Modest Property Rights for the Right-Holder’s Sake

2019 ◽  
pp. 210-230
Author(s):  
Rowan Cruft
Keyword(s):  
Human Rights ◽  
Property Rights ◽  
Specific Property ◽  
Natural Rights ◽  
Market Exchange ◽  
The Right

Chapter 12 assesses arguments that certain specific property rights, and some general rights to participate in property systems, can be morally justifiable for the right-holder’s own sake—primarily on the basis of the right-holder’s own good—in a way that makes them ‘natural’ or recognition-independent rights. Versions of such arguments based on the importance of the right-holder’s freedom, her chosen purposes, and her other human rights, are developed from the work of Hegel, Locke, and Nickel, respectively. The chapter shows that the reach of these arguments is limited. Some property rights might indeed be ‘natural’ rights groundable for the right-holder’s sake, but the chapter’s arguments imply that most property held by those who are moderately wealthy cannot be—including any property rights morally justifiable only as the results of a market exchange.

scholarly journals What Constitutions Can Do (but Courts Sometimes Don’t): Property, Speech, and the Influence of Constitutional Norms on Private Law

2004 ◽  
Vol 17 (1) ◽  
pp. 61-81 ◽  
Author(s):  
Oliver Gerstenberg
Keyword(s):  
Human Rights ◽  
Property Rights ◽  
Freedom Of Expression ◽  
Social Democracy ◽  
Recent Attempt ◽  
Private Law ◽  
Human Rights Norms ◽  
The Right ◽  
Higher Law

In this paper I want to address, against the background of the ECtHR’s recent attempt to resolve the clash between property rights and the right to freedom of expression in its decision in Appleby v. UK, two questions, both of which I take to be related to the overarching theme of “social democracy”. First, there is the problem of the influence of “higher law”-of human rights norms and constitutional norms-on private law norms; second, the question of the role of adjudication in “constitutionalizing” private law, in other words, the question of the “judicial cognizability” of constitutional norms within private law.

scholarly journals The right to peaceful enjoyment of property and the security measure of the forfeiture of cash in the jurisprudence of the Serbian Constitutional Court: Certain uncertainty

Pravni zapisi ◽  
2020 ◽  
Vol 11 (2) ◽  
pp. 620-644
Author(s):  
Tamás Korhecz
Keyword(s):  
Human Rights ◽  
Property Rights ◽  
Public Interest ◽  
Cash Transfer ◽  
Constitutional Court ◽  
The Public ◽  
Cross Border ◽  
Security Measure ◽  
European Court ◽  
The Right

The right to peaceful enjoyment of property is a first-generation human right, protected by the international and domestic law of the highest rank. This is not an absolute right - the European standards of protecting property rights allow possible interferences prescribed by law. The interferences can be made in the public interest but only under the assumption that the proportionality between the public interest and property rights of individuals at stake is established. Forfeiture of undeclared cash the individuals are transferring across state borders, together with imposing fines for a misdemeanor, represent an interference with individuals' property rights. The EU Member States do not share an identical system of sanctions for this petty offense, but there is a tendency of unification related to the monitoring, registering, and sanctioning of undeclared, cross-border, individual cash transfer. The case-law of the European Court of Human Rights has established rather precise criteria for distinguishing permitted from unpermitted interferences in cases of undeclared cross-border cash transfers. The Serbian Constitutional Court has been faced with several constitutional complaints regarding alleged unconstitutionally of the imposed security measure amounting to the forfeiture of undeclared cash physically transferred across the state borders. The Constitutional Court has ruled inconsistently on the matter. Although it has regularly referred to the European Court of Human Rights' relevant decisions, it fails to be consistent in following the Strasbourg Court's rulings. In this article, the author has suggested that the legal certainty principle requires the Constitutional Court to consistently interpret the constitutional rights and be systematic in following Strasbourg. Only in this way, the Constitutional Court can help regular courts effectively to harmonize the interpretation and application of laws with the constitutional and international human rights standards regarding property rights.

The Individual’s Place in the Grounding of her Rights

2019 ◽  
pp. 118-135
Author(s):  
Rowan Cruft
Keyword(s):  
Human Rights ◽  
Natural Rights ◽  
The Right

Chapter 8 develops a taxonomy of the differing degrees and manner in which a right might be grounded on its holder’s good—and, in the author’s terms, exist ‘for its holder’s sake’. This is a taxonomy of the extent to which a right’s status as a right, and a duty’s status as a directed duty whose violation wrongs someone, are pre-institutional or ‘natural’. The chapter explores the important question of whether non-individualistic, communitarian moral views can accommodate this idea of ‘natural’ rights grounded by their holder’s good. It turns out that while many communitarian approaches are compatible with the idea, it is inconsistent with those communitarians who deny the very possibility of distinguishing one party’s good from the wider good. The chapter ends by sketching the appeal of taking human rights as grounded ultimately on ‘natural’ rights that exist for the right-holder’s sake.

