Source Of Rights Research Articles

The Relationality of Community Development Agreements towards a Human Rights Due Diligence Good Faith Requirement

Abstract Human rights due diligence (HRDD) is a buzzword in business and human rights (BHR) activities. However, multinational corporations (MNCs) often conduct it as a tick-box exercise without transparency. Using a relational contract theory, this article argues that when MNCs contract with local communities through community development agreements (CDAs) to perform HRDD, such contracts are internationalized relational contracts that attract a level of good faith. An established principle in international economic law, good faith serves as a standard for assessing conduct designed to discharge obligations in international contracts between states and MNCs (investor-state contracts). Similar to how investor-state arbitration tribunals use good faith jurisprudence in regulating the relationship between states and MNCs, this article proposes a BHR good faith jurisprudence to prescribe how HRDD obligations should be discharged. The article concludes that a good faith interpretational exercise in BHR would (1) reduce MNCs’ cosmetic compliance with HRDD principles; (2) increase transparency in the HRDD exercise; and (3) become a source of rights for local communities to enforce corporate accountability.

Administrative Law as a Source of Rights

This article challenges the pervasive assumption that judicial review of administrative action is not concerned with rights. Making a break from this orthodoxy, it proposes a theory of judicial review that suggests that its purpose is to protect distinctive administrative law rights held by those subject to public administrative power. This rights‐based theory makes sense of the structure of applications for judicial review in which, paradigmatically, an individual subject to an administrative decision makes a claim against the state that the public official responsible for that decision failed to meet the relevant administrative law standards, and accordingly demands a remedy. The bulk of the article is dedicated to addressing the major objections to a rights‐based theory, including those arising from public interest standing and the nature of judicial review remedies. The analysis shows that each of these objections fails, clearing the ground for a fuller development of a rights‐based theory of judicial review in future work.

Preargumentation Ethics and the Issue of Abortion

The issue of abortion—and, more broadly, the issue concerning the source of rights or, more precisely, when and why humans acquire or recognize rights—has long vexed libertarians. It’s a complex issue with numerous good-faith and reasonable arguments that lead to differing conclusions. This issue is usually brought up when the topic of abortion is discussed in libertarian circles. This article will attempt to show when and why humans get rights by advancing a theory inspired and implied by Hans-Hermann Hoppe’s “argumentation ethics”; it will then endeavor to “resolve” and present the consistent libertarian stance on the abortion issue.

HUMAN RIGHTS BETWEEN SHARIA AND LAW

The topic of "human rights" is considered one of the old and new topics in the entire world, Which means a set of fixed rights for the human being from his birth that recognizes his dignity regardless of color, sect, or gender. According to the Almighty’s saying: {And We have honored the children of Adam and carried them on land and sea and provided them with good things and favored them over others. Many of those whom We created with excellence{. Accordingly, human rights in Islamic law are characterized by being divine in source and purpose, Comprehensive, permanent, and valid for every time and place due to its reliance on the Holy Qur’an and the Sunnah of the Prophet , As for the sources of rights in positive law, they are based on changing social customs and legal bodies and personalities that regulate laws that concern humans, but they are incompletely incapable of meeting aspects of life in an integrated manner. The importance of the issue is evident in the fact that it occupies the first place in both the international and domestic arena. On the international scene, the United Nations and international organizations concerned with human rights seek to highlight their role in serving human rights and compete to do so, At the internal level, countries compete to declare that they are committed to human rights after those rights were established in their constitutions, It seeks to highlight the elements of its legal state, whose primary goal is to protect human rights

A Jurisprudential Analysis of the Euthanasia Legality: Based on a Comparative Study Between China and Other Countries

With the development of society, people's understanding of the right to life goes deeper and deeper. In order to alleviate the pain, people seek euthanasia more and more strongly. Through the methods of case analysis and comparative analysis, this paper summarizes the legal norms of China, the Netherlands, Belgium and other countries, studies the theories of the value of life, the source of rights, freedom of will, moral ethics, social development and other aspects. This paper also analyzes the practical obstacles to the legalization of euthanasia in combination with Chinese Confucianism, professional ethics and legal ethics, provide modest suggestions for the implementations of euthanasia in China from four dimensions of subject, subjective, objective, procedure.

Custom and violence in Indonesia's protracted land conflict

Indonesia has a long and ongoing history of conflict over land between mining and plantation corporations and communities claiming adat (customary) land rights. National law recognizes adat as a source of rights, but in a way that makes it nearly impossible to claim land based on adat rights. This legal status and corporate land control strategies give rise to strong feelings of injustice among communities claiming adat land. In recent years, such communities have formed customary councils and security groups in the provinces of Kalimantan. Suggestions of potential violence are an integral element of the ways in which these groups bring adat claim to corporations. The article argues that while violence is illegal and adat itself a weak legal ground, national law and corporate strategies fail to address such land claims in an adequate manner.

