In this essay, I argue that absent special circumstances, there are no moral, judicial procedural rights. I divide this essay into four main sections. First, I argue that there is no general moral right against double jeopardy. Next, I explain why punishing a criminal without first establishing her guilt via a fair trial does not necessarily violate her rights. In the third section, I respond to a number of possible objections. And finally, I consider the implications of (...) my arguments for the human right to due process. (shrink)

Contrary to the widely accepted consensus, Christopher Heath Wellman argues that there are no pre-institutional judicial procedural rights. Thus commonly affirmed rights like the right to a fair trial cannot be assumed in the literature on punishment and legal philosophy as they usually are. Wellman canvasses and rejects a variety of grounds proposed for such rights. I answer his skepticism by proposing two novel grounds for procedural rights. First, a general right against unreasonable risk (...) of punishment grounds rights to an institutionalized system of punishment. Second, to complement and extend the first ground, I more controversially propose a right to provision of the robust good of security. People have a right to others' protecting for avoiding wrongfully harming them: when I take an action that is reasonably expected to threaten the protected interests of others, I must take appropriate care to avoid setting back those interests. Inflicting punishment on someone--intentionally harming them in response to a violation--is prima facie wrongful, so I can only count as taking appropriate care in punishing when I follow familiar procedures that reliably and redundantly test whether they are liable to such punishment, i.e. whether they have forfeited their right against punishment through a culpable act. (shrink)

ABSTRACTPeople have procedural rights because states are under a duty of political morality to provide them with fair procedures for settling disputes about the application of the laws. This obligation flows from the state's duty to treat each person as a free and equal member of the legal order. Yet adherence to procedural rights can impede accuracy in fact-finding, which in turn can result in poor protection for substantive rights. So the state also has a (...) duty to provide a reasonable degree of accuracy in fact-finding. The legal order should therefore strive to improve the accuracy of fact-finding, within the constraints imposed by procedural rights people have. Nevertheless, the duty to provide reasonably accurate procedures is subordinate to the duty to provide procedural rights because the settlement of disputes among free persons must be conducted in a manner that respects their status as free persons. (shrink)

The 2010s were a golden age of information privacy research, but its policy accomplishments tell a mixed story. Despite significant progress on the development of privacy theory and compelling demonstrations of the need for privacy in practice, real achievements in privacy law and policy have been, at best, uneven. In this chapter, I outline three broad shifts in the way scholars (and, to some degree, advocates and policy makers) are approaching privacy and social media. First, a change in emphasis from (...) individual to structural approaches. Second, increasing attention to the political economy of privacy—especially the business models of information companies, such as social media platforms. And third, a deeper understanding of privacy’s role in a healthy digital public sphere. (shrink)

Central to Nozick’s Anarchy, State and Utopia is a defense of the legitimacy of the minimal state’s use of coercion against anarchist objections. Individuals acting within their natural rights can establish the state without committing wrongdoing against those who disagree. Nozick attempts to show that even with a natural executive right, individuals need not actually consent to incur political obligations. Nozick’s argument relies on an account of compensation to remedy the infringement of the non-consenters’ procedural rights. Compensation, (...) however, cannot remedy the infringement, for either it is superfluous to Nozick’s account of procedural rights, or it is made to play a role inconsistent with Nozick’s liberal voluntarist commitments. Nevertheless, Nozick’s account of procedural rights contains clues for how to solve the problem. Since procedural rights are incompatible with a natural executive right, Nozickeans can argue that only the state can enforce individuals’ rights without wronging anyone, thus refuting the anarchist. Thanks to Annette Dufner, Arnt Myrstad, Arthur Ripstein, Gopal Sreenivasan, James Sterba, Chloe Taylor, Sergio Tenenbaum, and Shelley Weinberg. Thanks also to Matt Zwolinski and Jonelle DePetro, who commented on earlier versions of the paper at the Central APA 2007 and at the 2006 Illinois Philosophical Association Conference (respectively). Finally, thanks to my graduate students at the University of Illinois at Urbana-Champaign for their active engagement with the ideas during a seminar on liberal theories of justice (fall 2007). (shrink)