scholarly journals Right To Property: From Magna Carta To The European Convention On Human Rights

SEEU Review ◽  
2015 ◽  
Vol 11 (1) ◽  
pp. 145-158 ◽  
Author(s):  
Jelena Ristik
Keyword(s):  
Human Rights ◽  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Trade Mark ◽  
European Convention ◽  
Human Rights Protection ◽  
European Court ◽  
Magna Carta ◽  
The Right

Abstract Property rights are integral part of the freedom and prosperity of every person, although their centrality has often been misprized and their provenance was doubted. Yet, traces of their origin can be found in Magna Carta, signed by the King of England in 1215. It was a turning point in human rights. Namely, it enumerates what later came to be thought of as human rights. Among them was also the right of all free citizens to own and inherit property. The European Convention on Human Rights was heavily influenced by British legal traditions, including Magna Carta. Among other rights, it also guaranties the right to property as a human right. Moreover, the protection of property rights has been extended to intellectual property rights as well. Namely, the European Court of Human Rights has provided protection of intellectual property rights through the adoption of decisions that interpret the right to property, in relation to intellectual property protection claims. It has extended the human rights protection of property to the mere application for registration of the trade mark. This paper has placed its focus on the development and treatment of the right to property starting from Magna Carta to the European Convention on Human Rights, as modern version of Magna Carta. In this sense, the jurisprudence of the European Court of Human Rights and its role and approach in the protection of the right to property will be examined as well.

20. Protection of Property

2020 ◽  
pp. 559-591
Author(s):  
Bernadette Rainey ◽  
Pamela McCormick ◽  
Clare Ovey
Keyword(s):  
Human Rights ◽  
Property Rights ◽  
Armed Conflict ◽  
European Convention ◽  
Rent Control ◽  
The Right

This chapter examines protection of the right to property in the European Convention on Human Rights (ECHR). It discusses the provisions of Article 1 of Protocol 1 and explains that all the provisions of the Convention, including Articles 13 to 18, apply equally to the rights guaranteed by the First Protocol. The chapter also suggests that the Strasbourg Court has come to approach the protection of property rights using much the same methodology as it adopts in relation to complaints of violations of the rights protected by Articles 8 to 11. It examines the application of the right to property to issues such as rent control and restitution, especially focusing on cases arising from the transition of post-Soviet States to democracy, and cases arising from armed conflict.

scholarly journals CONSTITUTIONAL BASIS OF EXTRAJUDICIAL PROTECTION OF INTELLECTUAL PROPERTY RIGHTS (MEDIATION PROCEDURES)

2021 ◽  
Vol 1 (2) ◽  
Author(s):  
Natalia V. Bocharova ◽  
Keyword(s):  
Human Rights ◽  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Legal Regulation ◽  
Private Law ◽  
General Process ◽  
Self Defense ◽  
The Right ◽  
Self Protection

The constitutional bases of mediation in intellectual property cases related to the complex interdisciplinary legal institution of self-protection of rights are analyzed. The urgency of the topic is due to a combination of public and private law principles in modern legal regulation and the general process of constitutionalization of private law and intellectual property law, in particular. It is noted that the proclamation of the constitutional right to self-defense means the inclusion in the comprehensive system of human rights protection of additional ways that increase the effectiveness of its other components and enrich the constitutional human rights mechanism as a whole. In recent years, mediation has been recognized as one of the effective and promising ways of self-protection of intellectual property rights. Ukraine is just beginning to build the institution of mediation as a way to protect intellectual property rights. The research of Ukrainian scientists analyzes the situations when it is expedient and profitable to use mediation to resolve disputes in the field of intellectual property. At the same time, in some works of Ukrainian researchers, in the author�s opinion, there is an element of a certain underestimation of public law support for the right to self-defense, in particular copyright. We believe that the constitutional provisions on self-protection of rights should be used more widely in the development of doctrinal issues of mediation intellectual property matters, which should strengthen the civil aspects of the right to selfdefense and give the problem a broader human significance. The author is convinced that the methodology of the modern system of protection of intellectual property rights should be based on an anthropological approach, which means that the provision and protection of intellectual property rights should be carried out from the standpoint of guaranteeing individual rights. It is concluded that the practice proves the profitability and effectiveness of the use of mediation in disputes related to the protection of intellectual property rights. The full implementation of this institution in Ukraine will contribute not only to improving the protection of intellectual property, but also to ensuring the constitutional rights of man and citizen.

scholarly journals Legal regime of unimplanted embryos in vitro from the positions of doctrine, civil law and judicial practice

