A Critique of the Status Function Account of Human Rights

2018 ◽  
Vol 48 (5) ◽  
pp. 463-473 ◽  
Author(s):  
Åsa Burman
Keyword(s):  
Human Rights ◽  
Free Speech ◽  
John Searle ◽  
Human Right ◽  
The Status ◽  
The Law

This contradiction ”1. The universal right to free speech did not exist before the European Enlightenment, at which time it came into existence. 2. The universal right to free speech has always existed, but this right was recognized only at the time of the European Enlightenment.” (Searle) draws on two common and conflicting intuitions: The human right to free speech exists because institutions, or the law, says so. In contrast, the human right to free speech can exist independently of institutions—these institutions simply recognize a right we already have. John Searle argues that his status function account of human rights can preserve both intuitions by showing that the inconsistency between (1) and (2) is merely apparent. I argue that this solution works for tokens of human rights but not for types, while the contradiction concerns types. Hence, the status function account of human rights fails to preserve both intuitions.

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».

scholarly journals Brexit and the International Law Prohibitions on the Loss of eu Citizenship

2018 ◽  
Vol 15 (2) ◽  
pp. 341-363 ◽  
Author(s):  
William Thomas Worster
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Organizations ◽  
The Status ◽  
The Law

This submission challenges the presumption that uk nationals will lose eu citizenship following Brexit. Until now, the dominant narrative has been drawn from the law on treaties or international organizations, and this article adds the human rights perspective to Brexit. Firstly, eu citizenship can be assimilated to nationality. While eu citizenship is unique, the status protected under international law is a legal bond a person has with a political entity. This protection certainly covers nationality, and this paper argues it can be understood to also protect eu citizenship. Secondly, international law prohibits arbitrary withdrawal of this legal bond with a person. The uk does not have jurisdiction over eu citizenship, so it is doubtful the uk can terminate eu citizenship unilaterally. Even if the eu were to withdraw eu citizenship on its initiative, it would still constitute retroactive law, discrimination, and infringement of sovereignty. It is also disproportionate, because the loss of eu citizenship is not necessary for Brexit. When Greenland withdrew from the eu, its residents retained eu citizenship. For these reasons, the revocation of eu citizenship would be arbitrary. A distinction must be made between the membership of a state in the eu which can be terminated, and the direct legal bond formed between a person and the Union, which is far harder to revoke. On this basis, any uk national who has acquired eu citizenship prior to Brexit, should not be divested of it following Brexit.

Engaging the Fundamentals: On the Autonomous Substance of EU Fundamental Rights Law

2013 ◽  
Vol 14 (10) ◽  
pp. 1917-1938 ◽  
Author(s):  
Daniel Augenstein
Keyword(s):  
Human Rights ◽  
Trade Unions ◽  
Free Market ◽  
Burden Of Proof ◽  
Fundamental Rights ◽  
Human Right ◽  
Strong Reaction ◽  
Private Power ◽  
The Status ◽  
Human Rights Standards

Some years back, Philip Alston argued that processes of globalization, such as the privatization of state functions and the deregulation of private power, while purportedly value-neutral, have “acquired the status of values in and of themselves.” The market is increasingly seen as “the most efficient and appropriate value-allocating mechanism.” As a consequence, human rights become subjected to a litmus test of their “market-friendliness.” As Alston puts it:In the world of globalization, a strong reaction against gender and other forms of discrimination, the suppression of trade unions, the denial of primary education or health care, can often require not only a showing that the relevant practices run counter to human rights standards but also a demonstration that they are offensive to the imperatives of economic efficiency and the functioning of the free market … In at least some respects the burden of proof has been shifted—in order to be validated, a purported human right must justify its contribution to a broader, market-based “vision” of the good society.

scholarly journals RESPECT FOR PRIVATE AND FAMILY LIFE UNDER ARTICLE 8 ECHR IN IMMIGRATION CASES: A HUMAN RIGHT TO REGULARIZE ILLEGAL STAY?

2008 ◽  
Vol 57 (1) ◽  
pp. 87-112 ◽  
Author(s):  
Daniel Thym
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Private Life ◽  
European Convention ◽  
Human Right ◽  
Human Rights Protection ◽  
Immigration Laws ◽  
European Court ◽  
The Status ◽  
Protection Of Human Rights

AbstractApplying the European Convention on Human Rights (ECHR) to immigration cases has always been a balancing exercise between the effective protection of human rights and the Contracting States' autonomy to regulate migration flows. In its recent case law, the European Court of Human Rights in Strasbourg (ECtHR) has considerably extended the protective scope of Article 8 ECHR by granting autonomous human rights protection to the long-term resident status independent of the existence of family bonds under the heading of ‘private life’. This has important repercussions for the status of legal and illegal immigrants across Europe, since the new case law widens the reach of human rights law to the legal conditions for leave to remain, effectively granting several applicants a human right to regularize their illegal stay. The contribution analyses the new case law and develops general criteria guiding the application of the ECHR to national immigration laws and the new EU harmonization measures adopted in recent years.

