Law, Morality, and the Existence of Human Rights

2021 ◽  
pp. 51-63
Author(s):  
Robert Alexy
Keyword(s):  
Human Rights ◽  
Pivotal Role ◽  
Analytical Basis ◽  
Hans Kelsen ◽  
Sufficient Degree ◽  
Law And Morality

In the debate between positivism and non-positivism, the argument from relativism plays a pivotal role. The argument from relativism, as put forward, for instance, by Hans Kelsen, says, first, that a necessary connection between law and morality presupposes the existence of absolute, objective, or necessary moral elements and, second, that no such absolute, objective, or necessary moral elements exist. The reply presented here is that absolute, objective, or necessary moral elements do exist, for human rights exist, and human rights exist because they are justifiable. The analytical basis of the justifiability thesis is a distinction between eight approaches. The first six have more defects than strengths, but there are two approaches that are able to solve the justification problem to a sufficient degree.

Verfassungspatriotismus und Integration

Der Staat ◽  
2021 ◽  
Vol 60 (3) ◽  
pp. 495-506
Author(s):  
Erhard Denninger
Keyword(s):  
Human Rights ◽  
Cultural Integration ◽  
Constitutional Court ◽  
Main Argument ◽  
Pluralistic Society ◽  
Constitutional Patriotism ◽  
Nationale Identität ◽  
Federal Constitutional ◽  
Sufficient Degree ◽  
Constitutional Identity

Im Mittelpunkt der Untersuchung steht die Frage, inwieweit der Gedanke des Verfassungspatriotismus in der von Jürgen Habermas vorgeschlagenen Fassung geeignet sein kann, in einer kulturell-religiös pluralen Gesellschaft ein ausreichendes Maß an „Bürgersolidarität“ zu gewährleisten. Habermas setzt dabei entscheidend auf eine Entkoppelung der Ebene der allgemeinen und gleichen politischen Integration von der Ebene der ethisch-kulturellen Integration. Dies stößt jedoch immer dann auf Schwierigkeiten, wenn es um die Auslegung und Anwendung zentraler Rechtsbegriffe wie Menschenwürde oder der Menschenrechte geht. Das Bundesverfassungsgericht könnte bei den zwischen Mehrheit und Minderheit wechselseitig notwendigen „Perspektivenübernahmen“ ausgleichend wirken. Begriffe wie „nationale Identität“ oder „Verfassungsidentität“ können zwar gerichtlich praktiziert werden, sind aber als analytische Kategorien unbrauchbar. Entscheidungen in verfassungspatriotisch korrekt angeleiteten Verfahren müssen auch in „Parallelgesellschaften“ als legitim akzeptiert werden. The essay is focused on the question whether the idea of ‚constitutional patriotism‘ may ensure a sufficient degree of ‚civic solidarity‘ in a cultural-religious pluralistic society. The main argument of Habermas lies in the separating of the two levels: the sphere of general and equal political integration and the sphere of ethical-cultural integration. But this always produces particular difficulties when interpretation and application of basic juridical concepts, like human dignity or human rights at all, are at stake. In the reciprocally necessary adoption of perspectives between majority and minorities the Federal Constitutional Court could operate in an equalizing manner. Concepts like „national identity“ or „constitutional identity“ may be practised judicially, but taken as analytic categories they are worthless. Decisions, taken in procedures conducted correctly by constitutional patriotism, must be accepted as legitimate also by ‚parallel societies‘ (Parallelgesellschaften).

‘An ombudsman for Mauritius?’ Decolonization and state human rights institutions in the 1960s

2020 ◽  
pp. 1-20
Author(s):  
James Kirby
Keyword(s):  
Human Rights ◽  
Pivotal Role ◽  
Individual Rights ◽  
National Human ◽  
Sovereign Authority ◽  
British Colonial ◽  
The 1960S ◽  
National Human Rights Institutions ◽  
The Relationship

Abstract Mauritius had a pivotal role in the evolution and spread of state human rights institutions in the 1960s. The island offered an influential model for how an ombudsman, a Scandinavian mechanism, could be transported to postcolonial, economically developing, and multi-racial countries. However, this was a compromised mechanism that fell short of local ambitions for an effective guarantee of individual rights, minority protections, and socioeconomic justice. This article argues that the Mauritian ombudsman embodied the uneven power-laden struggles of the postcolonial transition, where British colonial imperatives and jealousy over sovereign authority predominated. With the use of private papers, British archival records, and Mauritian legislative debates, the article examines the relationship between decolonization and the early precursors to national human rights institutions, later popularized in the 1990s. The findings are critical for recognizing the inherent limitations of these institutions and the forgotten possibilities imagined by some anti-colonial actors for remaking postcolonial society.

