Proportionality and Principled Balancing

2010 ◽  
Vol 4 (1) ◽  
pp. 1-16 ◽  
Author(s):  
Aharon Barak
Keyword(s):  
Human Rights ◽  
Final Decision ◽  
Judicial Discretion ◽  
General Criterion ◽  
Levels Of Abstraction ◽  
Constitutional Amendments ◽  
The Public ◽  
Independent Judiciary ◽  
The Social ◽  
The Mind

This essay focuses on proportionality stricto sensu as a consequential test of balancing. The basic balancing rule establishes a general criterion for deciding between the marginal benefit to the public good and the marginal limit to human rights. Based on the Israeli constitutional jurisprudence, this essay supports the adoption of a principled balancing approach that translates the basic balancing rule into a series of principled balancing tests, taking into account the importance of the rights and the type of restriction. This approach provides better guidance to the balancer (legislator, administrator, judge), restricts wide discretion in balancing, and makes the act of balancing more transparent, more structured, and more foreseeable.The advantages of proportionality stricto sensu with its three levels of abstraction are several. It stresses the need to always look for a justification of a limit on human rights; it structures the mind of the balancer; it is transparent; it creates a proper dialog between the political brunches and the judiciary, and it adds to the objectivity of judicial discretion. Proportionality stricto sensu however has it critics: some claim that it attempts to balance incommensurable items; others that balancing is irrational. The answer to the critics is that it is a common base for comparison, namely the social marginal importance and that the balancing rules—basic, principled, concrete—supply a rational basis for balancing. A democracy must entrust the judiciary—the unelected independent judiciary—to be the final decision-maker—subject to constitutional amendments—about proper ends that cannot be achieved because they are not proportionality stricto sensu.

scholarly journals Konstytucyjne aspekty procesu karnego w działalności Rzecznika Praw Obywatelskich

2021 ◽  
Vol 28 (2) ◽  
pp. 205-211
Author(s):  
Stanisław Trociuk
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Point Of View ◽  
Final Decision ◽  
Criminal Cases ◽  
Public Prosecution ◽  
The Public ◽  
Protection Of Human Rights ◽  
The Individual

The changes in the broadly conceived criminal procedure which were introduced in recent years refer to the problems which are crucial from the perspective of the protection of human rights, such as the scope of the authority of the services due to operational control which is conducted secretly, the model of the functioning of the public prosecution service or the unlawful acquiring of evidence in a criminal procedure. The evaluation of these changes, conducted by the Ombudsman from the point of view of the constitutional standards of the protection of the rights of the individual is not positive. The new regulations reduce the quality of these standards and they do not contain sufficient guarantees of protection against the arbitrariness of the activities engaged in these terms by the organs of public authority. This phenomenon imposes a particular duty on the courts – which hear criminal cases – to see that the final decision in a criminal case respects the universal standards of the protection of human rights.

scholarly journals Dómstólaeftirlit með Alþingi: Breytt valdahlutföll í stjórnskipuninni

2016 ◽  
Vol 12 (1) ◽  
pp. 23 ◽  
Author(s):  
Björg Thorarensen
Keyword(s):  
Human Rights ◽  
Social Security ◽  
Rule Of Law ◽  
European Convention ◽  
Constitutional Democracy ◽  
Constitutional Amendments ◽  
Judicial Control ◽  
The Social ◽  
The Supreme Court ◽  
Constitutional System

The article focuses on how the control of the judiciary over the legislature has increased in the last decades and the reasons for altered balance of powers in the Icelandic constitutional system are explored. Earlier theories of parliamentary precedence over other branches of state power are in transition. There is a growing trend towards the balancing of powers, in which the courts monitor that legislation complies with the constitution. A comparison is made with the developments in the constitutional systems of Denmark and Norway which points at the same direction. The European Convention on Human Rights and constitutional amendments in 1995 have affected the interpretation methods of the Icelandic courts and strengthened their supervisory role. Ideas underlying constitutional democracy, rule of law and effective remedies for individuals are prevailing over the idea of preferred position of the legislative power vis-à-vis the judiciary. The courts see it as a constitutional duty to adjudicate whether a legislative act conforms with constitutional human rights. The Supreme Court of Iceland has referred to the wide discretion of the legislature in the field of fiscal powers, such as regarding taxation and the social security system. However, even where legislation aims at the implementation of important political policies, the discretion of Althingi is subject to certain limits. The effective judicial control requires that Althingi must assess carefully whether legislation which limits constitutionally protected human rights conforms with the principles of equality and proportionality.

