Community-based care and compulsion: what role for human rights?

This article considers the role of traditional conceptions of human rights in relation to the challenges posed by community treatment orders (CTOs). It explores how traditional rights discourse in mental health, which has focused on the rights of liberty and autonomy, is to be located within the landscape of community-based mental health law. Using jurisprudence arising under the European Convention on Human Rights, it identifies the limitations of traditional rights in this context. However, it argues that traditional concepts such as liberty and privacy still have a role to play.     

Public health and human rights

The editorial introduces the special issue of the journal that incorporates papers originally presented at the "Public Health and Human Rights" conference held at the Monash Prato Centre, Italy, in June 2007. It identifies the intersection between public health and human rights; access to health care services, particularly for marginalised groups such as indigenous peoples and persons with mental illnesses; and the role of international instruments in encouraging states parties to implement and monitor compliance with these rights.     

从西方人权话语拓展看中国人权话语的国际化

西方人权话语拓展的主要方式是软渗透和硬介入。软渗透表现为通过西方人权"区域理念--区域规则--国际规则--国内规则"的规范扩散,推动非西方国家接受由西方主导建构起来的国际人权规范体系,形成对西方人权话语的法律确信,最终实现"西方人权国际化"和"国际人权国内化"。硬介入表现为通过政治、军事、经济、外交等方式强行推动非西方国家接受西方人权话语并将之纳入国内法律秩序,加速了西方人权国际化。西方人权话语拓展引起"它变"和"自变"效果。一方面,面对软渗透和硬介入,非西方国家或者被动接受,或者借助条约批准、保留等国际法手段予以选择性认同或变通,甚至提出竞争性替代话语加以对冲。另一方面,西方人权话语也在内外因素下不断自我调适,逐步提升可接受性。中国对外拓展人权话语,应充分利用"百年未有之大变局"带来的战略机遇期,借助政治、经济、文化等多种途径,加速国际人权话语格局的变革;尽快形成以发展主义权利观为核心的人权话语体系,并通过对话来增进中国人权话语的价值共识;坚持发挥规范性力量的作用,学会利用国际法律机制,着力提升在国际人权体系内将中国理念和话语转化为国际规则以及保障国际规则被遵守的制度能力。     

Indeterminacy,Disagreement and the Human Rights Act: An Empirical Study of Litigation in the UK House of Lords and Supreme Court 1997–2017

This article explores the impact of the Human Rights Act 1998 on the decision making of the House of Lords (UKHL) and the UK Supreme Court (UKSC). How does Convention rights content vary across areas of law in the UKHL/UKSC? Are some judges more likely than others to engage in Convention rights discourse? Is judicial disagreement more common in cases with higher levels of Convention rights discourse? A robust method of answering questions of this nature is developed and applied to decisions of the UKHL/UKSC, showing that the Convention rights content of decisions has varied over time and over substantive areas of law. Higher levels of human rights discourse are associated with greater levels of disagreement. A benchmarked measure of human rights content is developed to show the effect of the particular judge on the human rights content, illustrating the indeterminacy in human rights discourse and how its deployment can be contingent on judicial attitudes.     

Hermeneutical Violence: Human Rights,Law, and the Constitution of a Global Identity

In this paper I want to analyze the process of denationalization of the law, to show how the globalization of the law can be considered as a new form of imperial control, but this time, labeled as acting for the welfare of its victims. In the first part I will analyze the national character of the law and show how it was used as an imperialistic instrument for the benefit of the imperial powers. In the second part I will show how the discourse of human rights and its universality has been the base to deny indigenous communities their right to define their own identity and how this discourse was used to destroy the old conception of sovereignty. The globalization of human rights implies the imposition of a western conception of rights, regardless of the contextual conception of the indigenous people. The discourse of human rights is part of a hermeneutical violence.     

Ethnic Law and Minority Rights in China: Progress and Constraints

Western discourse on human rights in China typically assumes that China's minority rights law must be a sham because China is an authoritarian state. In the 1980s and 1990s, however, China has articulated an "ethnic law" that elaborates rights and preferences that minorities value. At the same time, People's Republic of China ethnic law is inadequate to grant the idealized range of minority rights claimed by the Chinese state, and some rights are being eroded by the marketization of China's political economy. The most notable weaknesses in the ethnic law system include the failure to enlarge the scope of ethnic regional autonomy, a lack of preferential policies sufficient to offset the growth of the economic gap between Han and minority areas, and an inadequate program for overcoming antiminority bias. While an emerging minority elite is a stabilizing factor in minority‐state relations, additional measures to expand minority rights are required, some of which are suggested by the policies of other Asian states.     

