Protection Of Liberties Research Articles

Culturalizing religion in Western Europe: Patterns and puzzles

The relationship between culture and religion in Western Europe is marked by opposite, if not contradictory trends. One is the rise of ‘pure’ religion, abstracted from ethnicity and culture, which is registered particularly among immigrant minorities. This article focuses on an opposite trend of ‘culturalizing’ religion, which has occurred on the part of majority society. A prominent actor driving this trend is the high courts, which try to square the circle of living up to liberal state neutrality and acknowledging a privileged position for majority religion in society. However, the privileging of Christianity in Europe is light and largely symbolic, as I show in a contrast with the substantive privileging of Islam in Muslim-majority societies. If applied to immigrant Islam, culturalization still has exclusive implications, as it removes the respective practices from the ambit of religious liberty protections.

It's Time to Reinvigorate the Constitutional Claim for Physician Assistance in Dying

Since the Supreme Court's 1997 rejection of constitutional challenges to state bans on physician-assisted dying (PAD), dying patients' constitutional claims have been summarily rejected. This has been so whether the claimants rely on federal or state constitutional provisions relating to liberty and equal protection of the laws. I argue here that developments in end-of-life jurisprudence and practice over the last 21 years provide a foundation to refine and reinvigorate constitutional claims for PAD.

Is Freedom of Conscience Superior to Freedom of Religion?

The notion that religious freedom claims might be recast as claims for the protection of liberty of conscience appeals to many claimants. Their chances of success appear brighter if the appeal is made to the seemingly more neutral and universal idea of conscience. This article examines this argument. I conclude that the initial promise of liberty of conscience belies certain significant weaknesses. Refashioning claims for the unhindered manifestation of one’s deepest beliefs runs into some serious obstacles. The root cause may be the transmogrification of conscience into an individualized expression of the person’s moral compass, a truncated conception severed from earlier notions that tied conscience to synderesis, the appreciation of (and obligation to respond to) the moral law. When conscience is envisioned—as it is today—as the mere exercise of one’s sincere autonomous will, the weight accorded it in the usual balancing of liberty against pressing societal interests will seldom appear enough to win the day. Liberty of conscience is a powerful supplement to religious freedom, but too weak a reed to stand alone.

Assessing Democracy in Puebla: The Opposition Takes Charge of Municipal Government

Debates about democratization in developing countries have generally emphasized competitive elections, broad participation, and the protection of civil and political liberties. A survey of the first two years of PAN administration in the city of Puebla, Mexico, assesses government capacities and policy responses to social and economic demands. It suggests that excitement over the election of opposition party officials should be tempered pending evidence of the accommodation of such demands.

Antonio Gramsci and the Palabra Verdadera: The Political Discourse of Mexico's Guerrilla Forces

Assessing Democracy in Puebla: The Opposition Takes Charge of Municipal Government Debates about democratization in developing countries have generally emphasized competitive elections, broad participation, and the protection of civil and political liberties. A survey of the first two years of PAN administration in the city of Puebla, Mexico, assesses government capacities and policy responses to social and economic demands. It suggests that excitement over the election of opposition party officials should be tempered pending evidence of the accommodation of such demands. Antonio Gramsci and the Palabra Verdadera: The Political Discourse of Mexico's Guerrilla Forces This article examines the political strategies of the EZLN, or Zapatista army, in Chiapas and the EPR, which operates mostly in Oaxaca and Guerrero, through a content analysis of their communiques. It argues that these two guerrilla movements demonstrate, through their cultural production, significantly different priorities and preferences; and that these differences reflect different strategic choices. Whereas the EZLN has chosen to pursue a revolutionary strategy similar in key respects to the war of position described by Gramsci, the EPR remains closer to the war of movement. NAFTA Coalitions and the Political Viability of Neoliberalism

The Early American Religious Anthropocene: The Founding Fathers and the Protection of Religious Liberty, 1776–1826

The Early American Religious Anthropocene: The Founding Fathers and the Protection of Religious Liberty, 1776–1826

Democracy and Financial Crisis

AbstractExisting scholarship attributes various political and economic advantages to democratic governance. These advantages may make more democratic countries prone to financial crises. Democracy is characterized by constraints on executive authority, accountability through free and fair elections, protections for civil liberties, and large winning coalitions. These characteristics bring important benefits, but they can also have unintended consequences that increase the likelihood of financial instability and crises. Using data covering the past two centuries, I demonstrate a strong relationship between democracy and financial crisis onset: on average, democracies are about twice as likely to experience a crisis as autocracies. This is an empirical regularity that is robust across a wide range of model specifications and time periods.