This article describes the creation of a lightweight ontology of European Union (EU) criminal procedural rights in judicial cooperation. The ontology is intended to help legal practitioners understand the precise contextual meaning of terms as well as helping to inform the creation of a rule ontology of criminal procedural rights in judicial cooperation. In particular, we started from the problem that directives sometimes do not contain articles dedicated to definitions. This issue provided us with an opportunity (...) to explore a phenomenon typically neglected in the construction of domain-specific legal ontologies. Whether classical definitions are present or absent, laws and legal sources in general are typically peppered with a number of hidden definitions (in the sense that they are not clearly marked out as such) as well as incomplete definitions, which may nevertheless help legal practitioners (and legal reasoning systems) to reason on the basis of analogy or teleology. In this article we describe the theoretical basis for building an analogical lightweight ontology in the framework of an EU project called _CrossJustice_. We present our methodology for collecting the data, extracting the data fields and creating the ontology with WebProtégé, followed by our conclusions and ideas for future work. (shrink)

Sen’s “The Impossibility of a Paretian Liberal” was meant to crystallize his fundamental criticism against the welfaristic basis of welfare economics in general, and social choice theory in particular. This paper vindicates Sen’s criticism, arguing that its logical relevance is not lost in light of recent criticisms against his method of articulating individual rights in terms of a person’s decisive power in social choice. We show that some recent proposals that Sen’s articulation failed to capture a strong libertarian tradition (...) of free contract and that an appropriate formulation of this tradition wipes off the Sen impossibility cannot be sustained. We then show that the game form articulation of rights casts serious doubts on the Sen articulation of liberty, but the Sen impossibility strenuously comes back in the context of realizing conferred game form rights as well as in the context of initial conferment of game form rights. (shrink)

While Yoga (also called Bhakti, “devotion”) is a comprehensive philosophy, it is importantly an ancient and basic ethical theory, unique to South Asia (what is commonly called the Indian tradition). It is not a variant of virtue ethics, consequentialism and deontology, but is an additional kind of moral theory. And in its literary articulation, in dialog and story (such as the Mahābhārata and the Upaniṣads), it has a long history of criticizing teleological ethical theories, including – and especially – consequentialism. (...) It is a radically procedural ethical theory, does not require the Good to elucidate the Right, and provides a critical response to all three alternatives. -/- The main obstacle to understanding Yoga is methodological. It pertains to how we can understand philosophical options that we do not necessarily agree with, and which are novel relative to our background assumptions and beliefs. Without methodological clarity, we will be doomed to understand alternatives in terms of familiar options. Yoga's metaethics provides us the tools necessary to engage in this research. In addition, it also sets out a unique normative (ideal) ethical theory and a non-ideal practice that is now the foundation of decolonial practices of direct action. (shrink)

I argue that partialist critics of deontological theories make a mistake similar to one made by critics of utilitarianism: they fail to distinguish between a theory’s decision procedure and its standard of rightness. That is, they take these deontological theories to be offering a method for moral deliberation when they are in fact offering justificatory arguments for moral principles. And while deontologists, like utilitarians do incorporate impartiality into their justifications for basic principles, many do not require that agents utilize impartial (...) methods of moral deliberation. It follows that insofar as partialists reject impartiality in deliberation, their criticisms may miss their mark. If however, partialists are opposed to justifications for basic principles that rely upon impartiality, they are committed, I argue, to drastic revisions in moral theory that have worrisome implications. (shrink)

