Protection Of Liberties Research Articles

The Future of European Values

The EU’s values of transnational peace, cooperation, secularism, rationality, and protection of civil liberties and human rights are amongst the most valuable legacies of the Enlightenment. The European project has weathered several crises in the first third of the 21st century, including a change of political direction in the United Kingdom. Brexit is viewed as a consequence of the UK’s flawed electoral system, exposed as susceptible to hijacking by militant and disruptive minorities. The future of European values must be protected from politically unreliable systems such as the UK’s FPTP.

The notion of ‘a person of unsound mind’ under Article 5 § 1(e) of the European Convention on Human Rights

This article presents a critical analysis of the case-law of the ECtHR with regards to the interpretation of the notion of ‘a person of unsound mind’ under Article 5 § 1(e) of the Convention. According to the Court, only a person who has been reliably diagnosed with a mental disorder and who poses a danger to himself or others can be legally detained as ‘a person of unsound mind’. However, the notion of ‘unsoundness of mind’ is not limited to such mental disorders which are treatable or which deprive the persons affected of their ability to self-control and so in the past the Court applied the said provision of the Convention to, among others, persons diagnosed with personality disorders or paedophilia who commited crimes acting with full criminal responsibility. The article argues that such a definition of the notion ‘a person of unsound mind’ is not sufficiently clear, what is dangerous from the perspective of protection of personal liberty. For this reason, the article proposes to limit the scope of the analysed notion to persons affected by such mental disorders that exclude or significantly reduce their ability to make informed decisions about their own health and/or to control their own behaviour and recognise the meaning of their own actions. Only then, provided that other criteria developed in the Court’s case law, such as dangerousness for self or others and lack of less restrictive alternatives, have been satisfied, detention of person with mental disorder may be consistent with the object and purpose of the Convention.

SOCIETY AND THE STATE: INFORMATION AND COMMUNICATION TECHNOLOGIES TO OVERCOME THE «CRISIS OF TRUST» IN THE CONTEXT OF THE PANDEMIC

The article analyzes the process of interaction between the state and society in the context of the development of digital technologies against the background of an emergency situation related to the spread of coronavirus. The article reveals the causes of the crisis of trust in the interaction of social and political institutions that is characteristic of modern society. The most important role of information and communication technologies in the conditions associated with the need for operational management of information flows to prevent political destabilization is shown. The author substantiates the idea that in the face of the threat of a pandemic, society is ready to review some of the guidelines related to the protection of civil liberties and accept new restrictions in exchange for a more effective state policy to ensure the safety of life and health.

Human and civil rights as a determiner of national state-building

At the present stage of their development the Ukrainian society and the state are characterized by their pursuit to provide maximum realization of human and civil rights and to create a full-scale civil society. Obviously, in this context, a significant attention is paid to the human rights in Ukraine, however there is insufficient research systematically conceptualizing the human rights employing philosophical and legal instruments and methodology. The author highlights that particular attention in the mechanism of organizational and legal remedies is paid to judicial and extrajudicial protection of human and civil rights. In accordance with the Article 55 of the Constitution of Ukraine the judicial protection of human and civil rights is maintained through the system of general jurisdiction courts of Ukraine. The state ensures the right of every person to appeal in court against any decisions, actions or inactivity of the state bodies, local self-government bodies and government officials that violate human and civil rights. In case of exhausting all remedies of his/her rights and liberties protection in national courts the person can appeal to the international courts, e.g. to the European Court of Human Rights. At present, Ukraine holds the third position in the number of its citizens’ appeals to this distinguished international legal institution. Every person is able to appeal to the extrajudicial institutions authorized to protect the constitutional human and civil rights and liberties. In Ukraine there is a special body for this purpose — the Ukrainian Parliament Commissioner for Human Rights, whose activities are determined by the Law of Ukraine «On the Ukrainian Parliament Commissioner for Human Rights» of 23 December, 1997. In case when all extrajudicial remedies of human rights protection are exhausted, a person has the right, guaranteed by the Constitution of Ukraine, to appeal to the international human rights organizations (Art. 55). In terms of the current theory and practice of guaranteeing the constitutional human and civil rights, together with the national regulatory, organizational and legal guarantees, it is worth to distinguish the international guarantees of the constitutional human and civil rights and liberties in Ukraine. The special international legal guarantees of the human and civil rights and liberties are usually divided into regulatory and institutional ones. Key words: human and civil rights and liberties, constitutional state, national legal doctrine, international law, imitation of human rights, constitutional and legal mechanism for ensuring human rights and liberties.