Who’s Afraid of the Lucky MOOSE? Canada’s Dangerous Self-Defence Innovation

With little public discussion, the Canadian law of self-defence has become, in important respects, more permissive than Florida’s Stand Your Ground law. This article provides original historical research into the origins of the Canadian law of self-defence that reveals the evolution of its current conceptual features. It compares these features with the features of the Florida law and warns that in climates of fear, despite Canadian safeguards, Canada’s law is vulnerable to biased or unprincipled application. The Gerald Stanley case in Battleford Saskatchewan serves as a warning. The author argues that Stanley’s successful accident defence in the homicide of Colten Boushie was, in fact, predicated on dangerous notions of defence of property and defence of person that prioritize the protection of property, liberty, and honour over human life.

Transformative Constitutionalism in Post-Colonial Africa: A Framework for Democracy and Human Rights Protection

The aftermath of World War II and the advent of independence in post-colonial Africa was marked by aspirations for constitutionalism, democracy, the rule of law, and human rights protection. With the arrival of independence, primarily in 1960, many African states discerned the need to draft new constitutions that ensured effective democracy, human rights protection, and the participation of citizens in the democratic process. Especially after 1990, when multi-party systems evolved in Africa, these constitutions have been subjected to several alterations and amendments. The changes appear to have heightened the desire of the people for a substantial transformation towards constitutionalism, democracy, and effective protection of human rights and fundamental liberties. Despite several amendments to some African constitutions, for instance, in Cameroon, these constitutions, if not all, have failed, to some extent, to attain the object of transformation and the peoples’ aspiration for change. Some of the constitutions adopted were only superficially different from the provisions they had replaced. What remains questionable is whether constitutional amendments in most post-colonial African states can be perceived or described as having attained complete transformation despite the fact that they have not been able to ensure the object of constitutionalism, democracy, the rule of law, and effective protection of human rights and freedoms. The purpose of this paper is to critically analyse the concepts of constitutionalism and transformative constitutionalism as a framework for democracy and human rights protection in post-colonial Africa with specific focus on Cameroon in a comparative perspective. The paper also aims to ascertain whether African states with modern constitutions are necessarily transformative in nature despite the lack of effective protection of human rights and fundamental freedoms.

Protection of constitutional rights to liberty and security of person in the Penal Code 2015 of Vietnam

By referring to the International Conventions on Human Rights, The Constitution of the Socialist Republic of Vietnam of 2013 and the Resolution of the Communist Party of Vietnam on judicial reform, the article points out that the right to liberty and the security of person are human rights and citizenship rights which are protected by Vietnamese law. This is also the basis for the article to evaluate the protection of liberty and personal security provided by the provisions of the Vietnam Penal Code of 2015, revised in 2017. As a result, the article proposes solutions to further improve the criminal policy and the Penal Code regulations towards strengthening the protection of human rights in general, the right to liberty and the security of person in particular. The approach and legal basis of this study is a human rights based approach, centered on human rights to evaluate and propose solutions to the issues. With this approach, the article adopts the general standards of personal freedom and security in international law as the basic criterion for evaluating and proposing amendments of Vietnamese criminal law regulations on protecting the liberty and personal security. In the process of this study, specific research methods were used including the synthetic method, the analytical method and the comparative method. These methods are used to: synthesize the views, awareness of the need to protect freedom and personal security by criminal law; analyze the contents of the relevant regulations in the Vietnamese criminal law; compare with international law standards and crime statistics to assess the suitability and effectiveness of these regulations in Vietnamese criminal law.