The Committee on Economic, Social and Cultural Rights (CESCR) has a new mechanism to receive individual complaints and issue views, which makes the question of how the Committee should interpret the broad articles of the International Covenant on Economic, Social and Cultural Rights more pressing than ever. Most commentators on the legitimacy of the CESCR’s interpretation have argued that interpreters should make better use of Articles 31–33 of the Vienna Convention on the Law of Treaties (VCLT) in order (...) to improve the legitimacy of their findings. In this article, we argue conversely that the individual communication mechanism should be evaluated and reformed in terms of legitimate authority. In the context of the Committee’s process of interpretation, we contend that proportionality is better suited than the various interpretive options of the VCLT to offer a consistent procedure that is able to generate legitimacy by attenuating the tension between personal and collective autonomy. (shrink)

People react negatively not only to injustices they personally endure but also to injustices that they observe as bystanders at work—and typically, people observe more injustices than they personally experience. It is therefore important to understand how organizations can restore observers’ perceptions of justice after an injustice has occurred. In our paper, we employ a policy capturing design to test and compare the restorative power of monetary compensation, procedure changes and apologies, alone and in combination, from the perspective of third (...) parties. We extend previous research on remedies by including different degrees of compensation and procedural changes, by comparing the effects of sincere versus insincere apologies and by including apologies from additional sources. The results indicate that monetary compensation, procedure changes, and sincere apologies all have a significant and positive effect on how observers perceive the restoration of justice. Insincere apologies, on the other hand, have no significant effect on restoration for third parties. Procedural changes were found to have the strongest remedial effects, a remedy rarely included in previous research. One interpretation of this finding could be that observers of injustice prefer solutions that are not short sighted: changing procedures avoids future injustices that could affect other people. We found that combinations of remedies, such that the presence of a second remedy strengthens the effect of the first remedy, are particularly effective. Our findings regarding interactions underline the importance of studying and administering remedies in conjunction with each other. (shrink)

I argue that Habermas’s proposed system of rights fails to offer an adequate account of the relation between rights and moral injury. In providing a non-moral justification for rights, Habermas’s functional-normative argument excludes the moral intuition that persons are worthy of being protected from a class of injurious actions (i.e. false imprisonment, religious persecution). Habermas does offer clearly stated reasons for his proposed normative, yet non-moral foundation for a legitimate legal order, including the claim that the functional (...) imperatives of modern legal systems cannot be reduced to morality. My positive thesis is that at least some rights are moral norms whose content and justification derive from a moral point of view informed by the idea of persons as free and equal. (shrink)

Withdrawal is an act by which a member state of an international organization willingly terminates its membership. The right to withdraw from international organizations is explicitly mentioned in the constitutions of most of them and the circumstances regarding to the right of withdrawal vary depending on the organization. The purpose of this paper is to explain the right and procedures of withdrawal, and the reasons that result with the will of states to withdraw from international organizations. For the realization of (...) this research are used qualitative methods, based on the bibliography that is related to international organizations, with special emphasis with the right and procedures of the withdrawal of states from international organizations. Furthermore, some informations are also collected from the credible internet sources, which have valuable data about the withdrawals of states from international organizations and the reasons that result with such decisions. The results of the research have shown that since the appearance of international organizations until today, there were and there are decisions of states to withdraw from international organizations, coming from the reluctance of states to hand over to international organizations parts of their sovereignty. The conclusions of this paper aim to increase knowledge about the real meaning of the processes of withdrawals of states from international organizations. (shrink)

Prior to the extensive reform of the Finnish criminal procedure in 1997, the roles of the prosecutor and the defence attorney were passive compared to the role of the judge. The main task of the prosecutor was to read the written indictment and to help the judge to find the truth. The judge could procure evidence ex officio, although it may have been detrimental to the suspect. The roles of the judge, the attorneys and the prosecutor changed dramatically when the (...) reform concerning criminal matters was enacted. The prosecutor is now an active party to the case, ensuring the implementation of criminal liability and actively promoting the progress of the proceedings. It is the duty of the prosecutor to prove the charge by procuring sufficient evidence in support of the charge and by presenting it to the court. The court itself is neutral; it does not support or assist the prosecutor. The judge cannot hear a witness ex officio if the hearing is to be detrimental to the suspect. (shrink)

