Source Of Rights Research Articles

As fontes do direito e a concretiza��o dos direitos humanos

This article points to the analysis of the sources of rights and the relation with the problem of the efectivation of humain rights, in the domain of the general theory of law. When the law do not answer any more to the social problems, what can the judge make to answer to the society that inquiry for justice? Can the judge be active in the creative production of law? This questions, and many others, are touched in the contexte of this article

VICTORIA KAHN. Wayward Contracts: The Crisis of Political Obligation in England, 1640-1674. Princeton: Princeton University Press. 2004. Pp. xii, 370. $49.50

Thinking about contract and resistance flourished in seventeenth-century England, and so did a fully fledged discourse of passions and interests. Given the prevailing division of labor between historians and literary scholars, it may not surprise that the coincidence has garnered little attention, but practitioners of both disciplines should applaud Victoria Kahn for correcting the oversight. By throwing a sharp focus on a number of pivotal mid-century texts, she shows how debates over contract and meditations on the affections underpinned each other, with the affectivities of contract theory being matched by the contractualism of explorations of affect. The two discourses overlapped imaginatively since each worked through metaphor, and each required interpretation. Arguments about contracts as sources of rights and duties hinged, Kahn suggests, on acts of imagination that found in the passions motives for contracting, that conjured an order in which the contractors could be moved by words, and that related those qualities and actions “mimetically” for readers.

A judicializaçao dos conflitos de adolescentes infratores: solução ou mito?

Com o propósito de examinar, através de uma perspectiva crítica, sob quais condições pode o Estado executar a finalidade educativa das medidas e penas aplicáveis aos adolescentes em conflito com a lei, no presente trabalho são analisados os problemas e as limitações de se reduzir a busca de soluções para essas questões à atuação do Estado, através do acesso à justiça, ao Poder Judiciário e às instâncias administrativas de atendimento, como única fonte de direitos e de garantia de direitos. Apontam-se as conseqüências negativas de se utilizar a educação como finalidade das medidas e penas aplicáveis nos modelos de justiça juvenil vigentes tanto na Espanha como no Brasil. Com base nesta análise crítica, sugere-se um amplo debate, que implique as partes diretamente envolvidas no conflito, para a construção de alternativas emancipatórias a partir da democratização de respostas que ultrapassem a juridificação da vida e a judicialização dos conflitos.

Beberapa Aspek Kenisbian dan Kesamaran Perjanjian Internasional

The article does not purport to analyse an international law problem relating to a speific international agreement, nor does it pretend to develop any theoritical paradigm. It merely puts on stage the apparently clear and simple notion of international agreement while at the same time confronting the reader with its essenially relative nature by signalling the many ambiguities and ambivalences hidden behind the term. The author’s sole intention is to invite the reader’s attention to this feature of relativity so as to prevent him from taking the concept of international agreement too easily for granted. The following aspects relating to the concept of international agreement, which could easily be augmented, are successively briefly reviewed; the meaning asigned to the adjective “international”; the legally binding or non-binding character of an international agreement; the agreement’s characterization as a source of rights and duties and its denial, the normative relativity of the rights and duties emanating from the international agreement, the case of “administrative agreements” and the obscrurity as to the identity of its parties under international law. Perjanjian Internasional yang Dibuat oleh Organisasi Internasional by Sri Setianingsih Suwardi: Nowadays, International Organizations has been recognized as one of the international law subject after exceeded a long winding road. The logical consequence of the recognition is the capability of International Organization to construct an international agreement as well as a State has done. Nevertheless, there are still several mechanism differences between State and International Organization in construct an international agreement. The main difference is about who has the authority to make a deal in international agreement process. This article explores and analyzes the great effort of international organization to gain the recognition as one of international law subject, also the authority of international organization related to the construction of international news .