Gandhian Ideology in the Fiction of Chaman Nahal

Mahatma Gandhi was a freedom fighter as well as a social reformer. He was a man of action and intuition. He held no political office. Yet he could arouse the consciousness of an entire subcontinent! A lean, frail, ‘half-naked fakir’—armed with a wooden staff and dignity of a human being, he fought against greatest empire the world has ever known. It was just a moral grandeur of his soul which enabled him to fight against the brute power, in any form, and even vanquish it. As a defender of the human rights, he made people more conscious of their duties, to set a moral order in the society and also to make people learn that the true source of right is duty only. A saint, social reformer and humanist Gandhi held out “a message” which based on “a series of experiment with truth”, touched upon every domain of human life: social, economic, moral/spiritual, cultural, political. Therefore, he is a perennial source of writing and has influenced different disciplines and many writers from different fields like history, politics, philosophy, literature, sociology, and so on. In his principle of non-violence, Gandhi introduces technique of resistance to evil and untruth. His Satyagraha is inspired by boundless love and compassion. It is opposed to sin and evil. Gandhi was the speaker of truth and he did not like falsehood. His fight against untouchability and the notions of superiority and inferiority by birth were well known. R.K. Narayan, Mulk Raj Anand, Raja Rao, and many other Indian writers like Chaman Nahal explore Gandhiji’s view in their writings. Chaman Nahal is the first novelist in the post-independent ethos who delineated Gandhi and Gandhian ideology more realistically than any other writers of the era. Chaman Nahal has exquisitely explored almost all the dimensions of Gandhian Ideology such as Truth, satyagraha, azadi (in true spirit of Swaraj), simplicity, women emancipation, sacrifice, affirmation, belief in equality, humanitarian attitude for weaker sections, Hindu Muslim amity and last but not the least his non-violence.

Recepcja pruskiego przywileju inkorporacyjnego Kazimierza Jagiellończyka w Gdańsku w XV–XVI w.

In 1454, King Kazimierz IV Jagiellończyk incorporated Prussia intothe Kingdom of Poland. This act became the direct cause of the Thirteen Years’ War with the Teutonic Order. The privilege of incorporation (Privilegium incorporationis) of March 6, 1454, granted to representatives of the Prussian states at that time, became the most important source of rights that created the legal basis for the autonomy of Royal Prussia within the Polish‑Lithuanian Commonwealth. The original of the document was kept in the Toruń archives. Numerous copies from the sixteenth to the eighteenth centuries testify to a considerable interest in issues relating to the autonomy of Royal Prussia. This resulted from the actions of the Commonwealth of Poland aimed at limiting the political separateness of Prussia. The subject of the article is the question of knowledge of the content of the incorporation privilege in Gdańsk in the period immediately after the end of the Thirteen Years’ War (after 1466). In 1470, Gdańsk obtained a copy of the privilege (which has not survived to this day), sent from Toruń. A second copy is in a manuscript drawn up in 1485 in connection with the participation of envoys from Gdańsk in the congress of Prussian states in Toruń. During this congress, King Kazimierz Jagiellończyk demanded the levying of new taxes in Prussia to meet the needs of royal policy. This met with opposition from the Prussian states and led to a dispute with the King. Central to the matter were the rights of the Prussian states set out in the Privilegium incorporationis of 1454. It is to be assumed that the Gdańsk sources presented in the article are among the oldest identified copies of the incorporation privilege.

Small-c constitutional rights

Abstract Although constitutions establish countries’ fundamental laws, identifying which legal materials are constitutional is not a straightforward task. Empirical studies in comparative law have focused on countries’ formal, written constitutions—the “large-C” constitutions—while often ignoring the broader body of constitutional rules—the “small-c” constitutions. This oversight occurs because incorporating small-c constitutional law into comparative research requires overcoming the conceptual challenge of identifying which legal sources should be considered constitutional and the practical challenge of quantifying those sources across jurisdictions. In this article, we address both of these challenges. We address the conceptual challenge by outlining three approaches to identifying small-c constitutions: an entrenchment-based approach that emphasizes whether given rules are more deeply entrenched than conventional laws, an external approach that emphasizes exogenously defined core constitutional functions, and an internal approach that emphasizes local understandings of constitutional law. We then partially address the practical challenge by using an internal approach to collect data on one aspect of constitutional law: constitutional rights. We collected this data for 123 countries by conducting an expert survey of constitutional law scholars and practitioners. Our data reveals that although the large-C constitution is the primary source of constitutional rights in a majority of countries, the small-c constitution is still a notable source of rights, especially in older constitutional systems. But although our data offers new evidence about small-c constitutional rights around the world, it also points to several substantial obstacles that any efforts to code small-c constitutions are likely to face.

