scholarly journals The (Draft) European Charter of the Commons – Between Opportunities and Challenges

2018 ◽  
Vol 16 (2) ◽  
pp. 91-108
Author(s):  
Anna Simonati
Keyword(s):  
Legal Framework ◽  
General Interest ◽  
Strategic Decisions ◽  
Strategic Choices ◽  
Scarce Resources ◽  
The Public ◽  
Starting Point ◽  
The Commons ◽  
The Right ◽  
Open Issues

The concept of ownership, which (in Italy and similarly in other European systems) is still essentially based on private law rules, is currently not sufficient to ensure the satisfaction of the general interest in an increasingly wide access to scarce resources, in the perspective of equality and fairness on the field. At the same time, strong criticism has been expressed about the frequent phenomenon of privatisation of originally public assets and resources. The threats to the pursuit of the public benefit posed by privatisation may be tackled by constructing a new legal framework, aimed to protect the right of the populations to be involved not only in the use, but also in the management of the commons. An expression of this idea is the draft European Charter of the Commons, which is the result of a collective brain-storming by a group of scholars rather than a source of law. Its non-normative nature has allowed its authors to express particularly ‘brave’ positions. This article takes the Charter as a starting point to focus on some open issues. The main proposal concerns the possible exploitation of new participatory models for the involvement of communities of users in the strategic decisions on the management of the commons. In such perspective, a brief reference to the Italian legal system is made. In Italy, there are no systemic rules about the commons, but some procedures to involve the interested local communities in the strategic choices have been experimented, which can serve as an illustration also for otherEU countries.

Realising immigration as a human right: public justification and cosmopolitan solidarity

2021 ◽  
pp. 136843102098713
Author(s):  
David Martínez ◽  
Alexander Elliott
Keyword(s):  
Public Sphere ◽  
Social Theory ◽  
Public Justification ◽  
Human Right ◽  
National State ◽  
The Public ◽  
Starting Point ◽  
Legal Structures ◽  
The Right ◽  
Normative Justification

According to David Miller, immigration is not a human right. Conversely, Kieran Oberman makes a case for immigration as a human right. We agree with the latter view, but we show that its starting point is mistaken. Indeed, both Miller and Oberman discuss the right to immigration within the liberal paradigm: it is a right or not depending on the correct balance between the interests of the citizens of a given national state and the interests of the immigrants. Instead, we claim that public justification can underpin immigration as a human right. That said, the public justification of the right to immigration has several counterarguments to rebut. Before we deal with that issue, relying on Jürgen Habermas’s social theory, we examine the legal structures that could support the right to immigration in practice. To be sure, this does not provide the normative justification needed, instead it shows the framework that allows the institutional realization of this right. Then, through a combination of civic and cosmopolitan forms of solidarity, the article discusses the formation of a public sphere, which could provide the justification of the right to immigration.

Article 17 CFR

2019 ◽  
Author(s):  
Tobias Lock
Keyword(s):  
Public Interest ◽  
Good Time ◽  
General Interest ◽  
The Public ◽  
Fair Compensation ◽  
The Right

Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest.

scholarly journals CONSTITUTIONALISM AND JUDICIALIZATION OF POLITICS: THE “JUDICIAL” RIGHT TO HEALTHCARE IN BRAZIL

2015 ◽  
Vol 3 (3-4) ◽  
pp. 358-393
Author(s):  
Bruno Irion Coletto ◽  
Pedro Da Silva Moreira
Keyword(s):  
Public Policy ◽  
Public Policies ◽  
Public Debate ◽  
The State ◽  
Fundamental Rights ◽  
Scarce Resources ◽  
The Public ◽  
Critical Understanding ◽  
The Right ◽  
The Way

The right to healthcare in Brazil is seriously protected by the courts. Judicialization of everyday implementation of this public policy is a fact. One explanation may be provided by the way judges understand the effectiveness of this right. People hold subjective right to individualized healthcare benefits, and so they hold standing to sue the state in order to achieve it, regardless any consideration of public policies. Through an analysis of the jurisprudence on this issue, this paper aims to provide a critical understanding not just about what is actually happening in Brazilian courts regarding healthcare, but also to criticize it. The conclusion is that a “strong” conception of constitutionalism and fundamental rights may revel itself as “weak,” from the standpoint of general equality. Judicialization ends up empting the public debate, leading the task of solving the distribution of scarce resources to a “gowned aristocracy.” 

