Compensatory Justice Research Articles

Compensating beneficiaries

This paper illuminates a typically obscured ground for rectificatory obligations: harms justified as ‘lesser evils.’ Lesser-evil harms are not the result of overall morally prohibited acts but of acts permissibly carried out to prevent significantly greater harm. The paper argues that harms caused as unintended side effects of acting on lesser-evil justifications, notably in military rescue operations, may give rise to claims to compensation, even if (1) the military acts that caused the harms in question were justified on lesser-evil grounds and (2) the victims in question are no worse off as a result; they may even owe their survival to the act of rescue. The paper defends three claims. First, being better off as a result of a harmful rescue than one would otherwise have been does not preclude claims to be compensated for harms suffered as a side effect. Second, identifying the relevant counterfactual for purposes of compensatory justice is sometimes a prescriptive, rather than a descriptive, matter. Rather than relying on empirical speculations about what would have happened had a harm not occurred, we must, in certain cases, consider what agents ought to have done. Finally, duties of compensation need not fall on those who caused the to-be-compensated harms. That infringing rights is permissible in certain cases does not imply that no compensation is owed, but merely that it is not necessarily rights-infringers on whom duties of compensation fall.

Введение в турецкое частное право

Private law of Turkey is represented by the Civil and Commercial Codes as well by the Code of Obligations. Turkey gave up the old Islamic law as the source of private law in 1926 and preferred the way of reception of the Civil Code and the Code of Obligations of Switzerland. Turkey follows this way till nowadays, borrowing in Swiss law not only the letter of law, but also relying on the Swiss case law and doctrine in the issues of interpretation. To immerse the reader into the Turkish private law, a number of its particular institutes is dealt with in the article: the general principle of the compensatory justice, the mandatory registration of the chattel mortgages to secure that the obligation will be performed, the statutory matrimonial property regime which is based on the concept of obligations and not on the one of property, compulsory share of the inheritance, the civil court system and the general description of the procedure for hearing civil disputes. The emphasis is placed on the situations involving foreign element.

Environmental justice and ecological civilization in the Pearl River Delta, China

ABSTRACT The central government of China aims to transform the Pearl River Delta (PRD) from a polluting and low value-added global factory to a sustainable region. The transformative vision of the PRD is underpinned by the ecological civilization concept. While ecological civilization represents a significant initiative in moving toward sustainable development, China’s top-down and command-and-control mode of environmental governance may fall short of addressing multi-dimensional and multi-scalar social and environmental justice issues of the PRD cities. The authors therefore suggest embracing the concept of environmental justice to enhance ecological civilization, with the aim of benefiting every stratum of society. The concept of environmental justice is multi-faceted, embracing recognition, procedural, distribution and compensatory justice at different geographical scales, often calling for institutional changes. Without environmental justice, a harmonious and sustainable PRD would not be possible. In recent years, China has made unprecedented institutional adjustments to deal with environmental issues, such as conducting annual “health screening” and five-yearly thorough evaluations to monitor conservation and development. To embrace environmental justice, legislative changes are required to recognize individual environmental rights through collective action and public participation, incorporating citizens’ inputs to the appraisal of cadres, and establishing intergovernmental institutionalized organizations.

Pre-translation Analysis of International Legal Discourse: From Social Semiotics to the Concepts of Lotman and Bakhtin