Neo-classical liberalism, ‘market freedom’, and the right to private property

ABSTRACT Neo-classical liberals aim to offer a more consistent, coherent, and morally ambitious form of liberalism than the traditional classical and social liberal alternatives by providing grounds for a strong commitment to both individual economic liberty and social justice. The key neo-classical liberal claim is that the stringent protection of negative economic liberty does not conflict with, but is rather an essential component of, a commitment to political and social justice. My focus in this article is not on this key neo-classical claim itself, but rather on the conceptually prior question of the meaning and institutional implications of the negative conception of individual economic liberty. In addressing this question I trace some lines of argument which derive from the classical political economy of the late eighteenth and early nineteenth centuries. Drawing in particular on ideas and arguments developed by the American economist and social critic Henry George, I argue that a fully coherent and defensible conception of negative economic liberty is compatible with a commitment to a strongly conditional form of private landownership, but is incompatible with a commitment to absolute private property in land.

The Assault on Parental Rights in America

It is a well-established constitutional principle protected as fundamental that parents have the right to direct the upbringing of their children. A fit parent is presumed to be the best authority to accommodate the best interests of his or her children. The United States Supreme Court has traditionally protected parental rights, but today in America governments and third parties are interfering with fit parents exercising their rights over their children in caring for their best interests. What is happening in America today to parents is an assault on their rights as parents, resulting in the law being used as a vehicle of opposition to those rights, toward deconstruction of parental authority and America’s best interest legal structure. This article considers these concerns, highlighting recent attacks on parental rights and authority in the wake of the Covid-19 pandemic, in life support, in education, in gender dysphoria, illustrating that parents have been undermined and denied their rights to protect the best interests of their children. Section I details recent events surrounding Covid-19, and then illustrates that long before the pandemic parents have been fighting for the very lives of their children, and losing. Section II discusses state efforts to protect parental rights in statutory code and legislative measures, in the context of constitutional authority already granted to parents to protect the best interests of their children. Section III then examines the difference between children’s rights and parental rights to protect the best interests of the child, and why emerging international notions on children’s rights should never replace constitutional parental rights in America. They do only to the harm of children and their parental protection. By examining these concerns, this article raises and explains some of the most important policy debates on parental rights, children’s rights, and families today. It will reveal the unwitting if not active deconstruction of the family, and how we think about rights and duties between family members, while arguing that the relationship between a parent and child is a constitutionally protected liberty interest that deserves renewed protection under parental rights.

Methodological framework of the legal category «human dignity»

