Negotiating the Nonnegotiable

2021 ◽  
Vol 26 ◽  
pp. 3-30
Author(s):  
Gordon Haist ◽  
Keyword(s):  
Human Rights ◽  
Decision Theory ◽  
Jacques Derrida ◽  
Comparative Approach ◽  
Negative Outcomes ◽  
Institutional Settings ◽  
Threshold Conditions

Are human rights negotiable? Jacques Derrida argued that it is necessary to negotiate the nonnegotiable to save the nonnegotiable. This paper defends this claim while arguing for what Calvin Schrag called an ethics of the fitting response and finding such a response in Amartya Sen’s realization-focused comparative approach to justice. For Derrida, the aporetic character of urgency produces decisions which must be made outside the institutional limits of decision theory. That calls for a deconstruction of the axiomatics of rights in institutional settings. It also makes urgent the need for a deinstitutionalized ethics undeceived by the challenge of making judgments in aporias. Using Ted Honderich’s humanism as counterfoil, the argument moves through Derrida’s concept of "contradictory coherence" to Schrag’s transverse rationality, which thinks with deconstruction in order to think against its negative outcomes. The paper ends by suggesting that Schrag's communicative praxeology forges an ethics compatible with Sen’s threshold conditions to determine rights through freedoms.

scholarly journals The Theme of Humanitarianism as Portrayed in Langston Hughes’ Poetry

2018 ◽  
Vol 9 (1) ◽  
pp. 22
Author(s):  
Ahmed Adam Abdalla Babiker
Keyword(s):  
Human Rights ◽  
Effective Means ◽  
Langston Hughes ◽  
Comparative Approach ◽  
Human Suffering ◽  
Human Value ◽  
Western Concept ◽  
Protection Of Human Rights ◽  
Important Means ◽  
The Difference

This study focuses on the theme of humanitarianism as portrayed in Hughes’ poetry. One key objective of this study is to find out to what extent Hughes deals with the theme of humanitarianism in his poetry. Also, to shed lights on the theme of humanitarianism as human value and to compare the western concept of humanitarianism with the Islamic one and reach some conclusions. The study follows the descriptive, analytic and comparative approach to discuss and rationally analyze five selected poems of Hughes with special reference to the theme of humanitarianism that is depicted in them. In accordance, a number of findings have been obtained:  many types of humanitarianism such as reducing the human suffering, protection of human rights, including, right of life, security, freedom, equality, justice and peace have been portrayed in Langston Hughes poetry. In addition, values of impartiality and neutrality which represent the central point of humanitarianism are also portrayed. Also, it can be said that conducting comparative studies is one important means for cultural understanding between different peoples, and can be used as an effective means for the exchange of ideas, values, experiences and yet draw the nations closer to each other; hence contributing to the spread of understanding and peace between peoples. Moreover, despite the existence of some differences in some points, specifications and concepts, nonetheless, the theme of humanitarianism is found as a key value in both American and Islamic traditions; although the difference of cultures, including religions. Lastly, it can be said that due to the findings of the study, we could argue that, the humanitarianism cannot be separated from human rights.

scholarly journals Judicial impartiality, decorative comparative law and the Human Rights Court: ECtHR, Alexandru Marian Iancu v. Romania, Application No. 60858/15

2020 ◽  
Vol 27 (3) ◽  
pp. 387-396
Author(s):  
Jaakko Husa
Keyword(s):  
Human Rights ◽  
Comparative Law ◽  
Case Note ◽  
Comparative Approach ◽  
Human Rights Law ◽  
European Court ◽  
Key Points ◽  
Rights Issues ◽  
Judicial Method

This case-note analyses the case of Alexandru Marian Iancu v. Romania, decided by the European Court of Human Rights in February 2020. The comment addresses two essential issues involved. The first issue concerns potential partiality of a judge who has been involved in overlapping proceedings. The second issue concerns the judicial method the Court uses in its reasoning. The note explains the background to the judgment, summarizing the facts leading to the judgment and the human rights issues before the Court. Then the proceedings before the Court and the Court’s decision are reviewed, before commenting on the judgment’s key points of significance for human rights law and use of comparative law as a part of human rights reasoning. The critical focus is on the comparative approach deployed by the Court.