The discursive model of pre-translation analysis of international legal discourse relies on interrelated modules: the document conceptual space, with the harmonized value opposition between the concepts of "legal justice" and "compensatory justice", "common good" and "sovereignty"; the discourse addresser / addressee, embodied in the metonymic nomination "parties of the document"; the translator as an intermediate system, the semiospheres; extra-textual internalized realities. "Unifying" modules include semiospheres of international universal and basic branch documents, as well as universal human values and a shared internalized reality. The shared values underpin basic discursive strategies of consensus, solidarity, cooperation, marked by explicit and implicit intertextual means and additional strategies for minimizing imposition and hiding differences, implemented with tactics of generalization, mitigation and declarativeness based on passivation, nominalization, "marked theme", etc. Separating modules include semiospheres of the parties national legislations, marked by "without prejudice" clauses, metonymic nominations of "sovereign power", hedges scaling down the directive modality and idiomatic references to "public safety", etc.; semiospheres of recursive and procursive international branch texts that could be interpreted as conflicting with the document and are involved by 'non-affection' clauses and constative speech acts to fix the supremacy of one document over another. The document conceptual space may reflect the diverging interests and values of the parties, derived from implicit opposition between "legal justice" and "compensatory justice", harmonized by the documents. The markers of the "separating" modules are aimed at a combined strategy for predicting variable interpretation of particular norms with an indication of its source and normative harmonization. Keywords: International Legal Discourse, Model of Pre-Translation Analysis, Unifying and Separating Semiospheres, Value Opposition, Discourse-Forming Values.

Punishment before trial: public opinion, perp walks, and compensatory justice in the United States

Punishment before trial: public opinion, perp walks, and compensatory justice in the United States

Compensatory justice to the victim of a crime and judicial practices in India: An empirical study

The Constitution of India guarantees that justice shall be delivered to all. The duty to ensure that justice delivery is accessible to all is entrusted to state bodies. The legislature is expected to ensure that the legal framework is there, the executive is expected to ensure that all infrastructural needs of the justice delivery system are in place, and the judiciary is expected to ensure that justice is delivered in their area. This paper deals with the issue of delivery of victim justice, with a special focus on compensatory mechanisms laid down under the Code of Criminal Procedure 1973. The Code empowers the courts to award compensation to the victim of a crime to ensure his/her rehabilitation. In light of the observations made by the Supreme Court of India that the trial court judges do not exercise their discretionary power under the relevant statutory provisions to award compensation to the victims of a crime, this paper explores the extent of such failure and the reasons behind it.

Compensatory justice and the wrongs of deportation

ABSTRACT The paper argues that there are resources within theories of corrective justice to make the case against the deportation of immigrants, including those accused of committing criminal actions. More specifically, the argument defended here is that a nation acts impermissibly by deporting criminal immigrants who belong to countries that the nation itself wronged in a manner that contributed to create the migratory flow that led the immigrants in question there. In that case, admission and, equally important, permanent residence in the host nation must be understood as a form of compensation for past wrongs, the interruption of which represents a breach of its duties of rectification, and is therefore unjust. Put in slightly different terms, some migrants have a retributive right-claim against their host state (which they may or may not exercise) to be admitted into the host state and not be deported.

Voices of the Unredressed: Korean and Nisei A-Bomb Survivors, Structural Legacies of Violence, and Compensatory Justice in the Cold War Pacific

ABSTRACT This essay explores the historical erasures of Korean and U.S.-born Japanese American (Nisei) survivors of the 1945 atomic bombing. Since 1945, the Korean survivors of Hiroshima have struggled for redress as South Korea has remained a crucial part of the U.S. Cold War nuclear umbrella. As American civilians, the Nisei atomic bomb survivors have also found themselves unrecognized by their country as victims of the U.S. nuclear violence. The struggles of Korean and Nisei A-bomb survivors for historical recognition reveal the colonial, racial, and state violence that remain unredressed in the U.S. “empire for liberty” well into the twenty-first century.

The right to assistive technology.

In this paper, I argue that disabled people have a right to assistive technology (AT), but this right cannot be grounded simply in a broader right to health care or in a more comprehensive view like the capabilities approach to justice. Both of these options are plagued by issues that I refer to as the problem of constriction, where the theory does not justify enough of the AT that disabled people should have access to, and the problem of overextension, where the theory cannot adequately identify an upper limit on the AT that people have a right to. As an alternative to these justificatory frameworks, I argue that disabled people are owed access to AT at the expense of nondisabled people as a matter of compensatory justice. That is, I defend the position that disabled people are owed AT as part of due compensation for the harms they experience from being disadvantaged by society's dominant cooperative scheme and the violation of their right to equality of opportunity that such disadvantage entails. I also propose a method for identifying an upper limit to what this right to AT requires. In this way, I argue that compensatory justice avoids both the problem of constriction and the problem of overextension.

