Forms Of State Action Research Articles

The New Responsive Constitutionalism

Ideas of responsive law and regulation have been the subject of sustained scholarly attention but only recently have scholars turned their attention to what these ideas mean for constitutional law and governance. The article addresses this gap in the literature by exploring the idea of responsiveness in constitutional design and interpretation. It suggests that the idea of responsive constitutionalism points to the importance of both unwritten and written, and politically and judicially‐enforced constitutional norms in promoting democratic responsiveness. In turn, responsive constitutionalism also reinforces the value of: (1) institutional pluralism; (2) overlapping institutional authority; (3) multiple access points to institutions; and (4) broad remedial power for relevant institutions, including courts. It further suggests the need for a true balance between constitutional norms that promote rights‐enhancing forms of state action and limits on state action. And finally, it points to the value of strong institutional checks and balances and entrenchment of the ‘minimum core’ of a democratic constitution, but a more flexible set of constraints in other contexts, where the aim of a responsive constitutional model is to promote dialogue between courts and legislators. The article explores these ideas by reference to existing constitutional theoretic ideas but also through illustrations drawn from Australia, Kenya and the United Kingdom.

Recognition of the Existence of Traditional Legal Communities from the Perspective of Legal Philosophy

Purpose - The existence of customary law communities occurs naturally, which has natural consequences for obtaining their rights. The granting of their rights as legal subjects must be based on genuine awareness that they have the right to obtain them, not motivated by compassion, which is preceded by requests or requests through violent movements. The state was obligated to maintain the living space of existing communities long before the Indonesian state was formed.Methodology - In this writing, the author uses normative juridical methods by studying customary law communities ontologically, epistemologically, and axiologically.Findings - Recognition of its existence should be followed by legal certainty. Constitutive recognition of the existence of customary law communities is necessary. The stipulation of the Law on Indigenous Peoples is a form of state action in interpreting justice, as stated by Ulpianus.Implication - The existence of customary law communities should be seen as a community whose existence is beyond doubt because it has been epistemologically tested concerning current reality.

Lockdown by Press Conference? COVID-19 and the Rule of Law in New Zealand and Austria

In response to the COVID-19 pandemic, the New Zealand and Austrian governments both imposed lockdowns in early 2020. This paper compares how these two responses were effected, communicated, and challenged. In both New Zealand and Austria, government communications misrepresented the extent of the lockdown, communicating measures more stringent than those legally in place. This divide between law and communications raised concerns for the rule of law, as citizens struggled to understand their legal obligations. In New Zealand, government communications were subjected to effect-based judicial review. In Austria, where the judicial review system has a stronger focus on the form of state action, government communications were not reviewed. The paper finds that the Austrian courts could have provided a similar remedy to that in New Zealand, but only through a novel and contentious approach. Preferably, the legislator should expressly bring crisis (mis)communication into the scope of Austrian judicial review.

Financial innovations and sanitation services: the battle between low-income users and shareholders

Abstract This article aims to show how changes in the model for financing basic sanitation affect social inequality and urban segregation, and to discuss alternatives that minimise the impact these changes have on low-income populations. The investigation focuses on mediations between sanitation policy and general urban policies in the more ample process of valorising capital, involving different scales of geography and forms of state action. Widespread privatisation and public–private partnerships have altered the role that rates charged to users play in financing sanitation systems. This, in turn, has an impact on low-income populations’ access to these systems. The study concludes that new models of financing tend to privilege spaces in the city that are attractive to private capital, and that investments in sanitation are supported by financial innovations that depend on the collective force of remunerating shareholders and maintaining investors’ expectations. Finally, the article approaches solutions that ensure low-income families’ access to public services, with special emphasis on subsidised rate systems based on the stratification of urban areas adopted in Colombia. The article concludes that this experiment presents both positive and negative aspects that may serve as starting points toward potential solutions for Brazil.

