Foundation Of Rights Research Articles

Good faith in employment

Abstract This Article argues that the duty of good faith in contractual performance offers powerful but neglected resources to empower workers to pursue their legitimate interests and resist mistreatment by employers. The duty of good faith creates a joint authority structure within contractual relationships, vesting co-contractors with equal and joint authority over the meaning, purposes, and, hence, the requirements of their contract. Implementing such an authority structure requires ensuring that the parties to a contract have the communicative space and epistemic resources they need to uncover and develop a common understanding of their contract. In the context of employment, such an authority structure would be transformative. It would require legal recognition of a variety of employee speech rights and protection from termination for reasonable and good faith refusals to perform work, and would offer a legal basis to challenge the scope and enforceability of at-will employment clauses. The duty of good faith could thus supply a common law foundation for rights and obligations commonly associated with labor law.

Rationality as the condition of individual rights in David Gauthier’s "Morals by Agreement"

The topic of this paper is the foundation for individual rights proposed by David Gauthier in his seminal 1986 book Morals by Agreement, and particularly the role of conception of rationality in this foundation. The foundation of rights is a part of Gauthier’s broader enterprise: to ground morals in rationality – more specifically, in the economic conception of rationality. Because of the importance of this conception for the whole of Gauthier’s project, we reconstruct first the conception of rationality which can be found in decision theory and game theory, presenting simultaneously in a relatively non-technical way some basic concepts of the aforementioned disciplines. We proceed then to reconstruction of the foundation of rights itself – it turns on Gauthier’s interpretation of the so-called “Lockean proviso.” Lastly, we turn to the connection between rationality and foundation of rights. It is to be found in the narrow compliance – the disposition to enter only into cooperation which satisfies conditions of fairness set out in part by the Lockean proviso.

Personal data protection and access to information: interfaces of Civil Society role in Brazilian legislative process

The relationship between access to information and personal data protection leads to the relativization of transparency under the argument of a false tradeoff between these two concepts. Based on that, this study’s objective is to understand the role of civil society movements in maintaining the rights of access to information and personal data protection. This research made a qualitative analysis, with a documentary survey and bibliographic review of the main categories presented in the Executive-Legislative relationship and in the theme of advocacy. We observe the role of civil society lobby groups in the Brazilian Access to Information Law legislative process, between 2003 and 2011, and the Brazilian Data Protection Act, between 2012 and 2018, perceive the change of these groups with the foundation of Rights in Network Coalition, in 2016. As a result, the active participation of Civil Society in public hearings has intensified increasingly in public hearings since 2018, specifically on the LGPD, while LAI had participation of civil society in the body’s scope institutionalized.

Legal Politics of Land Rights Certification in The Indonesian Context: Between Agrarian Conflicts and Demands for Legal Certainty

This writing aims to analyze and identify the legal regulations and politics of registration (certification) of land rights in the context of Indonesian land law, particularly in Law No.5 of 1960 on Basic Agrarian Regulations (UUPA) amidst various agrarian conflicts and legal certainty documents over land rights that occur in Indonesia. This research will also seek to find comparisons that regulate and the politics of registering land rights in other countries. This is a normative legal research method with a statute approach and a comparative law approach. The results of the research show that the UUPA is a legal product in the field of agriculture that is unification for all Indonesians which is a mandate of the provisions of Article 33 paragraph (3) of the 1945 Constitution of the Republic of Indonesia. Various agrarian conflicts that occur in Indonesia are caused by problems with land titles. Legal certainty through the certification of land rights is the answer to what agrarian law politics wants, considering that to create agrarian politics that makes people prosperous, protection of the rights inherent in land is needed. Through a clear foundation of rights will be able to increase economic value for landowners and improve the welfare of the Indonesian people at large. The regulation and politics of land registration law in several other countries such as Singapore, Malaysia, Mexico and Ethiopia also show the certification of land rights as an effort to provide protection and legal certainty for land that is used for community welfare.

The Reconfiguration of Nationalist Movements in a Context of Crisis: Evidence from the Case of Catalonia

Most theories on nationalism have rested on the assumption that nationalism was related to the nation-state as the main holder of power in our time. It sought to endorse or question its boundaries, but never the legitimacy of the model. Both state nationalists and ethnonationalists shared an understanding of citizenship as a belonging nexus and as a foundation of rights. However, the current processes of globalization and social breakdown driven by neoliberal adjustment policies have favoured the emergence of new nationalist movements that are not defined exclusively in relation to the state, but also in relation to the market by establishing interfaces with other social movements. This essay studies the pro-independence process in Catalonia to examine the readaptation of new nationalist movements in the face of the crisis of the nation-state and the financial crisis. We analyse the evolution of the independence process in Catalonia over ten years, describing both the evolution of discourse and the development of new political practice, as well as a readjustment of the positions of new and classical political actors. We conclude that the rise of the self-determination movement in Catalonia reflects a significant discursive and programmatic shift in ethnonationalism. The new nationalist projects appear as a solution to social problems generated by a nation-state that has lost competence in the framework of the European Union and globalization, and also by anti-social cutback measures.