The protection and promotion of human-rights

2020 ◽  
pp. 384-398
Author(s):  
Irina Ichim
Keyword(s):  
Human Rights ◽  
State Repression ◽  
The Public ◽  
The Social ◽  
The Face ◽  
Protection Of Human Rights ◽  
Government Propaganda ◽  
The Relationship ◽  
Civic Space ◽  
Recent Government

This chapter explores developments in the protection of human-rights in Kenya post-2002 by examining three interconnected issues: changes in the social and political landscape and how these created or constrained opportunities for activism; changes in the relationship between the state and the human-rights sector, but also within the human-rights sector; and evolving patterns of (non-)state repression of activism. The chapter shows that, against the background of a complex historical experience, and with the help of Kenya’s 2010 Constitution and a reformed judiciary, the human-rights sector in Kenya has grown into a staunch and able defender of civic space in the face of recent government assaults. However, government propaganda and the sector’s institutionalization simultaneously coalesce to disconnect the sector from the public. Coupled with divisions between professional and grassroots defenders, this disconnect risks limiting the sector’s ability to build on the momentum presented by recent achievements.

scholarly journals Cross-Modal Sentiment Sensing with Visual-Augmented Representation and Diverse Decision Fusion

Sensors ◽  
2021 ◽  
Vol 22 (1) ◽  
pp. 74
Author(s):  
Sun Zhang ◽  
Bo Li ◽  
Chunyong Yin
Keyword(s):  
Sentiment Analysis ◽  
Decision Fusion ◽  
Visual Features ◽  
Final Decision ◽  
The Public ◽  
Proposed Model ◽  
The Social ◽  
Interactive Relationship ◽  
Multimodal Sentiment Analysis ◽  
Hybrid Fusion

The rising use of online media has changed the social customs of the public. Users have become accustomed to sharing daily experiences and publishing personal opinions on social networks. Social data carrying emotion and attitude has provided significant decision support for numerous tasks in sentiment analysis. Conventional methods for sentiment classification only concern textual modality and are vulnerable to the multimodal scenario, while common multimodal approaches only focus on the interactive relationship among modalities without considering unique intra-modal information. A hybrid fusion network is proposed in this paper to capture both inter-modal and intra-modal features. Firstly, in the stage of representation fusion, a multi-head visual attention is proposed to extract accurate semantic and sentimental information from textual contents, with the guidance of visual features. Then, multiple base classifiers are trained to learn independent and diverse discriminative information from different modal representations in the stage of decision fusion. The final decision is determined based on fusing the decision supports from base classifiers via a decision fusion method. To improve the generalization of our hybrid fusion network, a similarity loss is employed to inject decision diversity into the whole model. Empiric results on five multimodal datasets have demonstrated that the proposed model achieves higher accuracy and better generalization capacity for multimodal sentiment analysis.

scholarly journals Western tolerance: the rule of democracy or the offensive of dehumanization?

2020 ◽  
Vol 26 (3) ◽  
pp. 227-246
Author(s):  
A. N. Il’in
Keyword(s):  
Human Rights ◽  
The West ◽  
The Public ◽  
Cultural Transformations ◽  
Sexual Perversion ◽  
The Social ◽  
The Status ◽  
Tolerant Line ◽  
Social Minorities ◽  
Good And Evil

In the West, there is a total substitution of concepts, expressed in the idea of tolerance, according to which humanism manifests itself in respect for any system of values. The criteria for good and evil are neutralized, and the Weld of what is permitted is expanded. Values and life practices that were traditionally considered unacceptable and marginal in the culture receive the status of normal and even necessary. When the boundaries of tolerance are not defined, the idea itself becomes dehumanizing. But the dehumanizing meaning of the ongoing cultural transformations is hidden behind emotionally attractive names like human rights and democracy. Socially harmful ideology and the life practices it absolutizes are given a lot of emotionally euphonious names, which are simulacra that hide the true essence of the phenomena being signified. Ne protection of minority rights under the banner of democracy and human rights is usually an attack on the rights of the majority, and human rights are wrongly identified with the rights of the minority. The absolutization of the rights of social minorities (and the most radical ones in relation to traditional culture) is at the same time an infringement of the rights of the majority. The social majority becomes oppressed. Ne idea of tolerance implanted anti-democratic, without taking into account the views of the public. In the West, it is necessary to show tolerance both to different practices and points of view, and to the very fact of planting this tolerant line. That is, a mandatory tolerance for tolerance is instilled. The common idea of postmodern relativization of values is not entirely correct. The sick, the evil, and the unreasonable are given more right to exist than the healthy, the good, and the reasonable. But instead of equating the worthy and the unworthy, a “sociocultural inflection” is carried out towards the unworthy. Criticism of homosexuality is presented as reprehensible intolerant homophobia, and parents who are negative about gay propaganda risk becoming clients for juvenile services. Even schools began to reorient themselves under the apologia of sexual perversion, which is a reversal to the de-intellectualization and dehumanization of children’s minds. Trends that are referred to as ways to protect human rights, freedom, and democracy actually lead to social dehumanization.

