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Article

Access_open Can Non-discrimination Law Change Hearts and Minds?

Journal Erasmus Law Review, Issue 3 2020
Keywords law and society, social change, discrimination, non-discrimination law, positive action
Authors Anita Böcker
AbstractAuthor's information

    A question that has preoccupied sociolegal scholars for ages is whether law can change ‘hearts and minds’. This article explores whether non-discrimination law can create social change, and, more particularly, whether it can change attitudes and beliefs as well as external behaviour. The first part examines how sociolegal scholars have theorised about the possibility and desirability of using law as an instrument of social change. The second part discusses the findings of empirical research on the social working of various types of non-discrimination law. What conclusions can be drawn about the ability of non-discrimination law to create social change? What factors influence this ability? And can non-discrimination law change people’s hearts and minds as well as their behaviour? The research literature does not provide an unequivocal answer to the latter question. However, the overall picture emerging from the sociolegal literature is that law is generally more likely to bring about changes in external behaviour and that it can influence attitudes and beliefs only indirectly, by altering the situations in which attitudes and opinions are formed.


Anita Böcker
Anita Böcker is associate professor of Sociology of Law at Radboud University, Nijmegen.
Article

Access_open Positive State Obligations under European Law: A Tool for Achieving Substantive Equality for Sexual Minorities in Europe

Journal Erasmus Law Review, Issue 3 2020
Keywords Positive obligations, sexual minorities, sexual orientation, European law, human rights
Authors Alina Tryfonidou
AbstractAuthor's information

    This article seeks to examine the development of positive obligations under European law in the specific context of the rights of sexual minorities. It is clear that the law should respect and protect all sexualities and diverse intimate relationships without discrimination, and for this purpose it needs to ensure that sexual minorities can not only be free from state interference when expressing their sexuality in private, but that they should be given the right to express their sexuality in public and to have their intimate relationships legally recognised. In addition, sexual minorities should be protected from the actions of other individuals, when these violate their legal and fundamental human rights. Accordingly, in addition to negative obligations, European law must impose positive obligations towards sexual minorities in order to achieve substantive equality for them. The article explains that, to date, European law has imposed a number of such positive obligations; nonetheless, there is definitely scope for more. It is suggested that European law should not wait for hearts and minds to change before imposing additional positive obligations, especially since this gives the impression that the EU and the European Court of Human Rights (ECtHR) are condoning or disregarding persistent discrimination against sexual minorities.


Alina Tryfonidou
Alina Tryfonidou is Professor of Law, University of Reading.
Article

Access_open A Positive State Obligation to Counter Dehumanisation under International Human Rights Law

Journal Erasmus Law Review, Issue 3 2020
Keywords Dehumanisation, International Human Rights Law, Positive State obligations, Framework Convention for the Protection of National Minorities, International Convention on the Elimination of all forms of Racial Discrimination
Authors Stephanie Eleanor Berry
AbstractAuthor's information

    International human rights law (IHRL) was established in the aftermath of the Second World War to prevent a reoccurrence of the atrocities committed in the name of fascism. Central to this aim was the recognition that out-groups are particularly vulnerable to rights violations committed by the in-group. Yet, it is increasingly apparent that out-groups are still subject to a wide range of rights violations, including those associated with mass atrocities. These rights violations are facilitated by the dehumanisation of the out-group by the in-group. Consequently, this article argues that the creation of IHRL treaties and corresponding monitoring mechanisms should be viewed as the first step towards protecting out-groups from human rights violations. By adopting the lens of dehumanisation, this article demonstrates that if IHRL is to achieve its purpose, IHRL monitoring mechanisms must recognise the connection between dehumanisation and rights violations and develop a positive State obligation to counter dehumanisation. The four treaties explored in this article, the European Convention on Human Rights, the International Covenant on Civil and Political Rights, the Framework Convention for the Protection of National Minorities and the International Convention on the Elimination of all forms of Racial Discrimination, all establish positive State obligations to prevent hate speech and to foster tolerant societies. These obligations should, in theory, allow IHRL monitoring mechanisms to address dehumanisation. However, their interpretation of the positive State obligation to foster tolerant societies does not go far enough to counter unconscious dehumanisation and requires more detailed elaboration.


Stephanie Eleanor Berry
Stephanie Eleanor Berry is Senior Lecturer in International Human Rights Law, University of Sussex.