This paper considers Canada’s young offenders in the context from which they enter the youth criminal courtroom. To determine how youth criminal justice courts violate the Canadian Youth Criminal Justice Act, this analysis relates said context to several phenomena, including legal linguistics, oral language competency, literacy, communicative competency, non-verbal communication, the physical structure of youth courtrooms, and legal translation. As a result of the standards of procedural communication upheld by the Canadian criminal justice system, young people’s rights, including (...) the right to be respected regardless of cultural, ethnic, or linguistic differences, the right to be heard and to participate in proceedings, the right to be sentenced meaningfully, the right to privacy, and the right to be tried in a timely manner are abused in the youth criminal courtroom. Although insufficient structures of procedural communication cause these issues and are beyond the control of counsel, defense counsel are often blamed for their effects. Legal professionals must make important adjustments such as altering the formal speech required in youth criminal courtrooms, employing legal professionals with the role of translating legal jargon to young people in the courtroom, and closing youth courtrooms off from the public to reduce the YCJA violations occurring in youth criminal justice court. These adjustments are ultimately the responsibility of the Canadian criminal justice system. (shrink)

This article interrogates whether and how the concept of ‘patriarchy’ is used by UN human rights treaty monitoring bodies (treaty bodies) and special procedures to interpret state obligations to respect and ensure women’s human rights. There are two key points that arise out of this study: first, that several treaty bodies and special procedures purposely and consistently use the concept of ‘patriarchy’ when discussing women’s human rights, and second, that although not all treaty bodies and special procedures (...) have referred to the terms ‘patriarchy’ or ‘patriarchal’, an examination of those that have reveals a marked difference in how the terms are used by treaty bodies when compared with special procedures. While treaty bodies render the meaning of ‘patriarchy’ as being synonymous with certain harmful practices, such as female-genital mutilation (FGM), special procedures utilise ‘patriarchy’ as a system of power, permeating every facet of society. In this article I will argue that the current state of dissonance between the understandings of ‘patriarchy’ by treaty bodies and special procedures creates an unnecessary ambiguity that does nothing to advance gender equality. Furthermore, utilising a nuanced understanding of patriarchy, as articulated by intersectional and anti-essentialist feminist scholars, would potentially equip treaty bodies and special procedures for more meaningful interpretation of rights themselves, and greater protection of women’s human rights. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Dike Phonou: The Right of Prosecution and Attic Homicide ProcedureDavid C. MirhadyAlexander Tulin. Dike Phonou: The Right of Prosecution and Attic Homicide Procedure. Stuttgart and Leipzig: B. G. Teubner, 1996. x 1 135 pp. Cloth, DM 56. (Beiträge zum Altertumskunde, 76)The normal means of seeking redress in Athenian law was through a dike, which the victim brought to the appropriate magistrate, who then conducted the case through the (...) various stages of the Athenian legal process, an initial inquiry, possibly a public