The Disgrace and Fall of Carl Peters: Morality, Politics, and Staatsräson in the Time of Wilhelm II

1981 ◽  
Vol 14 (2) ◽  
pp. 110-141 ◽  
Author(s):  
Martin Reuss
Keyword(s):  
Human Rights ◽  
East Africa ◽  
Government Officials ◽  
Civilizing Mission ◽  
Social Democratic ◽  
The Public ◽  
Morality Politics ◽  
The Social ◽  
German East Africa ◽  
The Government

As the founder of German East Africa, Carl Peters exercised a continuing hold on the German imagination in the 1890s despite the growth of a general “colonial-weariness” (Kolonialmüdigkeit) in the population. Among a group of colonial adventurers which had failed to produce any man of truly heroic proportions, he still seemed to many a man of unusual mettle, and the entire colonial effort was closely associated with his name. Knowing this, the Colonial Division for four years kept hidden from the public the story of Peters' misbehavior on the slopes of Mt. Kilimanjaro in 1891 and 1892. The Division did not simply refuse to pursue the case expeditiously but refused to admit the facts at all. It was a dangerous game, but one which the government felt it had to play in order to preserve the integrity of the colonial movement. The unfortunate result was that when the story did break in 1896 as a consequence of Social Democratic revelations, the Colonial Division found itself as much on the defense as Peters himself. Not only had a person of Peters's stature violated basic human rights, but the government had put itself in the position of implicitly condoning the brutal suppression of a colonial people. The “civilizing mission,” no one could deny, had been misused for private gain and pleasure, and the Social Democratic attacks on colonialism gained a new moral credibility which could be used to strengthen the party's popularity, much to the chagrin of government officials.

Righting the Public Order Script

2021 ◽  
pp. 205-240
Author(s):  
Richard Martin
Keyword(s):  
Human Rights ◽  
Northern Ireland ◽  
Common Sense ◽  
Public Order ◽  
Human Rights Law ◽  
Paradigm Case ◽  
The Public ◽  
Legal Context ◽  
The Social ◽  
Material Form

Contentious parades and protests in Northern Ireland present a paradigm case of competing rights, requiring the PSNI to respond in ways that respect the human rights of the various parties involved. This chapter introduces and develops the idea of the PSNI’s public order ‘script’ which is used to manage contentious parades and protests. The script can be thought of as the organization’s carefully constructed template for managing public order events, especially contentious parades and protests. This script is written and promoted by public order commanders who are acutely aware of the political sensitivities of parades and protests and the formal oversight they face in policing them. In the material form of operational plans and briefing documents, the script is communicated to frontline officers – often the TSG – who are tasked with performing the police operation according to the script. The first two sections of this chapter provide the platform for the analysis of the police script by explaining the social and legal context within which it is written and performed. The production, promotion and delivery of human rights law as an integral part of the police script is then traced in detail, before the chapter analyses how public order commanders came to acquire the knowledge and expertise needed to become human rights script-writers and decision-makers. This hints at the movement away from the kinds of ‘common sense’ understandings described in Part III and towards a more legalistic, technical one reflecting the responsibilities commanders shouldered and the formal audiences they addressed.

scholarly journals Equality and Human Rights in Britain: Principles and Challenges

2011 ◽  
Vol 10 (2) ◽  
pp. 193-203 ◽  
Author(s):  
Sheila Riddell ◽  
Nick Watson
Keyword(s):  
Human Rights ◽  
Social Issues ◽  
The Political ◽  
Pay Gap ◽  
The Public ◽  
Marginalised Groups ◽  
The Social ◽  
The Public Sphere ◽  
The Uk ◽  
Political Right

