Liberal Relativism’s Challenge to Conscience Rights

2020 ◽  
Vol 9 (1) ◽  
pp. 79-104
Author(s):  
Thomas Finegan
Keyword(s):  
Case Law ◽  
Conscientious Objection ◽  
The Other ◽  
Liberal Theory ◽  
Benedict Xvi ◽  
Rights Protection ◽  
Important Principle ◽  
The Right ◽  
Contemporary Liberalism ◽  
Representative Cohort

Abstract I argue that within contemporary liberal theory and case law is a relativistic conception of conscience, a conception which has the effect of obscuring the significance of conscience and downplaying the importance of conscience rights. The article focuses in particular on the right to conscientious objection. After outlining a representative cohort of cases from within contemporary liberalism concerning conscientious objection I analyse Cardinal Ratzinger’s (Pope Emeritus Benedict XVI) ‘dictatorship of relativism’ critique for its cogency as a response to these cases. I contend that although the ‘dictatorship of relativism’ critique is almost always understood in a univocal manner it is in fact comprised of two logically distinct arguments. One of these is found fundamentally flawed while the other is deemed promising yet in need of supplementation and defence. This I attempt via an analysis of the understanding of conscience present within contemporary liberal case law and theory. I go on to claim that contemporary liberalism, in part due to its problematic understanding of conscience, is often insufficiently respectful of an important principle of conscience rights protection when it dismisses claims of conscientious objection. The final part of the article is an attempt at explaining the paradox of a liberalism which readily justifies significant restrictions on conscience rights. I end by concluding that one version of the ‘dictatorship of relativism’ critique, suitably clarified and supplemented, is basically sound and poses a very serious challenge to contemporary liberalism.

scholarly journals The Right to Citizenship – Slovenia and Australia

2021 ◽  
Vol 8 (1) ◽  
Author(s):  
Robert Walters
Keyword(s):  
The Other ◽  
Former Yugoslavia ◽  
Nation State ◽  
Important Principle ◽  
Other Hand ◽  
The World ◽  
Rule Changes ◽  
The Right ◽  
Citizenship Laws ◽  
The Impact

Most people across the world automatically assume citizenship at birth or acquire citizenship by descent or naturalisation. Since the growth of the concept of citizenship from the French and American Revolutions, it has become an important principle to the nation state and individual. Citizenship is the right to have rights. However, the right to citizenship is limited. In some cases when territorial rule changes the citizenship laws may exclude individuals resident in the territory. This article compares the development of the first citizenship laws in Australia and Slovenia, and the impact that these new laws had on the residents of both states. The first citizenship laws established by Australia were in 1948. More than forty years later in 1990, when Slovenia finally obtained independence from the former Yugoslavia, the new country was able to establish their own citizenship laws. The result of the Slovenian citizenship laws saw many former Yugoslav citizens who were resident in Slovenia being without citizenship of any state. Subsequently, these people were declared stateless. On the other hand, for Australia, the outcome was relatively smooth with the transition from British subjects to Australian citizenship.

Protecting the right to freedom from discrimination in Zambia: Understanding the constitutional and legislative grounds

2019 ◽  
Vol 19 (3-4) ◽  
pp. 155-177
Author(s):  
Jamil Ddamulira Mujuzi
Keyword(s):  
Case Law ◽  
The Other ◽  
Relevant Case ◽  
The Right

The Constitution of Zambia prohibits discrimination in different articles and the grounds on which a person may not be discriminated against are included in two different constitutional provisions – Article 23(3) and Article 266. Apart from the Constitution, some pieces of legislation prohibit discrimination and provide for grounds against which a person may not be discriminated against which are not provided for in the Constitution. Jurisprudence from Zambian courts has not been consistent on the question of whether the list of the grounds against which a person may not be discriminated against is exhaustive. With the exception of the ground of disability, the Constitution does not define the other grounds on which a person may not be discriminated against. In this article, it is argued, inter alia, that the existence of two constitutional provisions providing for different grounds could create uncertainty among some litigants and judicial officials and that in cases where the Constitution does not define the grounds of discrimination, courts could resort to relevant case law, legislation or dictionaries to define such grounds.

The Law of Interim Release in the Jurisprudence of the International Criminal Tribunals

2008 ◽  
Vol 8 (3) ◽  
pp. 589-626 ◽  
Author(s):  
Clemens Müller
Keyword(s):  
International Criminal ◽  
Case Law ◽  
The Other ◽  
Presumption Of Innocence ◽  
Criminal Proceedings ◽  
International Criminal Tribunals ◽  
Depth Study ◽  
Rules Of Procedure ◽  
The Law ◽  
The Right

AbstractThe right of interim release during trial is an international recognized fundamental right of the accused which is deduced from the presumption of innocence. Although the ICTY has shifted to a more liberal practice, the other tribunals and the ICC are still applying the law of interim release in a restrictive manner. Decisions on interim release are not guided by clearly decisive factors to be applicable for every single accused in each case. Rather an examination of the particular facts of the case and the personality or character of the accused, surrounded by a framework of requirements set forth in the Rules of Procedure and Evidence, determine the practice on interim release. The way international criminal tribunals apply the law of interim release is, like international criminal proceedings as such, of a design sui generis. This article summarises the case-law concerning interim release at the international criminal tribunals. It gives an in-depth study on the requirements set forth in the Rules of Procedure and Evidence which the accused must fulfil to be provisional released.

