The ‘Human’ in Human Rights and the Law

2019 ◽  
pp. 136-166
Author(s):  
Rowan Cruft
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
Specific Model ◽  
Natural Rights ◽  
Legal Rights ◽  
Generic Model ◽  
Human Rights Law ◽  
Economic Rights ◽  
Positive Law ◽  
Central Argument

Chapter 9 examines what differing conceptions of ‘the human good’ underpinning pre-legal rights imply for such rights’ relation to positive law. Three models are compared: a varied, specific model on which each party’s good might be different from anyone else’s, a shared specific model on which certain things (e.g. education, sustenance, freedom) are good for each and every human, and a generic model on which the good of ‘the generic human’ grounds human rights. Problems for each approach are outlined, as are their differing implications for the relation between pre-legal ‘natural’ human rights and human rights law, criminal law, and other branches of law. A central argument defends the view that the socio-economic rights recognized by human rights law institutionalize pre-legal ‘natural’ rights borne by individuals against other individuals, their state and—most crucially for the author’s argument—humanity at large. The contrary views of Buchanan and O’Neill are criticized.

scholarly journals THE USE OF FLOGGING AS A PUNISHMENT IN SAUDI ARABIA FROM THE PERSPECTIVE OF INTERNATIONAL HUMAN RIGHTS LAW

2021 ◽  
Vol 29 (1) ◽  
pp. 77-102
Author(s):  
Hind Sebar ◽  
Shahrul Mizan Ismail
Keyword(s):  
Human Rights ◽  
Saudi Arabia ◽  
Criminal Law ◽  
Islamic Law ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
International Human ◽  
Legal Procedures ◽  
Made In

Flogging is one of the most widely-used corporal punishments in Islamic penology. Most countries that practice Islamic criminal law use flogging to punish a variety of crimes and offenses. Saudi Arabia is one of the countries that use flogging to punish various crimes and has faced immense backlash from the international community for gross violation of human rights. The goal of this article is to investigate the implementation of flogging as a punishment in Saudi Arabia. Moreover, it also examines how international human rights law has contributed to limiting flogging as a form of criminal punishment. This study has critically analysed several human rights documents in order to understand how flogging is viewed under international human rights law if compared to the position under the Shari‘ah. Focus on the implementation of flogging in Saudi Arabia is made in particular. In addition, it is found that the application of flogging in Saudi Arabia is overused and is uncodified. Hence, the article signifies the necessity of codifying Islamic law to ensure fair legal procedures. Interestingly, a recent announcement that abolishes flogging as a common form of punishment, indicates the willingness of the kingdom to implement judicial reforms, thereby creating a ray of hope in the form of amendment of laws.

scholarly journals HUMAN RIGHTS PERSPECTIVES ON ISSUES IN THE IMPLEMENTATION OF ISLAMIC CRIMINAL LAW IN MALAYSIA

2019 ◽  
Vol 4 (1) ◽  
pp. 67-74
Author(s):  
MOHD HISHAM MOHD KAMAL
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
Criminal Procedure ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Philosophy Of Nature ◽  
International Human Rights ◽  
Time Period ◽  
International Human

 This paper discusses the implementation of Islamic Criminal Law in Malaysia from the human rights perspectives. It looks at Syariah Criminal Offences Enactments and Syariah Criminal Procedure Enactments of States forming the Federation, and deals with the issues of the victimless Syariah offences of khalwat, fornication and drinking intoxicants, determining whether such criminalization is compatible with human rights. Discussion also deals with the issues of sanction and procedures, in finding out the extent to which Malaysia is complying with its International Human Rights Law obligations, if there is any. This paper finds that the Syariah statutory provisions are compatible with the human rights concept. In some extends, Syariah law can explore law uncertainty, because referring to God’s law not nature law. Most of human rights concept have come from the philosophy of nature law. Thus, the approach of nature law will always change depending of time period. However, Syariah law need to improve the training of religious enforcement officers on how to carry out their duties.