In the UK and many other European countries, there continue to be concerns about a range of social issues including the position of immigrants, the educational attainment of marginalised groups and the persistence of the gender pay gap. Increasingly, governments and NGOs assert that the promotion of equality and human rights policies are central to addressing these issues, with a view to creating societies which are both more equitable and more efficient. Over the past decade and a half, a period of economic growth followed recently by a major recession, the equality and human rights agenda enjoyed a high political profile. However, as we discuss in this review article, the social and economic optimism of the late nineties and early to mid noughties has been followed by economic retrenchment, a commitment to the shrinking of the state and the public sphere across Europe and a general move to the political right. In this article, we first review the political context which led to the rise of the equality and human rights agenda. Subsequently, we examine competing conceptualisations of equality and their operationalisation within British social policy. Finally, we assess the progress which has been made towards achieving a more equal society in the UK over recent years drawing on data gathered and analysed by the National Equality Panel (NEP, 2010).

scholarly journals ON HUMANITARIANISM AND HUMANISM: LINGUISTIC AND STYLISTIC FEATURES OF THE STATEMENTS OF THE LEADERS OF LITERARY GROUPS IN THE EARLY 1930S (based on the responses of Leopold Averbakh, Maxim Gorky, Viktor Shklovsky to the death of Vladimir Mayakovsky)

2020 ◽  
pp. 179-184
Author(s):  
Vagif N. Guseynov
Keyword(s):  
Vladimir Mayakovsky ◽  
The Public ◽  
The Social ◽  
Social Domination ◽  
Public Consciousness ◽  
Tragic Event ◽  
Maxim Gorky ◽  
Social Organism ◽  
The Mind ◽  
Viktor Shklovsky

The suicide of Vladimir Mayakovsky, the prophet of the revolution, its «agitator, bawler ringleader», which occurred in 1930, when the fate of the fi rst fi ve-year plan was being decided, coincided with a turning point in the Soviet Union’s sociopolitical life. This death, as well as the former suicide of Sergei Yesenin, impressed the society dramatically – it rocked the social optimism of the builders of socialism, besmirching the prospects. The responses of Leopold Averbakh, Maxim Gorky and Viktor Shklovsky to the tragic event reveal their assessment of Vladimir Mayakovsky’s work and their attitude to him as a person and a bearer of a certain worldview. These responses are important documents of the time, because they revealed the moral traits of the leaders of the literary life of the country, those who were later called «engineers of human souls». The analysis of statements about Vladimir Mayakovsky’s death, undertaken for the fi rst time in this article, reveals the «style» of the era of socialist reconstruction, in which there are no ways to express sympathy for a person: the poet’s tragedy became an occasion for polemics with class enemies (Leopold Averbakh), for edifying teaching (Maxim Gorky), for playing self-justifi cation (Viktor Shklovsky). The «slogan», «educational» and «game» principles represent the triumphant «humanitarianism» of the public consciousness of the era, understood as a form of «social domination» that provides people with «words» of the position of the arbiters of human destinies. In these relations, there are no concepts characteristic of a patriarchal society that include words and concepts to explain the principle of functioning of the social organism in the categories of «humanity», understood as «moral», «conscientious», «cordial», «sincere», not happening from the mind, but from the action of the «spirit».

Wanted a New Conceptual Framework for Doing Psychology in India

2019 ◽  
pp. 219-245
Author(s):  
U. Vindhya
Keyword(s):  
Mental Health ◽  
Human Rights ◽  
Social Justice ◽  
Social Inequalities ◽  
Critical Psychology ◽  
Research And Practice ◽  
The Public ◽  
Perspective Drawing ◽  
The Social ◽  
Psychology Perspective

Addressing the social inequalities and their influences on behaviour and striving for work towards a change in institutions and systems that perpetuate injustice and inequities implies a commitment to a social justice agenda. It is this commitment and the research and practice it seeks to generate that can be termed as the public psychology perspective. It pursues the quest for social change by an ethic that emphasizes distributive justice and human rights and advocates for policies that maximize the accessibility of resources to the disenfranchised and disempowered sections of society in particular. This chapter focusses on the tenets of the public psychology perspective, drawing on the tradition of critical psychology and covers the efforts currently underway exemplified by this perspective, drawn from the fields of mental health and education.

Sign in / Sign up

Export Citation Format

Share Document