scholarly journals The Contract of Language: John Searle's Philosophy of Society

2011 ◽  
Vol 3 (1) ◽  
pp. 98-112
Author(s):  
Michiel Leezenberg
Keyword(s):  
Free Speech ◽  
Philosophy Of Language ◽  
Social Institutions ◽  
Logical Structure ◽  
Social World ◽  
Language Usage ◽  
John Searle ◽  
Human Right ◽  
Institutional Facts ◽  
The Social

AbstractIn Making the Social World, John Searle develops what he calls a "philosophy of society", which explores the ontological status and logical structure of institutional facts like universities and baseball games. This philosophy of society crucially depends on Searle's earlier work in the philosophy of language and mind. In this review, I discuss some aspects of Searle's theory of institutional facts as structured in terms of declaratives that are most relevant to working linguists, like the relation of language to other social institutions, the emergence of normativity in language, the articulation of (legitimate and illegitimate) power in language usage, and the question of whether there should be any restrictions on the allegedly universal human right to free speech.

scholarly journals Humans: The Biggest Barrier to Realising Human Rights - A South African Perspective

2020 ◽  
Author(s):  
Erika Serfontein
Keyword(s):  
Human Rights ◽  
South African ◽  
Legal Protection ◽  
Well Being ◽  
Human Behaviour ◽  
Individual Autonomy ◽  
International Human Rights Law ◽  
Human Right ◽  
Legal Principles ◽  
The Law

In demarcating the law, human rights, and human behaviour, the objective is to explore the tension between safeguarding human rights and promoting individual autonomy. While international human rights law signifies the potential of creating dignified life experiences, the behaviour of humans, and, specifically, of those in government incited my focus on the effect of human behaviour on the realizsation of human rights. By studying human rights through a philosophical lens, a (a) conceptual clarification of human rights is provided, (b) the most prominent human rights are identified, (c) general and specific justifications of human rights discussed, and (d) the normative implications of human right claims explored. Focus is placed on South Africa although the value and potential generalisation generalization of the data for evaluating the effectiveness of human rights in achieving their social goal globally, are acknowledged. Reviewing literature, an overview is provided of the law and human rights; the different dimensions of human rights; and human behaviour. Persistent human rights violations, albeit legal protection, are delineated and the significant role played by human behaviour during such violations are highlighted. Given that human behaviour is influenced by various ethical, social, and legal principles, governments are urged to be mindful of the well-being of the humans they are ethically and legally obliged to serve.

scholarly journals Chemical Castration: Limiting an Absolute Human Right

2020 ◽  
Vol 3 (2) ◽  
pp. 201
Author(s):  
Louisa Elsie Heathcote
Keyword(s):  
Human Rights ◽  
Sex Offenders ◽  
Child Protection ◽  
Government Regulation ◽  
Political Rights ◽  
Human Right ◽  
Chemical Castration ◽  
History Of ◽  
The Law ◽  
Human Rights Violation

In 2016, the Indonesian government enacted Government Regulation in Lieu of Law Number 1 of the year 2016, adapted into Law number 17 of the year 2016. This regulation introduces chemical castration as a criminal sanction for child sex offenders, spurring human rights concerns. This article aims to assess whether chemical castration constitutes cruel, inhuman, or degrading treatment from the perspective of Article 7 of the International Covenant on Civil and Political Rights and whether such a human rights violation can be justified. This article employs the normative research method, studying principles of law, systems of law, the synchronization of the law, the history of the law and policies, and laws in comparison to one another. The article bases its findings on laws, books, journals, judgments, and other documents.This article finds that firstly, chemical castration constitutes cruel, degrading, or inhuman treatment and secondly, that such a violation can be justified according to the limitations of human rights. The significance of this article is the basis for the increased limitation of human rights to advance the cause of child protection.

scholarly journals Reforma agrária e o acesso à terra como um direito humano para as famílias rurais nos países do Mercosul: uma análise comparada constitucional e agrarista

2016 ◽  
Vol 1 (35) ◽  
Author(s):  
Arthur Ramos do Nascimento ◽  
Felipe Borges de Souza Domingues
Keyword(s):  
Human Rights ◽  
Land Reform ◽  
Agrarian Reform ◽  
Rural Families ◽  
South American ◽  
Human Right ◽  
Peasant Movements ◽  
National Debate ◽  
The Status ◽  
Common Policies