Today, having overcome painful and thorny way, legal awareness achieved certain victories and continues steadily moving towards the direction prescribed by the European values. However, the issue of fundamental human rights and liberties protection, including human dignity, becomes even more relevant. Threats and challenges daily faced by the whole nationalities, certain social groups of various countries, ethnic communities etc. induce them to seek answers, mechanisms and protection techniques in the legal sphere. For this reason, the issues of legal research methodology improvement, i.e. modernization of the scientific arsenal aimed at scientific and educational activities’ optimization, are of paramount importance. This article covers one of the overriding problems that are represented in contemporary scientific legal studies, more specifically, methodological framework of scientific and educational activities. Specific features of any legal phenomenon or category, like human dignity, sometimes require unique cognition methods to be intelligently selected by a researcher intending to achieve scientific objectives that were clearly defined previously. Correctness of choice of scientific practices and ways of developing “the truth of science” is a core component in solving scientific research problems. The article points up that in the comprehensive study of such legal category as human dignity, addressing universal (philosophical) approaches, general scientific and specific (specific scientific) methods is of vital importance. However, it is emphasized that diversity of research methods should not develop into methodical ignorance and anarchism as the application of any given method should meet specific scientific problems. At the same time, application of various scientifically grounded methods as part of study of the legal category of “human dignity” contributes to more comprehensive understanding of the legal category in question as an integral part of the ideological content of any legal system in the democratic society where the subjects endowed with rights and obligations have a chance to implement them in clearly defined legal relations. The author specifies the sense of application of philosophical approaches when studying the legal category of “dignity” indicating that such approaches should be made more specific by combination of general scientific and specific scientific methods. Keywords: legal sphere, rights and liberties, human dignity, approaches, methods.

The protection of human rights in domestic law: learning lessons from the European Court of Human Rights

The Human Rights Act 1998 came into force in October 2000, its purpose to allow victims of alleged violations of rights contained in the European Convention on Human Rights (1950) to pursue a remedy in the domestic courts. Thus, central to the Act’s purpose is to enable the access of the rights and remedies already provided by the machinery of the European Convention, subject only to those provisions of the Act which seek to retain the principle of parliamentary sovereignty. The purpose of this article is to study the case law of the European Court of Human Rights in relation to cases brought against the United Kingdom in order to examine the United Kingdom’s record under the Convention and, hopefully, of identifying common themes of human rights violations for which the United Kingdom has consistently been held responsible, and for which they may remain vulnerable to challenge in the future. At this stage it will be submitted that the European Convention has exposed the limitations of human rights protection in domestic law, and that on many occasions both the courts and Parliament have failed to adopt the necessary jurisprudence of the European Court in their respective roles. Finally, in the light of that evidence the article will examine the provisions of the Human Rights Act 1998 in order to assess the likely impact of that Act on the protection of rights and liberties in the United Kingdom.

Are civil liberties contagious? Analysis of determinants of de facto civil rights protection in post-socialist countries

In this paper, we contribute to the debate on determinants of civil liberties protection by extending the standard approach using spatial components. Our analysis highlights three categories of civil liberties–private civil liberties, political civil liberties and physical integrity rights. The focus of the paper is the region of post-socialist countries in Central and Eastern Europe. Our results imply the existence of institutional diffusion of de facto civil liberties protection between countries. What is more, we identify clusters of civil rights protection relevant for post-socialist states. The conclusions are based on an empirical study (a spatial panel Durbin GMM model and Local Moran I statistic).

Religion & Democracy: Interactions, Tensions, Possibilities

Religion & Democracy: Interactions, Tensions, Possibilities

On Detaining 300,000 People: the Liberty Protection Safeguards

<p>The Mental Capacity (Amendment) Act 2019 will introduce a new framework––the Liberty Protection Safeguards (LPS)––for authorising arrangements giving rise to a deprivation of liberty to enable the care and treatment of people who lack capacity to consent to them in England and Wales. The LPS will replace the heavily criticised Mental Capacity Act 2005 deprivation of liberty safeguards (MCA DoLS). The new scheme must provide detention safeguards on an unprecedented scale and across a much more diverse range of settings than traditional detention frameworks linked to mental disability. Accordingly, the LPS are highly flexible, and grant detaining authorities considerable discretion in how they perform this safeguarding function. This review outlines the background to the 2019 amendments to the MCA, and contrasts the LPS with the DoLS. It argues that although the DoLS were in need of reform, the new scheme also fails to deliver adequate detention safeguards, and fails to engage with the pivotal question: what are these safeguards for?</p><p>Keywords: Mental Capacity (Amendment) Act 2019; Mental Capacity Act 2005; deprivation of liberty safeguards; liberty protection safeguards; article 5 European Convention on Human Rights; P v Cheshire West and Chester Council and another; P and Q v Surrey County Council [2014] UKSC 19; [2014] A.C. 896; [2014] H.R.L.R. 13</p>