Hiding Between Basho and Chōra

2019 ◽  
Vol 49 (3) ◽  
pp. 335-361
Author(s):  
Brian Schroeder
Keyword(s):  
Martin Heidegger ◽  
Jacques Derrida ◽  
Cross Cultural ◽  
The Other ◽  
Comparative Approach ◽  
The One ◽  
Nishida Kitaro

Abstract This essay considers the relation between two fundamentally different notions of place—the Greek concept of χώρα and the Japanese concept of basho 場所—in an effort to address the question of a possible “other beginning” to philosophy by rethinking the relation between nature and the elemental. Taking up a cross-cultural comparative approach, ancient through contemporary Eastern and Western sources are considered. Central to this endeavor is reflection on the concept of the between through an engagement between, on the one hand, Plato, Martin Heidegger, Jacques Derrida, Edward Casey, and John Sallis, and on the other, Eihei Dōgen, Nishida Kitarō, and Watsuji Tetsurō.

scholarly journals Human Rights and the Same-Sex Marriage Debate in Australia

2017 ◽  
Vol 10 (4) ◽  
pp. 60
Author(s):  
Bede Harris
Keyword(s):  
Human Rights ◽  
John Rawls ◽  
The United States ◽  
Comparative Approach ◽  
Heterosexual Couples ◽  
Same Sex ◽  
Political Debate ◽  
Same Sex Marriage ◽  
Goods And Services ◽  
The Right

Australia is currently confronting the issue of whether to legalise same-sex marriage. Thus far debate has been conducted with little reference to human rights theory. This article draws on the theories of John Rawls and John Stuart Mill and analyses whether, by confining the right to marry to heterosexual couples, the law infringes the right to privacy and, conversely, whether the legalisation of same-sex marriage would infringe religious rights of those who are unwilling to provide goods and services to same-sex couples. In so doing, the article adopts a comparative approach, drawing on case law from the United States. The article examines the way in which political debate on the issue has been conducted by the major parties in Australia, and concludes that both the Liberal-National coalition and the Labor party have been motivated by a desire to appease the religious right within their ranks, at the expense of human rights principles.

scholarly journals POSSIBILITY TO CORRECT THE FREEDOM OF SPEECH IN INDONESIAN LAW: COMPARISON BETWEEN SINGAPORE LAW AND INDONESIAN LAW ON BROADCASTING

2021 ◽  
Vol 14 (1) ◽  
pp. 53-63
Author(s):  
Dian Narwastuty ◽  
Christian Nugraha
Keyword(s):  
Human Rights ◽  
Hate Speech ◽  
Freedom Of Speech ◽  
Comparative Approach ◽  
Legal Research ◽  
Conceptual Approach ◽  
Legal Sanction ◽  
The Right ◽  
Fear Of Retaliation

Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. This principle is one of the Human Rights principles that are necessary for the progress of humanity itself. But its existence has always triggered a dispute because of the abuse of the right. The abuse of the rights consists of Hate Speech and Hoaxes. This research is normative legal research that uses a comparative approach and conceptual approach. And also, this research will compare the Freedom of Speech and Broadcasting laws in Indonesia and Singapore, especially law in the broadcasting sector. Theoretically, the benefits of this research are to answer the problem of correcting Freedom of Speech, especially in broadcasting law. Practically, it is helpful for society to know much more about hate speech and hoaxes also the possibility to correct the broadcasting law in Indonesia based on the same regulation in Singapore.

scholarly journals Politik penegakan hak asasi manusia pada masa transisi d Indonesia

2016 ◽  
Vol 13 (2) ◽  
pp. 199-208
Author(s):  
Halili Halili
Keyword(s):  
Human Rights ◽  
Comparative Approach ◽  
The Political ◽  
Old Regime ◽  
Partial Adaptation ◽  
Presidential Decree ◽  
The Law ◽  
Year 2000 ◽  
Human Rights Violation

This article was aimed at (1) discovering and constructing the political dynamics in formulating the Law of the Court of Human Rights; (2) analyzing its implication on the future of politic of Human Rights in Indonesia. This essay was a result of content analysis research with qualitative-comparative approach. The finding showed that (1) substantively, the formulation of Law No. 26 Year 2000 on Human Rights Court has fundamental weaknesses such as a partial adaptation of The Roma Statute, the course of human rights court was constructed weak by stating its authority only on investigation, whereas attorney General's Office authority on investigation lacks of detail prescription, deleting the responsibility of command such as those on the Rome Statute, etc. A lot of lacks indicate that the law was only an instrument of transitional authority. The ‘toothless’ law indicates the victory of the old regime in political battlement and tension with the new regime in reformation era. The politicization of handling of human rights violation before the release of the law of Court on which the Representative People Council has authority to propose but the decision maker is the President by Presidential Decree. 2) the political dynamic has an implication on two long term situations, hoarding impunity and the crises of human rights values.   