Kristin Henrard
Kristin Henrard is Professor International Human Rights and Minorities, Erasmus School of Law, Rotterdam, the Netherlands.
Article

Access_open The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000: Proposals for Legislative Reform to Promote Equality through Schools and the Education System

Journal Erasmus Law Review, Issue 3 2020
Keywords Transformative pedagogy, equality legislation, promotion of equality, law reform, using law to change hearts and minds
Authors Anton Kok, Lwando Xaso, Annalize Steenekamp e.a.
AbstractAuthor's information

    In this article, we focus on how the education system can be used to promote equality in the context of changing people’s hearts and minds – values, morals and mindsets. The duties contained in the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (‘Equality Act’) bind private and public schools, educators, learners, governing bodies and the state. The Equality Act calls on the state and all persons to promote substantive equality, but the relevant sections in the Equality Act have not been given effect yet, and are therefore currently not enforceable. We set out how the duty to promote equality should be concretised in the Equality Act to inter alia use the education system to promote equality in schools; in other words, how should an enforceable duty to promote equality in schools be fashioned in terms of the Equality Act. Should the relevant sections relating to the promotion of equality come into effect in their current form, enforcement of the promotion of equality will take the form of obliging schools to draft action plans and submit these to the South African Human Rights Commission. We deem this approach inadequate and therefore propose certain amendments to the Equality Act to allow for a more sensible monitoring of schools’ duty to promote equality. We explain how the duty to promote equality should then play out practically in the classroom to facilitate a change in learners’ hearts and minds.


Anton Kok
Anton Kok is Professor of Jurisprudence at the Faculty of Law of the University of Pretoria.

Lwando Xaso
Lwando Xaso is an independent lawyer, writer and historian.

Annalize Steenekamp
Annalize Steenekamp, LLM, is a Multidisciplinary Human Rights graduate from the University of Pretoria.

Michelle Oelofse
Michelle Oelofse is an Academic associate and LLM candidate at the University of Pretoria.
Annual lecture

Access_open The indecent demands of accountability: trauma, marginalisation, and moral agency in youth restorative conferencing

Journal The International Journal of Restorative Justice, Issue 2 2020
Keywords Restorative justice, youth offenders, trauma, marginalisation, offender accountability
Authors William R. Wood
AbstractAuthor's information

    In this article I explore the concept of accountability for young people in youth restorative conferencing. Definitions of accountability in research and programme literature demonstrate significant variation between expectations of young people to admit harms, make amends, address the causes of their offending, and desist from future offending. Such variation is problematic in terms of aligning conferencing goals with accountability expectations. I first draw from research that suggests appeals to normative frameworks such as accountability may not be useful for some young people with significant histories of victimisation, abuse, neglect, and trauma. I then examine problems in accountability for young people that are highly marginalised or ‘redundant’ in terms of systemic exclusion from economic and social forms of capital. These two issues – trauma on the micro level and social marginalisation on the macro level – suggest problems of getting to accountability for some young people. I also argue trauma and social marginalisation present specific problems for thinking about young offenders as ‘moral subjects’ and conferencing as an effective mechanism of moralising social control. I conclude by suggesting a clear distinction between accountability and responsibility is necessary to disentangle the conflation of misdeeds from the acute social, psychological, and developmental needs of some young offenders.


William R. Wood
William R. Wood is a Senior Lecturer, School of Criminology and Criminal Justice, Griffith University, Brisbane, Australia. The manuscript is a revision of the author’s presentation of the Annual Lecture for the International Journal of Restorative Justice, Australian and New Zealand Society of Criminology Conference (ANZSOC), Perth, Australia, 14 December 2019. Contact author: w.wood@griffith.edu.au.
Article

Access_open What does it mean to be ‘illiberal’?

Journal Netherlands Journal of Legal Philosophy, Issue Pre-publications 2020
Keywords Liberalism, Illiberalism, Illiberal practices, Extremism, Discrimination
Authors Bouke de Vries
AbstractAuthor's information

    ‘Illiberal’ is an adjective that is commonly used by scholars. For example, they might speak of ‘illiberal cultures’, ‘illiberal groups’, ‘illiberal states’, ‘illiberal democracies’, ‘illiberal beliefs’, and ‘illiberal practices’. Yet despite its widespread usage, no in-depth discussions exist of exactly what it means for someone or something to be illiberal, or might mean. This article fills this lacuna by providing a conceptual analysis of the term ‘illiberal practices’, which I argue is basic in that other bearers of the property of being illiberal can be understood by reference to it. Specifically, I identify five ways in which a practice can be illiberal based on the different ways in which this term is employed within both scholarly and political discourses. The main value of this disaggregation lies in the fact that it helps to prevent confusions that arise when people use the adjective ‘illiberal’ in different ways, as is not uncommon.