The Interests Protected by the Right to Security of Person

2019 ◽  
pp. 103-122
Author(s):  
Rhonda Powell
Keyword(s):  
Human Rights ◽  
South African ◽  
Capabilities Approach ◽  
European Convention ◽  
Political Rights ◽  
Bill Of Rights ◽  
Human Rights Law ◽  
Economic Rights ◽  
Canadian Charter ◽  
The Right

Drawing on the analysis of security in Chapter 3 and the capabilities approach in Chapter 4, Chapter 5 provides examples of the interests that the right to security of person protects. It also considers the extent to which human rights law already recognizes a link between those interests and security of person. Five overlapping examples are discussed in turn: life, the means of life, health, privacy and the home, and autonomy. Illustrations are brought primarily from the European Convention on Human Rights, the Canadian Charter, and the South African Bill of Rights jurisprudence. It is argued that protection against material deprivations that threaten a person’s existence are as much part of the right to personal security as protection against physical assaults. The right to security of person effectively overcomes the problematic distinction between civil and political rights and socio-economic rights because it sits in both categories.

Just How Ill-treated Were You? An Investigation of Cross-fertilisation in the Interpretative Approaches to Torture at the European Court of Human Rights and in International Criminal Law

2015 ◽  
Vol 84 (3) ◽  
pp. 482-514 ◽  
Author(s):  
Michelle Farrell
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
Ad Hoc ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Legal Reasoning ◽  
International Criminal Law ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Definition Of

The prohibition on torture in international human rights law seems a fairly straightforward candidate for productive use in international criminal law. The Convention against Torture contains an elaborate definition of torture and human rights institutions have developed substantial jurisprudence on the prohibition and definition of torture. Indeed, the ad hoc Tribunals and the drafters of the Rome Statute have employed the human rights law approach to torture to varying degrees. But the conception of torture reached by human rights bodies is problematic and unsuitable for usage where individual criminal responsibility is sought. It is unsuitable because the human rights law understanding of torture is subjective and victim-derived. Human rights bodies do not scrutinize intent, purpose and perpetration, central aspects of international criminal legal reasoning. The communication on torture between these bodies of law to date shows that cross-fertilisation, without detailed reasoning, is inappropriate - because rights are different to crimes.

Citizens' Rights and Human Rights

2010 ◽  
Vol 43 (1) ◽  
pp. 67-98 ◽  
Author(s):  
Stephen H. Legomsky
Keyword(s):  
Human Rights ◽  
World Order ◽  
The United States ◽  
Legal Rights ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Building Community ◽  
Key Variables ◽  
Community Continuity ◽  
Present World

Given the burgeoning literature on the devaluation of national citizenship and the effects of globalization, the sources and beneficiaries of individual legal rights assume increased importance. This Article seeks to distinguish those legal rights that states should confine to their own citizens from those that flow from residence, immigration status, territorial presence, or simply personhood. Section I examines the very reasons for states to distribute citizenship in the first place. These reasons relate to participatory democracy, immigration privileges, other rights and disabilities, personal emotional fulfillment, building community, continuity over time, sovereignty, and the world order. It finds unconvincing those reasons that rest on the municipal interests of states but, given the present world order, finds those reasons that are rooted in international relations more compelling. Building on those conclusions, Section II considers a second normative question: What are the key variables that should determine whether a given legal right should be confined to citizens rather than made more generally available to all persons or at least selected classes of noncitizens? Section III then illustrates how one country—the United States—parcels out legal rights and examines whether its decisions comport with the demands of international human rights law.

The Identity Crisis of International Criminal Law

2008 ◽  
Vol 21 (4) ◽  
pp. 925-963 ◽  
Author(s):  
DARRYL ROBINSON
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Criminal Law ◽  
International Criminal ◽  
Identity Crisis ◽  
International Criminal Law ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Crisis Theory ◽  
Criminal Justice Systems

AbstractThe general narrative of international criminal law (ICL) declares that the system adheres in an exemplary manner to the fundamental principles of a liberal criminal justice system. Recent scholarship has increasingly questioned the adherence of various ICL doctrines to such principles. This article scrutinizes the discourse of ICL – the assumptions and forms of argumentation that are regarded as sound reasoning with appropriate liberal aims. This article argues that ICL, in drawing on national criminal law and international human rights law, absorbed contradictory assumptions and methods of reasoning. The article explores three modes by which the assumptions of human rights liberalism subtly undermine the criminal law liberalism to which the system aspires. These modes include interpretive approaches, substantive and structural conflation, and ideological assumptions. The identity crisis theory helps to explain how a system that strives to serve as a model for liberal criminal justice systems has come to embrace illiberal doctrines that contradict the system's fundamental principles.

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