The State from Below: Distorted Responsiveness in Policed Communities

This article uses a new technology, “Portals,” to initiate conversations about policing between individuals in communities where this form of state action is concentrated. Based on more than 800 recorded and transcribed conversations across 12 neighborhoods in five cities, the largest collection of policing narratives to date, we analyze patterns in discourse around policing. Our goal in closely analyzing these conversations is to uncover how people who experience state authority through policing characterize democratic governance by mapping citizens’ experiences with and views of the state, how they judge the responsiveness of authorities, and their experience-informed critiques of democracy. Methodologically, we argue that observing through Portals real conversations of ordinary people largely unmediated by the researcher allows us to transcend certain limitations of traditional, survey-based techniques and to study politics in beneficially recursive ways. Theoretically, we demonstrate that Portals participants characterize police as contradictory—everywhere when surveilling people’s everyday activity and nowhere if called upon to respond to serious harm. We call this Janus-faced interaction with the state “distorted responsiveness,” and we demonstrate the organic connection of this characterization of police to our participants’ theorization of their broader relationship with the state. We argue that their understandings of their own relationships with the key state institutions in their lives are foundational to developing a fuller understanding of democracy in action. In short, by focusing on how individuals experience citizenship in the city through ordinary experiences with municipal bureaucrats who figure prominently in their lives, we can develop a theory of the state from below.

Ahmad Ibrahim Memorial Lecture; Intensity of Judicial Review: The Way Forward

It is a fundamental requirement of a democratic state that all forms of state action must be supportable in law - either a statute or the common law. Illegal state action is incompatible with a democratic society. This proposition lies at the heart of the rule of law.

Pobreza urbana, comunidad local y Estado-socio en Argentina: La provisión de servicios públicos en un asentamiento de la Región Metropolitana de Buenos Aires

While in the better-off sectors of the city public services (such as water, electricity, or waste collection) are provided through State-owned or private companies, in the poorest quarters their provision depends a great deal on community organization as well as on local leadership. Based upon the study of a Metropolitan Buenos Aires shanty town, we contend that both (community organization and local leadership) are two-faced mechanisms. On the one hand, they express the community's efforts to self-manage the satisfaction of basic needs when both private and State companies fail to provide them. On the other, they are the channels through which what we call the “State Partner” secures the regulation of poor populations without getting directly involved in the provision of public services. Thereby, in this type of neighborhoods the day-to-day struggle over the right to the city encounters new forms of State action that are alien to better-off residents and that the notion of partner State helps to grasp.

Estado-nação, fronteiras, margens: redesenhando os espaços fronteiriços no Brasil contemporâneo

The border is a fundamental aspect of the imaginary of the modern state. The role of the state as an organizing and centralizing power is related to the idea of borders, the limits of the sovereignty, problematic spaces of domination and conflict. However, contemporary discussions in the Social Sciences field suggest new possibilities for analysis, emphasizing the heterogeneity of practices of the power, involving, simultaneously, devices of sovereignty, disciplines and governmental management. We should think of this space of practices not like borders, space limits and peripheral to the central power, but as margins that are multiplying and moving both in the periphery and in the center. The ongoing research seeks to analyze the new forms of state action on the borders of Brazil, such as the Policiamento Especializado de Fronteira (Specialized Border Policing), the “Calha Norte” Program and the Sistema Integrado de Saude das Fronteiras (Integrated Border Health System).

O papel estratégico da Fiocruz no contexto da Política Nacional de Ciência, Tecnologia e Inovação em Saúde