中国传统契约中的“契约自由”与“主体平等”——以清水江文书为视角

中国法律传统虽以"公法"为主要特征,强调以身份关系为纽带的"公权力",但在"私法"领域,却并非不重视以自由和平等为基础的"私权利"。在中国传统契约与清水江文书中,均普遍存有关于"契约自由"与"主体平等"这样一种"契约型社会"的私法观念。在契约自由方面,主要通过"二主和同"、"两和立契"等契约语言来体现契约是双方协商一致,达成合意的结果;在主体平等方面,则通过"两共平章"、"平中立约"等用语来表明立约双方具有平等的人格与主体地位。而这样一种注重合意、平等立约的私法观念,以及尊重契约、敬畏契约,通过契约保护自身合法权利的精神,是当今我国法治化建设过程中重要的本土资源与宝贵财富。在提倡尊重契约精神、保护私权利等法治观念的今天,亦能够为我国法治的现代化进程提供历史的和本土的基因。     

Towards a global ‘child friendly’ juvenile justice?

The impact of globalisation on juvenile justice is increasingly conceptualised with reference to neo-liberal governance and the intensification of ‘new punitiveness’. Whatever the merits of such analyses, they have the effect of marginalising, if not completely overlooking, the extent to which international human rights instruments might serve to neutralise and/or mediate punitive currents. Indeed, it might be argued that the commitment – repeatedly expressed in official discourse – to both protect and promote the human rights of children in conflict with the law has itself come to comprise a discursive and tangible dimension of global child governance. Key signifiers of this phenomenon – at the global level – include a corpus of interrelated human rights conventions, standards, treaties and rules, formally adopted by the United Nations General Assembly, whilst at the European level authoritative rights-informed guidelines on ‘child friendly justice’, ratified by the Council of Europe, are similarly representative. Against this backdrop, this article seeks to investigate the degree to which individual nation states receive and respond to their human rights and ‘child friendly justice’ obligations. Whilst recognising the mediating capacities of formal human rights instruments, we aim to critically interrogate the relations between globalised rhetoric and localised reality; between the promise of international rights discourse on the one hand and the limitations of territorial jurisdictional implementation on the other.     

On Two Distinct and Opposing Versions of Natural Law: “Exclusive” versus “Inclusive”

Abstract. This paper takes the dichotomy between “exclusive” and “inclusive” positivism and applies it by analogy to natural‐law theories. With John Finnis, and with Beyleved and Brownsword, we have examples of “exclusive natural‐law theory,” on which approach the law is valid only if its content satisfies a normative monological moral theory. The discourse theories of Alexy and Habermas are seen instead as “inclusive natural‐law theories,” in which the positive law is a constitutive moment in that it identifies moral rules and specifies their meaning. The article argues that inclusive theories of natural law are better suited to expressing an authentic “republican” attitude. *

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Pain as a fact and heuristic: how pain neuroimaging illuminates moral dimensions of law

In legal domains ranging from tort to torture, pain and its degree do important definitional work by delimiting boundaries of lawfulness and of entitlements. Yet, for all the work done by pain as a term in legal texts and practice, it has a confounding lack of external verifiability. Now, neuroimaging is rendering pain and myriad other subjective states at least partly ascertainable. This emerging ability to ascertain and quantify subjective states is prompting a "hedonic" or a "subjectivist" turn in legal scholarship, which has sparked a vigorous debate as to whether the quantification of subjective states might affect legal theory and practice. Subjectivists contend that much values-talk in law has been a necessary but poor substitute for quantitative determinations of subjective states--determinations that will be possible in the law's "experiential future." This Article argues the converse: that pain discourse in law frequently is a heuristic for values. Drawing on interviews and laboratory visits with neuroimaging researchers, this Article shows current and in-principle limitations of pain quantification through neuroimaging. It then presents case studies on torture-murder, torture, the death penalty, and abortion to show the largely heuristic role of pain discourse in law. Introducing the theory of "embodied morality," the Article describes how moral conceptions of rights and duties are informed by human physicality and constrained by the limits of empathic identification. Pain neuroimaging helps reveal this dual factual and heuristic nature of pain in the law, and thus itself points to the translational work required for neuroimaging to influence, much less transform, legal practice and doctrine.     