А lawyer in the administrative process

The article deals with legal status of the lawyer in administrative legal proceedings as an independent participant of the administrative legal proceedings that has his tasks, functions and authorities. After analyzing the works of famous researchers it was noted that as a professional defense counsel and legal representative the lawyer can take part in the wide range of financial and procedural relations where he has scope of functions, rights and responsibilities. The functions, rights and responsibilities of the lawyer, the most important of which is protection of rights, liberties and legal interests of people, define his place in legal relations. The article analyzes legal place of the lawyer in administrative legal proceedings in terms of arbitration policies in the public sphere. The definition of legal and administrative legal status is reviewed together with the existing statutory regulations in relation to defense attorneys and the procedure of the execution of the administrative legal proceedings

Religious Liberty: Essays on First Amendment Law. Edited by Daniel N. Robinson & Richard N. Williams

We seem to be at a turning point with respect to religious liberty. Many talk about a “crisis of religious liberty.” This assessment is typically made by religious individuals and institutions who complain that their religiously informed views are increasingly marginalized. In the United States, at least, this is a bit surprising since the United States is associated with the idea of legal protection for religious liberty. In the 1960s and 1970s, however, the United States Supreme Court strongly emphasized the separation of church and state. In so doing, the Court seemed to be making an effort to privatize religion. The Court seemed uncomfortable with a public role for religion. This was particularly true in a series of cases dealing with government funding of religious schools. These religious schools had to be tolerated, of course, but they were confined almost entirely to the realm of private choice. There was, during this era, some constitutional protection for the free exercise of religion, but the actual results in the cases were more limited than the Court’s more sweeping rhetoric might have suggested.

Some Problems with European Court on Human Rights Acts Fulfillment Nowadays

Questions of ECHR acts are insufficiently known for most participant countries of Convention on Human Rights and Liberties protection. We could just be sorry for it, taking into consideration the importance, originality and social significance of this phenomenon. The author poses a problem to show the gravity of the nonfulfillment of intergovernmental institutions, government measures inefficiency and danger of existing tendencies.

Best Interests Assessor Role: An Opportunity or a ‘Dead End’ for Adult Social Workers?

This opinion article explores the significance of the Best Interests Assessor role in England and Wales for social workers working with adults. It considers the challenges of the role following the Supreme Court’s Cheshire West (2014) judgement and the implications for BIAs of the Law Commission’s 2017 plans for replacing DoLS with the ‘Liberty Protection Safeguards’. The author explains why they consider the BIA role to be a valuable one for the status of adult social work as well as for people who may lack capacity to uphold their human rights, with some reservations about the risk of diluting the safeguards the current role represents for those vulnerable people.

The Influence of Liberty Concepts on the Legal Classification of Constitutions and Constitutional Governments

Due to global developments in constitutional law and especially the importance of principles of republicanism, the sovereignty of the people and the protection of individual rights and public liberties as the foundations of constitutionalism and constitutional government, it seems that a new category of constitution that is consistent with the principles and foundations of constitutionalism and the constitution should be provided. Therefore, the classical categories of constitutions are briefly introduced and then their unlawful aspects will be criticized and then, new categories of constitutions are introduced and described. This classification is based on the assumption that republic governments can be constitutionality and with a focus on the protection of liberty can use its power without being required to comply with liberty in its liberal concept. So as constitutions can be divided into two types of liberalism and republicanism, governments can be classified into two types of Republicanism and liberalism too. Since the classic categories have acted based on inductive method, therefore, this method has been used to criticize and propose alternatives.

