Structure Of Rights Research Articles

The Core Elements of the Trusts: From the Start of Three International Documents

The extensive application of trusts and trust laws has demonstrated that trusts, as an institutional tool with functional advantages in the realm of private wealth inheritance, on the one hand, offer an innovative framework for the transfer and management of personal assets. This serves as a valuable reference for non-trust law jurisdictions, displaying the distinctive structure of rights and obligations. On the other hand, for trust law countries, trusts born in different jurisdictions call for the adjustment and regulation of unified rules. Researching the core elements of the trusts can contribute to achieving these two goals. By carefully examining three international documents, this essay argues that each core element of trust intertwines to form a causal web: trust operates as a tool that protects beneficiary' interests and supports the fiduciary position of trustees (characterized by the separation of trust property). The location of ownership of trust property, however, remains an optional element determined according to local circumstances.

Allocating Human Rights Obligations in the ECHR

Abstract This article asks how to allocate human rights obligations stemming from the European Convention on Human Rights and defends an interpretivist account of human rights based on the values of integrity and equality to answer it. First, it considers the structure of rights and argues that human rights usually require a duty bearer who needs to be identified. Second, the article analyses interest-based theories of human rights and shows that they do not speak to the allocation of duties. Third, I argue that duties can only be allocated relying on a normative principle and that an interpretivist account of human rights allows for underlying values to be identified. Fourth, I show that these values should be understood to be integrity and equality. Finally, the article applies the framework to the judgment in Carter v Russia, showing that an explicitly normative account supplies principled distinctions where other approaches cannot.

Universal Basic Income and its Compatibility with Amartya Sen

Parijs advocates for a basic income as a means of achieving a society that upholds individual rights and allows people to pursue their interests. For him, a just society has an enforced structure of rights; this structure is such that each person owns herself and permits each person to have the greatest possible opportunity to do whatever she wants. Conversely, Sen aims to enhance human life by expanding capabilities and promoting development through policy and political changes. For him, development has two aspects. Firstly, it pertains to evaluating improvements in human lives as an explicit development objective and employing human achievements as crucial indicators of progress. Secondly, the agency aspect focuses on what human beings can do to attain these improvements. In this article, we explore whether these theories share common ground and could be reconciled. Initially, we analyze Parijs’ theory to understand the concept of basic income. Then, we study Sen’s theory, focusing on functionings and capabilities. Subsequently, we inspect whether guaranteeing a income expands freedom. Ultimately, we conclude that the basic income is compatible with the capability approach but should not be implemented by itself. The analysis employs the deductive approach method and the indirect documentary research technique.

Two deductions of right in early post-Kantianism

ABSTRACT This paper uses a distinction drawn from the Kantian legal theorist Paul Johann Anselm Feuerbach to categorize two approaches to analysing the concept of right, each of which is represented by various figures in early post-Kantianism. Feuerbach’s distinction holds that there were two main strategies for conceiving of the relation between right and morality and the structure of rights. He refers to these two conceptions as ‘relative’ and ‘absolute’ deductions from the moral law. One key contribution of my paper consists of the reconstruction of historical examples of each kind of argument, along with some ‘hybrid’ accounts. Figures discussed include Feuerbach, Heydenreich, Reinhold, Fichte, Hufeland, and Erhard. In light of this historical reconstructive work, I argue that Fichte’s 1796 arguments against absolute deductions face a previously unnoticed dilemma: either the arguments assume a premise I will call the mere permissions principle, which causes tension with a central commitment of Fichte’s theory of property in FNR; or the arguments do not assume the mere permissions principle, in which case they are not sufficient to rule out the possibility of hybrid views that give a more limited role to absolute moral rights.

