Reconciling legal positivism and human rights: Hans Kelsen's argument from relativism

This article examines the conceptual relationship between legal positivism and human rights, challenging the common idea that the two are in tension or that there exists, at most, a contingent relationship between them, whereby legal positivists can only recognize the normative validity of human rights if they happen to be inscribed in positive law. To do this, I focus on the thought and writings of one of the “founding fathers” of modern legal positivism: the Austrian legal theorist and political philosopher Hans Kelsen. In the first part, I show that Kelsen's conception of legal positivism is inextricably tied to — and, indeed, logically stems from — his moral relativism. In the second, I show that this form of relativism is also the philosophical foundation for Kelsen's commitment to democracy and human rights. Finally, in the third part, I examine the specific conception of human rights that results from this relativistic foundation, contrasting it with the “natural law” version that legal positivism excludes.     

Sexual violence in armed conflicts: research progress and remaining gaps

Research on conflict-related sexual violence (CRSV) has grown rapidly over the last decade. This article consolidates existing social science research on CSRV according to two lines of inquiry: its causes and its consequences. Overall, research has considerably advanced our knowledge of the causes of CRSV, particularly in four aspects: purpose, context, individual motives and intra-group dynamics. However, there is a need to better understand the societal consequences of CRSV, in particular how it affects relations in families, and within and between communities. Overall there remains a shortage of empirical, in particular mixed-method, designs to produce research which is relevant for policymakers and practitioners.     

Sudden cardiac death and myocardial ischemia indicators: a comparative study of four immunohistochemical markers

The postmortem diagnosis of acute myocardial infarction represents a current challenge for forensic pathologists, particularly when death occurs within minutes to a few hours after the ischemic insult. Among the adult population the single most important cause of sudden cardiac death (SCD) is the well-known atherosclerotic coronary artery disease, commonly asymptomatic or unrecognized. The recognition of early myocardial damage using routine hematoxylin and eosin (H&E) staining is possible only if death has occurred at least 6 hours after the onset of the ischemic injury. The usefulness of immunohistochemical markers to the diagnosis of early myocardial damage has been recently suggested because most of them can be visible even serologically as early as few minutes after the beginning of the symptoms. To evaluate the usefulness of plasma and cellular antigens, their distribution patterns have been studied among a group of 18 SCD cases in which a myocardial ischemia was strongly suspected. For the present study, 4 markers have been selected on the basis of their different diagnostic potential as follows: among the plasma markers the C5b-9 and fibronectin, among the cellular markers the myoglobin and cardiac troponin. The results show that only the study of multiple markers such as those selected can provide enough evidence of myocardial ischemia and/or necrosis, supporting the final diagnosis of SCD. No single immunohistochemical staining is ideal for diagnosing early myocardial ischemia but a set of markers can improve the ability of forensic pathologists to detect ischemic areas when no macroscopic or microscopic evidence of necrosis is available. However, the interpretation of data obtained in each individual cannot be isolated from the overall assessment of the factors (cardiopulmonary resuscitation and/or agonal artifacts) that can affect the expression of each marker.     

Market offenses and limits to growth

The purpose of this article is to explore various factors that may regulate or stabilize levels in market offenses. Instead of assuming that illegal markets are ‘out of control’, evidence is advanced to demonstrate, on the contrary, that there are indeed limits to growth in criminal markets. This is presented along three principal and interconnected arguments. First, social norms limit the ability of suppliers to shape demand for illicit goods and services. Using public opinion surveys, it is concluded that the more objectionable the moral status of an illegal market, the smaller the pool of potential consumers and sellers. Second, there are considerable obstacles that confront suppliers of illegal goods and services accumulating capital and upward mobility. The consequences of product illegality inhibit the organizational growth capacities as well as the geographic expansion of illicit firms. Third, while impunity via corruptible alliances do cancel some of the effects of product illegality, this impunity is not a constant that can always be depended upon. To the extent that corruption varies across jurisdictions and over time, illegal entrepreneurs may come to realize that impunity is intrinsically limited in scope and volatile in nature and over which they essentially have very limited control. This revised version was published online in July 2006 with corrections to the Cover Date.     

Accepting Conflict and Experiencing Creativity: Teaching "Concertation" Using La Francilienne CD-ROM

This article discusses the use of the La Francilienne CD-ROM, which I developed with my colleague Alain Lempereur, law professor at ESSEC Business School, near Paris. As a professor in the ESSEC Department of Environment, I use the CD-ROM as the basic tool for my course "Concertation, Decision, and Local Democracy." The CD-ROM's simulation of a public negotiation process for a highway project allows me not only to teach basic concepts and methods of negotiation and mediation but also to enhance two important concepts in public decision processes in planning and environment: conflicts and creativity. The students are given the opportunity first to experience, and then to discuss, conflict and creativity in a quasi-real setting. These experiences and discussions encourage an internal change process for the students and help them to integrate the negotiation and mediation concepts and methods taught. This internal change will be conceptualized in this article according to two educational theories: transitional thinking theory and experiential learning theory.     

Civil Society Actors and EU Fundamental Rights Policy: Opportunities and Challenges

This paper examines how civil society actors in the EU utilize the political and legal opportunities provided by the EU’s fundamental rights policy to mobilize against discrimination, notably racism, and xenophobia. It emphasizes the multiple enabling roles that this policy provides to civil society associations engaged in judicial activism, political advocacy, and service delivery both at the EU and Member State levels, and assesses their effectiveness. It describes several factors that hinder the implementation of EU fundamental rights policy and reviews the strategies of civil society to overcome them. It highlights the reluctance of parts of public opinion to combat ethnic prejudice, considers reactions against what at a time of crisis is perceived as a costly project of social regulation, and examines civil society responses. The data sources consist of interviews with bureaucratic and civil society actors at EU level.