Foundations Of Justice Research Articles

Administrative offences law (constitutional prospects of codification).

The subject of the research is the problems of constitutional law enforcement of administrative offences legislation, taking into account the prospects for its new codification. The purpose of the article is confirmation or confutation of the hypothesis that the effectiveness of the new Code of administrative offences depends on whether the legal positions of the Constitutional Court of the Russian Federation on the principles of administrative responsibility will be taken into account when drafting it. The authors use methods of complex analysis, synthesis, as well as formal-legal method of interpretation of Constitution, legislation on administrative offences and judicial decisions of Russian Constitutional Court. The main results and scope of their application. The administrative torts law in Russia is expected to pass through the total review up to the grounds of its codification in close future. The article presents initial positions of that changes within basic frames produced by Russian Constitutional Court. Its case-law has already invaded into many spheres and details in respective sphere of legal rules and also prescribed a lot for their future. This case-law yet is necessarily made within its inherent range for it is ever constrained procedurally by content of actions and cases to be settled. However Russian administrative torts law is destined for reformation in new code-making in view of constitutional case-law and in order to do better with neighbor spheres of legal responsibility. Disputable matters of administrative liability, the company’s responsibility with psychical fiction on its fault (corporative thinking, wishing, desire, diligence), substantial and procedural equity etc. are described and discussed in the article as to the administrative law of torts on in its constitutional dimension. Conclusions. The Code of administrative offences of the Russian Federation does not fully meet the legal needs of society. Work on real improvement of this code will continue, therefore, legal science should be more strongly and persistently to implement in legislative practice constitutional ideas about improvement of codification and ensuring unity of legal space of the country. In particular, it is necessary to settle the debatable aspects of tort liability, the guilt of legal entities when it is addressed by fiction to the phenomena of the psyche (thinking, goals, will, caution), the constitutional and legal foundations of justice in the field of administrative penalties, procedural enforcement of rights and freedoms, etc.

Development of Procedural Law Foundations of Justice in Administrative Cases in the Context of the New Codification of Administrative and Tort Legislation

The paper analyzes the necessity of a fundamental reform of the Administrative Code of the Russian Federation with its division into two codes (a substantive part — the Code of Administrative Offences of the Russian Federation, and a procedural part — the Procedural Code of Administrative Offences of the Russian Federation). With regard to the problem of modernization of procedural administrative and tort legislation, the author questions the main directions, objectives and prerequisites of the third codification in this field and draws the conclusion that the fundamental reform of the Administrative Code of the Russian Federation with the division of it into two codes — material and procedural — is premature and, in fact, political decision not grounded by feasible research results. The author highlights that the Concept of the new Code of Administrative Offences of the Russian Federation approved at the meeting of the Government of the Russian Federation in June 2019 primarily deals with the issues of reforming mainly substantive administrative and tort legislation, while proposals for the improvement of procedural regulation of administrative responsibility are not covered in details. The Concept does not contain information concerning the fact that instead of the current Code of Administrative Offences of the Russian Federation two new codes — the Administrative Code of the Russian Federation (CAO) and the Procedural Code of Administrative Offences of the Russian Federation (PCAO) — will be adopted.The author focuses on the analysis of the draft of the PCAO published on the website of the Ministry of Justice of Russia. Primarily, the paper highlights such provisions that deserve an affirmative response. However, the author devotes the most significant part of the study to the analysis of the conceptual shortcomings of the PCAO of the Russian Federation. Without elimination of these shortcomings, it can hardly been concluded that a complete and qualitative procedural and legal mechanism for the implementation of justice in the field of administrative and tort relations is established in the courts of general jurisdiction.