Freedom, solidarity and citizenship

This paper proposes to evaluate the heart of the concept of citizenship of the European Union: namely, freedom of movement and residence. The evolution of citizenship, from its inception in the Maastricht Treaty, as a political concept will be treated. Freedom of movement and residence, with its rights and limitations, historically and legally accrued to economically active persons. Non‐economically ac tive per sons have been given rights in secondary legislation to move and to reside subject to specified conditions and limitations. The jurisprudence of the European Court of Justice, in accordance with which the link with economic in dependence and the freedom to move and reside has been broken, will be critically appraised. Resort to the principle of non discrimination on grounds of nationality in Article 12 of the European Community Treaty, read in conjunction with the citizenship provisions in Articles 17 and 18 EC, has resulted in legal rights for nationals of European Union Member States who are lawfully resident in, and who do not become an unreasonable burden on, the host Member State. Enforceable at the suit of individuals, EU citizenship has given rise to social advantages for non‐economic actors. Citizenship has become a legal source of rights be yond those agreed to by the Member States, the legitimacy for which lies with the degree of financial solidarity accorded under the principle of non‐discrimination and the level of integration of a particular EU citizen into the society of the host Member State. The need to establish a real link and the proportionate legitimate interests of the Member State are limits to citizenship as a source of rights. Nevertheless, it is the intention of this paper to examine the potential for citizenship to transform the polity of the European Union, from one based on economic and social rights, to one based on fundamental rights.

The Confluence of Law and Antebellum Black Literature

This article argues that the acculturation of black Bostonians to the rhetoric of the law during the Revolutionary era was constitutive and sustaining. The article examines how three pivotal Boston-based antebellum authors—Prince Hall, David Walker, and Maria Stewart—appropriated the rhetoric of legal pleading used in Revolutionary-era government petitions and freedom suits (petitioning for redress of grievances, closely analyzing precedential texts, distilling ideas into reasoned argument, adducing factual proof, the pointed use of narrative and the interrogative mode) to produce a literature of complaint and rights–assertion. The central premise of the article is that antebellum black texts used these lawyerly discursive practices ironically, as an empowering move, to draw attention to the disparity between the rhetoric of rights and actual practice. Because these “lawyer’s words” called upon the authority and salience of the law as a source of rights in the process of claiming rights, lawyerly discourse served a sustaining strategy of empowerment for black people, and captured the sense of irony in their experience.

EC Practice in the WTO: How Wide is the 'Scope for Manoeuvre'?

Despite the doctrinal criticism raised as a result of the unbending positions taken by the European Community in Bananas and Beef Hormones, the EC's implementation record in the WTO, though not exemplary, does not add up to a generally non-complying approach. On the other hand, the record seems to reflect an attitude that, in accordance with the view traditionally maintained by the European Court of Justice from International Fruit to Portugal, finds its cornerstone in the principle of negotiations with a view to achieving mutually satisfactory solutions, even beyond the limits set by the DSU. Following these premises, the purpose of this paper is to analyse the impact that has been exercised on the EC's contentious practice by interpretations of the WTO system given by the EC courts, in fine tuning with the stand taken by the EC's political bodies. After having considered the legal and political reasons behind the case-law of the Community's courts on 'direct effect', the paper attempts to analyse to what extent the EC's conduct in the framework of the WTO dispute settlement process has been influenced by the 'scope for manoeuvre' argument, devised by the ECJ in the Portugal ruling. It will become clear that an approach mainly aimed at preserving the balance of mutual advantages among the WTO Members queries the role played in the dispute settlement mechanism by the agreements between parties. An analysis is submitted of four different categories of agreements concluded by the EC in the framework of the dispute settlement mechanism, also in cases not expressly provided by the DSU. On a higher level of investigation, the 'scope for manoeuvre' approach is strictly connected with another widely discussed issue, namely the nature of the legal obligations entered into by WTO Member States. The study aims to demonstrate that WTO rules are a source of rights and obligations that are disposable in nature for Member Parties.