Bouke de Vries
Bouke de Vries is a postdoctoral research fellow at Umeå University and the KU Leuven.
Article

From victim blaming to reintegrative shaming

the continuing relevance of Crime, shame and reintegration in the era of #MeToo

Journal The International Journal of Restorative Justice, Issue 1 2020
Authors Shadd Maruna and Brunilda Pali
Author's information

Shadd Maruna
Shadd Maruna is Professor in the School of Social Sciences, Education and Social Work, Queen’s University Belfast, Northern Ireland.

Brunilda Pali
Brunilda Pali is Senior Researcher in the Leuven Institute of Criminology, Catholic University of Leuven, Belgium.
Article

Deliberation Out of the Laboratory into Democracy

Quasi-Experimental Research on Deliberative Opinions in Antwerp’s Participatory Budgeting

Journal Politics of the Low Countries, Issue 1 2020
Keywords Deliberative democracy, mini-publics, participatory budget, social learning, deliberative opinions
Authors Thibaut Renson
AbstractAuthor's information

    The theoretical assumptions of deliberative democracy are increasingly embraced by policymakers investing in local practices, while the empirical verifications are often not on an equal footing. One such assertion concerns the stimulus of social learning among participants of civic democratic deliberation. Through the use of pre-test/post-test panel data, it is tested whether participation in mini-publics stimulates the cognitive and attitudinal indicators of social learning. The main contribution of this work lies in the choice of matching this quasi-experimental set-up with a natural design. This study explores social learning across deliberation through which local policymakers invite their citizens to participate in actual policymaking. This analysis on the District of Antwerp’s participatory budgeting demonstrates stronger social learning in real-world policymaking. These results inform a richer theory on the impacts of deliberation, as well as better use of limited resources for local (participatory) policymaking.


Thibaut Renson
Thibaut Renson is, inspired by the 2008 Obama campaign, educated as a Political Scientist (Ma EU Studies, Ghent University) and Political Philosopher (Ma Global Ethics and Human Values, King’s College London). Landed back at the Ghentian Centre for Local Politics to do empirical research. Driven by the moral importance of social learning (vs. political consumerism) in democracy, exploring the empirical instrumentality of deliberation.
Article

Gender Neutrality in EU Legislative Drafting

Journal European Journal of Law Reform, Issue 1 2020
Keywords legislative drafting, EU legislation, EU treaties, multilingualism, gender neutrality
Authors William Robinson
AbstractAuthor's information

    In the English-speaking world the issue of gender-neutral drafting in legislation has been a much discussed topic for many years, and there are few legislative drafting manuals in the English-speaking world that do not address the issue.
    The EU and its institutions also attach great importance to gender issues, as is shown by the solemn commitments in EU texts to gender equality, by the establishment at the EU level of bodies or committees to focus on those issues, and by the EU actions and policies that seek to address them. But the issue of gender-neutral drafting in legislation is not even mentioned in the guidance drawn up by the legislative drafting experts of the EU institutions.
    This contribution, therefore, looks at how gender issues are dealt with in practice in the EU Treaties and in EU legislation. It finds signs of a traditional approach that is beginning to evolve but only slowly and somewhat unevenly.
    The contribution considers some of the reasons behind the approach taken by the EU institutions to gender neutrality in drafting and the impact of the important EU principles of multilingualism and multiculturalism before seeking to draw some conclusions.


