Source Of Rights Research Articles

الموازنة بين النظام الإسلامي والقانون الدولي في مبدئي حقوق الإنسان والسيادة

Islamic law stipulated the principles which regulate the relations between Individuals within their countries and externally with the other countries. These principles include the principles of human rights and international sovereignty. This study tackles the idea of establishing the balance between the Islamic system and international law by identifying their similarities and differences within the framework of the principles of both the human rights and the sovereignty. The study aimed to identify the rich Islamic rules in the field of international relations, clarify the concept of human rights and the theory of sovereignty in the Islamic system and international law, highlight the rules of the Islamic system in this area, and prove the complementarities and convergence, as well as difference and similarity with international law. The researcher adopted the descriptive analytical method to give a full description of the two principles of human rights and sovereignty in the Islamic system and international law. He concluded with the most important results that the Islamic system has the lead in the adoption of these principles and abidance by them, before the international law. The Islamic system is like international law in the context of human rights and the need to protect them and the implications of rights in general international law, both at the levels of political, economic, social or cultural rights. The only difference lies in the fact that the Islamic system emanates from the rules of Islamic sharia’s teachings and values whereas the international law considers the society the source of rights. As to sovereignty, the study confirmed that the theory of sovereignty is well known in the Islamic system, and that this principle represents one of the basic rules organizing relations between individuals and states equally, but the difference lies in the frame of reference of the Islamic system and the International law. In the Islamic system, the organizing rules refer to the Islamic Shariah whereas in the International law, there is relation between religion with those rules.

Whereabouts and sources of rights on “Who & Why Game”: A practical discussion on NIMBY

Whereabouts and sources of rights on “Who & Why Game”: A practical discussion on NIMBY

Genesis of non-codified customs

The study of what is called “customary law” and “non-written rules” is always faced with ambiguity due to the lack of written resources. The reason for emphasizing the role of custom and applying the words on their customary meanings was to re-focus on this rich source of rights, which is far from sights. By reviewing the Articles, books and documentary data, we tried to look again at the status of unwritten conventions, legal rules and legal principles that could be interpreted as legal norms. If written or assigned to a bunch or a material to them, along with other laws they can be a good complement. This paper intends to review the role of custom and habit in concluding contracts by reviewing past comparative law studies and helping out the role of custom and unwritten rights. Besides, it intends to unify the material of Arts. 220, 225 and other Arts. of civil law of the parties to the awareness of the custom, because ignorance of the customary is not like ignorance of the law.

Constitutional Mindset: The Interrelations between Constitutional Law and International Law in the Extraterritorial Application of Human Rights

Applying human rights beyond state borders is thorny. Which law governs the property rights of a Palestinian whose orchard lies across the Israeli border, or the cross-border shooting of a Mexican citizen by a United States border control agent? This article explores the relationship between constitutional law and international law in the extraterritorial enforcement of human rights by offering a typology of models: the American, European and Israeli models. These models are analysed comparatively, highlighting their chosen legal source of rights: the American model applies constitutional law, the European model uses international law, and Israel combines the two.The article argues that the choice between constitutional and international law is important as it affects the nature and scope of rights, and reflects the relationship between the state and the territory it controls or within which it acts. The dynamic formation process of the Israeli model demonstrates the multiple possible ways to combine these two sources of law and formulate the relationship between them.All three models share a ‘constitutional mindset’: the use of basic legal concepts and reasoning in legally grey zones. However, these transnational processes are not deterministic and could result in original concepts, contradictions and discrepancies, as well as serve different political visions.

Witherspoon, Scottish Philosophy and the American Founding

Studies of Witherspoon's influence as an educator and as a pivotal figure in the American founding tend to neglect his earlier part in controversies among the Scottish Moderates and Evangelicals. By the time he answered the summons from the College of New Jersey, his position on church-state relations was thoroughly developed as was his understanding of the nature and the sources of rights, both alienable and unalienable. Nor were there ‘two Witherspoons’, the earlier one in Scotland opposed to the academic world of intellectuals (including Francis Hutcheson) and a later American version suddenly committed to the progressive ethos of the Enlightenment. There was but one Witherspoon, clear on the several missions required by the times.