arbitration, and finally a trial before a democratic court. What distinguishes homicide from almost every other offense, however, is precisely that its victim cannot seek legal redress because he is dead. So who does? [End Page 639]This short book is devoted to the single aim of supporting the “traditional view” that it was only the members of the victim’s family who had the right to seek this redress through a suit for murder (dike phonou). In a wider-ranging book (almost as short as this one, Athenian Homicide Law in the Age of the Orators), Douglas MacDowell argued in 1963 against that restrictive interpretation: though Athenian law enjoined the relatives (or in the case of a slave, the owner) of the victim to prosecute, it did not order others not to. Others have since followed MacDowell’s lead. Tulin relies on three disparate pieces of evidence, to each of which he devotes one chapter: Drakon’s Code (IG I3 104), [Dem.] 47.68–73, and Plato’s Euthyphro 3e7–5d7.He gives the entire text of Drakon’s Code in Greek, translates most of it in a footnote, but then discusses specifically only the four lines (20–23) that relate most directly to his argument, although he points out many peripheral issues along the way, such as the authenticity of the code and the possibility of interpolation. Without reviewing the evidence in detail, he takes as established that in archaic conceptions of homicide, murder was viewed initially as a violation of a kinship unit, not “any larger corporate entity” (11). Yet the Code itself is an indication of interest, and indeed control, being taken by the larger corporate entity, and the roles it ascribes to the ephetai in the place of the family of the victim need discussion, since they touch directly on Tulin’s central thesis; they do not get it. Ultimately the issue of restrictiveness will be decided on the basis of whether the jussive infinitives that form the injunctions of the Code are to be understood inclusively or exclusively. To Tulin they seem exclusive and restrictive; to me they could be inclusive, calling upon an ever wider circle to take responsibility for sharing in the prosecution. Viewed in isolation, this piece of evidence is inconclusive.In [Dem.] 47.68–73 the speaker, the Trierarch, is concerned to show his own scruples with regard to legal procedure, which prevented him from laying charges for murder against his opponents even after they had killed his old wetnurse. Tulin analyzes the passage in great detail, giving the Greek text twice and reproducing the Loeb translation. Although the presentation is unnecessarily awkward, Tulin is successful in showing that it is in fact the lack of the requisite family or owner’s relationship to the victim that has compelled the Trierarch not to pursue a prosecution for murder. It would have required him and his family to commit perjury with regard to their relationship to the deceased. One lapse in Tulin’s account sticks out, however: his interpretation of the clause (47.69). He translates it as a protasis to the infinitives set out in the funeral nomima: “if there be anyone related to the woman, let him...” (23). But the position of the clause after the second of the three infinitive clauses strongly suggests that it be made to follow that clause as an indirect question: “and (you, Trierarch, must) make a proclamation at the tomb whether there be some relative of the woman.” It becomes clear several lines later that the Trierarch will make this proclamation, since no relative [End Page 640] is required for it. The proclamation involves not... (shrink)