Epidemic and Insurance: Two Forms of Solidarity

Despite their common core in statistics, insurance and epidemiology propel two different forms of solidarity. In insurance, the collective is a source of protection, thanks to the pooling of risks; in epidemics by contrast, the group remains the source of danger for the individual. The aim of this paper is to highlight the conceptions of community and solidarity at play in epidemics in contradistinction to insurance, with a focus on the shift introduced by big data and algorithms. Paradoxically, while the new technologies and epidemiology share a common view on the relation between the individual and the collective, tracing apps were not widely adopted in the Covid-19 crisis. This reluctance to use current technologies for the sake of epidemic containments highlights, beyond legitimate interrogations, a confusion between two imaginaries of the social: insurance solidarity where the interdependence is a source of rights, and epidemic solidarity that imposes duties.

Return and Retreat in a Transnational World: Insights from Eritrea

When refugees’ access to economic, political, and social rights cannot be guaranteed in one locale, individuals make pragmatic choices about what relationships to sustain with authorities elsewhere, even with those that caused their flight in the first place. This process of return is rarely akin to conventional repatriation, understood as the full re-establishment of the rights and responsibilities associated with citizenship (Bradley, 2013). In this paper, the authors instead propose the concept of retreat to capture the process initiated by those who are seeking to escape protracted displacement through a partial return to their country of origin, and through which individuals hope that they can assemble multiple sources of rights across several locations. Drawing from recent ethnographic research in Eritrea, the authors analyze the stories of individuals, mostly refugees, who have decided to retreat despite the lack of political change. Neither exclusively citizens nor refugees in countries of origin or asylum, research participants’ “dually absent” socio-legal position is analyzed in this article. The authors show that this rests on stratified forms of citizenship and the relational nature of different rights and statuses and argue that this position should be recognized as an additional dynamic in the literature on flight, return, and transnational citizenship.

Alethic Rights: Preliminaries of an Inquiry into the Power of Truth

ABSTRACT The focus of this article is the notion of alethic rights, the rights related to truth. The concept of truth grounds many norms and customary and official rules, but there is no clear and shared idea about its power to generate specific rights. The juridical and political archetype called ‘the right to truth’ is still subject of controversies, and there are doubts about its being a real ‘right,’ to be protected by positive (new) norms. In the article the problem is explored in truth-theoretical perspective: can philosophy support the idea of truth as a source of rights? Can an updated and well-developed theory of truth be proposed, to help activists and theorists concerned with the need for truth of individuals and communities? I present six alethic rights, corresponding to six different aspects of the human need for truth, then I specifically focus on the truth theory that can justify the hypothesis.

Academic freedom as a source of rights\u2019 violations: a European perspective

The application of academic freedom may lead to a violation of individual rights, such as the right to respect private life or institutional rights such as university autonomy, or the right of the religious community to self-determination. These collisions between rights are resolved by constitutional courts either according to the proportionality test or by balancing the rights. This paper investigates cases from Czechia, Germany, Italy, Poland, and Spain, where academic freedom collided with other constitutional rights, in order to determine methods for resolving these types of conflicts. This analysis demonstrates the way in which proportionality allows the construction of the content of academic freedom. It also shows the reasons why academic freedom could become a weak right and why sometimes it is a strong right.

독도주권과 국제법적 권원의 계보에 관한 연구 -일본의 독도영유권 주장의 권원을 중심으로-

독도주권과 국제법적 권원의 계보에 관한 연구 -일본의 독도영유권 주장의 권원을 중심으로-

الموازنة بين النظام الإسلامي والنظام الدولي في تقرير السيادة كوسيلة لنظام الحكم

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 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 similar to international law in the context of human rights and the need to protect them and also 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.

The general principles of EU law and the Europeanisation of national laws

Although the ECJ has used general principles of law as a source of rights and obligations from an early stage in the development of EU law, key issues regarding their definition, nature and role as a source of law remain unresolved. How can they be identified? What is their normative basis? Are there rules determining priorities among them and how do they relate to Charter rights? How has their role evolved? Diverse and often bewildering judicial terminology serves to obfuscate the role of principles which, in terms of positive law, stand at the apex of the EU law edifice. This article seeks to revisit some of those questions. It explores the meaning of 'Europeanisation; it attempts a typology of general principles; it seeks to identify their normative basis; and assesses their role both as generators of jus communae and as a source of constitutional conflict.

