Balancing of Values and the Value of Balancing (Part Two)

2021 ◽  
pp. 53-64
Author(s):  
Gadis A. Gadzhiev ◽  
◽  
Elena A. Voinikanis ◽  
Keyword(s):  
Human Rights ◽  
Legal Philosophy ◽  
Economic Analysis Of Law ◽  
Deontological Ethics ◽  
Adequate Response ◽  
Ethics And Economics ◽  
The Common ◽  
Natural Boundaries ◽  
The Relationship ◽  
Practical Field

The second part of the article is devoted to the analysis of two epistemological problems that are directly related to the balancing of values in judicial prac­tice – the nature of human rights and the relationship between law and non-le­gal normativity. According to the authors, the dispute between Habermas and Alexy over what is the authority of law in the area of human rights illustrates the conflict between Kantian legal philosophy and jurisprudence of interests, between the absolutism of deontological ethics and consequentialism. Balanc­ing legal values, using, among other things, the economic analysis of law, is one of the ways of the conscious evolution of law, its synchronization with the flow of life of society. Another problem is related to the conflict between the natural boundaries of law as a scientific and practical field of knowledge, and the regu­latory function of law, which presupposes a timely and adequate response of the law to external events and challenges. The authors turn to Luhmann’s dis­tinction between the normative closeness of law and its cognitive openness and come to the conclusion that there is both direct and indirect communication be­tween law and other normative systems (such as ethics and economics). Law assimilates and transforms ideas and values ​​of other areas of knowledge, but it shares with them the same context, which allows us to speak of the common cognitive structures

scholarly journals Smith v Chief Constable of Sussex Police; [2008] UKHL; 50

2012 ◽  
Vol 21 (1) ◽  
pp. 141-152
Author(s):  
Carol Brennan
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Law Reform ◽  
House Of Lords ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Common ◽  
The Law ◽  
The Relationship ◽  
Exclusive Focus

WHO HAS FIRST CLAIM ON “THE LOYALTY OF THE LAW”?Smith v Chief Constable of the Sussex Police (hereafter Smith) was heard by the House of Lords at the same time as Chief Constable of the Hertfordshire Police v Van Colle and another because they had two uniting factors. First, they both concerned the recurring question of the ambit of police liability in the situation described by Lord Bingham thus: “…if the police are alerted to a threat that D may kill or inflict violence on V, and the police take no action to prevent that occurrence, and D does kill or inflict violence on V, may V or his relatives obtain civil redress against the police, and if so, how and in what circumstances?”2  Secondly, considering the cases together highlighted the wider issue of the relationship between decisions under the Human Rights Act 1998 (hereafter the HRA) and the development of the common law. The Law Lords embarked on a more extensive examination of these issues in Smith and thus that case will be the exclusive focus of this note.  In addition, the study of Smith raises questions regarding proposals for law reform as well as about judicial perceptions of policy priorities. 

scholarly journals The Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) and the Courts

2014 ◽  
Vol 42 (1) ◽  
pp. 1-25 ◽  
Author(s):  
Dan Meagher
Keyword(s):  
Human Rights ◽  
Common Law ◽  
The Political ◽  
New Model ◽  
Indirect Influence ◽  
The Common ◽  
The Relationship ◽  
Direct Use

The Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) (‘the Act’) has established a new model of pre-legislative rights scrutiny of proposed Commonwealth laws. This is undertaken by the political arms of government and involves: (1) the requirement that a statement of (human rights) compatibility must accompany proposed laws and certain legislative instruments when introduced into Parliament; and (2) the establishment of the Parliamentary Joint Committee on Human Rights (‘PJCHR’) which regularly reports to the Parliament on the compatibility of its proposed laws with human rights. This article looks at the relationship between the Act – and these two new mechanisms – and the interpretive role of the courts. It does so by first considering the (possible) direct use of statements of compatibility and PJCHR reports by Australian courts in the interpretation of Commonwealth laws that engage human rights. It then assesses whether the Act may exert an indirect influence on the content and scope of the common law interpretive presumptions that protect human rights.

scholarly journals Decoding the Elements of Human Rights from the Verses of Ancient Vedic Literature and Dharmaśāstras

2021 ◽  
Author(s):  
Shailendra Kumar ◽  
Sanghamitra Choudhury
Keyword(s):  
Human Rights ◽  
Core Concept ◽  
Sanskrit Literature ◽  
Checks And Balances ◽  
The Core ◽  
Protective Shield ◽  
Vedic Literature ◽  
The Common ◽  
Western Perspective ◽  
The Relationship