Universal Health Services

2013 ◽  
Vol 11 (3) ◽  
pp. 687-708 ◽  
Author(s):  
Aljaž Rogelj ◽  
Boštjan Brezovnik
Keyword(s):  
Health Service ◽  
Health Services ◽  
Legal Framework ◽  
General Interest ◽  
The European Union ◽  
Service Creation ◽  
Legislative Framework ◽  
The Right ◽  
Legal Guidelines ◽  
Universal Health

All EU nationals have the right to health services that are affordable for everyone under the same conditions. Sector-specific regulations provide that health services are services of general interest that must be implemented through a national legal framework. The state must design the universal health services in a way that respects the principle of public health service affordability for all citizens. In the study, we focused on understanding the legal framework which serves as foundation the regulating universal health services in Slovenia, sector-specific regulations and other acts, and tried to assess the strengths and weaknesses of the Slovenian legal framework. Our efforts have been directed towards studying the legislative framework of the European Union and defining the legal guidelines that establish the legal framework for universal health service creation.

How Arbitrary Was Tsarist Administrative Justice? The Case of the Zemstvos Petitions to the Imperial Ruling Senate, 1866–1916

2006 ◽  
Vol 24 (1) ◽  
pp. 1-43
Author(s):  
Natasha Assa
Keyword(s):  
Fundamental Principle ◽  
Legal Framework ◽  
The State ◽  
Government Officials ◽  
Public And Private ◽  
Administrative Litigation ◽  
The Public ◽  
Administrative Power ◽  
The Right ◽  
Administrative Justice

One of the key principles of the modern legal state (Rechtsstaat) is the right of all citizens to seek judicial protection against unlawful acts of government officials. It stems from the fundamental principle of the rule of law that asserts that all citizens, including state officials, are equal before the law and have the right to a fair trial. Within this legal framework a distinct field of law, “administrative justice,” governs public litigation against state officials. Its domain of jurisdiction reflects complex philosophical and legal distinctions between the public and private spheres in the modern state. As legal scholars and philosophers continuously redefine the boundary between the public and private spheres, the prerogatives of government officials over the rights of private citizens continue to evolve. The key questions in the debate are as follows. Should the state guarantee an undisputed precedence of citizens’ rights over administration or should it protect its officials from widespread litigation and therefore grant them a certain degree of immunity? Should ordinary courts and laws decide disputes between government officials and private individuals, or should the state provide separate norms, judges, and procedures for administrative litigation? Should punishment for misuse of administrative power be equal to that of the breach of civil or criminal laws? Who and to what extent should be made liable for any damages incurred through misuse of administrative power?

scholarly journals Conclusion

2020 ◽  
pp. 155-168
Author(s):  
Antonios Broumas
Keyword(s):  
Social Research ◽  
Freedom Of Expression ◽  
Legal Framework ◽  
Peer Production ◽  
The Public ◽  
Common Space ◽  
The Social ◽  
The Commons ◽  
Moral Dimensions ◽  
Intellectual Commons

The intellectual commons exhibit propensities with a positive potential for society, bearing ethical substance but are in need of protection and advancement under the auspices of law. Theories of the intellectual commons provide substantial justifications for the promotion of commons-oriented institutions in contemporary societies. In this chapter the author details afresh the tendencies, manifestations and moral dimensions of the intellectual commons and how the social research in this book provides empirical evidence about the existence of distinct sequences and circuits of social value circulating. This leads directly to the justification of an Intellectual Commons Law. What might be the fundamentals of such a new body of law? The crucial first step, it is argued, would be the reconstitution of the public domain as a common space of sharing, collaboration, innovation, and freedom of expression through policies for its protection, expansion and enrichment. Secondly, a commons-oriented legal framework ought to unconditionally recognise and protect the creative practices within commons-based peer production and guarantee the characteristics of societal constitutionalism encountered in intellectual commons communities. Finally, commons-oriented legal institutions ought to introduce sets of extensive rights to access, work upon and transform information, knowledge and culture for non-commercial purposes. The chapter concludes with recommendations for future legal research focusing on particular fields within commons-oriented policymaking reimagining the commons-based elements already present within intellectual property law proposing their reconstruction in a novel and systematic way into an independent commons-oriented body of law.

scholarly journals Contract for Work (locatio conductio operis) of Transportation and Rustic Praedial Servitude of Way (servitus viae) as Roman Law Institutions for Needs of Rural Logistics

2021 ◽  
Vol 3 (21) ◽  
pp. 234-243
Author(s):  
Allars Apsītis ◽  
Dace Tarasova ◽  
Jolanta Dinsberga ◽  
Jānis Joksts
Keyword(s):  
Rural Areas ◽  
Agricultural Production ◽  
Legal Framework ◽  
Roman Law ◽  
Effective Solution ◽  
Transportation Services ◽  
The Public ◽  
The Road ◽  
Public Road ◽  
The Right