William Robinson
Associate Research Fellow at the Institute of Advanced Legal Studies in London; formerly a coordinator in the Quality of Legislation Team of the European Commission Legal Service.
Human Rights Literature Reviews

Estonia

Journal East European Yearbook on Human Rights, Issue 1 2019
Authors Ingrid Kauler LLM
Author's information

Ingrid Kauler LLM
LLM (Advanced) on European and International Human Rights Law, Leiden University; Lawyer; Lecturer on EU Law, Tallinn University School of Governance, Law and Society; Study and Program Administrator for Master’s programmes in Law, Faculty of Law, Economics and Finance, University of Luxembourg.
Human Rights Practice Reviews

Albania

Journal East European Yearbook on Human Rights, Issue 1 2019
Authors Anisia Mandro LLM
Author's information

Anisia Mandro LLM
Anisia Mandro (European Union Law - LLM), Legal Researcher and Legal Adviser in the area of competition law, data protection, and human rights; Consultant in approximation of national legislation with EU acquis Communautaire.
Article

Notes from the United States on Diversity in ADR (Opinion)

Journal Corporate Mediation Journal, Issue 1-2 2019
Keywords mediation, dispute resolution, diversity, United States
Authors Judith Meyer
AbstractAuthor's information

    Often being ‘the only woman in the room’, in this opinion Judith Meyer describes her concern about the underrepresentation of women, persons with disabilities, diverse neutrals and other minorities as professionals in alternative dispute resolution.


Judith Meyer
Judith Meyer is mediator and arbitrator in Haverford, Pennsylvania and an adjunct professor of negotiation and mediation at Cornell Law School.
Article

Access_open Right to Access Information as a Collective-Based Approach to the GDPR’s Right to Explanation in European Law

Journal Erasmus Law Review, Issue 3 2018
Keywords automated decision-making, right to access information, right to explanation, prohibition on discrimination, public information
Authors Joanna Mazur
AbstractAuthor's information

    This article presents a perspective which focuses on the right to access information as a mean to ensure a non-discriminatory character of algorithms by providing an alternative to the right to explanation implemented in the General Data Protection Regulation (GDPR). I adopt the evidence-based assumption that automated decision-making technologies have an inherent discriminatory potential. The example of a regulatory means which to a certain extent addresses this problem is the approach based on privacy protection in regard to the right to explanation. The Articles 13-15 and 22 of the GDPR provide individual users with certain rights referring to the automated decision-making technologies. However, the right to explanation not only may have a very limited impact, but it also focuses on individuals thus overlooking potentially discriminated groups. Because of this, the article offers an alternative approach on the basis of the right to access information. It explores the possibility of using this right as a tool to receive information on the algorithms determining automated decision-making solutions. Tracking an evolution of the interpretation of Article 10 of the Convention for the Protection of Human Right and Fundamental Freedoms in the relevant case law aims to illustrate how the right to access information may become a collective-based approach towards the right to explanation. I consider both, the potential of this approach, such as its more collective character e.g. due to the unique role played by the media and NGOs in enforcing the right to access information, as well as its limitations.


Joanna Mazur
Joanna Mazur, M.A., PhD student, Faculty of Law and Administration, Uniwersytet Warszawski.
Human Rights Practice Review

Croatia

Journal East European Yearbook on Human Rights, Issue 1 2018
Authors Maša Marochini Zrinski PhD
Author's information

Maša Marochini Zrinski PhD
PhD, assistant professor at the Department for Theory of Law and State, Philosophy of Law, Human Rights and Public Policy, Faculty of Law, University of Rijeka.
Article

The Architecture of American Rights Protections

Texts, Concepts and Institutions

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords American constitutional development, American legal history, Architecture, Bill of Rights, Congress, constitutional interpretation, constitutionalism, discrimination, due process, equal protection, equality, institutions, statutes, U.S. Constitution, 14th Amendment
Authors Howard Schweber
AbstractAuthor's information

    This article examines the architecture of American rights protections. The term ‘architecture’ is used to convey the sense of a structure system with points of entry, channels of proceeding, and different end points. This structural understanding is applied to the historical development of national rights protections in the United States in three senses: textual, conceptual and institutional. The development of these three structured systems – architectures – of rights reveals dimensions of the strengths, limitations and distinctive character of the American rights protections in theory and in practice.


