Social rights,child rights,discrimination and devolution: untangling the web

Abstract

This article examines judicial reviews of two areas of social security policy and practice in the UK – the household benefit cap and the restriction of bereavement benefits to bereaved spouses and civil partners. While each case ostensibly concerned discrimination against claimants, in practice much of the legal argument centred on the impact on claimants’ children. The judiciary is revealed to be deeply divided on the lawfulness of the acknowledged discrimination. The article considers what lessons can be drawn about the relative weight that ought to be afforded to claimants’ property rights, the best interests of affected children, anti-discrimination provisions and the state’s stated policy imperatives of cost control and administrative convenience. Insights are also sought into whether devolutionary differences can be identified between the approaches of courts in London and Belfast.     

当前中国人权保障观的一种解析--以人口准入与迁徙自由为例

本文以国家人权保护义务的法律和政治道德义务为基础,分析了国家人权机构的性质与功能问题,在论证国家人权机构正当性的基础上,对世界各国的人权机构类型和功能进行了论述,并提出中国建立国家人权机构的必要性、可行性与基本模式。     

Human trafficking: the need for human rights and government effectiveness in enforcing anti-trafficking

Human trafficking constitutes a global problem. Involving exploitation of individuals through forced labour, sex, or organ removal, trafficking is an egregious human rights violation and illegal in many countries. Although laws have arisen to combat trafficking, it has persisted and inconsistent enforcement of anti-trafficking measures has been a concern. Using new data on trafficking, the enforcement patterns of 168 countries from 2001 to 2011 are examined. Findings suggest enforcement is predicted by the interaction of states’ world culture ties and government effectiveness, trafficking flows, and other state-level political mechanisms. Theoretically important factors, such as female legislators or various economic measures, are insignificant.     

Proactive counter-terrorist strategies in conflict with human rights

Three standard governmental policy responses to terrorism have been identified: a military one, treating the fight against terrorism as a form of warfare; a police-based one, treating it simply as a form of criminal activity, to be detected and then defeated using (perhaps some modified version of) the criminal justice system; and a political one, viewing it as a form of armed rebellion to be resolved through negotiation and the political process. All three responses to terrorism may be evident in any particular instance.     

国际人权保护:WTO争端解决机制所面临的新问题及其对策

从一定角度看,人类社会的贸易活动必然体现和反映一定的社会冲突,其中包含了道德、伦理、政治、社会及法律层面的冲突。这一冲突主要体现在贸易规则本身之间的冲突,以及相伴而生的人权保护问题。WTO争端解决机制在解决国际贸易争端过程中,不可避免地会涉及国际贸易中的人权冲突、人权保护问题,而这对我国如何应对“贸易与人权的冲突”亦将产生深远的影响。     

Sexual orientation as a justice issue: Issues of postmodern social philosophy and religion for civil rights

This essay theoretically explores three core concerns for social justice research and analysis in the transition from social and legal philosophical foundations based upon Enlightenment categorical universals to a postmodern context that recognizes concurrent globalization and the constructed nature of particular status identities. Utilizing sexual orientation as a case study, the concerns are, what constitutes a civil right in a postmodern context, how useful are categories versus behaviors in protecting civil rights, and how does religion affect the civil morality that justifies and legitimates justice criteria? The argument is made that a justice construct for sexual orientation must rely both on behavioral freedoms and ontological status for adequate protection of human dignity and equality. It also is argued that interreligious discourse is essential to reparticularize religiomoral assumptions that have justified inequality and to provide an adequate negotiated grounding to legitimate shared norms upon which postmodern justice philosophy can be built.     

Genetics,parenting, and children's rights in the twenty-first century

Not only do genetic traits sometimes translate into physical and mental illnesses, they may also manifest themselves as tendencies towards certain behaviours. This discovery has led to the misinterpretation and misapplication of genetic information, and has been directed to unforeseen uses, from criminal defence to genetic racism. The issue is especially sensitive when deciding if and when parents should have access to the genetic information of their children. The author begins with an overview of the principles of behavioural genetics and types of behaviour currently under study. Next, the social and psychological risks associated with genetic testing are presented, along with guidelines necessary to distinguish between testing which is therapeutic and that which is non-therapeutic. The distinction is a crucial one, as the author proposes a therapeutic-benefit test, advocating testing only where an effective intervention is available. Finally, the author concludes that legislation is the more appropriate medium for defining the extent of parental rights once intervention is allowed rather than leaving physicians to decide on a case-by-case basis.     