Lawrence A.PalinkasGlobal Climate Change, Population Displacement, and Public Health: The Next Wave of MigrationSpringer International Publishing, 2020. 234 p. €94.63

The markers of climate change are both the gradual rise in ambient temperatures and sea levels and the greater frequency and magnitude of the extreme events (droughts, fires, hurricanes, floods) accompanying those rises. Any of these conditions may induce or compel the people affected to move. The moves may be more or less voluntary, in-country or international, and temporary or permanent. The movers are all, in Lawrence Palinkas's expansive category, environmental migrants—“climigrants” in the unappealing neologism he uses throughout this book. Although often termed environmental refugees, unless they are also fleeing political violence or persecution none can claim refugee status under the 1951 convention. The roughness of the conceptualization is suggested by the range of guesses of the potential numbers of persons displaced cited in the book: 20 million to 200 million by 2050 according to Norman Myers, an early writer on the issue; 500–600 million “at risk of displacement” according to the Environmental Justice Foundation; perhaps 2 billion by the end of the century reported in an extravagant scenario of sea-level rise. More concrete figures come from actual events, as in the series of brief case studies the author assembles. Three are weather-related—Hurricane Katrina in New Orleans in 2005, Hurricane Maria in Puerto Rico in 2017, and the wildfires in California in 2017 and 2018—where displacement numbers are known even if there is not an assured connection to climate change. Prospective enforced retreat in the face of coastal erosion along the US Atlantic seaboard may seem a similarly clear-cut situation, as is the eventual resettlement from low-lying Pacific island states. On the perennial poster case of Bangladesh, beset by ever-greater floods and storm surges, Palinkas is cautious: climate change “may be viewed as a factor that contributes to existing patterns of migration” but “it is not the primary driver.” His caution does not extend to a chapter titled “Fleeing the drought: the great migration to Europe.” The migration referred to here is from the Middle East and Africa. Climate change is supposedly implicated in the Syrian civil war and in the conflict between sub-Saharan herders and grazers, in turn fueling the migrant stream to Europe. It is acknowledged that the great majority of those originally displaced—typically nine out of ten—remain in the same or a neighboring country. Their designation as environmental migrants seems arguable: at least proximately, they had likely fled not drought but barrel bombs or the depredations of Boko Haram and Tuareg jihadists. The relative few who then choose the hazardous path to Europe certainly include some with strong asylum claims but for the most part seem almost the embodiment of economic migrants, many of whom have staked large financial bets on the services of people smugglers. The study is well-sourced in a large secondary literature. It is light on demography (population growth—adding one or two billion over this century—is barely mentioned as a force compounding environmental problems). On the other hand, it gives a fair amount of attention to the damaging effects of dislocation on migrants themselves. Palinkas is a professor of social policy and health at the University of Southern California and expert on the psychological effects of disasters. On policy and practice, the book mostly avoids the geopolitical realism that might point to still more stringent migrant vetting and hardened state borders, in favor of “efforts to enforce existing mechanisms such as the Sendai or Cancun frameworks or the Nansen Initiative” to assist all environmental migrants, whatever the reason for displacement. It supports “strategies for preventing, managing, and mitigating climate-related population displacement and its effects through the development and maintenance of partnerships involving academics, policy makers, service providers, communities, and climigrants themselves.”

Rebuilding the Harm Principle: Using an Evolutionary Perspective to Provide a New Foundation for Justice


 
 
 
 Following Mill’s (1859) definition, the ‘harm principle’ came to dominate legal debates about crime and the appropriate response of the justice system, effectively replacing official talk of morality in modern secular societies. However, the harm principle has collapsed without an accepted definition of harm or a method to adjudicate between competing claims. To address this, we propose a definition of ‘good’ derived from evolutionary perspectives. From this, a universal goal for society can be recognised, specific objectives to reach that goal can be listed, and a new definition for harm can be used to repair the harm principle and restore its ability to underpin criminal law and the principles of justice in society.
 