Some Problems of Legal Language

Abstract. The author moves from the consideration of law as a set of rules serving as a means of socially regulating human conduct. He focuses on the fact that in order to fulfil its function, the law must be seen as a type of information. In this perspective law is a particular language and therefore gives rise to linguistic problems, linked to the technical character of juristic discourse. The author deals with some of the linguistic and sociological aspects of legal language and attempts to pinpoint some trends of interlingual development.     

(When) Are Rights Wrong? Rights Discourses and Indeterminacy in Gay and Lesbian Parents’Custody Cases

This paper examines the paradoxical and problematic position of rights discourses in lesbian, gay, bisexual, and transgender (LGBT) parents'custody and adoption cases. In it, I analyze the ways in which different types of rights are framed by the litigants and, alternatively, by the judges, as well as how the same constitutional rights (e.g., the right to privacy) are often deployed both in defense of and in opposition to gay /lesbian parents. An in-depth analysis of judicial decisions over a 50-year period and interviews with key family law players reveal the indeterminacy and therefore complexity of rights as a strategy and a discourse in the family law context. Consistent throughout this analysis are the problematic intersection of the collective and the individual in rights-based claims, and evidence of the distinct nature of LGBT rights claims as revolutionary in both their bases and their implications. The analysis confirms in some ways, but also contradicts and complicates many assertions of the "rights critique" of the past two decades. It also suggests a more complex and less dichotomous relationship between rights, status, and contract.     

European Law and International Regimes: The Features of Law Beyond the Nation State

Different forms of law are perceived of as possessing differing degrees of legal quality. A quality continuum suggests itself, running from 'high quality' national law, through to 'lesser quality' European law and to 'low quality' international law. This article seeks to explain the perceived differences in the quality of these laws with reference to legal theoretical perceptions of what it is that constitutes the law's quality. It argues that only a theory of law which identifies the core of the law's integrity as lying in its ability to act as a fulcrum between spheres of social and public discourse and the exercise of power can fully explain the divergence in legal quality between national, European and international law. With specific regard to the quality of European law, it concludes by arguing that it is weakened by its relative lack of social internalisation—in comparison with a higher degree of legal and political internalisation—within the European public.     

A Reductionist Penal Policy and European Human Rights Standards

Official discourse in many European countries advocates the use of imprisonment as a measure of last resort. This principle is also at the core of several Recommendations of the Council of Europe and a Resolution of the European Parliament. In practice, detention rates in European countries vary greatly, and many countries have witnessed an increase in their prison population. This article argues that the application of deprivation of liberty raises in itself a human rights issue, and considers the support that European human rights instruments give to a reductionist penal policy. It concludes by defending a normative argument in favour of rethinking the principle of proportionality in its application to imprisonment.     

Confronting Government After Welfare Reform: Moralists, Reformers, and Narratives of (Ir)responsibility at Administrative Fair Hearings

Almost 40 years ago, the Supreme Court, in the landmark case Goldberg v. Kelly (1970) , provided welfare participants with a potentially potent tool for challenging the government welfare bureaucracy by requiring pre-termination hearings before welfare benefits were discontinued or reduced. In 1996, with the passage of the Personal Responsibility Work Opportunity Reconciliation Act (PRWORA) , the rights talk of Kelly was officially replaced with the discourse of individual responsibility. Using observational data of administrative hearings and interviews with administrative law judges and appellants, this study explores how fair hearings have been affected by this official reconceptualization of rights. I find that hearings are not a panacea for challenging the more punitive aspects of welfare reform, but nor are they devoid of the possibility of justice. While hearings can replicate in style and substance the inequities, rigid adherence to rules, and moral judgments that characterize welfare relationships under the PRWORA, they can also be used as a mechanism for creating counternarratives to the dominant discourse about welfare. This study identifies two types of judges—moralist judges and reformer judges—and examines how their differing approaches determine which narrative emerges in the hearing room.     

The conflict between the ethics of th individual and the ethics governing public health: practical sustainability of health care in jeopardy?