The end of privacy for the populace, the person of interest and the persecuted

Erosion of US and foreign citizens’ privacy has resulted from the escalating use of electronic devices; creation of gargantuan commercial and government/intelligence databases; government access to business data; and the motivation and ever more sophisticated ability to mine and unaccountably use such information. After suffering the terrorist attacks of September 11, 2001, the US government led the way in globally collecting and exploiting personal data. This ultimately required revisions to existing US law, as well as altered legal interpretations of constitutional protections for civil liberties. The overwhelming focus of US communications and electronic storage policy has been on offensive intelligence operations; collection has been enhanced partly by undermining cyber defense for companies and citizens. As with other business sectors, US medical information now is vulnerable to both criminal cyber-attack and government access. This article is authored by a former US intelligence community and national security professional with highly specialized proficiencies and experience at some of the top levels of intelligence oversight – where technical, operational, analytic, inter-agency, legislative, regulatory, legal and budget activities converge. Using unclassified and public sources, the author summarizes the types and breadth of US domestic collection and its distribution, the degree to which individuals’ privacy may be impinged, abuse of these powers, and effects on governance. Resulting US ability to spot and forestall pending domestic terror attacks - the rationale used to justify surveillance without end - is evaluated.

A Failure to \u201cDo No Harm\u201d -- India\u2019s Aadhaar biometric ID program and its inability to protect privacy in relation to measures in Europe and the U.S.

It is important that digital biometric identity systems be used by governments with a Do no Harm mandate, and the establishment of regulatory, enforcement and restorative frameworks ensuring data protection and privacy needs to transpire prior to the implementation of technological programs and services. However, when, and where large government bureaucracies are involved, the proper planning and execution of public service programs very often result in ungainly outcomes, and are often qualitatively not guaranteeable. Several important factors, such as the strength of the political and legal systems, may affect such cases as the implementation of a national digital identity system. Digital identity policy development, as well as technical deployment of biometric technologies and enrollment processes, may all differ markedly, and could depend in some part at least, on the overall economic development of the country in question, or political jurisdiction, among other factors. This article focuses on the Republic of India’s national digital biometric identity system, the Aadhaar, for its development, data protection and privacy policies, and impact. Two additional political jurisdictions, the European Union, and the United States are also situationally analyzed as they may be germane to data protection and privacy policies originated to safeguard biometric identities. Since biometrics are foundational elements in modern digital identity systems, expression of data protection policies that orient and direct how biometrics are to be utilized as unique identifiers are the focus of this analysis. As more of the world’s economies create and elaborate capacities, capabilities and functionalities within their respective digital ambits, it is not enough to simply install suitable digital identity technologies; much, much more - is durably required. For example, both vigorous and descriptive means of data protection should be well situated within any jurisdictionally relevant deployment area, prior to in-field deployment of digital identity technologies. Toxic mixes of knowledge insufficiencies, institutional naïveté, political tomfoolery, cloddish logical constructs, and bureaucratic expediency must never overrun fundamental protections for human autonomy, civil liberties, data protection, and privacy.

The Future of Religious Liberty Protections in Illinois: Harmonizing Religious Exercise and Legitimate Government Concerns

Americans are generally supportive of religious freedom, especially compared with people in other countries. However, some Americans are worried about what they see as a growing threat to religious freedom — and no wonder. The news is replete with stories of religious individuals and institutions pushing back against an ever-expanding administrative state that sometimes brings into tension the demands of faith and the law. Witness the widespread public outcry over the contraceptive coverage mandate under the Patient Protection and Affordable Care Act, which ultimately led to Burwell v. Hobby Lobby. There, the U.S. Supreme Court held that, under the Religious Freedom Restoration Act (RFRA), the government cannot force closely-held, family-owned corporations to cover drugs and devices that they believe “cause the demise of” a human. Clashes over competing views of marriage erupted after the Supreme Court’s landmark decision in Obergefell v. Hodges extended the right to marry to same-sex couples. Across the country, marriage registrars, magistrates, and judges — individuals who facilitate the state’s monopoly over marriage — have refused to assist with same-sex marriages, leading to resignations, firings, and even jail time. Most famously Rowan County, Kentucky, clerk Kim Davis barred her staff from issuing marriage licenses to anyone because doing so “would conflict with God’s definition of marriage” and “violate [her] conscience.” Federal Judge David Bunning tossed Davis in jail for contempt of court and ordered her deputies to issue marriage licenses or go to jail, too. That controversy followed hot on the heels of Indiana’s and Arkansas’ recent debacles enacting state RFRAs, which critics characterized as “licenses to discriminate.” While RFRAs offer much-needed protection against government impositions on religion, especially for small religions, prominent religious liberty scholars believe that RFRAs would not absolve religious believers of duties to comply with non-discrimination laws. That fact, however, did not prevent the NCAA and others from boycotting Indiana. To be sure, the norm that the law should leave room for religious believers whenever possible is likely to weaken as the number of Americans identifying with a religion continues to plummet. But, as the government continues to expand and its nature changes, clashes between religious belief and government will expand. More importantly, whether and how to respect religious beliefs will continue to spark raging debates, as it did after Hobby Lobby. Still, religious freedom has been a bedrock of our democracy since the founding and is one thing that Americans of all stripes agree upon, perhaps because it protects all Americans. This chapter discusses the three ways in which religious freedom is commonly protected — constitutional protections, generalized statutory protections for religious freedom, and specific statutory protections. It then reviews existing religious liberty protections under Illinois and federal law and suggests how religious liberty protections in Illinois can be further enhanced while respecting the dignity of all individuals.