Reforma agrária e o acesso à terra como um direito humano para as famílias rurais nos países do MERCOSUL: uma análise comparada constitucional e agraristaAgrarian reform and the access to land as a human right for rural families in the MERCOSUL countries: a constitutional and agrarian comparative analysis Arthur Ramos do Nascimento[1]Felipe Borges de Souza Domingues[2] RESUMO: O presente artigo traz ao debate nacional elementos iniciais para reflexão sobre a forma como os países do MERCOSUL encaram o tema da Reforma Agrária e o acesso à terra dentro de uma perspectiva de direitos humanos. Inicialmente analisando o MERCOSUL enquanto um processo de integração e de desenvolvimento regional, a pesquisa apresenta nuances históricas e sociológicas dos países sul-americanos como forma de compreensão da realidade agrária e dos movimentos campesinos pela luta do campo. A partir daí, observa-se a discussão da Reforma Agrária nos países do MERCOSUL, as peculiaridades e diferenças nacionais. A abordagem sobre os direitos humanos e a concepção nacional dos Estados-Membros permite identificar que a proximidade não se limita apenas à questão geográfica, mas que os países compartilham uma identidade muito próxima de concepções e organização, consideradas as devidas proporções e peculiaridades. Assim, é possível analisar as políticas adotadas pelos países membros do MERCOSUL no sentido do acesso à terra como um direito humano e a importância da Reforma Agrária para o desenvolvimento econômico e social. Constata-se a fragilidade das políticas comuns e a ausência de políticas efetivas que incidam sobre todos os países do MERCOSUL, identificando-se ações articuladas, mas sem o status de uma política supraestatal que poderia alcançar maior efetividade para a realidade das famílias rurais. PALAVRAS-CHAVE: Violência simbólica. Lei Maria da Penha. Violência institucional. ABSTRACT: This article contributes to the national debate bringing initial elements for reflection on how the Mercosur countries view the issue of Agrarian Reform and access to land within a perspective of human rights. Initially analyzing Mercosur as a process of integration and regional development, the research shows historical and sociological nuances of the South American countries as a way of understanding the agrarian reality and peasant movements struggling in the countryside. Since then, it was examined the discussion of land reform in the Mercosur countries, their national peculiarities and differences. The approach on human rights and the national conception of each Member State allows the identification that their proximity is not limited to the geographical issue, but that each country shares close concepts and organization, considering its own dimension and peculiarities. Thus, it is possible to analyze the policies adopted by the MERCOSUL member countries in the sense that the access to land is a human right and the importance of Agrarian Reform to economic and social development. It is noted the fragility of common policies and the absence of effective policies concerning all the countries of MERCOSUL. Joint actions are identified, but without the status of a supranational policy that could achieve greater effectiveness to the reality of rural families. KEYWORDS: Acesso à terra. Direitos Humanos. MERCOSUL. Reforma Agrária comparada.[1] Professor da Universidade Federal da Grande Dourados. Mestre em Direito Agrário pela Universidade Federal de Goiás, 2012. Especialista em Direito Civil e Processo Civil pela Pontifícia Universidade Católica de Goiás, 2008). Graduado em Direito (Pontifícia Universidade Católica de Goiás, 2006.[2] Graduando em Direito pela Universidade Federal da Grande Dourados.

Customary Human Rights Law

2019 ◽  
pp. 129-160
Author(s):  
Steven Wheatley
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Path Dependence ◽  
Customary Law ◽  
General Assembly ◽  
Human Rights Law ◽  
Human Right ◽  
New Information ◽  
The Status ◽  
Law Making

Chapter 5 looks at customary human rights law, explaining how we can think about custom as a self-organizing system, the emergent property of the performative acts of states, who literally ‘speak’ customary human rights into existence; customary law then binds the same countries that brought it into existence, exhibiting the characteristics of a complex system. Complexity serves to remind us of the importance of path dependence, the power of events, and possibilities of change as states respond to new information. The work shows how the measures targeting apartheid South Africa after the Sharpeville Massacre resulted in the first customary human right on the prohibition of racial discrimination, as well as an evolution in the methodology for custom-formation, allowing reference to General Assembly resolutions and law-making treaties. The chapter further demonstrates how the status of persistent objector was denied to apartheid South Africa, confirming the non-negotiable character of fundamental human rights.

scholarly journals Human Rights and Status Functions, before and after the Enlightenment

2018 ◽  
Vol 49 (1) ◽  
pp. 31-41
Author(s):  
Gregory J. Lobo
Keyword(s):  
Human Rights ◽  
Human Right ◽  
The Enlightenment ◽  
Before And After ◽  
The Status

This article discusses John Searle’s status function account of human rights and Åsa Burman’s “A Critique of the Status Function Account of Human Rights.” While recognizing the validity of part of the critique, based on the distinction between types and tokens, the author argues that, nonetheless, one is not compelled to accept Burman’s conclusion, that “one must give up the status function account of human rights to explain how a human right (as a kind) can exist without collective recognition” (472). Specifically, the author accepts Burman’s critique of Searle’s attempt to preserve the intuition that human rights have existed without collective recognition, but concludes offering three ways to understand human rights even in the absence of collective recognition, all of which preserve the status function account.

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