Weaponizing Personal Data to Undermine Democracy

Weaponizing Personal Data to Undermine Democracy Eric Santanen Not only does life tend to keep us actively busy, but the intensity of that activity seems to escalate over time as families grow and careers progress. In response, we tend to gravitate toward products and services that emphasize “convenience” and efficiency in our lives. More and more, we turn to digital technologies in order to manage the complexity of our daily routines, schedule our activities, purchase products, and keep in touch with one another. The driving force behind our willingness to adopt various technologies appears to be our collective and relentless search for convenience. These conveniences allow us to communicate with people more efficiently, to search for information with greater ease, and to complete certain tasks more quickly than ever before. As our schedules intensify, we seek these conveniences at any price. At the same time, however, we often fail to acknowledge the true cost for all of our presumed technological conveniences: our personal privacy. Perhaps this failure occurs because, unlike money, people don’t have “privacy wallets.” Privacy, in this context, has no physical manifestation that can be counted and inventoried. As a result, it appears to be the perfect transactional medium – it seems never to run out like the money in our wallet does. Similarly, we don’t receive periodic statements from our “privacy bank” indicating the amount of privacy that we have left, or alerting us that we’ve overdrawn our privacy account. Since we so readily barter with our privacy, it seems useful to have a better understanding of what privacy is and why we should value it. Other questions occur, such as: What problems occur when we “spend” our privacy? And why should we protect this free‐to‐acquire and seemingly limitless resource? Understanding the phenomenon of privacy and addressing these questions requires an exploration that begins with an appreciation for the philosophical foundations of privacy. Next, this paper explores various ways in which our privacy is compromised and how ensuing activities can be used to manipulate our thoughts and actions, often without our specific awareness. Finally, this paper presents a set of recommendations that are useful to help preserve privacy and protect personal data so that we are less open to abuse and manipulation. Privacy and human dignity Warren and Brandeis (1890) were among the first to make a coherent argument for the legal protection of personal privacy. This argument revolved around what they described as the “inviolate personality” and was an articulation of the right of the individual to enjoy a life that is free from the unwanted intrusion of others. In order to enjoy life, they reasoned, it is necessary for people to have “the right to be let alone” and cast this right as a protection for personal liberty. Capturing sentiments that are as relevant today as they were over a century ago, Warren and Brandeis noted: The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury. (p. 196) Warren and Brandeis framed the right to privacy as a right against the world, specifically as the “right of the individual to be let alone.” Violations of this right, they argued, result in a lowering of social standards and of morality in ways that belittle the individual by inverting the relative importance of things, thus dwarfing the thoughts and aspirations of a people. Philosopher Edward Bloustein extended Warren & Brandeis’ seminal work with the assertion that privacy is the definitive construct behind human individuality, freedom, and liberty. Reflecting on various cultural and historical events, Bloustein argued (1964): The fundamental fact is that our Western culture defines individuality as including the right to be free from certain types of intrusions. This measure of personal isolation and personal control over the conditions of its abandonment is of the very essence of personal freedom and...

Liberty Protection Safeguards: what nurses need to know

Liberty Protection Safeguards: what nurses need to know

Do Political Factors affect Government Health Spending? Empirical Evidence from Sub-Sahara African Countries

In Sub-Saharan Africa (SSA), access to essential health care services remains problematic. The financing of health care is mainly provided by private sources, mainly out-of-pocket payments which represent respectively 53.12% and 36.73% of total health expenditure in 2016. As for public health expenditure, essential for ensuring universal health coverage, it represents only about 35% of health expenditure. Thus, the increase in public spending on health from domestically sources proves to be a major challenge for the countries of the region in the prospect of reaching the SDG relating to health by 2030. This paper aims to analyse the determinants of domestic government health spending in SSA by focusing on political factors. We use data from 39 SSA countries covering the period 2010-2016 and panel-corrected standard errors method for empirical investigation. The results show that democracy favours an increase in government health spending. Furthermore, a political competitive environment, the guarantee and the protection of civil liberties and political right, accountability, government effectiveness and political stability are decisive for increasing government health spending. The results also showed that political participation does not affect public health spending. These results indicate that improving political factors is essential to increase public spending in SSA.