Before Privacy, Power: The Structural Constitution and the Challenge of Mass Surveillance

The rich legal literature that has grown up to assess the constitutionality of bulk communications collection by the government has focused overwhelmingly on the challenge such programs pose to discrete claims of individual right against the state. Yet beyond the doctrinal and conceptual challenges such claims of privacy and expressive rights have faced – from restrictive views of standing and territoriality to contested understandings of the constitutional harms deserving rights protection – individual rights talk alone ignores the most apparent reality of current bulk collection programs: the newly developed government capacity and desire to collect zettabytes of data represents a vast expansion of government power. Particularly when a large fraction of U.S. government surveillance today is conducted not pursuant to congressional authority but solely under the executive power of Article II of the Constitution, the same changed empirical reality that has led us to revisit many of the decades-old premises on which Fourth Amendment doctrine is based presents an occasion to look anew at the nature of structural constitutional power. As this Article shows, the classic constitutional case for executive power in foreign intelligence surveillance falls short of supporting the claim that Article II alone supports the kind of bulk data collection the executive currently pursues. More, the Constitution’s structural provisions – here meaning the provisions containing affirmative grants of power to the federal government – have also been the source of a method of constitutional interpretation (structural reasoning), and separately, the basis for recognizing a substantive set of purposes underlying the constitutional project, including not only the promotion of functional effectiveness but also the protection of societal liberty. Where rights claims tend to conceptualize the problem of government action in terms of violations of particular clauses or singular individual harms, structural analysis in these respects invites consideration of what kind of government is consistent with the free republican society the Constitution envisions. These considerations, this Article maintains, more usefully inform our understanding of the constitutional harm of bulk collection. While questions of power surrounding bulk collection are hardly straightforward – the President has at least some intelligence authority, and global communications represent an unmatched trove of information that in certain applications has the potential to help protect far more individuals than it harms – this Article demonstrates at a minimum that the Constitution has more to say about this practice than is contained in the Bill of Rights alone.

Imagining the Foundations of Law in Britain: Magna Carta in 2015

The 800thanniversary of Magna Carta offers a study in how the foundations of law have been visualized in the United Kingdom. The fact that the British sense of identity as a free nation has historically been based on its commitment to “unwritten” law means that it lacks a foundational text and has hence traditionally figured the law through a plurality of images without a core. The absence of a singular image on which to focus national identity became acute in the early twenty-first century as the multiplication of sources of legality and justice in a globalized and multicultural world put pressure on the United Kingdom's sense of sovereignty. The tensions manifest in this crisis can be seen across a range of images produced for the anniversary, each bearing different values. Yet the rival narratives are able to coexist in the same commemorative space, their differences subsumed within Magna Carta's status as a postmodern “icon,” the consecration of the reciprocal identification between the protection of liberty and the rule of law. The Article concludes by examining a court battle over land on the borders of the commemorative site, and at another commissioned artwork. Both, in their different ways, bring into view the boundaries and bonds imposed by the rule of law that the iconic image elides.