Challenging statutory limitations on children's education rights: a re-examination of the Canadian Supreme Court Decision in Auton

The 2004 Supreme Court of Canada decision in Auton concerns the right of autistic children to access services held by their parents to be essential to their children's ability to participate as members of a democratic society. It is argued that the child's right to have his or her basic developmental needs met is a constitutionally protected one. Having those developmental needs met engages both education and health rights. In Auton the parents had sought funding for the service at issue from the Ministry of Health, the Ministry of Children and Families (which dealt with mental health services and other particular support programs for the families of disabled children) as well as from the Ministry of Education. The case raises central questions regarding the very nature of education and the constitutionality of a discretionary power of government to set out statutory limitations upon fundamental human rights including education rights.     

Democracy, rule of law and human rights protection under gradually developed constitutionalism

With the shifting of the economic pattern and the developing of administrative law, the modern constitutionalism of China has adopted a progressive development process. Over 20 years, the development of democracy, the rule of law and the human rights protection clearly illustrate this point. For the gradually developing constitutionalism, the theory of limited rational is a theoretical basis, the stability of society is a social basis, the changing economic system is a economic basis, and Confucianism is a cultural basis. Constitutionalism of China should continue to go in such an active, steady and gradual way. Wang Zhuojun, Professor and Director of Administrative Affairs of Soochow University (till now) and as a visiting scholar in the Department of Government & Politics, University of Maryland, USA (1996.1–1997.1), whose research focuses on culture, politics and science of law. So far, his publications are “The Political System in the Perspective of Culture”, “A History of Epistemology”, “A Study of the External Economy of China’s Universities”, and his translations include “Introduction to Culture and Anthropology”, “Challenge to Culture from Science and Technology”, etc. Moreover, He has presided several research projects sponsored by The Ministry of Science and Technology of China and the Education Department of Jiangsu Province, China.     

Human rights violations and genocide in the Democratic Republic of the Congo

The massacres that took place in the Democratic Republic of Congo (DRC) between 1996 and 2003 have posed an interesting challenge to the global community, specifically to its more powerful members. Ironically, the Tutsi-dominated government of Rwanda enjoys international recognition and benefits based on the genocide, Rwanda suffered in 1994, but continues to deny the same benefit to Hutus as they were accused of leading a counter-genocide campaign then in the DRC. While the people of the DRC, as well as human rights activists, call for justice for all who were affected, the government of Rwanda, strongly backed by a number of powerful international powers, opposed attempts by the international community to pin charges of genocide perpetrated by its army in the DRC on it. Because of the clear negation of the genocide report by the Rwandan government, the nature of human rights, human rights violations, and genocide criteria proposed and defended by key members of the international community in relation to the mass killings in the DRC are examined.     

人权与人文--珠泉商贸城故事与波茨坦磨坊故事比较

人权入宪是人权发展历史上的重要事件,但并不等于人权的真正实现.人权的实现受到物质条件、主体的自觉程度、思想文化基础的制约,只有在适宜的人文环境中,人权才可能成为有约束力的法则.文章从两个公法事件出发引出人权的人文需求和人文基础,论证了人权的文化本性和社会向度,并提出建构人权的人文基础的必要性和意义.     

The legal geographies of transnational cyber-prosecutions: extradition,human rights and forum shifting

This article describes legal and human rights issues in three cases of transnational online offending involving extradition requests by the United States (US). These cases were selected as all suspects claimed the negative impacts of autism spectrum disorders (ASDs) were sufficient to deny extradition on human rights grounds. We demonstrate how recent developments in UK and Irish extradition law raise human rights and prosecutorial challenges specific to online offending that are not met by established protections under domestic and internationally sanctioned approaches to extradition or human rights law. In these cases, although the allegedly unlawful conduct occurred exclusively online and concurrent jurisdiction enables prosecution at both the source and location of harm, we demonstrate why national courts hearing extradition challenges are extremely reluctant to shift the trial forum. We conclude by discussing the implications of the new geographies of online offending for future criminological research and transnational criminal justice.     