Место ходатайств и жалоб в современном уголовном процессе

Introduction: this paper studies motions and complaints in the context of criminal procedure in the Russian Federation. Purpose: to determine the place of the right to file motions and complaints in the structure of rights of persons involved in criminal proceedings, in the system of human rights, the place of motions and complaints in the criminal procedure form, their role in achieving the purpose of criminal procedure. Methods: system analysis, formal and dialectical logic, interpretation of legal norms, comparative historical method, comparative legal method. Results: the sole purpose of criminal procedure is to protect rights and lawful interests of persons involved in criminal proceedings. The scope and the very existence of the legal institution of motions and complaints directly depend on the current purpose of procedure. This legal institution is a regulatory implementation of the right to appeal against procedural actions and decisions, which is among the ‘law-enforcement’ principles that currently determine the form (type) of criminal procedure. The scope of this principle includes both complaints and motions. The right to file motions and complaints serves to ensure that substantive rights can be exercised and also has its individual significance among other inalienable human rights as an element of the ‘right to a right’. The right to file motions and complaints is enshrined in international acts on human rights. The principle of the right to appeal against procedural actions and decisions is the most important guarantee of the purpose of criminal proceedings being achieved, a mandatory component of the criminal procedure form. The right to file motions and complaints consists in legal entitlement to bring into action the state apparatus with the aim of the applicant’s procedural interest being satisfied. Conclusions: the right to file motions and complaints is a key right for building criminal procedure relations aimed at protecting the rights and freedoms of persons involved in criminal proceedings.

On some alleged “problems” and alleged “solutions” in democratic firms

PurposeThis paper will discuss two problems that have plagued the literature on the Ward-Domar-Vanek labor-managed firm (LMF) model, the perverse supply response problem and the horizon problem. The paper also discusses the solution to the horizon problem and the alleged “solution” of a membership market.Design/methodology/approachThis is a conceptual paper so it analyzes the two problems and shows how they can be resolved. It also shows how one alleged “solution” (membership market) is based on several conceptual mistakes about the structure of rights in a democratic firm.FindingsThe perverse supply response is based on the assumption that the members of a democratic firm can expel for no cause some members when it would benefit the remaining members. It is shown that the same perverse behavior happens conceptually and historically in a conventional firm under the same assumptions. The horizon problem is resolved by the system of internal capital accounts (ICAs) that has been independently invented at least four times.Research limitations/implicationsThe idea of a democratic firm is quite often dismissed by conventional economists: “At first it seems like a good idea but unfortunately it is plagued by structural problems such as the perverse supply response and the horizon problem.” Hence it is important to see that the first is not a problem under ordinary assumptions and that the second is a solved problem.Practical implicationsThe perverse supply response problem can be reproduced in a conventional firm under similar assumptions, and the horizon problem is real problem for social or common ownership firms but is solved in the Mondragon-type worker cooperatives by the system of ICAs. This has been known and published since the early 1980s, but conventional economists ignore the solution and still cite it as an inherent structure problem of a democratic firm.Originality/valueIt has not been previously shown in the LMF literature that the perverse supply response can be reproduced in a conventional corporation under similar assumptions since the maximand for the conventional firm is not total market value but that value per current shareholder. The solution to the horizon problem using ICAs has long been “known” but never acknowledged in the conventional literature as if it was a necessary feature of workplace democracy. The idea of a membership market is analyzed and criticized.

The Complex Structure of Health Rights

Abstract Research on how to understand legally recognized socio-economic rights produced many insights into the nature of rights. Legally recognized rights to health and, by extension, health care could contribute to health justice. Yet a tension remains between widespread international and transnational constitutional recognition of rights to health and health care and compelling normative conditions for rights recognition from both philosophers seeking to identify the scope and structure of the rights and policy scholars seeking to understand how to practically realize such rights (and measure realization of same). This work identifies an overlooked source of these difficulties: the right to health care and other health rights are necessarily ‘complex’, consisting of multiple related, but irreducible, morally valuable components. ‘Complex rights’ do not fit the traditional structure of human rights, so legal recognition of same can appear confused from a philosophical perspective, but there is ample reason to admit complex rights into our moral ontology and doing so can help bridge the divide between global health practices and ongoing work in the philosophy of rights and public policy. Recognition of complex rights admittedly shifts the burden for justifying health rights, but it does so in a way that is instructive for general philosophical analysis of socio-economic rights.