Right of Residence

2019 ◽  
pp. 113-187
Author(s):  
Elspeth Guild ◽  
Steve Peers ◽  
Jonathan Tomkin
Keyword(s):  
Member State ◽  
Case Law ◽  
The Other ◽  
Free Movement ◽  
Equal Treatment ◽  
Social Benefits ◽  
The One ◽  
The Right ◽  
The Relationship

This chapter details the right of residence provided for in the citizens’ Directive. The citizens’ Directive regulates and gives detailed expression to the right of free movement and residence conferred by the Treaties on Union citizens. At its simplest, the Directive regulates residence on the basis of the intended duration of a stay in another Member State. The chapter then evaluates case law which concerns the relationship between the right to equal treatment, on the one hand, and the right of residence, on the other, and whether mobile Union citizens could rely on the principle of equality as a basis for claiming a right to access social benefits and maintaining a right to reside in a host Member State.

A Case-Law Study of the Truth as Human Right

Global Jurist ◽  
2016 ◽  
Vol 16 (1) ◽  
Author(s):  
Luis Castillo-Córdova ◽  
Susana Mosquera-Monelos
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Focus Attention ◽  
Human Right ◽  
Human Rights Protection ◽  
Rights Protection ◽  
International Recognition ◽  
Human Good ◽  
The Law ◽  
The Right

AbstractWe consider the right to the truth an essential human right that should be recognized and guaranteed by the Law. Allowing all humans access to the truth is a human good permitting the achievement of a higher degree of human perfection and realization and, consequently, there are strong reasons to affirm that the Law should recognize and guarantee as much as possible access to the truth. Considering that it has been the international recognition of the right to the truth which has provided the basis for domestic regulations it is logical that we should focus attention on the international sphere of human rights protection and it is for this reason that we have carried out a case-law method investigation to describe the concept of “the right to the truth”.

scholarly journals Gwarancje proceduralne na wypadek wydalenia cudzoziemca w systemie Europejskiej konwencji praw człowieka

2019 ◽  
pp. 61-96
Author(s):  
Rafał Mizerski
Keyword(s):  
Competent Authority ◽  
Case Law ◽  
The Other ◽  
European Convention ◽  
Legal Assistance ◽  
Legal Basis ◽  
Irreversible Damage ◽  
Right To Information ◽  
The Right

The author discusses the legal basis, the cope of application, the content and the concurrence of procedural guarantees in the event of an expulsion of an alien under the European Convention. These guarantees stem from Article 1 of Protocol No. 7, Article 4 of Protocol No. 4, Articles 13 and 34 of the Convention as well as from the concepts of positive obligations and tests of legality and necessity, developed in the case law of the Strasbourg Court. Guarantees under Article 1 of Protocol No. 7 and Article 4 of Protocol No. 4 are the only ones that are applicable regardless of whether an expulsion results in the violation of an alien’s rights or the limitation of the freedoms arising from the Convention. Moreover, they do not apply to extradition proceedings, whereas the other guarantees do. However, in the context of the guarantees resulting from Article 13 of the Convention and the concepts of positive obligations as well as the tests of legality and necessity, a common standard of procedural requirements in an event of an expulsion of an alien seems to have emerged. It includes the alien’s right to information on the specifi c reasons for expulsion; available remedies and a possibility of obtaining legal assistance; the right to submit arguments against expulsion; the right to be represented; the right to have the case reviewed; the right to an independent and impartial authority competent to decide in the case. In the event where an expulsion puts an alien in danger of irreversible damage to his/her rights, the person concerned should have, in addition, access to a remedy with automatic suspensive eff ect. This standard is also quite common to guarantees stemming from Articles 1 of Protocol No. 7 and Article 4 of Protocol No. 4. However, since “competent authority” under Article 1 of Protocol No. 7 need not be the authority with whom the fi nal decision on expulsion rests and because it is possible to expel an alien before the exercise of his/her rights under this Article, the author is of the opinion that the latter should apply only to expulsions that do not threaten conventional rights.

scholarly journals Never Stop Improving?

2012 ◽  
Vol 1 (2) ◽  
pp. 149-167
Author(s):  
Eric M. Biscopink
Keyword(s):  
Property Tax ◽  
Local Property ◽  
Case Law ◽  
The Other ◽  
Property Taxes ◽  
Tax Rates ◽  
State Tax ◽  
Drastic Effect ◽  
Set Up ◽  
The Right