The article deals with the results of the authors’ research performed on original sources of Roman Law with reference to legal constructions concerning various types of logistics challenges related to agricultural production and residence in rural areas. Provision of transportation services was regulated by means of a contract for work (locatio conductio operis) – an agreement according to which a contractor / employee as a lessee (conductor, redemptor operis) had obligations to fulfil services or certain work on or from the material supplied by the commissioning party / employer / lessor (locator). An agreement on transportation of goods or passengers was also considered to be a contract for work. A smart answer to infrastructure challenges was the so-called rustic praedial servitudes (servitutes praediorum rusticorum), including a servitude of way / road (via), which granted the owner of a parcel of land non-adjacent to a public road (via publica) the right to use the road over a parcel of land belonging to another owner, thus gaining access to the public road. The legal framework of a Roman contract for work of transportation and the rustic praedial servitude of way / road must be recognised as a rather effective solution for challenges of rural logistics at the time. Keywords: contract for work of transportation, servitude of way, Roman Law, rural logistics.

scholarly journals Repensando las políticas de privatización en educación: El cercamiento de la escuela

2016 ◽  
Vol 24 ◽  
pp. 123 ◽  
Author(s):  
Noelia Fernández-González
Keyword(s):  
Land Rights ◽  
Reform Process ◽  
State Reform ◽  
Fourth Section ◽  
Autonomous Region ◽  
The Public ◽  
Starting Point ◽  
Communal Land ◽  
The Commons ◽  
Current Context

This article aims to introduce the concept of enclosure as a category to think about privatization policies in education. The concept of enclosure refers to the process by which communal land rights and uses were removed between the 14th and 18th centuries, making possible the passage from feudalism to capitalism. Nowadays, a discourse named as a “commons paradigm” (Bollier, 2007) exposes privatization dynamics as a contemporary movement of enclosure. This paradigm stablishes an analogy between the enclosures that made possible the primitive accumulation and the contemporary dynamics of privatization. In this text, privatization policies in education are analyzed as a movement of enclosure in the school. The text is divided into four sections. Firstly, it analyzes the state-reform process in the current context of globalization and the blurring of boundaries between the public and the private. Secondly, it focuses in the “commons paradigm”, followed by its critics in the next section. The fourth section reflects on the enclosure of the school taking as starting point previous research about privatization policies introduced in Spain and particularly in the Autonomous Region of Madrid.

scholarly journals The Legal Framework and Barriers to Access to Environmental Information in Ethiopia

2021 ◽  
Vol 15 (1) ◽  
pp. 139-172
Author(s):  
Abdulkader Mohammed Yusuf
Keyword(s):  
Legal Framework ◽  
Vital Role ◽  
Environmental Information ◽  
Access To Information ◽  
Multilateral Environmental Agreements ◽  
The Public ◽  
Barriers To Access ◽  
Constitutional Right ◽  
The Right ◽  
Right Of Access

Information plays a vital role, both in terms of its importance for a democratic order and as a prerequisite for public participation. Many countries have made provisions for access to information in their respective constitutions. The FDRE Constitution explicitly provides that everyone has the right to seek and receive information. The Freedom of Mass Media and Access to Information Proclamation –which entered into force in 2008– gives effect to this Constitutional guarantee. Moreover, the number of laws on different environmental issues is on the rise, and the same could be said of the multilateral environmental agreements that Ethiopia has ratified. Many of the laws incorporate the right of the public to access environmental information held by public bodies. Despite the existing legal framework, there are still notable barriers to access to environmental information. By analyzing the relevant laws, the aim of this article is to contribute to the dialogue on the constitutional right of access to information with particular emphasis on the legal framework on, and the barriers to, access to environmental information within the meaning of Principle 10 of the Rio Declaration.

scholarly journals The Legal Framework for the Promotion and Protection of Human Rights in Cameroon by Non-Governmental Organisations

2021 ◽  
Vol 24 (1) ◽  
pp. 29-45
Author(s):  
Alvine Longla Boma
Keyword(s):  
Human Rights ◽  
Civil Society ◽  
Legal Framework ◽  
The State ◽  
African Countries ◽  
Public Authorities ◽  
The Public ◽  
Civil Society Organisations ◽  
Protection Of Human Rights ◽  
The Right

Civil Society organisations play key roles in African countries. This is not an exception in the Cameroonian dispensation. Indeed, the existence and operation of civil societies in this jurisdiction is legitimated by a 1990 law allowing the free formation of associations. Even though the state has the primary obligation to promote and protect human rights, there also exists a plethora of associations with the same interest. This paper is motivated by the state’s wanton failure in ensuring the enjoyment and fulfilment of the right. For one thing, the state has maintained a stronghold on the Civil Society through legislation which gives public authorities a leverage over human rights defenders. Moreover, an analysis of existing legal and institutional frameworks available to allow human rights non-governmental organisations thrive, leaves much to be desired. Findings reveal that though there are adequate laws and institutions which ensure the creation and functioning of Civil Society organisations in Cameroon, there are also contradictory laws which give the public authority an edge over these organisations and allow them to sanction the activities of some human rights defenders under the guise of maintaining public order. We argue that there should be adequate protection offered to human rights defenders as well as the relaxation of laws permitting public authorities to illegally sanction the activities of relevant non-governmental organisations.

Sign in / Sign up

Export Citation Format

Share Document