The EU’s institutional human rights architecture

2020 ◽  
pp. 117-134
Author(s):  
Monika Mayrhofer
Keyword(s):  
European Union ◽  
Human Rights ◽  
European Commission ◽  
External Action ◽  
Fundamental Rights ◽  
European Council ◽  
Pivotal Role ◽  
The European Union ◽  
Institutional Architecture ◽  
The Eu

The EU is neither a state nor a ‘normal’ international organisation, but has a unique institutional structure that is sometimes also referred to as a ‘sui generis’ institutional framework. The institutions of the EU have a pivotal role concerning EU human rights policies. This chapter will provide an analysis of how human rights competences are distributed among EU institutions. It will discuss the institutional architecture of human rights in the EU by analysing the European Council, the Council of the European Union and its human rights-related Working Parties, the European Parliament, the European Commission, the Court of Justice of the European Union, the European External Action Service and the Special Representative on Human Rights, the Fundamental Rights Agency, and the European Ombudsman. The analysis will be followed by a summary of opportunities and challenges, a presentation of areas for improvements and recommendations, and a brief conclusion.

Prison art programs: Art, culture and human rights for Indigenous prisoners

2021 ◽  
pp. 1037969X2110089
Author(s):  
Brigid Horneman-Wren
Keyword(s):  
Human Rights ◽  
Self Determination ◽  
Pivotal Role ◽  
Art Programs ◽  
Prison Art ◽  
The Right

This article argues that prison art programs are central to the human rights of Indigenous detainees. It examines how these programs are most commonly understood in terms of their rehabilitative value, an approach which fails to fully capture the right of Indigenous detainees to participation in them. It argues that a human rights framework should be applied to prison art programs. This recognises the pivotal role art programs play in realising a multitude of interconnected rights, upholds the voices of Indigenous prisoners and emphasises the crucial place of self-determination in the design, delivery and ultimate success of programs.

‘Positive Obligations’ Doctrine of the European Court of Human Rights: Is it Cogent or Obscure?

2017 ◽  
Vol 6 (1) ◽  
pp. 358 ◽  
Author(s):  
Tuğba Sarıkaya Güler
Keyword(s):  
Human Rights ◽  
The Other ◽  
Pivotal Role ◽  
Foreseeable Future ◽  
Half Century ◽  
European Court ◽  
Societal Context ◽  
The One

Over the last half century, positive obligations jurisprudence of the European Court of Human Rights (ECtHR) has been playing a pivotal role in sculpting European Human Rights system. There is, however, some potential for disagreement on whether it is an effective and well-established doctrine or not. On the one hand, the activeness of the ECtHR brings about some practical benefits in order to keep out with new societal context, but on the other, unique tensions (e.g., underestimation of state’s margin of discretion, increasing burden on state, inconsistencies and uncertainties of verdicts) in the implementation of that doctrine give rise to anxieties about its cogency. Since this issue is quite multifaceted, this paper aims to elucidate in what ways positive obligations doctrine is justified and to what extent it has been deliberate while deriving positive obligations regarding Article 2. At the end, it asserts that without positive obligations doctrine, the Convention might be outmoded and ineffective. However, despite some immature aspects of it, the Court at least strived to dynamically interpret the Convention thanks to this doctrine. For this reason, it is claimed that considering existing and possible benefits of that doctrine, common legitimization for the judicial creativity of the ECtHR might be assured in foreseeable future.

scholarly journals Retrospective Bankruptcy Legislation In The Practice Of The European Court Of Human Rights And Constitutional Court Of Ukraine

2019 ◽  
pp. 58-65
Author(s):  
R.B. Sabodash
Keyword(s):  
Human Rights ◽  
Constitutional Court ◽  
The Public ◽  
Procedural Law ◽  
The United Kingdom ◽  
European Court ◽  
The Supreme Court ◽  
Degree Of Certainty ◽  
Sufficient Degree ◽  
Effective Remedy