2020 ◽  
pp. 238-242
Author(s):  
Nataliia Kvit
Keyword(s):  
Human Rights ◽  
Property Rights ◽  
Assisted Reproductive Technologies ◽  
Civil Law ◽  
Reproductive Technologies ◽  
Legal Regime ◽  
European Court ◽  
The Future ◽  
The Right

The article deals with the problem of determining the legal regime of unimplanted embryo in vitro, which due to the significantdevelopment of the field of assisted reproductive technologies, is increasingly at risk of its illegal use, or even illegal creation for commercialor other non-infertility treatment. The author analyzes different doctrinal approaches in the civil law of Ukraine and Germany,through the prism of the current legal regulation and practice of the European Court of Human Rights. The paper supports the positionon the right to the embryo as a personal immaterial right and expands it in the sense that such a component of reproductive rights asthe right to determine the future fate of embryos in vitro will also belong to persons to whom assisted reproductive technologies havebeen applied and as a result these embryos where created. Resulting from this analysis, the position on the inadmissibility of the interpretationof the unimplanted embryo as an object of property law is expressed. To support this point of view, the author cites the judgmentof the European Court of Human Rights in Parrillo v. Italy, in which the court emphasized the inadmissibility of the assessmentof embryos as an object of property rights. In particular, the paper proposes to define the regime of unimplanted embryo in vitro as anobject that has a personal immaterial connection to persons for whose treatment of infertility (parents-customers) it was created. Andit is these individuals who will have the right to determine its future. In this regard, it is proposed to reflect this concept in the cuurentregulation in partricular Procedure for the use of assisted reproductive technologies. From the proposed wording, first, it will followthat in vitro embryos created as a result of the partial or full use of donor biological material at the request of persons to whom assistedreproductive technologies are applied will have this personal connection only with the future parents and there will not be an ethicaldilemma regarding who will have the right to determine their future fate (biological parents (reproductive cell donors) or future parents).Secondly, it will also mean that embryos can only be created for reproductive purposes, and an institution providing reproductive ser -vices will not have the right to create or dispose of embryos in vitro at its own discretion without the proper consent of its future parent.And, thirdly, it will exclude the possibility of interpreting such embryos as objects of property rights.

scholarly journals Subject matter, content and structure of the right to freedom and personal inviolability: problem aspects.

2021 ◽  
Vol 3 (3) ◽  
pp. 72-79
Author(s):  
Daria Lazareva
Keyword(s):  
Human Rights ◽  
Matter Content ◽  
Natural Rights ◽  
Scientific Article ◽  
Structural Elements ◽  
European Court ◽  
The Subject ◽  
The Individual ◽  
The Right ◽  
Subject Matter Content

The scientific article draws attention to the subject of the right to liberty and security of person and its place in the science of legal law. The content of this right in terms of its components is also studied. Particular attention is paid to the structure of the right to liberty and security of person, namely: the division into two independent structural elements: the right to liberty and the right to personal integrity. The case law of the European Court of Human Rights is studied through the prism of guarantees of the right to liberty and security of person contained in Art. 5 of the Convention. Freedom and personal inviolability are personal human rights, which in the theory of legal and philosophical thought are defined as natural rights that belong from birth and, according to the generally accepted classification, belong to the first generation of (civil and political) human rights. The right to liberty and security of person is a fundamental right of every person and citizen, inalienable and personal, and belongs to the list of natural rights and is perceived by civil society through the prism of the theory of natural law, which has existed for several centuries. The article forms a certain position on the approach to the study of the right to liberty and security of person, its structural elements, it is important to follow a systematic approach, to consider this right as a set of interrelated elements on the principles of integrity, structure, plurality and equality. «Freedom» and «personal inviolability», which in close cooperation form a single complex. These categories should be considered the subject of the right to personal inviolability in the narrow sense, but the freedom of the individual from unlawful encroachment on property, honor, dignity, from unauthorized interference in private and family life is the subject of the right in the broadest sense.

20. Protection of Property

2017 ◽  
Author(s):  
Bernadette Rainey ◽  
Elizabeth Wicks ◽  
Andclare Ovey
Keyword(s):  
Human Rights ◽  
Property Rights ◽  
European Convention ◽  
Rent Control ◽  
The Right

This chapter examines protection of the right to property in the European Convention on Human Rights (ECHR). It discusses the provisions of Article 1 of Protocol 1 and explains that all the provisions of the Convention, including Articles 13 to 18, apply equally to the rights guaranteed by the First Protocol. The chapter also suggests that the Strasbourg Court has come to approach the protection of property rights using much the same methodology as it adopts in relation to complaints of violations of the rights protected by Articles 8 to 11. It examines the application of the right to property to issues such as restitution and rent control.

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