THE EFFECTS OF COLONIALISM ON INDIGENOUS CONFLICT RESOLUTION SYSTEMS AMONG POKOT AND TURKANA COMMUNITIES

Colonialism impacted local cultures far beyond their infrastructure, government and geography. In addition to eroding indigenous power structures, the structural violence inflicted during colonialism left native populations with lasting self-doubt and rejection of traditional practices. Among these rejected traditions were informal processes and mechanisms of resolving conflicts. Conflict resolution methods in different cultures often vary greatly in underlying values and perceptions. Western judicial systems reflect individualistic, high uncertainty-avoidant, low-context tendencies, while indigenous conflict resolution methods reflect collectivistic, minimal uncertainty-avoidant and high-context tendencies. Research into the current state of formal courts and informal justice forums in Pokot and Turkana Counties provides case study-based evidence arguing that the transition from restorative justice (Lapai) ffered by indigenous justice mechanisms to retributive justice catalyzed by colonialism has effectively weakened both the Turkana and Pokot systems of justice. Due to impacted value systems, neither the restorative, socialharmony focus of traditional processes, nor the retributive, compensatory justice focus of the formal judicial system make the available forums wholly appropriate or adequate resources. This has left the two communities torn between two distinct choices - the western and indigenous approaches to conflict management. The main objective of this research was to investigate the effects of colonialism on indigenous conflict management in Pokot and Turkana counties. These were both positive and negative effects. To achieve this objective the overarching question was;“how did colonialism affect the indigenous approaches to conflict management in Pokot and Turkana counties? The study was designed to apply qualitative research methods. Both structured and semi-structured interviews were conducted along the Turkana-Pokot borders. This paper proposes a hybrid model in conflict management, not only for the Pokot and Turkana pastoral communities, but also to other pastoral communities with similar set-ups.

TINGKAT KEADILAN DISTRIBUTIF DAN KEADILAN INTERAKSIONAL KOMPENSASI TERHADAP KEPUASAN KERJA PADA RUMAH SAKIT PKU MUHAMMADIYAH BIMA

This study aims to determine and analyze the influence of distributive justice and interactional justice compensation on employee job satisfaction at PKU Muhammadiyah Hospital in Bima. This type of research is associative using a quantitative approach while all variables are measured using a Likert scale. The number of samples as respondents used was 120 people. Testing instruments using the validity and reliability test. To analyze the data using multiple regression analysis with SPSS version 20, t-test, f test, and adjusted coefficient determination (R) test. From the regression results for this study the equation is obtained, namely Y = 23.411 + - 014X1 + 0.750X2. R-value (Correlation Coefficient) obtained is 0.688 and R Squier value (Coefficient of determination) is 0.473 or 47%. The results of this study indicate that partially distributive justice does not have a positive and significant effect on employee job satisfaction, interactional justice compensation has a positive and significant effect on employee job satisfaction. Together distributive justice and compensatory interactional justice have positive and significant effects on employee job satisfaction.

Individual Compensatory Duties for Historical Emissions and the Dead-Polluters Objection

Debates about individual responsibility for climate change revolve mainly around individual mitigation duties. Mitigation duties concern future impacts of climate change. Unfortunately, climate change has already caused important harms and it is foreseeable that it will cause more in the future, in spite of our best efforts. Thus, arguably, individuals might also have duties related to those harms. In this paper, I address the question of whether individuals are obligated to provide compensation for climate related harms that have already occurred. I explore two possible strategies to answer that question. The straightforward strategy answers in the affirmative. Two approaches embrace this strategy: the ‘ecological citizenship’ approach and the benefits-based approach. I challenge those two approaches and rule out an affirmative answer. The alternative strategy answers in the negative but provides a way to respond to why currently living individuals should pay for burdens created for past individuals. Two possible approaches embrace this alternative: the community-based approach and my own state-based benefits approach. I will argue that individual duties do not fall under the realm of compensatory justice, but they have nonetheless a duty to bear compensatory burdens allocated to their states.