scholarly journals EXAMINING THE DRAFT CIPTA KERJA BILL IN THE PERSPECTIVE OF HUMAN RIGHTS TO ACHIEVE RESPONSIVE, ASPIRATIONAL AND PROGRESSIVE NATIONAL LAW DEVELOPMENT

2021 ◽  
Vol 12 (2) ◽  
pp. 1
Author(s):  
Rama Halim Nur Azmi
Keyword(s):  
Human Rights ◽  
Comparative Approach ◽  
National Interests ◽  
The Public ◽  
Critical Attitude ◽  
Employment Sector ◽  
The People ◽  
The Government ◽  
Made In ◽  
Laws And Regulations

Abstract:President Joko Widodo in 2018 revealed the government's target of making a law by means of the omnibus law to overcome the existence of regulatory obesity and overlapping regulations in Indonesia. One of the sectors the government has targeted for the enactment of the omnibus law is the employment sector. The drafting of the omnibus law bill on labor began in 2019 with the target completed within 100 days. At that time the draft law was called the Draft Cipta Lapangan Kerja Bill. However, in the draft last in February 2020 the draft law was named the Draft Cipta Kerja Bill. According to the Chairperson of the People's Legislative Assembly, Puan Maharani, in the DraftCipta Kerja Bill, which was made in an omnibus law, consisted of 79 laws. In the Draft Cipta Kerja Billnotonly includes the employment sector but also other sectors such as the environment. However, the Cipta Kerja Bill has so far drawn rejection from the public, laborers, activists, academics, and practitioners because it is considered in the drafting of the Cipta Kerja Bill that it has problems both formally and materially, even according to some experts the Cipta Kerja Bill has the potential to violate human rights if authorized. In this paper, we will discuss the existence of the omnibus law as one of the mechanisms for the formation of laws and regulations and how the problems in the Draft Cipta Kerja Bill. The method used in this research is a normative juridical method with the statutory and comparative approach. The results of this study are an analysis of the existence of the omnibus law as one of the mechanisms for the formation of legislation and the existence of a picture and a critical attitude towards the issue of the Cipta Kerja Bill. So that through this paper, it can be seen whether the drafting of the Cipta Kerja Bill is intended for the interests of the people or only for the sake of investment which will certainly sacrifice human rights and harm national interests.   Keywords: omnibus law, Draft CiptaKerja Bill, employment, human rights.   Abstrak:Presiden Joko Widodo pada tahun 2018 mengungkapkan target pemerintah yakni membuat suatu undang-undang dengan cara omnibus law untuk mengatasi adanya obesitas regulasi dan tumpang tindihnya regulasi di Indonesia. Salah satu sektor yang menjadi target pemerintah untuk dibuatkan undang-undang omnibus law adalah sektor ketenagakerjaan. Penyusunan rancangan undang-undang omnibus law tentang ketenagakerjaan dimulai sejak tahun 2019 dengan target selesai dalam waktu 100 hari. Saat itu rancangan undang-undang tersebut dinamakan Rancangan Undang-Undang Cipta Lapangan Kerja. Namun, dalam draft terakhir pada Februari 2020 rancangan undang-undang tersebut bernama Rancangan Undang-Undang Cipta Kerja (RUU Cipta Kerja). Menurut Ketua Dewan Perwakilan Rakyat Puan Maharani dalam RUU Cipta Kerja yang dibuat secara omnibus law tersebut terdiri dari 79 undang-undang. Dalam RUU Cipta Kerja tersebut tidak hanya memuat tentang sektor ketenagakerjaan saja tetapi juga sektor-sektor lainnya seperti lingkungan hidup. Tetapi, RUU Cipta Kerja tersebut hingga saat ini menuai penolakan baik dari masyarakat, buruh, aktivis, akademisi, dan praktisi karena dinilai dalam penyusunan RUU Cipta Kerja tersebut memiliki masalah baik secara formil maupun materiil bahkan menurut sebagian ahli RUU Cipta Kerja berpotensi melanggar hak asasi manusia apabila disahkan. Dalam tulisan ini akan dibahas mengenai bagaimana keberadaan omnibus law sebagai salah satu mekanisme pembentukan peraturan perundang-undangan dan bagaimana permasalahan dalam RUU Cipta Kerja. Metode yang digunakan dalam penelitian ini adalah metode yuridis normatif dengan pendekatan peraturan perundang-undangan dan pendekatan perbandingan. Adapun hasil dari penelitian ini adalah adanya analisis terhadap keberadaan omnibus law sebagai salah satu mekanisme pembentukan peraturan perundang-undangan dan adanya suatu gambaran dan sikap kritis terhadap permasalahan RUU Cipta Kerja. Sehingga melalui tulisan ini dapat terlihat apakah penyusunan RUU Cipta Kerja memang diperuntukkan kepentingan rakyat atau hanya demi kepentingan investasi semata yang tentunya akan mengorbankan hak asasi manusia dan merugikan kepentingan nasional.   Kata Kunci:omnibus law, RUU Cipta Kerja, ketenagakerjaan, hak asasi manusia.  