The "health rights movement" has reconstructed the clinical relationship between health care workers and patients by simultaneously demanding more from traditional medical care and challenging the perceived power differential between doctors and patients by rejecting the paternalistic medical model in favour of an individual patients' rights model. However, the growth in individual expectations of a right to health care creates a potential conflict with the ethics that prioritise public health and guide the rationing of its limited financial and human capital resources. This, in turn, creates a practical dilemma which requires public health institutions to become service orientated while sacrificing their integral role in training and educating the medical workforce and potentially compromising the practical sustainable delivery of public health in Australia. However, the law can play a role in resolving this conflict through legislation, regulations, codes, administrative law and common law in an effort to ensure the quality and future sustainability of public health in Australia.     

The Commonwealth of Nations today: historical anachronism or focus for universal values?

The creation of the Eminent Persons Group (EPG) in July 2010, to report on future structures of the Commonwealth of Nations, focuses attention on the activities that the Commonwealth and its Secretariat perform well and those that require improvement. The author, now a member of the EPG, explains how the Commonwealth evolved out of the British Empire; the importance of the links of law, language and tradition that bind it together; and the activities that are well performed: professional links; education and publications; electoral observations; provision of good offices; and consensus over core values. He notes useful new initiatives, including periodic human rights reviews; outreach to youth; pursuit of women’s equality; and the use of new information technology. However, he also identifies a number of areas of weakness: publicity and communications; secretariat organisation; the focus of some activities; and effective attention to reported human rights abuses. Given the creation of the EPG, this is a timely survey of the challenges that lie before it and the Commonwealth.     

A bad trip for health-related human rights: implications of Momcilovic v The Queen (2011) 85 ALJR 957

Momcilovic v The Queen (2011) 85 ALJR 957; [2011] HCA 34 arose from a prosecution for drug trafficking brought under the Drugs, Poisons and Controlled Substances Act 1981 (Vic). The Australian High Court held that the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) validly conferred a power on the Victorian Supreme Court and Court of Appeal to interpret legislation in a manner consistent with a defined list of human rights. By a slim majority it also held that the Charter validly created a judicial power to "declare" a law inconsistent with one or more enumerated human rights. In reaching its decision, however, the majority supported a narrow interpretation likely to undermine the intended capacity of the Charter to act as a remedial mechanism to reform laws, regulations and administrative practices which infringe human rights and freedoms. Although Momcilovic involved interpretation of a specific State human rights law, the High Court judgments allude to significant problems should the Federal Government seek to introduce a similar charter-based human rights system. Momcilovic, therefore, represents a risk to future efforts to develop nationally consistent Australian human rights jurisprudence. This has particular relevance to health and medically related areas such as the freedom from torture and degrading and inhuman treatment and, in future, enforceable constitutional health-related human rights such as that to emergency health care.     

An ethics ensemble: abortion, Thomson, Finnis and the case of the violin-player

Abstract.  This paper considers approaches to the ethics of abortion and putative links to "rights" debates. In particular, it revisits two papers on the topic from the early 1970's, written by Judith Jarvis Thomson and John Finnis respectively. Consideration of the discourse produced by these papers to some extent reveals the strategic importance of linguistic and conceptual organisation—the rhetorical forces underlying claims to disinterested, analytical standing. In particular, the paper reviews the practical ethics analogy proposed by Thomson; the deployment of "Hohfeldian" rights analysis by John Finnis, the link to the abortion debate and the broader implications of such deployment in its relation to current "rights" discourse.     

The (Heterosexual) Regendering of a Modern State: Criminalizing and Implementing Domestic Violence Law in Trinidad

This paper investigates one example of a process with global implications that I describe as the "regendering" of the state. Regendering refers to the process of bringing to public and legal attention categories and activities that were formerly without name but that constituted harm to women, denied them rights, silenced them, or limited their capacity to engage in actions available to men. I examine the regendering of the Trinidadian state by focusing on one of its most salient examples, the Domestic Violence Act. I identify first the coalition of forces and events that brought the subject of violence against women to lawmakers' attention and made possible the first Domestic Violence Act in the English-speaking Caribbean. I then investigate the interplay between the global discourse about domestic violence law-the passage of which has become an important symbol of the "modern" state-and local concerns about justice, gender, and family. Finally, I consider problems in the implementation of domestic violence law.