Climate Justice and Corporations

This article considers two distinct avenues of strategic climate change litigation which directly target corporations and reflects on their contribution to addressing complex issues of climate justice and responsibility. The first avenue engages predominantly with tort law (negligence, nuisance) in an attempt to find corporations legally responsible for their contribution to climate change and liable to compensate its victims. The second avenue engages various obligations and duties within corporations law as a way to spur corporations to allocate capital and resources more quickly away from fossil fuels and towards clean energy practices. While the first avenue aligns clearly with compensatory justice goals in its focus on corporate liability, legal hurdles are significant, progress has been slow and formal legal success remains elusive. The second avenue takes a more forward-looking approach to corporate responsibility relating to climate change. It does not seek to hold corporations liable for damage caused, but rather to establish a legal responsibility for companies to act on climate change, thereby addressing some of the distributive issues of climate justice. However, this avenue is also limited in its ability to require a swift and comprehensive response from corporations. Nonetheless, these two strategies are mutually reinforcing and gaining considerable momentum. They represent new frontiers for climate justice, with the potential to help develop and articulate the legal responsibilities of corporations in relation to climate change and pressure governments to implement effective and fair measures which also involve these important private actors.

Assessing Cognitive Ethical Logics for Commercial Emotions

The usefulness of cognitive ethical logic in understanding the ethicality of emotional labour at commercial establishments cannot be undermined, and drawing on this perspective, the present study explores the derived moral logics for commercialized emotions especially in the context of call centres in two distinct subsets of professionals: potential working professionals and working professionals with experience. A sample of 129 respondents has been used for collecting data through open-ended questions and vignettes, which were designed to extract the perception of ethicality for emotional labour. The content of the responses were analysed by using cues from the grounded theory framework. Results indicate that both the respondent subgroups present equally strong consideration of emotional labour as unethical and not- unethical (rather than ethical). Threatened employee dignity emerges as the most important logic for considering emotional labour as unethical, while for the same to be considered not-unethical, the role of job description and compensatory justice gain significance. The results of the study have been discussed with the help of various frameworks of business ethics.

Partial Loss of Territory Due to Anthropogenic Climate Change: A Theory of Compensating for Losses in Political Self‐determination

AbstractThe unique problem of lost territory poses one of the most important and complex challenges of compensating for loss and damage due to anthropogenic climate change. Anthropogenic climate change will cause a significant increase in the sea level for centuries to come. A rising sea level endangers many low‐lying coastal areas but also entire states. However, the inundation of an entire state will remain a rare event. Partial loss of territory will be far more pervasive. As measured by the number of states, the area of land, and, in particular, the number of people affected, the phenomenon of partial territorial loss is much more significant. I address this from the perspective of compensatory justice. In particular, I offer (i) background on basic concepts, (ii) an overview and critique of existing accounts, and propose (iii) a novel interpretation of territory as well as (iv) a corresponding criterion of a duty to compensate before (v) I flesh out the overall theory, (vi) take into consideration implications and details of application, and (vii) respond to potential objections.