Taking the Bundle of Rights Seriously

After a painfully long set up, that attempts to ground three claims about property law (in general) and the nature of the beneficial interest (in particular), this article considers two arguments about the law of discretionary trusts. The first is the bundle of rights argument. This argument concerns the interpretation of "property" in legislative provisions. It suggests that where legislation is concerned with the structure of the social relationships that property institutions facilitate (rather that the juridical structure of rights and duties under property law), interpretations regarding what amounts to a "property" interest should also be "functional" (rather than "formalistic"). The second argument is the concept of the illusory trust. This argument concerns the standard package of constitutive elements required by trust law when a settlor uses the trust institution to order his or her affairs. Where an ostensible trust lacks a constitutive element, it can be said to be illusory. I consider here recent attempts to further delineate the concept of the illusory trust, that look to the "substance" or "reality" of the trust, and in doing so, shift our attention away from juridical form and onto social function. I will argue that only the former argument needs to be taken seriously.

Paradigm of Historical Axiomatism Beyond New Institutionalism: Rebuilt of Management (I) for New Civilization

This article puts forth the hierarchical sequence of ontology beyond the experience of the new institutionalism: arche, paradigm, pattern, structure and factors; thus, the analytic framework of the ontology and its axiomatism of complex organizations analysis framework is set. In the new research, the core of the complex organization is attributed to the structure of rights and interests, the dynamics base of complex organizations is attributed to the dynamic system and the right–interest relation, while the dynamic system is concentrated in two aspects: system function–system load and system efficiency–system consumption; the right–interest relation are concentrated on interest structures, human right structures and sovereignty structures. From the personal level to the national level, from the political field to the rest of the society, this series discuss the relationship between interests, human rights and sovereignty, where the right–interest relation, rule framework, game organization and ecological mode are interrelated and mutually determined.

Correlativity and the Case Against a Common Presumption About the Structure of Rights

Correlativity and the Case Against a Common Presumption About the Structure of Rights

Vesting Agent-Relative Permissions in a Proxy*

We all have agent-relative permissions to give extra weight to our own well-being. If you and two strangers are drowning, and you can save either yourself or two strangers, you have an agent-relative permission to save yourself. But is it possible for you to ‘vest’ your agent-relative permissions in a third party – a ‘proxy’ – who can enact your agent-centered permissions on your behalf, thereby permitting her to do what would otherwise be impermissible? Some might think that the answer is ‘no’; it is definitive of agent-centered permissions that they apply only to the individuals ineliminably referenced in the content of that reason, which means that they lack reason-giving force for any ostensible proxy. The purpose of this paper is to (i) show that vesting agent-relative permissions is indeed possible, (ii) provide an account of how agent-relative permissions are vested by considering the structure of rights more generally, and (iii) show that we have a right to vest such permission in this way.

Sobre la estructura y los límites de los derechos sociales

Los derechos en general y los derechos sociales en particular se enfrentan a tres tipos de problemas: problemas filosóficos relativos a su fundamentación; problemas políticos que afectan a su reconocimiento; y, por último, problemas jurídicos que surgen a la hora de su garantía y protección. La pregunta acerca del status constitucional de los derechos sociales afecta directamente a este último problema.En este trabajo voy a mantener dos tesis, que, si bien son conceptualmente independientes, guardan una estrecha relación. En primer lugar, cualquier acercamiento a los problemas jurídicos de los derechos sociales debe tener en cuenta la estructura de los derechos, esto es, la posición del titular y del obligado por el derecho. Tener un derecho, al margen de cuál pueda ser su fundamento, significa ocupar una posición determinada en el marco de una relación jurídica. Afirmar que se tiene derecho a algo sin indicar quién está afectado, como obligado a hacer o a abstenerse de hacer, es una declaración política o moral, pero no el reconocimiento de un derecho en sentido estricto, esto es, en sentido jurídico.En la segunda parte señalaré que los límites que afectan a la garantía y protección de los derechos sociales dependen de la estructura de los derechos más que de su status constitucional.Recibido: 12 abril 2018Aceptado: 25 junio 2018Publicación en línea: 03 agosto 2018

