The case centres on the limitations Member States of the European Union are permitted to apply in granting third-country nationals in employment equal treatment with nationals in social security rights according to Directive 2011/98/EU (the Single Permit Directive). Additionally, the preliminary ruling of the Court is discussed is discussed in the context of the human rights principle of equal treatment as it is enshrined in EU Charter of Fundamental Rights and International Labour Law.

scholarly journals Refl ections on the Principle of Equal Treatment in EU Law and the Jurisprudence of the Court of Justice of the European Union and the European Convention on Human Rights

2020 ◽  
Vol 9 (1) ◽  
pp. 5-23
Author(s):  
Marija Daka
Keyword(s):  
European Union ◽  
Human Rights ◽  
Equal Treatment ◽  
European Convention ◽  
Eu Law ◽  
The European Union ◽  
European Union Law ◽  
Court Of Justice ◽  
European Court ◽  
Complex Approach

The paper presents some of the most relevant aspects of European nondiscrimination law established th rough European Union law and the European Convention on Human Rights, looking also at the evolution of the norms and milestones of case-law on equal treatment within the two systems. The paper gives an overview of the non-discrimination concept as interpreted by the Court of Justice of the European Union and by the European Court of Human Rights. We examine the similar elements but also give insight into conceptual differences between the two human rights regimes when dealing with equal treatment. The differences mainly stem from the more complex approach taken by EU law although, based on analysed norms, cases, and provisions, the aspects of equal treatment in EU law are largely consistent with the practice of the ECtHR. Lastly, the paper briefl y places the European non-discrimination law within the multi-layered human rights system, giving some food for thought for the future potential this concept brings.

Sign in / Sign up

Export Citation Format

Share Document