Interest is one of the main sociological and legal categories, which help to discover relation between objective external tendencies and activities of a man. A witness who has procedural rights and obligations is allowed to protect these rights and obligations respectively and thus a witness begins to have an interest in criminal procedure. Two types of interests of witness could be accordingly distinguished, i.e. personal interest and legal interest. The analysis of witness’s interest in criminal cases allows (...) to affirm that the procedural interests of a witness in criminal procedure may be divided into those related to the outcome of the case and those related to a person’s legal position in a definite criminal suit. (shrink)

This chapter compares a system of human rights guarantees of security with libertarian natural rights. Security rights are a solution to a collective action problem that would arise in a state of nature with libertarian natural rights, the internal security problem. To be endorsed by the main principle, a solution to that problem requires guarantees of procedural rights, which have no analog in natural rights. The chapter discusses various problems that have been thought (...) to be fatal to consequentialism: the problem of intentionally punishing the innocent, and the related problem of inadvertently punishing the innocent, which is a challenging one for nonconsequentialists; strict criminal liability; and organ harvesting. The discussion of inadvertently punishing the innocent leads to a consideration of the doctrine of double effect. The chapter concludes the chapter with a comparison of his account with Judith Thomson’s trade-off idea, illustrated by the trolley cases. (shrink)

The Article presents a study of opportunities and problems related to the procedural actions taken by bailiffs electronically. In the opinion of the authors, the digitalisation of the enforcement procedure seeks to ensure the maximum use of electronic documents: enforcement and procedural documents should function only in the electronic format and thereby should create an effective, transparent and easily accessible information system of electronic enforcement files, which will not only increase the effectiveness of performance of bailiffs and save (...) costs, but will also ensure the protection of the rights of claimants and debtors in enforcement proceedings through reliable and prompt service of procedural documents by electronic means, access to information about the course of the enforcement proceedings by using information technologies, and transfer of certain procedural actions taken by bailiffs into the electronic environment. Section one of the Article discusses the EU regulation in the area of unification and digitalisation of the enforcement procedure. Section two deals with the possibilities of issuing electronic enforcement orders, issuance of an enforcement order, technical measures to enable bailiffs access the information systems of the institutions issuing enforcement orders by safe electronic channels and thereby electronic enforcement orders would be transferred from the issuing institution to bailiffs electronically, without using any hard copy enforcement orders. In the opinion of the authors, considering that the majority of enforcement orders are issued by courts, it would be expedient, first of all, to take advantage of the existing information system LITEKO, making it possible to keep not only court judgments but also enforcement orders there as well as providing bailiffs with technical possibilities of access to the LITEKO system and acceptance of the electronic enforcement orders from the system. A similar principle should be followed for designing integrated information systems of bailiffs and other institutions that issue enforcement orders. Section three focuses on the main procedural documents – arrangements given by bailiffs and property attachment deeds – and on their electronic service on the participants involved in the enforcement procedure. The last section of the Article offers a study of the measures to secure the rights of participants of the enforcement procedure, namely access of the participants of the enforcement procedure to the enforcement file, possibilities for courts to obtain electronic enforcement files promptly, etc. (shrink)

In Rights Forfeiture and Punishment, Christopher Heath Wellman argues that those who seek to defend the moral permissibility of punishment should shift their focus from general justifying aims to moral side constraints. On Wellman's view, punishment is permissible just in case the wrongdoer has forfeited her right against punishment.

When the Supreme Court in 2003 struck down a Texas law prohibiting homosexual sodomy, it cited the right to privacy based on the guarantee of "substantive due process" embodied by the Constitution. But did the court act undemocratically by overriding the rights of the majority of voters in Texas? Scholars often point to such cases as exposing a fundamental tension between the democratic principle of majority rule and the liberal concern to protect individual rights. Democratic Rights challenges (...) this view by showing that, in fact, democracy demands many of these rights. Corey Brettschneider argues that ideal democracy is comprised of three core values--political autonomy, equality of interests, and reciprocity--with both procedural and substantive implications. These values entitle citizens not only to procedural rights of participation but also to substantive rights that a "pure procedural" democracy might not protect. What are often seen as distinctly liberal substantive rights to privacy, property, and welfare can, then, be understood within what Brettschneider terms a "value theory of democracy." Drawing on the work of John Rawls and deliberative democrats such as Jürgen Habermas, he demonstrates that such rights are essential components of--rather than constraints on--an ideal democracy. Thus, while defenders of the democratic ideal rightly seek the power of all to participate, they should also demand the rights that are the substance of self-government. (shrink)

One way to evaluate electoral rules is instrumental: we ask what effects they tend to produce. A second way is constitutive: we ask what kinds of values they embody, or whether the procedures they effect respect people's rights or moral status. A third way is genetic: we ask by what procedure the electoral rules were adopted. I shall argue that in judging the value or the legitimacy of electoral rules, we must consider not only (1) the values they serve (...) instrumentally and (2) the values, rights, or statuses they embody or respect, but also (3) the procedure by which they were chosen. I argue, moreover, that the best way to choose electoral rules in representative governments is on an ongoing basis via a randomly selected citizen assembly whose decisions are binding independently of any appeal to referenda. (shrink)