Udgment of the European Court of Human Rights as a source of law in Ukraine

Problem setting. Problems of determining the place of the European Court of Human Rights in the system of sources of law in Ukraine. The problem remains relevant sources of law. Difficult to determine the sources of law related to the lack of clear criteria. Modern civil law countries are hundreds and thousands of decisions of courts of different instances. Therefore, jurisprudence is a source of rights of the Romano-Germanic legal family, particularly Ukraine. Any systematization of legislation can not provide the necessary level of detail of regulation. Right of modern continental Europe developed it as a precedent. Recent research and publications analysis. Until today, analyzed and spoken about the need to implement a judicial precedent for reforming the legal system of Ukraine, many scientists. In this area next scientists showed their interests: K. Andrianov, M. Buromenskiy, A. Bushchenko, Lutkovska V., V. Paliyuk, P. Rabinovich, N. Radanovych, D. Suprun, S. Fedyk, S. Shevchuk and others. On the need to implement judicial precedent for reforming the legal system of Ukraine also said other scientists: A. Selivanov, M.Koziubra, M. Miller, M. Gray, V. Nor, L. Lutz, W. Kotyuk, S. Shevchuk, V. Navrotskyi, G. Shmelev, B. Malyshev, A. Kuhnyuk, D. Kyrylyuk, V. Shishkin. Paper objective. The goal is to deepen scientific knowledge of the harmonization of Ukrainian legislation with the European legal systems; rethinking the relationship to legal precedent; the need to implement judicial precedent in the legal system of the country; the level of detail necessary legal regulation; the ability of the legal system to respond to the dynamic development of social and economic institutions. The object of study is the source of law governing social relations, in particular, the case law. Purpose of the study is the European Court of Human Rights as a source of law in Ukraine. Paper main body. Identify features of the European Court of Human Rights should be based primarily on the current legislation.Ukraine at the legislative level has recognized the compulsory jurisdiction of the European Court of Human Rights. Convention for the Protection of Human Rights in accordance with Art. 9 of the Constitution is part of the national legislation of Ukraine. Ukrainians are very actively traded in the European Court of Ukraine is one of the leaders of appeals last few years. Most often, the applicants complain about the violation of the right to a fair trial. Many complaints of torture and inadequate conditions of detention. The decision of the European Court can be considered as the official form of clarification of fundamental rights of every person, and enshrined in the Convention. This is part of national law and a source of legal regulation and enforcement in Ukraine. Implementation of the Convention and the decisions of the European Court as a source of law in Justice of Ukraine were developed in the course of judicial reform. The decision of the European Court concerning the official interpretation and application of the Convention and binding on the States – Parties to the Convention. Conclusions. The decision of the European Court must be ideological and legal basis for justice in Ukraine. Case law system is the most common in the world - it’s a well known fact. Is increasingly recognized in Ukraine and the importance of the role of jurisprudence of the European Court.

Scope of Civil Legal Concept of Dignity

Human dignity is the area for discussion for various sciences, out of which the research of its legal, namely, civil legal basis is noteworthy. This issue has not been properly studied in Georgian, as well as foreign legal literature, therefore there is no unified position regarding human dignity concept. However, based on the various theories on concept of dignity, it is possible to distinguish main characteristics, distinguishing dignity. The purpose of research is to determine the scope of human dignity concept, essential features of dignity, relation between the dignity and other personal rights. For consideration of these aspects, it is necessary to first of all, examine the essence of dignity, and then – setting of human dignity against honour. In addition, the purpose of this research is separation of constitutional legal and civil legal concepts of dignity. For examination of the mentioned problem it is required to establish constitutional legal concept and reveal its role in the area of dignity protection in general, and then – to clarify the scope of civil legal concept. . The aspects of civil legal protection of dignity are even more relevant, as the scope of private legal concept of dignity is less represented in the research. For examination of the mentioned problem, the historical, sociological, comparative legal, normative – dogmatic and logical methods are used. Thus, none of the above mentioned theories can fully explain the essence of human's dignity. However, they are based upon various signs of human reality, which, taken together, may give certain hints for defining the essence of dignity. First of all, the human dignity is acknowledged as the most primary value, in line with each concept, and its possessor shall necessarily be a human being. The concept of human dignity is criteria for individual evaluation. The idea of dignity is claim of elementary honor of human, which creates the precondition for any normative liability and equally applies to all the humans, regardless the differences.168 In addition, the concept of human dignity is of wide scale, because it is the basis for axiological components of understanding of human rights; it is obvious that, indicating the dignity, as the source of rights, human rights, based on their humanity, do not belong to homo sapiens species in biological essence, but represent the ensemble of biological, social and cultural values, which create the worthy life of human being in mankind. It has to be mentioned that the dignity is specific phenomenon, because it involves the real and ideal basics, the synthesis of which gives something new, in which the specific nature of dignity is manifested. Exactly, based on the above mentioned, the dignity is universal. This, itself, considers that it may imply and ensure other personal rights, which have especially wide nature in the private law. It is more obvious, if private legal means of protection are taken into account. In this regard, the scope of civil legal concept of dignity is wide. As compared with the private law, the constitutional legal concept of dignity is of narrow nature and, actually, is expression of public legal concept of dignity. The dignity, in civil legal terms, includes the areas, which relate to the honor, business reputation, name, personal life, authorship, activities, identity, self-evaluation, physical and moral inviolability, intimacy, self-determination, or the personal expressions of relation to socium. This is general definition of dignity, by which listing of all sides of dignity is possible; however, the mentioned aspects, considered in dignity, create particular frameworks for the dignity concept. In addition, the less are signs of any phenomenon, the wider this phenomenon is. Accordingly, the scope of the private legal concept of dignity shall be comprehensive. In the meantime, the civil legal concept of dignity relates to extensive protection of damaged person. The tools for protection of civil rights are considerable here, taking into account specific preconditions.