This Comment argues that a co-tenant who improves a concurrent estate without the consent of the other co-tenant should be liable for the increased tax liability caused by the improvement. Part II surveys the current law surrounding concurrent estates, providing background to the common law rules on the various types of co-tenants. This will provide context for the subsequent argument about how property taxes could have a drastic effect on the current face of concurrent estates. The Author will overview property taxes as they relate to local property, delving into the property tax rates, in particular, and how they relate to concurrent estates. In Part III, the Author will discuss the principles of a sound state tax policy, and weigh those principles to determine what are the most important factors in creating a tax. This will illuminate the need for a concrete rule and what that rule should be. Part IV of this Comment will set up the central problem: whether a co-tenant can improve the concurrent estate to the extent that the property tax liability is too great for the other co-tenant, essentially improving the co-tenant out of the property. The problem poses related issues with the well-established case law. If the purpose of not allowing a co-tenant the right to contribution for improvements is to prevent a wealthier co-tenant from ousting his or her other co-tenants, then why can he or she currently do it through a loophole of creating tax liability? However, if the non-improving co-tenant is not liable for the property tax, is the purpose behind the required contribution for necessary costs void? Part V will offer a solution to the tax liability from improvements to concurrent property. The Author will propose to close the gap in the law consistent with the rule for improvements by a co-tenant. The improving co-tenant will be liable for the rise in tax liability for any improvement done without the consent of the non-improver. Ultimately, a co-tenant should not be in danger of being ousted from a concurrent estate by an increase in tax liability due to non-consented improvements to the property owned in joint tenancy. Therefore, the Author proposes the gap in the current law be addressed with the requisite legislation.

scholarly journals Constitutional exceptions of right to speech: Evidence from the apex courts of Pakistan

2021 ◽  
Vol 2 (1) ◽  
pp. 72-84
Author(s):  
Kashif Javed ◽  
Li Jianxin ◽  
Asif Khan
Keyword(s):  
Research Question ◽  
Basic Research ◽  
Freedom Of Speech ◽  
Case Law ◽  
Fundamental Rights ◽  
The Other ◽  
Problem Statement ◽  
Research Article ◽  
Deep Layers ◽  
The Right

Every right is subject to some correlated duty. The Constitution of Pakistan has envisaged certain limitations on the ultimate right to speech. Unqualified fundamental rights ought not to exist in a society. Freedom of speech is known as a pre-condition to all sorts of fundamental rights yet has certain limitations regarding its enjoyment. The restriction on the basic right to speech under the Constitution can be stated as the problem statement of this research. While unveiling the restrictions provided in the Constitution of Pakistan is the basic research question and the research objective is to find out the adequacy of restrictions regarding freedom of speech and draw an inference in the light of case laws. The following article’s qualitative research comprises a case law study that elaborates judicial precedents regarding limitations on freedom of speech. This research article emphasizes that the right of freedom of speech must prevail in all the circumstances, yet the citizens are also accountable and have to face the music otherwise. On the other hand, the court must remain impartial while interpreting the Constitution with the prudent mind in a broader spectrum. The theory of necessity must be buried under the deep layers of earth.

Loyalitätsobliegenheiten und Grundrechte

2021 ◽  
Author(s):  
Kai Morgenbrodt
Keyword(s):  
Case Law ◽  
Fundamental Rights ◽  
Self Determination ◽  
Religious Communities ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Labour Standards ◽  
The Right ◽  
Fair Balance

This thesis analyses dismissals of church employees from a European perspective. Based on ECHR and EU law, the author develops an approach that balances the right of self-determination of religious communities with the fundamental rights of employees. At the heart of this approach sits the function of the employee in the employer’s religious sending. Against this background, the German Constitutional Court’s case law is challenged. It fails to strike a fair balance between the conflicting constitutional interests. Moreover, it structurally fosters discrimination, undercuts the minimum level of human rights protection and offers inadequate solutions for labour standards in religious communities in times of a religiously pluralised society.

The Rhetoric of Rebellion in Hume's Constitutional Thought

2005 ◽  
Vol 67 (2) ◽  
pp. 257-282 ◽  
Author(s):  
Thomas W. Merrill
Keyword(s):  
David Hume ◽  
The Other ◽  
Political Society ◽  
Rhetorical Strategy ◽  
Important Principle ◽  
The People ◽  
History Of ◽  
Constitutional Thought ◽  
The One ◽  
The Right

In hisHistory of England, David Hume suggests that the doctrine of resistance should be concealed from the populace. But this suggestion in the very public location of theHistoryhas the effect of revealing this doctrine as much as concealing it. How should we understand this perplexing rhetorical strategy? Hume's paradoxical rhetoric is a symptom of the problem that the right of rebellion poses for every political society. On the one hand, the right of rebellion undeniably exists; on the other, no regime can recognize that right fully. The problem of rebellion thus reveals the simultaneous necessity and limitations of law. Hume's playful, transparent rhetoric is intended to compel us to reflect upon the deeper tension between liberty and authority in every political society and to furnish us with an example of how that tension might be prudently and honestly handled.At a pivotal moment in theHistory of England, Hume writes: “If ever, on any occasion, it were laudable to hide truth from the populace, it must be confessed, that the doctrine of resistance affords such an example; and that all speculative reasoners ought to observe, with regard to this principle, the same cautious silence which the laws, in every species of government, have ever prescribed to themselves.” On its face, this is a recommendation that the “doctrine of resistance,” perhaps the most important principle of modern liberalism, be kept a secret, hidden away from the people at large.

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