Howard Schweber
Professor of Political Science and affiliate faculty member of the Law School, Legal Studies, and Integrated Liberal Studies at University of Wisconsin-Madison. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.
Article

Access_open Personhood and legal status: reflections on the democratic rights of corporations

Journal Netherlands Journal of Legal Philosophy, Issue 1 2018
Keywords Corporations, democracy, legal personality, personhood, inclusion
Authors Ludvig Beckman
AbstractAuthor's information

    Corporations can have rights but whether they should also have democratic rights depends among other things on whether they are the kind of entities to which the democratic ideal applies. This paper distinguishes four different conceptions of “the person” that can have democratic rights. According to one view, the only necessary condition is legal personality, whereas according to the other three views, democratic inclusion is conditioned also by personhood in the natural sense of the term. Though it is uncontroversial that corporations can be legal persons, it is plausible to ascribe personhood in the natural sense to corporations only if personhood is conceptualized exclusively in terms of moral agency. The conclusion of the paper is that corporations can meet the necessary conditions for democratic inclusion but that it is not yet clear in democratic theory exactly what these conditions are.


Ludvig Beckman
Ludvig Beckman is professor of political science at Stockholm University.
Article

Promoting Legislative Objectives Throughout Diverse Sub-National Jurisdictions

Journal European Journal of Law Reform, Issue 1 2018
Keywords devolution, informal jurisdiction, rule of law, disparate impacts, participatory problem-solving, intransitive law, legislative standardization
Authors Lorna Seitz
AbstractAuthor's information

    This article outlines an approach, derived from Ann and Robert Seidman’s Institutionalist Legislative Drafting Theory and Methodology (ILTAM), for drafting laws and developing implementing policies and programmes to realize legislative objectives and promote necessary behavioural change throughout a jurisdiction despite significant sub-jurisdictional socio-economic differences. ILTAM can serve as a powerful tool for catalysing the development of situationally appropriate programmes to initiate and sustain behavioural change in furtherance of legislative objectives. The article begins by discussing the movement towards legislative standardization, and its benefits and failings. It then introduces the concept of informal jurisdictions, and highlights modifications to ILTAM that improve the methodology’s efficacy in devising solutions that work in those jurisdictions. The article then describes the power of intransitive law as a mechanism for catalysing progress towards shared objectives in a manner that allows for localized approaches, promotes governmental responsiveness, brings innovation, and maximizes participatory governance. Lastly, it describes the importance that Ann and Robert Seidman placed on institutionalizing on-going monitoring, evaluation and learning processes; and describes how intransitive drafting techniques can focus implementation on motivating behavioural change while systematically identifying needed policy and law reforms in response to suboptimal legislative outcomes.


Lorna Seitz
The Legis Institute. Seitz earned her JD from Boston University (BU), where she served as Editor-in-Chief of Professor Seidman’s Legislative Clinics. After graduating, Seitz served as the Director of the BU/ICLAD Legislative Distance Drafting Program for several years, taught in the BU Legislative Clinics (and overseas) alongside Professor Seidman, and served as principal for the International Consortium for Law and Development (a non-profit co-founded by the Seidmans) from 2004-2014. Seitz co-founded The Legis Institute to realize the combined potential of ILTAM and 21st Century technology to overcome barriers to inclusive, responsive, evidence-based policy and law development and governance.
Article

Access_open The Right to Same-Sex Marriage: Assessing the European Court of Human Rights’ Consensus-Based Analysis in Recent Judgments Concerning Equal Marriage Rights

Journal Erasmus Law Review, Issue 3 2017
Keywords same-sex marriage, gay marriage, European consensus, margin of appreciation, consensus-based analysis by the ECtHR
Authors Masuma Shahid
AbstractAuthor's information

    This contribution assesses the consensus-based analysis and reasoning of the European Court of Human Rights in recent judgments concerning equal marriage rights and compares it to the Court’s past jurisprudence on European consensus and the margin of appreciation awarded to Member States regarding the issue of equal marriage rights. The contribution aims to analyse whether there is a parallel to be seen between the rapid global trend of legalisation of same-sex marriage and the development or evolution of the case law of the ECtHR on the same topic. Furthermore, it demonstrates that the Court’s consensus-based analysis is problematic for several reasons and provides possible alternative approaches to the balancing of the Court between, on the one hand, protecting rights of minorities (in this case same-sex couples invoking equal marriage rights) under the European Convention on Human Rights and, on the other hand, maintaining its credibility, authority and legitimacy towards Member States that might disapprove of the evolving case law in the context of same-sex relationships. It also offers insights as to the future of European consensus in the context of equal marriage rights and ends with some concluding remarks.


Masuma Shahid
Lecturer, Department of International and European Union Law, Erasmus School of Law, Rotterdam.
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