This manuscript aims to provide a nuanced study of the idea of rights and duties prevalent in ancient Vedic society through Vedic literature and Dharmaśāstras . This manuscript delves into the exegesis of the Védas and Dharmaśāstras to accomplish this. The archaic Vedic literature and Dharmaśāstra texts are the origin and backbone of Sanskrit literature. They have a plethora of ideas that, if accepted, could be quite useful for the protection of any person's human rights. In Védas and Dharmaśāstras, rights and duties complement each other, and rights are integrated by duties. According to these texts, rights and duties are correlated and the relationship between rights and duties leads to the core concept of dharma (constitutional laws). Dharma is a systematic Sanskrit concept that includes traditions, obligation, morals, laws, order, and justice. It was a unique concept of dharma that kept checks and balances on sovereign officials and prevented them from becoming autocratic and anarchist. It also provided the common man with a protective shield against the dictatorship of sovereign officials. Ordinary citizens had more privileges and fewer responsibilities relative to the state's highest officials. The greater the authority, the less his privileges were, and the more extensive his responsibilities became. This research is an exegetical analysis of ancient Indian Vedic and later Vedic literature and is primarily aimed at deciphering some of the essential ideas of the rights found in these texts, which are akin to contemporary human rights. It endeavours to discern and explain the tenets of human rights obnubilated in the pristine mantras of Antediluvian Vedic and Smṛti texts of India. The essay further attempts to add a much needed non-western perspective to the historiography of human rights.

scholarly journals Judaism and Catholicism: The Common Ground of Social Justice

2020 ◽  
Vol 138 (4) ◽  
pp. 143-151
Author(s):  
Brian Klug
Keyword(s):  
Human Rights ◽  
Social Justice ◽  
Social Movement ◽  
Social Action ◽  
Common Ground ◽  
The Subject ◽  
The Common ◽  
Action Taking ◽  
The Relationship ◽  
The Church

This article is about the relationship between Judaism and Catholicism. Rather than proceeding on the plane of theology – comparing Catholicism and Judaism in terms of their conceptions of the divine – the author approaches the subject ‘from the ground up’, considering their convergence at the level of social action. Taking his cue from Margaret Archer, who has spoken about ‘the Church as a social movement’, he presents Judaism in a similar light, drawing on resources within Judaism that conduce towards promoting human rights and social justice. Moreover, writing as a Jewish Fellow at a Catholic Oxford college (St Benet’s Hall), he recounts certain experiences that illustrate how Jews and Catholics can come together on common ground.

A tale of the land, the insider, the outsider and human rights (an exploration of some problems and possibilities in the relationship between the English common law property concept, human rights law, and discourses of exclusion and inclusion)

Legal Studies ◽  
2003 ◽  
Vol 23 (1) ◽  
pp. 33-65 ◽  
Author(s):  
Anna Grear
Keyword(s):  
Human Rights ◽  
Deep Structure ◽  
Common Law ◽  
Conceptual Structure ◽  
Human Rights Law ◽  
Land Law ◽  
Context Sensitive ◽  
Legal Actor ◽  
The Common ◽  
The Relationship

This paper examines the interplay between discourses of exclusion and inclusion in the relationship between land law and human rights. It explores the common law conception of property in land and its relationship with the conceptual structure of property before suggesting that the particular form the conception takes in the English common law is problematic as a discourse of exclusion in the light of inclusive human rights considerations. However, further submerged exclusions in law are also explored, suggesting a problematic ideological continuity between land law and human rights law, notwithstanding identifiable surface tensions between them as contrasting discourses. Once the continuity of hidden exclusions is identified, the paper explores the theoretical unity between the deep structure of property as ‘propriety’ and human rights as ‘what is due’, and suggests their mutual potential for embracing more inclusive concerns. Finally, two modest proposals for future theoretical reform are offered: the need for a more anthropologically adequate and inclusive construct of the human being as legal actor, and the need for a more differentiated, context-sensitive formulation of the common law1 property conception, one capable of reconciling conceptually necessary elements of excludability with inclusive human rights impulses.

scholarly journals Decoding the Elements of Human Rights from the Verses of Ancient Védic Literature and Dharmaśāstras

Literature ◽  
2021 ◽  
Vol 1 (1) ◽  
pp. 24-40
Author(s):  
Shailendra Kumar ◽  
Sanghamitra Choudhury
Keyword(s):  
Human Rights ◽  
Core Concept ◽  
Sanskrit Literature ◽  
Checks And Balances ◽  
The Core ◽  
Protective Shield ◽  
Vedic Literature ◽  
The Common ◽  
Western Perspective ◽  
The Relationship