 
 

Forest Conservation Base on Religious Values:

This study examines the religious reality of indigenous peoples in interacting with the natural environment (forest). The aim of this study is to form an alternative model of religious- based forest conservation in accordance with the character and reality of the life of indigenous/ rural communities. The approach used is a qualitative approach that is phenomenological, interpretative and ecological. The technique of data collection is done through participant observation and in-depth interviews and it is supported by a review of documents and literature, through the process of interpretation, critical evaluation, internal coherence, comparison, and heuristics, in the hope of providing an original concept of religious-based forest conservation models. The findings obtained from this study are: First, the diversity of the Indigenous People of Kampung Dukuh tends to be accommodative. Second, between religious values (Islam) and local traditional values interdependence (influence each other). Third, in the conservation of forests there is an ecological awareness that is placed on the foundation of Tauhid, worship, knowledge, khilafah, justice, beauty, and benefit. Thus giving rise to the theoretical implications of the Eco-Theology model, Eco-Ushul Fiqh, and Eco-sofi/ Tasawwuf.

Regulating the building of contracts in the Islamic economy

Contracting is considered one of the foundations of the economic construction of trade exchanges in countries, and since its construction on solid foundations is a cause for economic and social advancement, Islamic legislation has been keen on the proper construction of the contract. The study sought to clarify the wisdom of restricting some contracts in economic activity. The study concluded that the construction of contracts in the Islamic economy has laid the foundations of justice and charity between the two parties to the contract, and that legislation excluded types of contracts due to their negative role in economic activity, and the study showed the wisdom of preventing some contracts and other legislation because of the achievement of the interests of the contractors and an affirmation of the purposes of the Sharia.

Beyond Claim‐Rights: Social Structure, Collectivization, and Human Rights

Beyond Claim‐Rights: Social Structure, Collectivization, and Human Rights

Understanding Autonomy: An Urgent Intervention.

In this paper, I argue that the principle of respect for autonomy can serve as the basis for laws that significantly limit conduct, including orders mandating isolation and quarantine. This thesis is fundamentally at odds with an overwhelming consensus in contemporary bioethics that the principle of respect for autonomy, while important in everyday clinical encounters, must be ‘curtailed’, ‘constrained’, or ‘overridden’ by other principles in times of crisis. I contend that bioethicists have embraced an indefensibly ‘thin’ notion of autonomy that uproots the concept from its foundations in Kantian ethics. According to this thin conception, respect for autonomy, if unconditioned by competing principles (beneficence, justice, non-maleficence) would give competent adults the right to do anything they desired to do so long as they satisfied certain baseline psychological conditions. I argue that the dominant ‘principlist’ model of bioethical reasoning depends on this thin view of autonomy and show how it deprives us of powerful analytical tools that would help us to think seriously about the foundations of human rights, justice, and law. Then, I offer a brief sketch of a ‘thick’, historically grounded notion of autonomy and show what we could gain by taking it seriously.

Reproductive Justice Special Issue Introduction “Reproductive Justice: Moving the Margins to the Center in Social Issues Research”

AbstractReproductive justice recognizes that women and girls’ reproductive health is shaped by intersecting systemic oppressions (e.g., racism, sexism, classism, heterosexism) which affect their ability to make meaningful choices about their reproductive lives. The articles in this issue represent a coordinated effort to apply the reproductive justice framework to the scientific study of social issues. Consistent with reproductive justice principles, all articles acknowledge the foundation of reproductive justice in the experiences and knowledge of women of color, consider the roles of power, privilege, and oppression throughout the inquiry process, and address the utility of findings for improving the lives of marginalized groups through structural and social change. With this special issue, we hope to reframe the relationship between research and practice on marginalized populations’ reproductive health, and contribute to efforts to apply reproductive justice across domains of social science, including psychological science.