The paper focuses on the debtor’s contract awarded into a suspicious bankruptcy period. Special attention is paid to retrospective bankruptcy legislation according to which the debtor’s contracts may be declared invalid. The article deals with the practice of the Supreme Court, the Constitutional Court of Ukraine, the European Court of Human Rights. The European Court of Human Rights in the case «James and Others v. The United Kingdom» stated that the fairness of a system of law governing the contractual or property rights of private parties is a matter of public concern and therefore legislative measures intended to bring about such fairness are capable of being «in the public interest», even if they involve the compulsory transfer of property from one individual to another. Special attention is paid to cases “Melnyk v. Ukraine” in which the European Court of Human Rights requires retrospective civil legislation is not expressly prohibited by the provisions of the Convention and in certain circumstances may be justified. Therefore, the Court considers that the issue of an effective remedy is concerned, the remedy in question must already exist with a sufficient degree of certainty. The retroactive application of civil procedural law would undermine the principle of legal certainty and would be contrary to the rule of law when it deprives a person of access to a remedy which is deemed to be effective for the purposes of Article 35 § 1 of the Convention. The issue of this paper is to show that the aim of the legislation could not have been achieved without retrospection and the author is accordingly satisfied that a reasonable degree of proportionality exists between the means employed and the aim sought to be achieved because each party has access to effective remedies.

scholarly journals The Challenges in Building a Legal State in the Republic of Macedonia

2015 ◽  
Vol 1 (3) ◽  
pp. 59
Author(s):  
Mersim Maksuti
Keyword(s):  
Human Rights ◽  
The State ◽  
Legal Order ◽  
Legal Norms ◽  
Republic Of Macedonia ◽  
The Third ◽  
Main Challenge ◽  
Hans Kelsen ◽  
The Republic ◽  
Democratic Elections

The Establishment and the consolidation of the legal state in the Republic of Macedonia still remains the main challenge and a primary issue which comes into view continuously during the functioning and the governance of this country, although we are facing the third decade of democratic transition since the fall of communism in these regions. By a legal state in Macedonia we understand the system in which the state authorities in this country, and in particular the executive and administrative authorities, though restricted to its legal norms (the constitution and the law) which guarantee the inviolability of fundamental human rights and freedoms of its citizens and the democratic functioning of political power, their implementation in practice nevertheless continues to represents a major difficulty that the country faces.The need of a functional legal state in Macedonia is still far from its implementation and in consistency with the theory of Hans Kelsen about the legal state. According to him, in the territorial region of a state there should be a single lawful, legitimate and sovereign order: that of the state: all the legal norms, directly or indirectly, derive from the state and those are valid only when incorporated in its lawful order, by thoroughly respecting their intentions. “The state represents the overall legal order, its law, being the highest, is the single true law”. We shall stop and focus on some of the main criteria, principles and pillars on which it relies, respectively on those which condition and enable the functioning of a legal state in Macedonia. These are the criteria and principles which are also accepted by the judicial-constitutional concept in general. Firstly, we will examine the respect of the principle of constitutionality and legality, the respect of the basic human rights and freedoms in this country: the free and democratic elections, independent courts etc.

scholarly journals The Challenges in Building a Legal State in the Republic of Macedonia

2015 ◽  
Vol 3 (1) ◽  
pp. 59
Author(s):  
Mersim Maksuti
Keyword(s):  
Human Rights ◽  
The State ◽  
Legal Order ◽  
Legal Norms ◽  
Republic Of Macedonia ◽  
The Third ◽  
Main Challenge ◽  
Hans Kelsen ◽  
The Republic ◽  
Democratic Elections

The Establishment and the consolidation of the legal state in the Republic of Macedonia still remains the main challenge and a primary issue which comes into view continuously during the functioning and the governance of this country, although we are facing the third decade of democratic transition since the fall of communism in these regions. By a legal state in Macedonia we understand the system in which the state authorities in this country, and in particular the executive and administrative authorities, though restricted to its legal norms (the constitution and the law) which guarantee the inviolability of fundamental human rights and freedoms of its citizens and the democratic functioning of political power, their implementation in practice nevertheless continues to represents a major difficulty that the country faces.The need of a functional legal state in Macedonia is still far from its implementation and in consistency with the theory of Hans Kelsen about the legal state. According to him, in the territorial region of a state there should be a single lawful, legitimate and sovereign order: that of the state: all the legal norms, directly or indirectly, derive from the state and those are valid only when incorporated in its lawful order, by thoroughly respecting their intentions. “The state represents the overall legal order, its law, being the highest, is the single true law”. We shall stop and focus on some of the main criteria, principles and pillars on which it relies, respectively on those which condition and enable the functioning of a legal state in Macedonia. These are the criteria and principles which are also accepted by the judicial-constitutional concept in general. Firstly, we will examine the respect of the principle of constitutionality and legality, the respect of the basic human rights and freedoms in this country: the free and democratic elections, independent courts etc.

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