scholarly journals TANGGUNG JAWAB NEGARA TERHADAP KERUGIAN WISATAWAN BERKAITAN DENGAN PELANGGARAN HAK BERWISATA SEBAGAI BAGIAN DARI HAK ASASI MANUSIA

2015 ◽  
Vol 4 (1) ◽  
Author(s):  
Putu Eva Laheri
Keyword(s):  
Human Rights ◽  
Comparative Approach ◽  
State Responsibility ◽  
Legal Research ◽  
Conceptual Approach ◽  
Indonesian Government ◽  
The Right

This is a research after state responsibility for the damages suffered by tourists in relation with the violation of the right to tourism as a part of Human Rights, aims to describe and analyze about the liability of Indonesian Government to respect, protect and fulfill the right of every individual toward to enjoy his/her rights to tourism under Article 28I (4) of the Indonesian Constitution Year 1945 and Article 8 Statute Number 39 Year 1999 regarding Human Rights. Furthermore this research is willing to assess the circumstances that might create a possibility for tourists to file a claim of compensation against the Indonesian Government for the losses suffered as a result of the failure/the negligence of Indonesian Government to fulfill its responsibilities. Based on statement mentioned above, the question arises, whether in concept, tourists are able to file a claim of compensation against the Indonesian Government in relation with the recognition of the right to tourism as a part of Human Rights? And also in terms of how tourists can possibly file a claim of compensation against the Indonesian Government? The method used in this research is the method of normative legal research using the statute approach, the comparative approach as well as the conceptual approach. Based on the research that has been done, the conclusion is that in concept tourists can file a claim of compensation against the Indonesian Government, if they can prove that the damage or loss is caused by a violation of Human Rights conducted by the Indonesian Government and the result of this research further shows that the claim should be filed together with stating prove that the Indonesian Government has conducted a violation of the rights to tourism as a part of Human Rights.

scholarly journals Interrogations And The Right To Remain Silent - A Comparative Approach

SEEU Review ◽  
2015 ◽  
Vol 11 (1) ◽  
pp. 69-78
Author(s):  
Arta Bilalli
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Comparative Approach ◽  
Political Rights ◽  
International Tribunal ◽  
International Convention ◽  
Right To Silence ◽  
Civil And Political Rights ◽  
The Right ◽  
International Conventions

Abstract Interrogations are a very specific component of any criminal investigation. The answers gained through interrogative process provides information that are considered as direct evidences. In contemporary criminal procedure, the court is not absolved from gaining other evidences, even in cases when the defendant confesses his/her guiltiness. This is a mechanism for excluding the inquisitorial approach for extracting compulsory confessions. The modern procedure uses a variety of mechanisms to guarantee that the defendant will not be compelled to confess guilt. Those mechanisms are part of most important international conventions as International Convention for Civil and Political Rights, the European Convention on Human Rights, the American Convention on Human Rights, the Statutes of International Tribunals (i.e. International Tribunal for ex-Yugoslavia, International Tribunal for Rwanda) and part of different constitutional and legal acts of modern states. A very interesting “highlight” remains the right to silence which guarantees that the defendant might remain silent and it will not be interpreted against him. The defendant, even in cases with direct evidences, can remain silent and cannot be forced to answer given questions. Another “highlight” is that one that appears from the privilege against self-incrimination that allows the defendant to not answer a question, if by answering, he/she may confess guilt or incriminate him/herself. How deep is this privilege? Are there, maybe questions, that he/she are obliged to answer (i.e. disclosure of identity?) The article will focus in interrogations and the right to silence by most important international acts and domestic acts of different countries (USA, France, Germany, Albania, Kosovo, Macedonia) and upcoming specifics in the relation interrogations vs. remaining silent.

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