The constitutional foundations of judiciary in Ukraine

The article is devoted to the constitutional foundations of judiciary in Ukraine. According to article 6 of the Constitution of Ukraine, state power in Ukraine is divided into three main branches – legislative, еxecutive and justice. For each of these branches there is a corresponding system of foundations and principles that determine their essence and specific features of organization and functioning of the mechanism of the state. They play a key role for the judiciary in Ukraine. Appropriate due to the main objective of the national judiciary – a provision of the capacity for each person to exercise their right to a fair trial,based on the rule of law.Considering the issues, it is first necessary to pay attention to the essence of the concepts "foundations" and "principle" as constitutional categories. It should be noted, that these concepts have the same meaning for the expression of fundamental ideas and leadership directions of the organization and functioning of all basic constitutional legal institutions in Ukraine. The concept of the constitutional foundations of justice in Ukraine, given the position on the advisability of securing the appropriate category in the position of art.129 of the Constitution of Ukraine, which is a basic norm in the system of foundations and principles of the judicial branch of power and its legal effect on the reflection, is refined in laws and procedural codes.Now the issue of the constitutional foundations of justice in Ukraine and their impact on the judiciary is considered in a significant amount of research in the field of science of constitutional law of Ukraine. The corresponding trend and the relevance of the question of the constitutional principles of justice are due to the constant development of constitutionalism and the process of reform of the judiciary in Ukraine. However, it must be concluded, that the constitutional foundations of judiciary, which are presented in art.129 of the Constitution of Ukraine is the basis of the foundations and principles of justice in Ukraine, which determine the organization and functioning of judiciary at the constitutional level, and are also constitutional guarantees of protection of rights and interests of people in court proceedings

The Making of a Civil Code in China: Promises and Perils of a New Civil Law

The Chinese Civil Code was enacted on May 28, 2020 and will become effective on January 1, 2021 as the first civil code in the Communist China. Half a century of codification effort finally resulted in this much anticipated code. It utilized state-of-the-art codification techniques and presents a number of innovative features unique to China. In its concise 1260 articles, the Code is divided in seven books: the general provisions, property, contracts, personality, family law, succession and torts. In a break with civilian traditions, the Chinese Civil Code divides obligations into contracts and torts, and it absorbs law of unjust enrichment into the book on contracts as quasi-contracts. Moreover, a book on law of personality stands on its own which includes an enumerated list of personality rights protected by Chinese law with a focus on privacy and data protection in an effort to keep Chinese civil law up-to-date in order to tackle the legal challenges posed by the advancement of technology. Much progress has been made but there are problems that need to be addressed for this Civil Code to be successful. Some of these come from the tensions between the rise of private law and the dominant state sector, the contradictions among legal transplants, the incompatibility between doctrinal innovations and the existing structure, the clash between distributive justice - the foundation of Chinese moral philosophy and commutative justice - the foundation of Western private law. I will argue that solutions to some persistent problems require structural change in Chinese economy, doctrinal innovation and clarification, and conscientious acceptance of a law that is based upon philosophical ideas that differ from traditional Chinese moral philosophy.

Справедливість як елемент ідеї права та її місце в системі правових цінностей

The purpose of the article is to study the nature and essence of the concept of justice as an element of the idea of law, determining the trend of development of the category of justice in different periods of formation of legal thought and to the present. Emphasis is placed on the leading role of justice in the system of legal values. Methodology. The methodological basis of the work are philosophical and general scientific methods of scientific knowledge. The main methodological approach is axiological, because it allowed to reveal the meaning of justice as a legal value. A significant place is given to the phenomenological approach, which contributed to the consideration of justice both at the level of individual subjective experiences and at the level of law enforcement. Due to the historical approach, the peculiarities of the formation and development of the understanding of justice as an element of the idea of law are considered. The systems approach allowed us to explore justice as a holistic multifaceted phenomenon. Formal-logical and system-functional methods were used to analyze the conceptual foundations of justice in the context of legal relations. The scientific novelty of the obtained results is that the essence of justice as a product of cultural, historical, political, legal development of society and a catalyst for ensuring the rights and interests of the individual is defined. Today, it is quite common for the state to issue norms that violate the rights of individuals or are unfairly applied in the process of regulating public relations. Therefore, there is a need to study justice as the foundation of the entire system of moral and ethical values in the legal system and society as a whole. Conclusions. The analysis allows us to conclude that it is the order of coexistence of people on the basis of mutual recognition of rights and freedoms can be called fair or «justice». The law is based on the idea of justice and is a normatively enshrined justice. It is justice that is the basis of the idea of law, expresses its essence, and a special act of recognition determines both justice and the phenomenon of law in general. Justice is a special mechanism that maintains a balance of legal values, and at the same time is a determining factor in the dominance of their conflict. Keywords: justice; the idea of law; legal values; public relations; constitutional state; rule of law.