Viewing learning organizations through an ethical lens: interview with Robin Snell

Purpose This paper aims to identify the ethical foundations and principles underpinning the learning organization (LO) concept. Design/methodology/approach By interviewing one thought leader in the field, Professor Robin Snell, this paper traces how his early days in academia shaped the development of an ethics-driven research agenda on LO. Findings An ethical perspective advocates the importance of establishing a covenant or constitutional foundation of rights that would enable and empower organizational members at all levels to enact the processes of LOs, thus signifying the importance of employee development and a more sustainable approach for developing LO. Originality/value A personal reflection of Robin Snell on his own academic career development and research trajectory offers some insights into how an ethical perspective of LO evolved and flourished as a field of study.

National Identity and Social Cohesion in a Time of Geopolitical and Economic Tension: Australia – European Union – Slovenia (Table of Contents)

This book aims to enrich the thinking and discussion in relation to the importance that citizenship, immigration, rights and private laws play in the modern world. This is in a time when social cohesion and national identity is being challenged. It will explore the impact these laws have had on Australia, European Union (EU) and Slovenia. Identity and social cohesion are contested concepts and can invoke different responses. The challenges states and the EU are likely to face in retaining and even strengthening their respective identities and social cohesion from continued geopolitical shocks, security, economic volatility and environmental degradation is likely to be formidable. These alone pose some of the most complex political and policy issues facing the world. The EU can be held up as a polity that, has developed an identity and level of cohesion, while allowing member states to retain their national identities. It has, to date, also been successful in managing the rise of nationalism. However, that has come under threat in recent times. Thus, the very foundations of liberal democracy could be diluted from the impact of these challenges. Moreover, the basic foundations of rights have, in part, already been diluted from the rise of terrorism (which is acceptable), however, the geopolitical differences pose a significant challenge, in, and of themselves.

The transcendental, the existential and the ethical: Alexy and Dworkin on the foundation of rights

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What's Left of Rights? Arendt and political ontology in the anthropocene

My project in this paper is to make a perverse, post-human, and even queer return to Arendt’s thinking on the ontological foundation of rights, to ask: What is left of rights? Could the challenge of encompassing and representing non-human entities re-energize the political pursuits that have hinged on rights thinking? Post-humanist proponents of critical race theory, indigenous studies, disability and queer studies have thoroughly problematized the givenness of the liberal rights-bearing subject, and the attributes of sovereignty, autonomy, motility, reason, self-possession, intention, speech, and efficacy that have qualified it, defining the parameters of the human in the process by disqualifying bodies (the woman, the slave, the refugee, the disabled) deemed different. But they have, largely, stopped short of inquiring into a concept of rights that embraces a radically non-human subject, limiting themselves instead to arguing either for a continual expansion of the domain of the human beyond its foundational exclusions, or for an abandonment of rights altogether. But how might conceptualizing rights away from inherited presumptions about how a rights-bearing subject acts, manifests, or appears help us reclaim what was politically generative about the project of rights in the first place? Ultimately, do rights retain any validity if they do not also embrace the non-human? How might performance help us imagine non-human rights—help us figure, speak with and for, non-humans in the domain of the political? And what insight might we gain from revisiting Arendt in the light of post-humanist thought?

价值塑造：浅谈质证权的奠基之路

대질은 소송안건의 사실수단에서 나타나며, 대질신문권은 재판의 공평과 정의의 가치를 상징한다. 서구의 법률체계에서 대질신문권은 자연법의 기본적 가치원칙에 깊이 뿌리를 내렸을 뿐만 아니라, 점차 발전과정에서 전통적 제도로 형성되었다. 서구법계에서 대질신문권의 규정과 보호는 기본권리의 존중과 보호에 기원하고 있다. 이는 원고와 피고 쌍방이 향유하는 동등한 대질신문권을 가지는데, 이는 동등한 재판의 공평과 정의를 의미한다. 서구 법률제도와 이와 관련한 이론의 영향을 받아 중국학자들도 현행 형사소송제도에서 대질신문권을 받아들여지길 바란다. 또 어떤 일부 학자들은 《형사소송법(刑事诉讼法)》 제59조가 현행 형사소송법에서 대질신문권을 규정한다고 한다. 하지만, 동조는 형사소송 법률의 거시적 체계를 규정한 것으로 동조에서 대질신문권을 규정한다거나 당사자의 권리를 보호하기 위한 입법취지를 가졌다고 보기 어렵다. 서구법률문화와 달리 중국의 전통 사법체계는 오랫동안 직권주의를 채택하고 있었기 때문에 대질신문권의 가치적 기초를 확립할 수 없었다. 중국 고대의 형사소송에 있어 증인의 독립적 가치는 중시되지 않았기 때문에 당사자의 기본소송권리도 없었다. 또 근대 이후의 형사소송입법도 기본권리의 보호에 있어 형사소송제도의 가치가 제대로 발휘되지 않았다. 이는 직권주의를 탈피하지 못한 데에 있다고 본다. 그러므로 본고에서는 중국의 장래 형사소송입법에 있어 대질신문권의 확립을 위하여, 대질신문권의 법적 가치를 검토하여 당사자의 소송권을 보장하고자 한다.