Health is both an essential dimension of conditions for citizenship and a central part of an extremely limited set of production and innovation systems that define the future possibilities for countries to achieve development and overcome the heavy inequalities characterizing the global context. In contemporary world history, only countries that have succeeded in establishing endogenous innovation bases have managed to overcome the barriers of backwardness and position themselves as sovereign nations to set the course for their own development. The area of science, technology, and innovation in health shows a deep and growing asymmetry in the generation of health knowledge. Of the total world research and development effort in health, 96% of expenditures are concentrated in the developed nations, with only 4% in medium and low-income countries like Brazil. The health goods and services industry accounts for the majority of these R&D activities in the developed countries, following a logic that is invariably disconnected from social needs and national health innovation systems in countries like Brazil. The utilization of health research conducted inside Brazil is extremely weak, raising a huge challenge for transforming our productive sector in order for it to become significantly involved in high-intensity activities in terms of knowledge and innovation, meanwhile linked to the country’s social needs. We have just witnessed the strong dynamism of Brazil’s scientific output, with a 56% increase from 2007 to 2008 and the country moving from 15 th to 13th place in the international ranking of scientific articles. This science output represents 2.12% of world production (http://www.sciencewatch.com), or nearly double Brazil’s proportional share of the global GDP, with health as one of the country’s principal research areas. Brazil’s main dilemma is that it has qualified researchers and a consolidated science and technology base in health, in addition to a broad and diversified base for the production of goods and services in health (unparalleled in Latin America), but relatively little productive advantage is taken of the knowledge generated thereby in order to meet the population’s needs. In dealing with this situation, the country also has a state structure that was weakened by the prevailing view during the neo-liberal period. Innovation and development cannot exist without breaking the shackles of a backward structure. Innovation requires an innovative state, and we are offering Fiocruz to society as an advanced field for experimentation with new forms of state action, as an institution that is both democratic, flexible, networked, and devoted to transformation. In this context, Fiocruz submits its proposal to Brazilian society to serve as a strategic state institution that follows the example set by Oswaldo Cruz in order to allow harmonizing Brazilian health science with the Brazilian population’s needs and establishing an endogenous base for innovation. Fiocruz thus embraces its mission as anchor in the national health development process, in partnership with other Brazilian institutions, helping form a technical, scientific, productive, and political network at the national and international levels. The ultimate goal of a strategy for science, technology, and innovation in health is to contribute to the objectives of Health Reform in Brazil. The challenge is huge and requires profound changes in the relationship between research, innovation, and production, but we are confident that the current context presents an opportunity for Brazil’s inclusion in a new development standard that combines competitiveness, innovation, equity, and the guarantee of the population’s universal access to strategic goods, services, and knowledge in health.

Tropical commodity chains, forward integration strategies and international inequality: coffee, cocoa and tea1

This paper presents a comparative analysis of three tropical commodity chains, for a set of commodities often grouped together as the tropical beverages: coffee, cocoa and tea. The analysis demonstrates the ways in which the structures of these chains reinforce the north-south dimension of international inequality and help to explain its persistence over time. It focuses on attempts by actors in the producing regions to move forward into the more advanced processing stages of the chains, in order to realize higher returns from their commodity exports. Comparisons across commodity chains identify structural features of the chains that set limits on, and open possibilities for, forward integration. Features considered include economies of scale in the early processing stages and the stage at which intermediate products first become storable and transportable. Comparisons across countries within commodity chains identify additional factors that help to explain successes or failures in individual cases: forms of state action, the strength of the local capitalist class and the size of the domestic market. Control over the consumption end of the commodity chain by transnational corporations is the most important factor limiting the benefits derived from forward integration strategies.

Government‐operated public broadcast stations and candidates' access to political debates

Under the Communications Act's equal opportunity requirement and FCC interpretations of that provision, licensees can choose which political candidates to include in a broadcast debate. However, a 1994 decision by a federal appellate court has clouded the ability of public broadcast stations licensed to government entities to exclude particular candidates. According to the court, such stations, as a form of state action, generate a limited First Amendment right on the part of candidates to demand inclusion in a broadcast debate. This article examines the unique constitutional questions raised by the court's decision. An assessment of the competing rights and interests of candidates, stations licensed to government entities and the public indicates that such stations should provide access to political debates.