Supremacy and Direct Effect of European Community Law Reconsidered, or the Use and Abuse of Political Science for Jurisprudence

Karen Alter's book is not intended to be a legal study of the European legal system. Rather, it is written from the vantage point of political science [xi]. From this perspective, the book traces the process by which two doctrines, developed by the European Court of Justice (ECJ) at the beginning of the 1960s, were more or less accepted by the judiciaries of the Member States of the European Community, and by national governments. The first of these doctrines is that of the supremacy of European Community law (or, as the author says with slight imprecision, 'European law'). This doctrine holds that in case, and to the extent, of irreconcilable results in the application of both legal systems to the same situation, the conflicting national law of the Member States becomes inapplicable. According to the second doctrine, provisions of European law can have direct effect. This means that they can in certain circumstances be pleaded by individuals as sources of rights, and enforced by the same individuals in the legal systems of the Member States. Two Member States, Germany and France, serve as contrasting examples of the process of acceptance of these doctrines. The book has six chapters, the third and fourth of which look at the German and French judiciary, the fifth at the acceptance of the two doctrines by these Member States' governments. The first two chapters, and the last one, respectively, lay out the theoretical framework for the two country surveys, and reflect on the lessons to be drawn from these two particular cases. This scholarly volume is most carefully researched and argued, and the author shows an admirable insight into the two national legal cultures which are the subject of her study. The book is also largely free from jargon, be it taken from political sciences, or from the law; only on very few occasions does one 'neo .. .-ism' battle it out with

A fenomenologia do direito e o pensamento de Adolph Reinach

This work presents the study of Law, based on the doctrine of Adolph Reinach, under a phenomenological perspective, intending to prove the existence of a priori legal concepts. According to A. Reinach, as well as numbers are independent of any and all mathematical theory, and also of any human comprehension, there are legal concepts essentially independent of any and all Positive Law, existing a priori and intellectually evident, as, for example, promise as source of rights and obligations. These juridical concepts are discovered by Positive Law, and not created by it.

The Legal-domestic Sources of Immigrant Rights

This article traces the evolution of two types of immigrant rights—alien rights and the right to citizenship—across three polities (the United States, Germany, and the European Union). It argues that the sources of rights expansion are mostly legal and domestic: Rights expansion originates in independent and activist courts, which mobilize domestic law (especially constitutional law) and domestic legitimatory discourses, often against restriction-minded, democratically accountable governments. The legal-domestic hypothesis is qualified and differentiated according to polity, migrant group, and type of immigrant right.

Union Citizenship—Metaphor or Source of Rights?

After nearly ten years of introducing Union Citizenship as a concept into Community law it seems time to draw a preliminary evaluation of its importance in reshaping the legal and social positions of citizens living in the EU, more precisely in its Member States. The balance sheet is however mixed: On the one hand, the prevalent position in legal doctrine seems to be that Union citizenship is merely a derived condition of nationality, while on the other side certain fundamental rights are based on criteria other than citizenship/nationality alone. The European Charter on Fundamental Rights will not overcome this dilemma. This can be shown in conflictual areas which are in the centre of discusion in the paper, namely the (limited!) use of the concept of citizenship to extend existing free movement rights in the new case law of the Court of Justice, the resistance towards granting ‘quasi‐citizenship’ rights to third country nationals lawfully resident in the Union for a longer period of time, and the yet unsolved problem of imposing ‘implied duties’ based on a doctrine of ‘abus de droit’ upon citizens paralleling the rights granted to them. As a conclusion the author is of the opinion that the question asked for in the title can be answered in the positive only to a limited extent. Citizenship appears to be a sleeping fairy princess still be be kissed awake by the direct effect of Community law.

Therapeutic jurisprudence and the civil rights of institutionalized mentally disabled persons: Hopeless oxymoron or path to redemption?

This article examines, from a therapeutic jurisprudence (TJ) perspective, the rights of institutionalized mentally disabled persons to determine whether TJ is compatible with positions advancing civil rights and liberties, and whether lawyers for such individuals should look more closely to TJ as a source of rights. It concludes (a) that despite harsh criticisms of mental disability law reform, most of the important decisions in the areas of involuntary civil commitment, right to treatment, and right to refuse treatment law have a strong TJ component and (b) that TJ analyses may be the appropriate tool to reinvigorate this area of mental disability law.