Sprawiedliwość i jej historyczny rozwój

The purpose of the article is an analyze the evolution of the concept of justice – from antiquity to modern times. The author expresses the point of view that today the term justice corresponds more to the political sphere than the legal one, because for Lawyers, in principle, does not give rise to major disputes. The original foundations of justice for a lawyer remain stable. The problem arises when we shift the accents to the social sphere. Then it turns out that we have no indisputable, universally approved grounds.

Ethical and ontological foundations of justice in E. Levinas’s philosophy

The issue of justice occupies one of the central places in the history of philosophy. On the one hand, this is determined by the significant social importance of justice, and at the same time it is problematic to reach social and scientific consensus regarding the very conception of justice and its attainability. Perhaps, this is the reason, why this problem has become an unsolvable one, a sort of eternal philosophical question. Despite this, scholars demonstrate little interest in it and it is located on the periphery of the research field. However, the issue of justice has not lost its topicality in political and social philosophy, and it is perfectly proved by a vivid discussion initiated by J. Rawls, in which the concept of justice has been infused with a considerable value. The present discussion about the foundations and principles of justice became the reason to once again turn to the phenomenological concept of justice of Emmanuel Levinas. He believed that ethics had a priority over ontology, and such a fundamental approach allows one to analyze his ethical ideas as one of the perspective areas for inquiry into the phenomenon of justice. Our paper considers the main tenets of Levinas’s social phenomenology, among which ethics takes priority over ontology. It analyses the relations with the Other that appear on the basis of compassion and love, which Levinas perceived as understanding and acceptance in the context of the ideas of rationalism and universalism. The paper argues that ethical formalism is inherent to rationalist philosophy, whereas in social phenomenology another understanding of justice is suggested, which defines with the transcendency of the Other. The latter is demonstrated as an ontological advantage and the possibility of recognition of each human being as a unique person, worthy of respect.

Restoration as the spirit of Islamic justice

ABSTRACT Over the last few decades, scholars in the conflict resolution field have begun to appreciate religion’s role in promoting the values, beliefs and practices of peace and nonviolence. Though scholars have identified myriad Islamic sources of conflict resolution, few have engaged with the restorative justice tradition directly. In the following paper, I identify the Islamic foundations of restorative justice through an examination of the restorative themes in the Qur’an and an analysis of Islamic crime and punishment. Any discrepancies between the restorative framework and the Islamic framework are discussed. I then identify and illustrate Islamic restorative practice in the Palestinian indigenous tradition of sulha. This paper demonstrates that in both theory and practice, what is understood as Islamic justice can also be conceptualised as an interpersonal, restorative justice.

The Social Ontology Of Human Dignity

The Universal Declaration on Human Rights (1948) begins with the striking claim that the ‘recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’. Rather than use words that individualise and universalise in abstract terms, the Declaration describes humanity as an extended family, knit together by ties that are personal, natural and communal. Despite this, the rights enshrined within the Declaration and other international human rights instruments have generally been understood in a way that prioritises the rights of individuals, and the concept of human dignity is often cited in a way that connects it with individual autonomy. However, a close examination of these instruments shows them to presuppose a social ontology in which human beings are not merely isolated individuals, but constituted as members of communities at familial, local, regional, national and global scales. An exploration of this communal embedding of the dignity of all members of the human family has implications for how international human rights are understood, particularly in controversial cases where the rights of human beings conceived as individuals have to be harmonised with the rights of human beings living in community with others. A better understanding of the social ontology presupposed by international human rights law is therefore a prerequisite for addressing problems of harmonisation of this kind.Noting that the individualistic aspects of human rights law are often said to reflect Western influence, this paper traces the historical development of the idea of human dignity in classical, medieval, reformed and modern Western thought. It is argued that while the older classical conception of dignity understood it to be an attribute that set some classes or groups of human beings apart from others, the idea was transformed under the influence of Stoic philosophy and especially Christian theology into an attribute possessed by all human beings by virtue of their created nature. In the early and later medieval and reformed perspectives, human dignity was understood to be an attribute of all human persons, conceived not as autonomous and atomised individuals, but as embedded in a great variety of associations and communities. Moreover, in the classical, medieval and reformed conceptions alike, dignity was considered to be something that can never be separated from one’s moral responsibilities as a human being called upon to perform the duties associated with one’s particular callings and stations in life. It is only in certain modern conceptions that human dignity has become disassociated from the qualities of one’s character and from the associations and communities in which human beings are naturally embedded.It follows that international human rights law, insofar as it recognises a social ontology which is simultaneously individualistic, associational and communal, is not entirely oriented to modern Western atomising conceptions of human dignity, but embraces older Western and possibly wider non-Western conceptions as well.