Protecting the Human Rights of Prisoners in Australia

The prison environment raises particular problems for thinking about human rights. The individual has been lawfully deprived of their liberty as punishment for breaking the society’s laws. This means that the very existence of prisoners’ rights can be seen as open to debate, especially in a punitive political environment. This paper examines the argument about whether prisoners have rights at all; outlines the sources of rights in Australia and internationally, examining the enforceability and scope of these rights in practice; and explores the role of monitoring bodies in protecting rights in prison.

The Protection of Human Dignity in Hungarian Media Regulation

Human existence and dignity, just like human unity itself, are not actually rights. The essence of humanity, as regards the law, is inaccessible. Because of this, human life and dignity are included in the catalogue of human rights and in modern constitutions as the sources of rights, as inviolable values beyond the law. The law must guarantee that these inviolable values are respected and protected.

Overcoming Citizenship: Six Practical Steps for Overcoming the Hierarchy of Nationality

The legal concept of citizenship is employed almost exclusively to justify differential treatment of otherwise identically-situated individuals. Legal interventions around the world attempt to mitigate this discrimination. The discriminatory aspects of citizenship may be substantially mitigated by a six-step program: avoid the word citizen; disaggregate its legal consequences; advance transnational human rights as a source of rights; proliferate multiple citizenship; replace naturalization oaths and ceremonies with automatic registration; and ultimately treat all remaining distinction between citizen and noncitizen as suspect, presumed driven by no policy other than hatred or ethnic superiority.

Union Citizenship as a Source of Rights? Case C-434/09, Shirley McCarthy v Secretary of State for the Home Department, Judgment of the Court (Third Chamber), 5 May 2011, nyr

McCarthy attempted to rely upon rights under Directive 2004/38 within a home state, but this was not a straightforward case of a purely internal situation, the applicant having acquired Irish nationality and claiming that she was a Union citizen living within the UK as a host Member State. The use of dual citizenship as a potential linking element with Union law follows from earlier developments in citizenship case law. Union citizenship has helped those who do not fully meet requirements of secondary legislation. The ‘trigger’ of cross-border movement has been weakened to some extent in the identity cases, and others such as Carpenter. McCarthy’s attempt to rely upon Union law without ever having moved, just by being a Union citizen, gave the Court of Justice of the European Union a chance to dispel ideas that being a dual Member State national was automatically a linking factor with EU law.

Literary Property and Copyright

Even when the first subject matter of copyright control was literary works, the specific rights of authors who produce these works had never been clearly articulated. Copyright laws have protected a statutory right to distribute the work to the public that may be broadly owned by both author and publisher while the common-law right of property over the work, which would have protected an author’s creative interest in the work, have been dismissed by the courts as a legitimate source of law. This paper examines literary property as a form of authorial rights, which authors may potentially have over works of authorship and which is both separate and distinct from statutory copyright. By looking at publication contracts between manuscript publishers and authors such as John Milton, Ralph Waldo Emerson, Harriet Beecher Stowe, Henry Thoreau, and Oliver Wendell Holmes, this paper suggests that there are two sources of rights over literary and artistic works - one at common-law and another at statute – as evidenced by the fact that authors retained personal property rights over their work after exclusive rights to print were assigned to the publisher. Should the notion of literary property be accepted as another source of right for the author, there will be immense implications for how scholars, jurists, and policy-makers understand and shape copyright laws. If literary property is acknowledged as separate from statutory copyright, then ownership of the work and ownership of the specific rights under §106 of the Copyright Act would entail different entitlements. The author’s role in the copyright system will be more clearly defined as ownership of literary property delineates rights owned and obligations owed by authors who produce literary works for the rest of society. Finally, this paper argues that social expectation to access creative works may be checked against the authors’ right to protect their creative personality and integrity as well as the publishers’ right to receive fair payment for the use of the work if a clear conceptual distinction between literary property and copyright is drawn.