The foundation of right of property and the mutual recognition in Hegel’s Elements of the Philosophy of Right

The foundation of right of property and the mutual recognition in Hegel’s Elements of the Philosophy of Right

Remarks by Alex Aleinikoff

If we think about global migration law, refugee law is the place to start, since this seems to be the area in which the institutions, the norms, the system are the clearest example of a global migration law. Unlike most other migrants, refugees have their own convention and their own agency—the UN High Commissioner for Refugees (UNHCR) dating from 1950—and a set of regional agreements on refugees, and that has produced a solid foundation of rights, seventy years of practice, and billions of dollars a year in assistance, as well as coordinated international action on resettlement and return. I think it is fair to call it a legal regime on refugees.

Secolarizzazione, non secolarismo. Il diritto nel nuovo rapporto tra pubblico e privato

The article seeks to deepen the meaning of terms such as secularization and secularism, also to distinguish between an ideological attitude regarding dialogue between religion and the public sphere, and the current open guidelines for interaction between religious discourse and public discourse as a reflection of continuity between the private sphere and the public sphere. All this has a lot to say on the thought about law, about the foundation of the rights and about the history of juridical civilization, especially in the western culture: for which the role played by the Christian religion in particular is essential for the understanding of principles such as equality and secularity as well as the foundation of human rights.

Prawo naturalne a prawa człowieka: stanowisko Bertholda Walda

The article presents Berthold Wald’s views on the foundations of human rights. The author shares the views of the German thinker that the basis of these laws is the natural law, which in modern culture is neglected, contributing to the errors of embodying human dignity and freedom. Wald, in the author’s view, in an original way shows the rational and universal nature of the vision of the natural law of Thomas Aquinas as a source of human rights. He emphasizes that in the experience of one’s self you can read both the truth about this law and human rights. This makes this concept sound convincing and understandable for everyone, regardless of their temporal, cultural or philosophical background. For Walt, as for Mieczyslaw A. Krąpiec, the subject of rights is every human being because of his personal dignity, understood in a classical way, that is justified in human nature and not in its own qualities. In his presentation of the position of the German thinker, the author of the article exposes and delineates certain themes: defining natural law as a source of human rights and experiencing one’s own self in all aspects concerned and showing the dignity of the person as the foundation of rights.

Human dignity – the foundation of political human rights? Empirical research among youth in Germany

This article focuses on political human rights and on the empirically assessed legitimation of these rights. This research considers the rights of refugees, the active and passive right to vote, and the right of protest. Given that the research is empirical research, respondents are requested to express agreement, disagreement or neutrality. The assumption is that contextual factors influence people’s assessment of rights. One contextual factor is, firstly, the concept of human dignity. International human rights covenants regard human dignity as the very foundation of all rights. That said, the concept of human dignity is subject to different understandings and – certainly in the past – the understanding of what constitutes human dignity has varied. Dignity can be related to the appreciation of the person given by others, to the moral behaviour of a person, and it can be understood as inherently related to the individual as a human being. It is this last understanding that forms the basis of modern declarations of human rights. Furthermore, the respondents’ value orientations and religious beliefs, along with society’s socio-political perception, will be examined to ascertain whether these factors have any influence on respondents’ attitudes towards political rights. The key question is: does human dignity influence people’s view of the legitimacy of political rights and do other factors also count? The empirical analysis was undertaken done with German youth (N=2244). Findings show that the concept of inherent human dignity is a strong predictor for respondents’ attitudes towards political rights, but that it is not the unique predictor; relevant concepts are the value orientation of youth and their socio-political orientation. The significance of religious beliefs as a predictor is low.