The Rights Network: 100 Years of the Hohfeldian Rights Analytic

This paper sets out to reconsider the Hohfeldian framework of rights in celebration of the centenary anniversary of their original publication. It begins by conceptualizing each of the Hohfeldian incidents or rights before outlining the molecular or complex structure of rights to “things”. I adopt a broad use of the term of “right” and apply it to Legal, Moral, Equitable and Human conceptions and constructions. It sets out an argument in favor of a further definitional model—in addition to Hohfeld’s scheme of opposites and correlatives—which focuses on the function of these conceptual rights. Finally, it sets out to provide a model of rights as forming a network within a given community and the exponential growth of “rights-connections” within an expanding community. This is used to frame responses to common criticisms of “rights talk” and the balance of benefits and burdens on account of such a rights network. Ultimately, this paper seeks to demonstrate the benefit, and indeed necessity, of the Hohfeldian model in any discussion of rights. Without it “rights talk” is debased and impoverished.

On the definition of multi-Koszul modules

In [8] we introduced the notion of multi-Koszul algebra: it is an extension of the definition of generalized Koszul algebra given by R. Berger in [1] for homogeneous algebras (see also [7]) that can be applied to any nonnegatively graded connected algebra over a field k. The goal of this article is on the one hand to properly extend the notion of multi-Koszul algebra to the case where the base ring K is a product of copies of a field k, which a priori allows us to treat quiver algebras, and on the other hand to introduce the notion of multi-Koszul module such that it extends the usual definition of generalized Koszul module over a generalized Koszul algebra. We show eventually that multi-Koszul algebras and multi-Koszul modules are strongly linked via the notion of one-point extensions, as in the case of generalized Koszul algebras. Moreover, we describe the complete structure of right A∞-module on ExtA•(M,K) over ExtA•(K,K), where M is a multi-Koszul module over a multi-Koszul algebra A, extending a result in [9]. As a corollary, we obtain that the underlying right module structure of ExtA•(M,K) over ExtA•(K,K) is generated by the component of cohomological degree zero, as in the case of generalized Koszul modules over generalized Koszul algebras.

Economy as instituted process: the case of hard rock mining in the United States

AbstractI examine the origin and development of institutions that assign and enforce rights to hard rock minerals located on federal lands in the United States. Hard rock mining gives a prime example of the ‘artificial selection’ of settled customs or working rules by jurists and legislators. The evolving structure of the industry, conditioned by technological and market factors, produced a parallel shift in the locus and control of sovereignty. In the early days sovereignty vested in the mining clubs. The enlarging scale and complexity of mining catalysed a change in both the uses and location of sovereignty. With the transition from prospecting to large-scale industrial mining, the ‘right to use’ mineral deposits obtained through patents became contingent on the cooperation of labour. At this stage, the capture of the state's monopoly on legitimate violence to protect the right to use became a crucial dimension of property. Mining companies have also enjoyed liberties with respect to the externalization of environmental costs. The emergent structure of rights, duties, capacities and exposures was instrumental in bringing forth a quantum increase in the mining of hard rock minerals necessary for industrial expansion. There is, however, an urgent need for reform of the mineral patent system.

La teoría fuerte de los derechos sociales: reconstrucción y crítica | The Strong Theory of Social Rights: Reconstruction and Criticism

ABSTRACT. The topic of this article is the strong theory of social rights, which is described as an unifying theory on the grounds, the normative structure and the procedures for protecting different types of rights and, in particular, social rights and liberty rights. Some aspects of that theory are criticized, namely, some of its moral assumptions, its political and constitutional consequences, its troublesome economic effects, the way it presents the normative structure of rights which is considered flawed, and the model of judicial guarantee proposed for social rights which it is said to be counterproductive.