Policy Action and School Demand in Kenya

Comparative scholars are beginning to specify the conditions under which central states can act with independence vis-a-vis economic forces to penetrate local cultures and families, influencing parental demands placed on local institutions, such as demand for more schooling. Much less is known about (1) which specific forms of state action are efficacious in manipulating family demands, (2) whether boosting demand for more services can undercut their quality, and (3) why central political capacity to shape family action varies and may erode over time. To inform these issues we focus on two distinct periods in Kenya, stretching over the 1963-1990 post-independence era. We show, using time-series analysis, how the Kenyan regime initially boosted family demand for more schooling through discrete policy initiatives: reducing the private cost of school attendance, offering food supplements at school, and broadening secondary school opportunities for peripheral ethnic and class groups. But after two decades of efficacious state action, local demand for schooling began to falter, quality eroded severely, and stratification has again hardened. After identifying the early effects of these policies we detail how the Kenyan state has grown more fragile, less effective in shaping family demands and delivering quality education against the backdrop of a declining economy. The case of Kenya reveals weaknesses in Western sociological theories that fail to recognize domestic political and organizational constraints besetting centralized Third-World states, even those once considered strong.

Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection

[T]HERE ARE SERIOUS constitutional concerns presented by abortion-restrictive regu­ lation that [Roe v. Wade] does not address. Restricting women's access to abortion im­ plicates constitutional values of equality as well as privacy.... A growing number of commentators have begun to address abortion regulation as an issue of sexual equal­ ity, l articulating concerns scarcely recognized in prevailing accounts of abortion as a right of privacy. Properly understood, constitutional limitations on antiabortion laws, like constitutional limitations on antimiscegenation laws, have moorings in both pri­ vacy and equal protection. There are, however, substantial impediments to analyzing abortion-restrictive reg­ ulation in an equal protection framework, which few proponents of claim have con­ fronted. The Court has yet to characterize laws governing pregnancy as sex-based state action for purposes of equal protection review;2 but, even if it did so, a deeper ju­ risprudential problem remains. The Court typically reasons about reproductive regu­ lation in physiological paradigms, as a form of state action that concerns physical facts of sex rather than social questions of gender. It has often observed that reality of reproductive differences between sexesjustifies their differential regulatory treat­ ment. This mode of reasoning about reproductive regulation obscures possibility that such regulation may be animated by constitutionally illicit judgments about women. Thus, while sex-based state action is generally scrutinized to ensure it is free of old notions of role typing or other vestiges of separate spheres tradition-such as assumption that women are child-rearers or assumption that the female [is] destined solely for home and rearing of family3-regulation which di­ rectly concerns women's role in reproduction has yet to receive similar scrutiny. Like any other form of sex-based state action, regulation directed at women's role in reproduction demands exacting scrutiny to ensure it does not reflect or enforce traditional gender role assumptions. Equal protection jurisprudence has repeatedly articulated principles that would support such an inquiry. But current doctrine lacks critical capacity to discern gender bias in reproductive regulation, a grasp of how

THE ROLE OF THE STATE IN THE SETTLEMENT OF LABOR DISPUTES IN THE NORDIC COUNTRIES: A COMPARATIVE ANALYSIS

ABSTRACTThe purpose of this paper is to examine, by comparative analysis, the role played by the state in resolving labor disputes in Denmark, Norway, Sweden and Finland and to suggest reasons that may explain why these roles have assumed different forms in these four countries. Three forms of state action in the settlement of disputes are considered: implementation decisions in cases involving disputes about rights; mediation in cases in which interests are in dispute; and forcible intervention in cases in which it appears that public safety is threatened. These three forms are regarded as dependent variables that vary from country to country depending on two sorts of independent variables: first, historical factors of a political and economic nature (background variables) and second, organizational‐structural factors and parliamentary power factors (intermediate variables). The economic background variables have to do with the character of the industrialization process: the date it began, the pace at which it unfolded, and the kind of economic structure (and in consequence the organizational structure) it brought into being. The political variables have to do first of all with the point in time the political system became democratic and the way this was accomplished; but more special and unique factors are also considered, such as national “traumas” like civil war (Finland) and general strike (Sweden), together with special features of the countries'political cultures.