This manuscript aims to provide a nuanced study of the idea of rights and duties prevalent in ancient Védic society through Védic literature and Dharmaśāstras. This manuscript delves into the exegesis of the Védas and Dharmaśāstras to accomplish this. The archaic Védic literature and Dharmaśāstra texts are the origin and backbone of Sanskrit literature. They have a plethora of ideas that, if accepted, could be quite useful for the protection of any person’s human rights. In the Védas and Dharmaśāstras, rights and duties complement each other, and rights are integrated with duties. According to these texts, rights and duties are correlated and the relationship between rights and duties leads to the core concept of dhárma (constitutional laws). Dhárma is a systematic Sanskrit concept that includes traditions, obligations, morals, laws, order, and justice. It was a unique concept of dhárma that kept checks and balances on sovereign officials and prevented them from becoming autocratic and anarchist. It also provided the common man with a protective shield against the dictatorship of sovereign officials. Ordinary citizens had more privileges and fewer responsibilities relative to the state’s highest officials. The greater the authority, the less his privileges were, and the more extensive his responsibilities became. This research is an exegetical analysis of ancient Indian Védic and later Védic literature and is primarily aimed at deciphering some of the essential ideas about rights found in these texts, which are akin to contemporary human rights. It endeavours to discern and explain the tenets of human rights obnubilated in the pristine mantras of the ancient Védic and Smṛti texts of India. The essay further attempts to add a much-needed non-western perspective to the historiography of human rights.

The positive duty of prevention in the common law and the Convention

Legal Studies ◽  
2019 ◽  
Vol 40 (2) ◽  
pp. 209-229
Author(s):  
Achas K Burin
Keyword(s):  
Human Rights ◽  
United Kingdom ◽  
Common Law ◽  
Positive Duty ◽  
New Approach ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Common ◽  
The Right ◽  
The Relationship

AbstractTwenty years after the Human Rights Act 1998 came into force, where are we in our understanding of the relationship between tort and human rights? This paper argues that we are not as far along in our understanding as we could be. The reason for that has been the methodology we used to understand the relationship, focused as it was around remedies, limitation and causation. This paper proposes a new approach, based around the right rather than the remedy. It aims to theorise one particular cause of action – the duty in Osman v United Kingdom – to exemplify this approach. For English lawyers, who have historically used the framework of the forms of action to understand our own law, it is argued that this a good way to comprehend the European jurisprudence.

scholarly journals Decoding the Elements of Human Rights from the Verses of Ancient Vedic Literature and Dharmaśāstras: An Exegetical Study

2021 ◽  
Author(s):  
Shailendra Kumar ◽  
Sanghamitra Choudhury
Keyword(s):  
Human Rights ◽  
Core Concept ◽  
Sanskrit Literature ◽  
Checks And Balances ◽  
The Core ◽  
Protective Shield ◽  
Vedic Literature ◽  
The Common ◽  
Western Perspective ◽  
The Relationship

This manuscript aims to provide a nuanced study of the idea of rights and duties prevalent in ancient Vedic society through Vedic literature and Dharmaśāstras . This manuscript delves into the exegesis of the Védas and Dharmaśāstras to accomplish this. The archaic Vedic literature and Dharmaśāstra texts are the origin and backbone of Sanskrit literature. They have a plethora of ideas that, if accepted, could be quite useful for the protection of any person's human rights. In Védas and Dharmaśāstras, rights and duties complement each other, and rights are integrated by duties. According to these texts, rights and duties are correlated and the relationship between rights and duties leads to the core concept of dharma (constitutional laws). Dharma is a systematic Sanskrit concept that includes traditions, obligation, morals, laws, order, and justice. It was a unique concept of dharma that kept checks and balances on sovereign officials and prevented them from becoming autocratic and anarchist. It also provided the common man with a protective shield against the dictatorship of sovereign officials. Ordinary citizens had more privileges and fewer responsibilities relative to the state's highest officials. The greater the authority, the less his privileges were, and the more extensive his responsibilities became. This research is an exegetical analysis of ancient Indian Vedic and later Vedic literature and is primarily aimed at deciphering some of the essential ideas of the rights found in these texts, which are akin to contemporary human rights. It endeavours to discern and explain the tenets of human rights obnubilated in the pristine mantras of Antediluvian Vedic and Smṛti texts of India. The essay further attempts to add a much needed non-western perspective to the historiography of human rights.

scholarly journals Reconciling Customary Law and Cultural Practices with Human Rights in Uganda

Obiter ◽  
2020 ◽  
Vol 41 (2) ◽  
pp. 239-256
Author(s):  
Jamil Ddamulira Mujuzi
Keyword(s):  
Human Rights ◽  
Cultural Practices ◽  
Common Law ◽  
Customary Law ◽  
Bill Of Rights ◽  
Local Council ◽  
The Common ◽  
The Relationship ◽  
Customary Practices

Customary law has been part of Ugandan law for many years. Section 2 of the Local Council Courts Act, 2006 defines “customary law” to mean “the rules of conduct established by custom and long usage having the force of law and not forming part of the common law nor formally enacted in any legislation”. Ugandan courts have explained the relationship between customary law and other laws. In 1995, Uganda adopted a constitution that includes, among other things, a bill of rights that prohibits discriminatory and degrading laws and customs. This was informed during the making of the Constitution by the arguments of many Ugandans that discriminatory and degrading customary practices and laws should be abolished by the Constitution. In this article, the author illustrates the steps that have been taken by the drafters of the Constitution, Parliament (through legislation) and courts to outlaw discriminatory and degrading cultural practices. The author recommends ways in which some of these measures could be strengthened.

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