El maltrato a los animales: un problema que cuestiona nuestra propia racionalidad

The animals are living beings we share the planet with. The relation between humans and animals were conducted under the law of the jungle for long time. Since man is considered as reasonable being for legal efects on human relations, this consideration is denied as for our relation to animals, with wich we mantain atavic conducts based on cruelty, enhanced by modern tecnology. Rationality, emblem of human superiority, is not just a mere source of rights, but especiality of duties and responsabilities. Our conduct towards them is clearly one of them. A serious recognition of the animal dignity as a holder of thelos, at the same extent as we are, but in diferent ways, must be the begining to enact legal disposition on the issue. Doing so, we will prove to ourselves that we deserve being called rationals and help us to constribute to create a more peaceful planet.

Independence Without Interests?

This review article discusses Arthur Ripstein's Kantian account of rights. Our most important rights, Ripstein argues, are determined by our independence rather than our interests. And a significant group of these rights-our rights over external things-is enforceable only in virtue of state membership. I argue that whilst independence is an important source of rights, we cannot exclude interests from an adequate account of rights, and that once this is acknowledged we will conclude that the state is less important than Ripstein believes in rendering our rights enforceable.

Immigration Status and Basic Social Human Rights: A Comparative Study of Irregular Migrants' Right to Health Care in France, the UK and Canada

The article examines the constraints that irregular migrants' immigration status exerts on the realisation of their basic social human rights. To this end, the article focuses on the right to health care and undertakes a comparative study of irregular migrants' access to health care in France, the United Kingdom and Canada. The study shows that States perceive the conferment of social rights on irregular migrants as an erosion of the government's immigration power notwithstanding their characterisation as human rights. The resource-intensive nature of the right to health care further heightens States' reluctance to extend this right to irregular migrants. Yet compliance with international human rights law and respect for human dignity require that States reinstate personhood as a source of rights and therefore reassess the relevance of their immigration power.

“It's doom alone that counts”: can international human rights law be an effective source of rights in correctional conditions litigation?

Over the past three decades, the U.S. judiciary has grown increasingly less receptive to claims by convicted felons as to the conditions of their confinement while in prison. Although courts have not articulated a return to the "hands off" policy of the 1950s, it is clear that it has become significantly more difficult for prisoners to prevail in constitutional correctional litigation. The passage and aggressive implementation of the Prison Litigation Reform Act has been a powerful disincentive to such litigation in many areas of prisoners' rights law. From the perspective of the prisoner, the legal landscape is more hopeful in matters that relate to mental health care and treatment. Here, in spite of a general trend toward more stringent applications of standards of proof and a reluctance to order sweeping, intrusive remedies, some courts have aggressively protected prisoners' rights to be free from "deliberate indifference" to serious medical needs, and to be free from excessive force on the part of prison officials. A mostly hidden undercurrent in some prisoners' rights litigation has been the effort on the part of some plaintiffs' lawyers to look to international human rights doctrines as a potential source of rights, an effort that has met with some modest success. It receives support by the inclination of other courts to turn to international human rights conventions-even in nations where such conventions have not been ratified-as a kind of "best practice" in the area. The recent publication and subsequent ratification (though not, as of yet, by the United States) of the UN Convention on the Rights of Persons with Disabilities (CRPD) may add new support to those using international human rights documents as a basis for litigating prisoners' rights claims. To the best of our knowledge, there has, as of yet, been no scholarly literature on the question of the implications of the CRPD on the state of prisoners' rights law in a U.S. domestic context. In this article, we raise this question, and offer some tentative conclusions.