Introduction: Communication Rights in the Digital Age

Introduction: Communication Rights in the Digital Age

“Properly a Subject of Contempt”: The Role of Natural Penalties in Mill's Liberal Thought

“Properly a Subject of Contempt”: The Role of Natural Penalties in Mill's Liberal Thought

Fiduciary Theory: The Missing Piece for Positive Rights

Finding an unassailable grounding for positive rights is notoriously difficult. For those who live under a stated regime of the protection of negative liberties, or liberties from government, the idea of positive rights sits uncomfortably at best. Positive-rights claims such as the right to food, shelter, medical care, or other subsistence—claims that would require action in the derogation of existing distributions and entitlements—seem to be in clear violation of fundamental beliefs about the functions and purposes of government. In this chapter, it is argued that this conclusion about positive rights is false. In fact, there is an undeniable imperative that government recognize positive rights. The grounding for that imperative is found not in some extrinsic source, such as constitutional command or moral ideas, but in the intrinsically fiduciary nature of the government/citizen relationship itself.

To the question of functionality of administrative compulsion

This article explores the problems of application of measures of administrative compulsion, pays attention to functionality of measures of administrative compulsion, as well as state the thesis on the fact that despite vast attention to the issue of administrative compulsion, its functions lack scientific development. Considering the theoretical research, the author notices that functionality of administrative compulsion is predefined by the functionality of separate measures of administrative compulsion. Therefore, emphasis is made on the functions of some of the administrative compulsory measures. The theoretical framework of the study is comprised of the works of general theory of law and recent achievements in the science of administrative law. The conclusions of the research consist in a number of proposals on lowering the level of administrative compulsion in the law enforcement work, adjustment of the goals of some types of measures of administrative compulsion, as well as improvements to the positions of legislation determining functionality of certain measures of administrative compulsion. The article highlights the fact that the principal function of administrative compulsion consists in protection of rights and liberties of the citizens.

Islam-based legal language and state governance: democracy, strength of the judiciary and human rights

States embracing Islam-based laws are frequently seen as struggling with establishing democratic institutions, jeopardizing human rights and encouraging executive encroachment on the judiciary. This paper explores whether the presence of Islam-based legal language in a domestic legal system is associated with lower levels of electoral democracy, fewer protections for private liberties, women’s rights, and a weak judiciary. Relying on original data covering laws in 29 Islamic law states (2001–2012), we focus on Islam-based legal language in these states’ constitutional and subconstitutional domestic legal systems. By itself, Islam-based legal language is not associated with a weak judiciary or the absence of political liberties. However, subconstitutional—particularly legislative—commitments to Islam-based legal language are frequently associated with lower levels of democracy and fewer protections for private liberties and women’s rights.

Surging Solidarity: Reorienting Ethics for Pandemics

Public discourse about ethics in the COVID-19 pandemic has tended to focus on scarcity of resources and the protection of civil liberties. We show how these preoccupations reflect an established disaster imaginary that orients the ethics of response. In this paper, we argue that pandemic ethics should instead be oriented through a relational account of persons as vulnerable vectors embedded in existing networks of care. We argue for the creation of a new disaster imaginary to shape our own understandings of the interrelated social, political, and economic hardships under conditions of social distancing. We develop a pandemic ethics framework rooted in uBuntu and care ethics that makes visible the underlying multidimensional structural inequities of the pandemic, attending to the problems of resource scarcity and inequities in mortality while insisting on a response that surges existing and emergent forms of solidarity.