Changing Conceptions of Rights in the United States and the West

Among the most pronouncedfeatures ofthe American revolutionary generation, which culminated in the writing and adoption of the Constitution of the United States, were the introduction of the idea of individual rights as the basisfor political organization and the protection of those rights as a major task ofgovernment.' This idea, which now is uncritically accepted by conventional opinion, in itself represents only one conception of rights and must be understood as such. In this article, we will examine what is a conception of rights and how rights are justified In this exploration, we have to understand how each conception of rights is shaped by a particular view of the nature of man, a particular understanding of the sources of rights, and a particular direction for the expression of rights.

Legal Notions on the Collective Agreement

It will be recalled that the last monograph treated the significance of the collective agreement in society. If solely a function in society, (though having a legal basis), were to be attributed to the collective agreement, this would mean that no rights or obligations whatsoever would be created between the parties to it. This is not so in practice. It is of course a fact that no legally enforceable rights and obligations normally accrue, and as already indicated, those are moral ones and are only enforceable in honour, i.e. a gentleman's agreement. Nevertheless, this does not necessarily mean that the collective agreement has no juridical significance. Even agreements which are binding in honour only, as for example the kind of agreement found in Balfour v. Balfour, have a known juridical nature. Furthermore, though the collective agreement is only binding in honour, its incorporation into the individual contract of employment makes its terms legally enforceable even though recourse to the courts is seldom had. As a source of rights and obligations of considerable importance the collective agreement must therefore have some juridical significance and cannot remain entirely in the realms of society.

Human Rights as Natural Rights

1. There are subtle differences in emphasis, however, between each of the major formulations, human rights, natural rights and the rights of man, and each has advantages and disadvantages. Natural rights stresses a grounding in human nature. It also refers to a tradition of thought which includes Locke, Paine, and Jefferson among its most prominent exponents and suggests a connection with the older idea of natural law. Such resonances add richness to the idea, but also may be a burden, for example, as is the case in the Lockean tradition's concentration on civil and political rights alone or the vague and confusing reference to natural law. Furthermore, the endowment of man with rights by nature is at best an obscure process. The phrase rights of man suggests man as the source of rights. To the extent that man is viewed as not merely natural, but rational and moral, this suggests a more complicated, and probably more illuminating, source for these rights. However, this phrase, particularly in English (although not necessarily in the French droits de I'homme), has deeply rooted ideological connotations from the era of the French Revolution. It also has regrettable, even if easily exaggerated, sexist connotations. Human rights seems to avoid the disadvantages of the other two terms. Like the rights of man, it suggests a subtle and particularly interesting derivation of rights from the complex moral notion of humanity; human nature as the source of the rights. However, the character of this derivation is rarely made explicit enough to be considered as anything more than suggestive. In addition, human rights may misleadingly suggest that all the rights held by human beings are human rights. Paine falls into this confusion, for example, in attacking Burke. See The Collected Works of Thomas Paine, edited by Philip S Foner, New York: The Citadel Press, 1945, vol. 1, p. 273. Instead, human rights are a particular type of rights held by human beings, the rights they hold simply by their nature as human persons. Furthermore, human rights may misleadingly suggest that one is being humane, charitable or beneficent in establishing or recognizing such rights, when in fact one is giving to rightholders that to which they are entitled. However,

Sources of Rights

The editors reply: For Mr. Osterman, and other skeptical readers, here are the sources for the rights mentioned in the note: right to a tobacco-free job, New York Times, March 30, 1976, p. 35; September 26, 1976, p. 43; right to sushine, New York Times, July 18, 1976, p. 10; right of a father to be present in the delivery room, American Journal of Public Health, July 1976, pp. 688-89; right to a sex break, Washington Post (Reuters dispatch), January 25, 1976.

Leak v. Secretary-General of the United Nations.

International organization — Officials — Summary dismissal for serious misconduct — Decision to revoke decision of summary dismissal — Administrative decision as source of rights — Obligation to restore status quo ante — Renewal of fixed-term contracts — Remedies — Damages — Certificate of service.