Homeless Advocacy and the Rhetorical Construction of the Civic Home

Homeless Advocacy and the Rhetorical Construction of the Civic Home

The impact of theological foundations of restorative justice for the human rights protections of North Korean stateless women as victims of human trafficking

Restorative justice, with its most prominent characteristic being rebuilding social relationships among victims, perpetrators and the community that was damaged by a crime, has been proposed as an alternative to the traditional retributive justice model to treat criminal acts. Both secular and religious groundings exist for restorative justice, and religious theorists have developed theological groundings for restorative justice based on scripture and other sources. In this article, I will explore how a theologically grounded restorative justice model, focusing on Christopher Marshall’s theological exposition of restorative justice, can contribute to the thought and action of Christians and the larger public in the face of the moral injury caused by human trafficking. I will address how this model can also contribute to social structural change. In my analysis, I will employ a case study of North Korean stateless women who reside in China and who are victims of human trafficking.

Yours truly: the role of organizational commitment in shoplifting prevention

PurposeThe purpose of this paper is to explore how interactional justice within a retail context may influence employee organizational commitment and how this may evoke guardianship behaviors that manifest in shoplifting prevention.Design/methodology/approachThis research uses a phenomenological approach conducting semi-structured in-depth interviews with 26 shop-floor employees of two major national supermarket chains in New Zealand.FindingsThe findings suggest that interactional justice in the workplace is important in shaping organizational commitment amongst employees. Additionally, heightened organizational commitment may have a significant effect on employee propensity to engage in shoplifting prevention/guardianship behavior. A conceptual model is developed based on these findings.Practical implicationsRetail managers may promote and exercise interactional justice practices with employees to improve their organizational commitment and consequential shoplifting prevention/guardianship behaviors.Originality/valueThe contribution of this paper is threefold. First, and from a theoretical perspective, it offers both a conceptual foundation and empirical-based evaluation of interactional justice and its effect on organizational commitment and, specifically, on guardianship/shoplifting prevention behaviors. Second, and from a pragmatic perspective, the conceptual model derived from this research may assist retailers in developing interactional justice strategies that encourage organizational commitment of employees that consequently leads to employees’ guardianship/shoplifting prevention behaviors. Finally, it explores significance and role of employee perceptions of interactional justice, employee workplace attachment and organizational commitment within the context of retail crime prevention.

Justice in Western Political Thought (John Rawles model)

John Rawls is one of the most prominent Western philosophers of contemporary political thought in the 20th century. Through his writings he tried to establish the foundations on which the theory of justice was built in practice and in order to achieve and establish the foundations of justice among peoples. Justice is one of the most important values of civil society, The conflicts of individuals in all their colors and controls the laws of civil society and the construction of the theory is consistent with the results of the public beliefs of what is fair and what is not fair and makes this theory a pattern stands on what is said by the doctrine of public utility and the consequences of a process that can serve as a framework for social life valid and John Rawls believes that justice is the first virtue of social institutions, as is the truth of intellectual systems. Whatever the theory is elegant and economical, it has to be rejected if it is not so honest. The rules and institutions, however efficient and well-formed, must be reformed or revoked if they are unfair.