El derecho al arraigo frente al desplazamiento forzado en comunidades indígenas en Colombia

<p>El presente artículo de reflexión pretende describir y analizar la dificultad que representa para las comunidades indígenas el desarraigo de sus territorios y con ello la afectación a su cultura e identidad cultural, por ocasión del conflicto armado colombiano, el cual las ha obligado al desplazamiento forzado, con un enfoque de <em>derechos</em>. Lo anterior, en razón a que tal ruptura con su territorio significa la destrucción de modos de vida ancestrales, estructuras sociales, lenguas, identidades e incluso la desaparición de comunidades enteras por cuanto su desarrollo social, económico y cultural se relaciona completamente con su territorio. De manera que la tesis central de la presente reflexión, versa sobre cómo esa afectación es fundamento de derechos de las comunidades indígenas, derechos que por las connotaciones que presenta y representa, que van más allá del reconocimiento y protección de la diversidad étnica y cultural de la nación colombiana, desbordan los lineamientos constitucionales como la declaratoria del estado de inconstitucionalidad por la magnitud y profundidad del daño, por la supresión de una cultura, unas costumbres y una cosmovisión.</p><p> </p>

What Role for International Law in a Politics of Civility?

This essay questions the role of international law in Etienne Balibar's suggestion of a politics of civility to reintroduce the issue of equality and the horizon for political action. It explores some of the reasons why insisting on international law may have adverse consequences if one’s aim is to break away from the “extreme violence” produced by humanity’s biopolitical division between zones of life and zones of death. First, it looks at Hannah Arendt’s assessment of human rights and the notion of a “right to have rights” as a radical critique of the foundation of rights. Next, it focuses on the international legal “turn to ethics” and the implications this brings to the discourse of international law. Finally, the debate over “whether international law is really law” will be used as an example of the unease of those who insist on international law as the basis of a politics of civility.

Attempted Infringement: The Founders, President Obama's Gun Control Policies, and the Sacredness of the Second Amendment's Fundamental Right to Keep and Bear Arms

The Bill of Rights of the U.S. Constitution is said to be the foundation of rights that every man, woman, and child of this country are afforded by their Creator. While each amendment is of great importance, there exists one amendment that is vitally needed in order to protect ourselves from government tyranny and usurpation – the Second Amendment. Each year, as random acts of atrocious mass-violence occur, it seems like President Obama and his administration use such events to attempt to curtail the rights afforded under the Second Amendment. The President’s most recent attempt at this infringement came in 2013, when he asked Congress to enact certain gun control legislation that goes completely against this country’s history, as well as prior U.S. Supreme Court jurisprudence. This comment examines prior history and jurisprudence involving the Second Amendment, and uses this information to show that certain aspects of President Obama’s gun control policies would likely be ruled unconstitutional. Two very recent Supreme Court cases, District of Columbia v. Heller and McDonald v. City of Chicago, have established that all rights granted under the Second Amendment are of a most fundamental nature, and this evidence and commentary throughout the history of this country were used to establish the findings in this comment.

Is Species Integrity a Human Right? A Rights Issue Emerging from Individual Liberties with New Technologies

Currently, some philosophers and technicians propose to change the fundamental constitution of Homo sapiens, as by significantly altering the genome, implanting microchips in the brain, and pursuing related techniques. Among these proposals are aspirations to guide humanity’s evolution into new species. Some philosophers have countered that such species alteration is unethical and have proposed international policies to protect species integrity; yet, it remains unclear on what basis such right to species integrity would rest. An answer may come from an unexpected angle of rights issues: Some cultures have indicated that they want no part of our technological culture, preferring to retain their practices. Yet, rights documents do not explicitly establish that any individual has a right to species integrity. Careful interpretation of rights documents nonetheless reveals that such a right to species integrity is implicit. Interpreting these so as to reveal this needed right is also necessary to retain the foundations of rights documents and institutions. Further, acknowledging a right of species integrity could mean, because of practicalities, a limit to the freedom of proponents to implement proposals to manipulate the species.

Constitutional Rights and Democracy: A Reply to Professor Bellamy

In his rich and thoughtful paper, Richard Bellamy sketches a theory of individual rights that ascribes to them an inherently democratic character that “is best captured by a republican view of liberty as non-domination, rather than the standard liberal account of liberty as non-interference.” According to this view, “rights involve an implicit appeal to democratic forms of reasoning.” That is, the only justifiable “foundation of rights must be some form of ongoing democratic decision making that allows rights to be claimed under conditions of political equality.” Bellamy uses this particular model of rights to defend a somewhat unique thesis concerning the legitimacy of judicial review under a constitutional charter or bill of rights (henceforthconstitutional review). Many legal theorists question whether constitutional review can ever be rendered consistent with the theoretical and practical demands of democracy. According to these theorists, democracy embodies a form of self-rule whereby the members of a society establish and exercise legitimate authority over themselves. But self-rule seems seriously compromised once constitutional review enters the picture. Instead of having the people and their elected representatives setting the basic terms of social cooperation, we have instead a small group of elite, unelected, and unaccountable judges performing this vital task. Constitutional review empowers these individuals, in constitutional review cases, to substitute their own contestable views and preferences with respect to the basic terms of social cooperation for the duly considered views and preferences of the people and those whom they have duly elected to represent them. This is something one simply cannot tolerate in a democracy.