刑事诉讼程序完善与人权保障

目前法治建设的重要目标是规范和重新调整国家和个人之间的权利义务关系,促进对人权的保护。诉讼程序的完善对人权保障有着重要意义。     

调解权的价值、性质与实现

本文以纠纷当事人的调解权为核心和基础,以调解权与相关国家权力的关系为视角,分析了调解权的被动性、调解权的差异性以及调解权的受支配性等特征。认为当事人之间的调解权利意识,是社会公众所昭示的公共性政策在法律领域的延伸,强调在需求多样化与多元化的今天,调解权的实现有利于维护公民的利益。     

论英国的犯罪信息公开制度——以加拉格尔案为切入点

在英国,犯罪信息公开制度一直是一个备受争议的话题。《欧洲人权公约》第8条规定,每个人都享有隐私权,任何侵犯隐私权的行为必须以“合法”和“必要”为前提。2019年初,在加拉格尔系列案的上诉程序中,犯罪记录披露措施是否违反《公约》第8条规定成为英国社会关注的焦点。在该案判决中,英国最高法院虽然支持了前科被披露人员的请求,驳回了上诉,但是,法官们对于犯罪信息公开制度是否符合合法性和必要性标准却存在明显的分歧。通过对该案的基本案情、主要争议点、英国最高法院法官的不同意见的分析,可以为发展和完善我国犯罪记录登记和查询机制提供参考依据。     

人权与公民权之异同

人权和公民权是两个关系非常密切的概念,它们既有相同之处,又有细微差别。它们的共同点表现为:起源相同,社会基础和制约条件相同,内容基本相同,价值取向和理论基础相同。它们的区别体现在:主体不完全相同,适用范围不同,属性不同,表达方式的差异,实施和监督机制的差异,救济途径的差异。     

"亲亲相隐"与尊重人权:我国刑事政策之理性抉择

根据刑法第310条的规定,窝藏、包庇罪,是指明知是犯罪的人而为其提供隐藏处所、财物,帮助其逃匿的行为,或者作虚假证明予以包庇的行为.不管窝藏、包庇者与犯罪人之间是什么关系,只要实施窝藏、包庇行为的,都要受到刑事制裁.实际上,这样的法律就是对人提出了这样的要求:当你的亲属犯罪的时候,你为了维护法的权威和尊严,必须要牺牲亲情.这种规定的合理性需要探讨.本文根据古今中外关于"亲亲相隐"制度的规定,结合我国因否认此制度而给现实社会带来的危害,分析了现阶段确立"亲亲相隐"制度的合理性,最后提出"亲亲相隐"原则刑事立法化的具体建议.     

The Time of Law: Human rights between law and politics

This article discusses the presuppositions and consequences of different forms in which successive Chilean governments have tried to ‚come to terms’ with a legacy of terror usually designated as ‚human rights violations’. Thus a political strategy centred in a body like a truth and reconciliation commission is compared to a judicial strategy of individualising perpetrators and punishing them according to the rules and principles of normal criminal law. Having distinguished these strategies, the article maps them onto two conceptions of human rights: one political (constitutive of the political community) and one legal (grounding actionable claims against others). The thesis is then defended that law cannot grasp the political meaning of human rights, and thus cannot grasp the full political meaning of terror.This paper belongs to a broader research project funded by the Chilean fund for Scientific development, FONDECyT (Projecto 1010461).     

Deregulation,property rights,and legal system

During regulation the regulator carries out an intermediary role between shareholders and managers, consequently affecting property rights and the agency relation between the two. Deregulation implies that this intermediary role ceases to exist. This article analyses how government deregulation changes property rights, differentiating between firms of network and non-network structures. Changes in property rights affect the agency relation between shareholders and managers, increasing information asymmetry and agency costs. I argue that the way to reduce agency costs depend to a great extent on the country’s legal system classified as of common or civil law tradition.

公民权利和政府权力关系研究

公民权利和政府权力的关系作为宪法关系最主要、最基本的内容,是宪政思想流变的基本线索和宪法学的基本问题,宪法学基本问题的首要问题是解决何者为第一性的问题。二者关系的主格调是对立、制衡、统一。