Proportionality and Justification

2019 ◽  
pp. 159-196
Author(s):  
Matthias Klatt
Keyword(s):  
Human Rights ◽  
Cultural Relativity ◽  
Rational Application ◽  
Global Constitutionalism ◽  
Normative Basis ◽  
Space Of Reasons ◽  
Proportionality Test ◽  
The Right

This chapter presents a normative defense of proportionality’s absolute validity, arguing that proportionality is one of the central rules that establish the space of reasons. Proportionality enables the construction of a justified and well-founded basis for the rational application of human rights. The normative basis of proportionality lies in a moral right to justification. To explore this idea, the chapter begins by explaining the meaning of a right to justification. Next, it explores how it relates to the proportionality test. Building upon the distinction between internal and external justification of rights reasoning, it also addresses the universality problem that consists in doubts about the global validity of the right to justification. It defends the international and transnational validity of the right to justification against claims to cultural relativity by discussing the application of human rights. This, in turn, allows a defense of Forst’s right to justification as a robust fundament of discursive global constitutionalism.

scholarly journals DISKURSUS PERKAWINAN BEDA AGAMA DI INDONESIA DALAM TINJAUAN UNIVERSALISME HAM DAN RELATIVISME BUDAYA

2021 ◽  
Vol 20 (1) ◽  
pp. 131
Author(s):  
Fitrawati Fitrawati
Keyword(s):  
Human Rights ◽  
The State ◽  
Universal Declaration ◽  
Cultural Relativism ◽  
The Other ◽  
Freedom Of Religion ◽  
Legal Research ◽  
Interfaith Marriage ◽  
Cultural Relativity ◽  
The Right

This paper tries to examine the right to freedom of interfaith marriage in Indonesia from the perspective of Human Rights Universalism and Cultural Relativism. The purpose of this paper is to explain how universalism and cultural relativity view interfaith marriage in Indonesia. This research is a normative legal research. This study uses a literature approach. The findings of this study indicate that interfaith marriage in Indonesia is still not well accepted and has always been controversial news in the community, even considered to have exceeded or violated the provisions of marriage, but there are still followers of different religions who decide to marry. In fact, many of them are smuggling laws so that their marriages are recognized by the state, namely by registering marriages abroad and then continuing the registration in Indonesia. Meanwhile, on the other hand, Indonesia already has a law on Marriage, namely, Article 2 paragraph 1. It is also contained in the article of the Universal Declaration of Human Rights, namely the right to freedom of marriage (article 16 UDHR) which includes the right to marry between religions (different religions), and the right to freedom of religion (article 18 UDHR) which includes the right to change religions. Meanwhile, in cultural realivism, it rejects everything that is universal.

scholarly journals Od predmeta Mccann do predmeta F.J.M.

2020 ◽  
Vol 41 (1) ◽  
pp. 113-132
Author(s):  
Gabrijela Mihelčić ◽  
Maša Marochini Zrinski ◽  
Renata Šantek
Keyword(s):  
Human Rights ◽  
Case Law ◽  
The State ◽  
European Convention ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
Proportionality Test ◽  
The Right ◽  
Analyse Case

The authors discuss and analyse case law of the European Court of Human Rights regarding the right to respect for home under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and with respect the issue of proportionality. In the paper, the proportionality category was viewed as a criterion for securing protection and as a material precondition for deciding whether the State party's interference with the right to respect for home was proportionate. The cases in which the applicant's eviction occurred after national proceedings for the enforcement of mortgages were addressed. In this context, the genesis of the proportionality category was analysed, from the cases where the Court found it necessary to examine the proportionality to the cases where the Court did not consider the proportionality test necessary.

scholarly journals Self-determination and “the Right to Specificity”. Concerning Hegel’s Theory of Modern Freedom

2021 ◽  
Vol 12 (2) ◽  
pp. 78-88
Author(s):  
Erzsébet Rózsa
Keyword(s):  
Human Rights ◽  
Cultural Transformation ◽  
Self Determination ◽  
Norms And Values ◽  
Normative Basis ◽  
Moral Normativity ◽  
Forms Of Life ◽  
Philosophy Of Right ◽  
The Right

In this paper, it will be shown that Hegel’s philosophical thematisation of subjective freedom has given a fundamental contribution to the historical innovation of modernity, which regards not only human rights, but also norms and values. Besides, it played an important role concerning the cultural transformation, i.e., the process of the realization of the historical innovation oriented towards the ideals of modern freedom. To show this, the author will focus on some passages from Hegel’s Philosophy of Right of 1820, in which Hegel regarded subjective freedom as universally-normative and, at the same time, as socially and historically contextualized (situated, respectively). Hegel, namely, explicates modern freedom in its ideality and moral normativity, addressing its realization in particular forms of life. Marriage, for instance, as it will be shown towards the end of this contribution, exemplified as the right to particularity, is the normative basis of modern subjective freedom. Tensions and collisions will permanently challenge this type of freedom and also require permanent (and self-defeating) efforts invested in striving for a (too contextualized and situated) „reconciliation“ (in Hegel´s terms Versöhnung).