International migration: The state-sovereignty-migration nexus

Commonly, international human migration is blamed for corroding states sovereignty, especially stemming from policy circles, academic literature and citizens of the host countries. This has attracted the attention of the media highlighting hazards of being a migrant, with some countries viewing migrants as enemies; and, Cuba provides a vivid case. Yet in other countries, migrants are viewed as important contributors to social and economic development, with Mexico, the Dominican Republic and India serving as examples. This article locates migrants in the framework of human rights as guided by international law without prejudice to the demands of state sovereignty, but linking the two in the context of developing international standards. Migration is seen as a feature of human history dating back to primordial time. Nothing appears surprising in the movement of people across borders, defining a migrant through emigration and immigration while giving due respect to the sovereignty of states, both sending and receiving. The article discusses the nexus between migrants and state sovereignty in order to highlight the mutual benefit grounded in international law. It attempts to portray a more positive image of the migrant person in light of the global world, socio-economic development and human rights fundamentals. The main challenge remains that of implementing human rights, which appear to be at the crossroads of individual rights and state sovereignty. The paper reveals how the challenge can be overcome while maintaining the structure of rights and freedoms without infringement on states’ sovereignty. It concludes that migrants remain on the periphery of effective protection from the vagaries of the citizens, partly because the state has a tendency to confine certain rights to its citizenry. States possess discretionary authority to control the ingress of foreign nationals into their territories though sometimes they fail to do that as evidenced by hundreds of millions of irregular migrants around the world. The paper reveals that, the symbiotic relationship between migrants, regular or irregular, and state sovereignty should be strengthened.

Equity as Second-Order Law: The Problem of Opportunism

Despite the fusion of law and equity and the apparent demise of equity as a distinct system, this Article argues that equity is a distinct decision making mode within a legal system. Private law relies on formal structures of rights and rules that can be exploited and abused by opportunists. The possibility of strategic manipulation of the information available to other parties and to courts furnishes a rationale for a second-order safety valve on the formal law. In the Anglo-American tradition this anti-opportunism safety valve corresponds roughly to a major strand of equity jurisprudence. The Article shows that an equitable safety valve is to be found in both traditional equity theory and as a theme in equity, from the maxims to defenses to remedies to procedure. The Article explains and partially justifies the equitable safety valve as an ex post higher-order intervention aimed at a problem of measurement and uncertainty: law needs protection against opportunistic distortion and misuse of probabilistic information used by parties and courts. The importance of equity suggests a rethinking of “actuarialist” assumptions in conventional law and economics about stable and unbiased probabilistic information being available to parties and courts. Opportunists can be regarded as entrepreneurs in doing bad who exploit uncertainty. Once the function of equity as an anti-opportunism device is understood, many jurisprudential debates, especially those revolving around formalism and contextualism, can be seen to be lacking an appreciation of hybrid decision making that equity makes possible. Equity as an anti-opportunism safety valve provides an attractive way out of some thorny dilemmas.

MYTHS, GENDER, BIRDS, BEADS: A READING OF IRON AGE HILL SITES IN INTERIOR SOUTHERN AFRICA

ABSTRACTHomologous origin myths concerning the Tsodilo Hills in north-western Botswana, Polombwe hill at the southern tip of Lake Tanganyika in Zambia and Kaphiri-Ntiwa hill in northern Malawi are examined. Parallels are drawn between the myths, where, in the process of creation, a primal pair in undifferentiated space and time passes through a series of liminal states, thereby bringing structure to the landscape and legitimacy to society in Iron Age Central and Southern Africa. These myths narrate the instituting of social legitimacy in their respective societies based on a resolution of the inherent contradiction between the concepts of authority and power, lineage and land. The structure of rights to possession of land is examined, and the text considers the role of sumptuary goods such as glass beads and metonymic signifiers such as birds within this structure. This study examines the prominence of hilltops as the residence of paranormal power and its association with human authority, and relates this to the archaeological interpretation of the Iron Age site Nqoma (Tsodilo Hills); this is compared with Bosutswe (eastern Botswana), Mapungubwe (Shashe-Limpopo basin), and the Shona Mwari myth recorded by Frobenius as used by Huffman in his analysis of Great Zimbabwe.

Democracy, Give or Take?

In 2007, the King of Bhutan “gave” democracy to his people. Using this story as a point of departure, this article interrogates the complicated humanitarian notion of democracy as a gift in thinkers such as Thomas Hobbes, Claude Lefort, and Jacques Rancière. After bringing out the paradoxes in the King of Bhutan’s abdication, I speculate to what degree a protest against the Bhutanese state might model a new formulation of democracy, one that cannot be reduced to a consensualist scheme of sovereign sacrifice. While I conclude that we cannot fully abandon an economy of rights as “giving and taking,” a new discussion of the rhetorical structure of rights emerges.