A Biological Basis of Rights

Rights are an essential part of a modern legal system. This paper advocates rights based on a different kind of 'natural law,' rights which come not from God or externally from nature, but from human behavior - how our minds evolved. Under this approach, there are two kinds of truth: anthropocentric truth and non-anthropocentric truth. Non-anthropocentric truths are the laws of physical nature and mathematics; they are unassailable truths that 'are true regardless of what we happen to think about them.' Anthropocentric truths are 'truths that are true only because of the kinds of minds that we happen to have and the cultural worlds in which our minds developed.' This paper proposes that rights can be based on anthropocentric truths - that rights arose from human nature. In particular, anthropocentric rights developed to deal with specific adaptive problems in the Environment of Evolutionary Adaptedness. The fundamentals of rights derived from how our brains evolved with the details arising from how a particular culture reacted to how differing geography, ecology, and social conditions affected survival. Part II of this paper will introduce basic concepts of behavioral biology. It will first discuss neuro-cognitive universals, the universal grammar of morality, and universals in the law. Next, it will examine why cultural differences occur despite the existence of universal human behavioral traits, and then it will consider the selfish gene, a central characteristic of human behavior. Subsequently, it will show how society and the social contract evolved as a means for survival. Part III will present a biological basis for rights. It will first demonstrate the need for rights based on biological factors and introduce the sources of rights in human nature. Next, it will discuss the biological basis of four kinds of rights – property rights, fairness rights, liberty rights, and equal treatment rights. The final part will illustrate how biological rights exist in different cultures.

Differentiating indigenous citizenship: Seeking multiplicity in rights, identity, and sovereignty in Canada

ABSTRACTIn this article, I examine how citizenship has been legally differentiated and conceptually reconfigured in recent treaty negotiations between the Nisga’a First Nation, the provincial government of British Columbia, and the Canadian federal government. The Nisga’a have sought a form of differentiated citizenship in Canada on the basis of rights that flow from their relationship to their lands and their identity as a political community. They have challenged the state as the sole source of rights and achieved a realignment in the relationship between their rights as aboriginal people, Canadian citizenship, and the Canadian state. [citizenship, aboriginal rights, sovereignty, nation‐state, Nisga’a, Canada]

Hollow Avowals of Human Rights Protection - Time for an Australian Federal Bill of Rights?

<p>Unlike the constitutions of many nations, such as the United States of America and the Republic of South Africa, the constitutions of the Australian States and Territories and the Commonwealth Constitution Act 1901 (UK) contain no bill of rights. Australia is the only western democracy without a federal bill of rights. The debate regarding the need for a bill of rights necessitates an understanding of what human rights the people of Australia already enjoy. If sufficient protection can be found in existing sources, does Australia really need a federal bill of rights? Opponents of a bill of rights state that we have sufficient protection from arbitrary government intervention in our personal affairs and thus a bill of rights is<br />unnecessary. There are a number of potential sources of human rights in Australia that might provide the suggested existing protection, including the common law, specific domestic legislation, international law and constitutional law. Each of these sources of human rights has, however,<br />important limitations. The focus of this article is on the inadequacy of the Australian constitutions as a source of purported protection. This in turn suggests that an alternative source of rights is needed – a federal bill of rights? In the course of this analysis the author makes suggestions for<br />reform; specifically how a federal bill of rights may address the paucity of constitutional protection.</p>

When worlds collide! Competing visions of the relationship between direct effect and supremacy

This article examines two different models for understanding the relationship between direct effect and supremacy. The “primacy model” argues that supremacy is capable of producing independent “exclusionary effects” within the national legal orders, where a provision of domestic law is incompatible with Community law; direct effect is only relevant if “substitutionary effects” are at issue, where Community law is invoked as a novel source of rights or obligations not already recognized under national law. By contrast, the “trigger model” asserts that, for any provision of Community law to produce an independent effect within the national legal system (whether exclusionary or substitutionary), it must satisfy the threshold criteria for having direct effect; the principle of supremacy is thus a consequence of and dependent upon that of direct effect. The choice between these two competing models can have important practical implications, for example, in the debate about the “incidental effects” of unimplemented directives, or the potential legal effects of Third Pillar framework decisions. This article examines the conceptual underpinnings of the two models, then explores how far they are supported by the caselaw. It is argued that recent rulings such as Pfeiffer and Berlusconi undermine support for the “primacy model”; but older cases such as CIA Security and Unilever Italia remain difficult to reconcile with the “trigger model”. It is concluded that perhaps the ECJ itself has vacillated over its own understanding of the proper relationship between direct effect and supremacy, making it difficult for commentators to construct any coherent and descriptively accurate theory.