Political and legal antecedents of affirmative action: a comparative framework

AbstractMuch of the literature on affirmative action is normative. Further, in scholarship that takes an empirical approach to examine this topic, the object of inquiry is typically the ramifications of such provisions – most notably the extent to which they foster social transformation. Yet, we know surprisingly little about the antecedents of affirmative action. This work examines what variables systematically predict affirmative action. We focus on the policy feedback literature and compensatory justice frameworks to examine the effects of democracy, modernisation and globalisation on affirmative action programmes. Time-series cross-sectional analyses of data for hundreds of groups from all over the globe for the period 1985–2003 confirm our hypotheses. This is the first work to examine affirmative action programmes in a large-N framework of such scale. We find that such programmes systematically correlate with democracy, modernisation and globalisation.

Ações afirmativas de reserva de vagas para negros em concursos públicos: painel da implementação da Lei Nº 12.990/14 em processos seletivos da administração pública federal

The present study aims to explore how is been implemented the affirmative action that re-serves quota for black people in public jobs through civil service examinations to federal ex-ecutive branch, provided by Law no 12990/14. The work consists in knowing what the foun-dations of the affirmative action policies are in particular ones that provides quotas in the se-lections of personnel to federal public service. To do so, initially does a bibliographical re-search to clarify the main concepts and fundamentals, and based in it, analyzes a set of civil service examinations that occurs under Regulatory Guidance no 3, that is, civil service exami-nations that are in progress not at the time of publication, in August 1st, 2016 or that began, and even time, were concluded until December 2017. The literature review pointed out five main arguments about which affirmative actions are approached by theory, such as distributive justice or redistribution, compensatory or reparative justice, diversity and promotion of pluralism, recognition and appreciation of identity and, in last, material equality. Field research demonstrated that public policy was carried out in the samples as foreseen in the current legislation, however in a very heterogeneous way in the activities without regulation. Finally, it is suggested some aspects that can be implemented by public administration entities as a way to contribute to the purpose of affirmative action. Finally, this study intends to be a contribution to the improvement of public procurement by entities of the brazilian public ad-ministration, and, more important, a contribution to the maximum effectiveness of this policy.

Compensatory Justice Jurisprudence in INDIAN Public Law – An Analysis

Compensatory Justice Jurisprudence took birth in the case of Rudal Sah when the Hon'ble Supreme Court broke one more link in the shackles of restrictive interpretation and added another feather in the cap of Article 21 to crown the personal life and liberty of people. Post Rudal, there are a series of judgments discussed in the present paper which strengthened the power of Supreme Court and High Courts to compensate the victims or their dependents for the excesses done by the State machinery or on failure of State to take care when there was a duty imposed upon them to exercise reasonable care. There are cases ranging from 'birth after vasectomy' to 'death due to open manholes' to 'custodial death' wherein Supreme Court has ventured out to grant compensation. Over a period of time, the Hon'ble Supreme Court has given a dynamic interpretation to the constitutional remedies provision under the Constitution so as to enhance the fundamental rights of an individual. The present paper examines the cases in which the Courts have awarded compensation for the excesses committed by the state or for negligence of the State as well as examine the self-imposed restrictions of Supreme Court in not awarding compensation in certain cases. However, the question always remain as to what is the rationale for providing such compensation and if granted how much is to be granted. Further what is the criterion for providing the compensation or it is ad hoc. What about the erring officials in discharging their public duty and finally whether judicial activism has led to judicial adventurism.

Have You Benefitted from Carbon Emissions? You May Be a “Morally Objectionable Free Rider”

Much of the climate ethics discussion centers on considerations of compensatory justice and historical accountability. However, little attention is given to supporting and defending the Beneficiary Pays Principle as a guide for policymaking. This principle states that those who have benefitted from an instance of harm have an obligation to compensate those who have been harmed. Thus, this principle implies that those benefitted by industrialization and carbon emission owe compensation to those who have been harmed by climate change. Beneficiary Pays is commonly juxtaposed with Polluter Pays Principle and the Ability to Pay Principle in the relevant literature. Beneficiary Pays withstands objections that raise suspicion for the latter two.

노동에 대한 보상적 정의와 기본소득의 정의 개념

노동에 대한 보상적 정의와 기본소득의 정의 개념