Construire une mémoire urbaine : Les cartulaires municipaux bordelais et libournais (xive-xve siècle)

The elaboration of the Bordeaux and Libourne cartularies (Livre des Bouillons, ms. AA3 - Livre des Coutumes, Livre Velu) converged with the desire to build an urban memory enhancing community identity and emphasizing the relationship of these municipalities with the English Crown, whose codices legally and historically justify the power over Guyenne, with a view to legitimize the source of the rights and privileges obtained. The turn of the fourteenth-fifteenth century, the period when the Bordeaux cartularies were created, seems to have been the time of communal affirmation in Guyenne, concomitant with memory construction. The Libourne Livre Velu belongs to a second phase of this movement, to be compared with the tensions following the French victory of 1453. Strategies were developped to implement the memory construction, touching, first, on the content of the collections : insertion of the History of Cenebrun in each of them, construction of a textual historical-memorial set in the ms. AA3, Livre des Coutumes, sacralizing and juristic ensemble in the Livre Velu, account of the transmission of Guyenne in the Livre des Bouillons. In addition, it appeared necessary for the sponsoring aldermen to mark, by different means, the status of community monument and memorial of these codices, thus differentiating them from the other urban books that they could produce (account books, aldermen register, etc.). To do this, they gave them an imposing materiality, in size or in volume, and sometimes original (hairy cover, broths), coupled with great care taken in their realization, which reads in homogeneity, real or apparent, their form (notebooks, layout, ceremonial letters, etc.). Their structures, finally, were intensely thought through upstream of the design, in order to consolidate their documentary content (thematic, geographic - even political, concentric organization). Among the diversity of the acts and collections kept in these communes, the cartularies are thus distinguished mainly by the strategies implemented in order to confer them a statute of community monument vector of the municipal memory, as well in legal matter (ms. AA3), that political (Livre des Bouillons and Livre Velu), based in part on selected historical arguments, sometimes mythical, serving the municipal objectives. If loyalty to England, the source of municipal power and community rights, is common, Bordeaux and Libourne are attached to distinct identities, which are their own : city of merchands origin became capital of the duchy for one, town of merchands, sacred for its relation to religion for the second. The emphasis was thus placed, in Bordeaux, on the political power of the commune (and its hierarchical superiority in the duchy), while Libourne, without excluding the political aspect of its cartulary, endeavored to defend its economic prosperity and focused more on defining his community.

“See this Empty Cage now Corrode”

Our sexually violent predator (SVP) laws are a miserable failure. We suggest a turn to international human rights law (IHR) as a source of rights for this population, and consider this matter from the perspective of comparative law. Many nations have enacted laws that both mirror and contradict early developments in United States jurisprudence, but there, challenges to community containment and preventive detention laws have been more successful when based upon IHR law. Also, registry notification is generally far more limited, and details are usually confined solely to police agencies. We must consider laws and court decisions from other nations when implementing US law reform in this area. In Part I, we consider the implications of IHR law, and assess how realistic it is that such law be embraced by domestic jurisdictions in dealing with relevant cases. We also consider the human rights issues and violations that have resulted from domestic enactment of International Megan’s Law. In Part II, we apply comparative law in an effort to determine how other nations have struggled with some of the basic issues that have been focused on by domestic jurisdictions since the Supreme Court’s decision in Kansas v. Hendricks (1997). In Part III, we assess the application of therapeutic jurisprudence (TJ) to the legal and human rights issues discussed prior, in an effort to determine whether other nations have more successfully implemented TJ principles to combat some of the seemingly-intractable problems raised in SVP cases. We conclude by offering suggestions for US-based policymakers.

Al-Sanhuri on Riba (Translation of Excerpt from Abdul-Razzaq Al-Sanhuri's Sources of Rights in Islamic Jurisprudence)

The body of this paper is a translation of the last section (vol. 3, pp. 124–174) of a three-volume book based on lectures that Dr. Al-Sanhu r i delivered to law students in 1953-4. This version was published by Da r Ihya Al-Tura th Al- Arabi, Beirut, 1997.

Al-Sanhuri’s Theory of Rights in Islamic Jurisprudence: The Final Act of Franco-Egyptian Comparative Law

The Theory of Rights in Islamic Jurisprudence, known also as The Sources of Rights (Masadir al-haqq fi-l-fiqh al-islami), originated as a series of lectures delivered by the preeminent Egyptian jurist ʿAbd al-Razzaq al-Sanhuri in the second half of the 1950s. These lectures represent a high point in certain reformist methods in Islamic legal thought as cultivated in Egypt between the two world wars, particularly by professors of national Egyptian and Islamic law at the law faculty of Cairo University. In his lectures, al-Sanhuri combined theories and methods of a European style of comparative law with reformist methods advanced by certain Islamic law scholars of his era to develop a practical theory of modern Islamic private law. Through this analysis, al-Sanhuri attempted to demonstrate the consonance of the Egyptian Civil Code of 1948 and other Arab civil codes with the Sharia, even though articles of these codes were borrowed from European law codes.