Why should one person obey another? Why (to ask the question from the first-person perspective) ought I to submit to another and follow her judgment rather than my own? In modern political thought, which denies that some are born rulers and others are born to be ruled, the most prominent answer has been: “Because I have consented to her authority.” By making authority conditional on the subjects’ consent, political philosophers have sought to reconcile authority’s hierarchical structure with the equal moral (...) standing of governor and governed. Yet such consent accounts of authority have long been deemed problematic on a number of grounds, not the least of which is that few citizens have given their consent to the state under whose laws they live. So unless we are willing to deny the state’s authority over those who have not consented, or revert to the pre-modern assumption of a natural political hierarchy, we must find another way of reconciling authority with our standing as free and equal moral agents. In recent political and legal philosophy, the most influential solution to this problem has been Joseph Raz’s service conception of authority, according to which legitimate authority, while it does not require the consent of the governed, must exist for their sake, or serve them. The normal way to justify someone’s authority, on the service conception, is to show that, by treating her directives as binding, the subjects are likely better to conform to reasons that apply to them anyway. The service conception has, however, recently been criticized (by, among others, Thomas Christiano, Scott Hershovitz, and Jeremy Waldron) for being insufficiently attuned to the significance that procedural, and in particular democratic, features of political and legal institutions have for the justification of their authority. If these ‘democratic critics’ are right, then two commitments that many in the liberal-democratic tradition may find independently attractive turn out to be in tension: the liberal idea that authority is normally legitimate only insofar as it serves its subjects, and the democratic idea that legitimate authority can (and regularly does) rest on fair procedures. In this article I argue that the critics’ arguments rest on a misunderstanding of the service conception; yet their worries point the way to an under-appreciated and interesting view of democracy as an authoritative arbitration procedure. After introducing the service conception’s view of justified authority, I briefly distinguish a broad and a narrow interpretation of it, and suggest that we should embrace the latter to make sense of the idea that political authority serves its subjects (Section I). Next I turn to the objection raised by the democratic critics: the service conception, they say, cannot make room for the intrinsic fairness of democratic procedures because it is preoccupied with the quality of outcomes (Section II). But, I argue, the objection rests on an illicit identification of two different kinds of outcomes: the outcome of the decision-making procedure on the one hand, the outcome or result of treating that first outcome as authoritative on the other. Distinguishing between these is crucial for an adequate understanding of democracy’s authority. While the service conception is indeed organized around the latter, this does not commit it to an exclusive concern with the former; yet it is a singular commitment to the former that is problematic from a democratic point of view (Section III). To bring home this point, I sketch a model of authority as arbitration that is frequently overlooked in recent discussions of authority even though it is centrally concerned with procedural (and ultimately democratic) values and fits squarely into the service conception of authority (Section IV). (shrink)

This article considers procedural justice in the law, with specific reference to the adjudicative context of governmental officials applying legal standards to particular cases. We critically survey the three main accounts of procedural justice in the literature: utilitarian, outcome‐based, and dignitarian. Utilitarian and outcome‐based theories share the instrumental view that the only purpose of procedures is to lead to accurate legal outcomes. However, the former are willing to trade off the benefits of accuracy against its costs, whereas the (...) latter hold that procedural rights are necessary to guard against the injustice caused when individuals' legal rights are mistakenly denied. Dignitarian theories maintain that process matters apart from outcomes, because procedures should show respect for individuals' dignity in the Kantian sense of rational agency. We present a new perspective, drawing on relational theory. Relational theory holds that we are social creatures whose self‐identities and sense of self‐respect are bound up with the quality of our relationships with other individuals, groups, and institutions. Our relational account is informed by empirical research in social psychology which has found that people's evaluation of procedures is substantially influenced by relational concerns. (shrink)

The present article is aimed at substantiating the differentiation of the criminal procedure involving the disabled persons as well as at assessing some standards of protection of rights of the latter participants of the procedure, established in the Code of Criminal Procedure of the Republic of Lithuania. The provisions of the Constitutional Court of the Republic of Lithuania, given in the present article, enabled generalizing the following two aspects. The first aspect covers the substantiation of the criminal procedure relating (...) to the criminal acts that the physically or mentally disabled persons are suspected (accused) of and application of compulsory medical measures. Specific form of criminal procedure – procedure of application of compulsory medical measures – institution of criminal procedure, covering several closely interdependent legal norms, establishing particular legal specifics of investigation of criminal act and hearing, is established in the separate structural part (Chapter XXIX) of the Code of Criminal Procedure of the Republic of Lithuania. Moreover, though the criminal procedure relating to the acts that the physically or mentally disabled persons are suspected (accused) of is not governed in one place of the Code of Criminal Procedure, it is deemed to be a specific form of criminal procedure, since it constitutes particular related legal norms of criminal procedure, determining the exceptions of the general criminal procedure. The second aspect, related to the constitutional doctrine concerning the equality principle, enabled substantiating the specific legal regulation, established and applied to the disabled participants (suspected persons, accused persons, witnesses, aggrieved persons) in the Law on Criminal Procedure. (shrink)