The Right to Leave Any Country and the Interplay between Jurisdiction and Proportionality in Human Rights Law

2020 ◽  
Author(s):  
Vladislava Stoyanova
Keyword(s):  
Human Rights ◽  
The State ◽  
European Countries ◽  
Human Rights Law ◽  
Legal Relationship ◽  
The Law ◽  
Proportionality Test ◽  
The Right

Abstract This article shows the importance in human rights law of the right to leave any country, in light of increasing efforts by European countries of destination to prevent departures and to contain movement by enlisting countries of origin and transit to act as gatekeepers. The article highlights the autonomous nature of the right and challenges in triggering its application. It assesses whether this right is opposable to destination countries, and finds two key challenges – first, meeting the requisite jurisdictional threshold, and secondly, as this is a qualified right, applying the proportionality test. The article examines the interplay between these difficulties. It argues that the jurisdictional threshold expresses a political and legal relationship between the duty bearer (the State) and the right holders (the individuals). This relationship enables us to operationalize the proportionality test – namely whether measures limiting rights are in accordance with the law and are proportionate.

Human rights, capabilities and the normative basis of ‘Education for All’

2011 ◽  
Vol 9 (3) ◽  
pp. 283-298 ◽  
Author(s):  
Tristan McCowan
Keyword(s):  
Human Rights ◽  
Capabilities Approach ◽  
Education For All ◽  
Right To Education ◽  
Normative Basis ◽  
The Right

While commitment to a universal entitlement to education is highly desirable, some significant limitations have been identified in the right to education as currently expressed and implemented. This article assesses the contribution that the capabilities approach can make in this regard. While some proponents have suggested that capabilities should replace a rights framework, it is argued here that the elements of ‘threshold’ and ‘duty-bearer’ present in human rights are essential, and that a more promising approach is to combine the two frameworks. Three significant contributions that the capabilities approach can make in relation to Education for All are proposed: providing a fuller conception of the realization of the right to education; addressing the heterogeneity of learners; and guarding against an overly state-facing approach.

Tourism as a Tool for the Fulfilment of the Rights to Rest and Leisure Enshrined in Article No. 24 of the Universal Declaration of Human Rights

2019 ◽  
Vol 76 (3-4) ◽  
pp. 180-188
Author(s):  
Bianca Nicla Romano
Keyword(s):  
Human Rights ◽  
Legal System ◽  
Universal Declaration ◽  
Title V ◽  
Negative Consequences ◽  
Real Right ◽  
Right To Work ◽  
The Individual ◽  
The Right ◽  
Italian Constitution

Art. 24 of the 1948 Declaration of Human Rights recognises and protects the right of the individual to rest and leisure. This right has to be fully exercised without negative consequences on the right to work and the remuneration. Tourism can be considered one of the best ways of rest and leisure because it allows to enrich the personality of the individual. Even after the reform of the Title V this area is no longer covered by the Italian Constitution, the Italian legal system protects and guarantees it as a real right, so as to get to recognize its existence and the consequent compensation of the so-called “ruined holiday damage”. This kind of damage has not a patrimonial nature, but a moral one, and the Tourist-Traveler can claim for it when he has not been able to fully enjoy his holiday - the essential fulcrum of tourism - intended as an opportunity for leisure and/or rest, essential rights of the individual.

CIVIL AND LEGAL LIABILITY OF JUDGES

2017 ◽  
Author(s):  
Yaroslav Skoromnyy ◽  
Keyword(s):  
Human Rights ◽  
Pension System ◽  
Legal Liability ◽  
Judicial System ◽  
Constitutional Court ◽  
Model Code ◽  
European Court ◽  
The Status ◽  
The Law ◽  
The Right

The article presents the conceptual foundations of bringing judges to civil and legal liability. It was found that the civil and legal liability of judges is one of the types of legal liability of judges. It is determined that the legislation of Ukraine provides for a clearly delineated list of the main cases (grounds) for which the state is liable for damages for damage caused to a legal entity and an individual by illegal actions of a judge as a result of the administration of justice. It has been proved that bringing judges to civil and legal liability, in particular on the basis of the right of recourse, provides for the payment of just compensation in accordance with the decision of the European Court of Human Rights. It was established that the bringing of judges to civil and legal liability in Ukraine is regulated by such legislative documents as the Constitution of Ukraine, the Civil Code of Ukraine, the Explanatory Note to the European Charter on the Status of Judges (Model Code), the Law of Ukraine «On the Judicial System and the Status of Judges», the Law of Ukraine «On the procedure for compensation for harm caused to a citizen by illegal actions of bodies carrying out operational-search activities, pre-trial investigation bodies, prosecutors and courts», Decision of the Constitutional Court of Ukraine in the case on the constitutional submission of the Supreme Court of Ukraine regarding the compliance of the Constitution of Ukraine (constitutionality) of certain provisions of Article 2, paragraph two of clause II «Final and transitional provisions» of the Law of Ukraine «On measures to legislatively ensure the reform of the pension system», Article 138 of the Law of Ukraine «On the judicial system and the status of judges» (the case on changes in the conditions for the payment of pensions and monthly living known salaries of judges lagging behind in these), the Law of Ukraine «On the implementation of decisions and the application of the practice of the European Court of Human Rights».

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