"Procedural Justice" offers a theory of procedural fairness for civil dispute resolution. The core idea behind the theory is the procedural legitimacy thesis: participation rights are essential for the legitimacy of adjudicatory procedures. The theory yields two principles of procedural justice: the accuracy principle and the participation principle. The two principles require a system of procedure to aim at accuracy and to afford reasonable rights of participation qualified by a practicability constraint. The Article begins (...) in Part I, Introduction, with two observations. First, the function of procedure is to particularize general substantive norms so that they can guide action. Second, the hard problem of procedural justice corresponds to the following question: How can we regard ourselves as obligated by legitimate authority to comply with a judgment that we believe (or even know) to be in error with respect to the substantive merits? The theory of procedural justice is developed in several stages, beginning with some preliminary questions and problems. The first question - what is procedure? - is the most difficult and requires an extensive answer: Part II, Substance and Procedure, defines the subject of the inquiry by offering a new theory of the distinction between substance and procedure that acknowledges the entanglement of the action-guiding roles of substantive and procedural rules while preserving the distinction between two ideal types of rules. The key to the development of this account of the nature of procedure is a thought experiment, in which we imagine a world with the maximum possible acoustic separation between substance and procedure. Part III, The Foundations of Procedural Justice, lays out the premises of general jurisprudence that ground the theory and answers a series of objections to the notion that the search for a theory of procedural justice is a worthwhile enterprise. Sections II and III set the stage for the more difficult work of constructing a theory of procedural legitimacy. Part IV, Views of Procedural Justice, investigates the theories of procedural fairness found explicitly or implicitly in case law and commentary. After a preliminary inquiry that distinguishes procedural justice from other forms of justice, Part IV focuses on three models or theories. The first, the accuracy model, assumes that the aim of civil dispute resolution is correct application of the law to the facts. The second, the balancing model, assumes that the aim of civil procedure is to strike a fair balance between the costs and benefits of adjudication. The third, the participation model, assumes that the very idea of a correct outcome must be understood as a function of process that guarantees fair and equal participation. Part IV demonstrates that none of these models provides the basis for a fully adequate theory of procedural justice. In Part V, The Value of Participation, the lessons learned from analysis and critique of the three models are then applied to the question whether a right of participation can be justified for reasons that are not reducible to either its effect on the accuracy or its effect on the cost of adjudication. The most important result of Part V is the Participatory Legitimacy Thesis: it is (usually) a condition for the fairness of a procedure that those who are to be finally bound shall have a reasonable opportunity to participate in the proceedings. The central normative thrust of Procedural Justice is developed in Part VI, Principles of Procedural Justice. The first principle, the Participation Principle, stipulates a minimum (and minimal) right of participation, in the form of notice and an opportunity to be heard, that must be satisfied (if feasible) in order for a procedure to be considered fair. The second principle, the Accuracy Principle, specifies the achievement of legally correct outcomes as the criterion for measuring procedural fairness, subject to four provisos, each of which sets out circumstances under which a departure from the goal of accuracy is justified by procedural fairness itself. In Part VII, The Problem of Aggregation, the Participation Principle and the Accuracy Principle are applied to the central problem of contemporary civil procedure - the aggregation of claims in mass litigation. Part VIII offers some concluding observations about the point and significance of Procedural Justice. (shrink)

The overall aim of this thesis is to assess the legitimacy of constitutional laws and bills of rights within the framework of procedural epistemic democracy. The thesis is divided into three sections. In the first section, I discuss the relevance of an epistemic argument for democracy under the circumstances of politics: I provide an account of reasonable disagreement and explain how usual approaches to the authority of decision-making procedures fail to take it seriously. In the second part of (...) the thesis, I provide an account of the epistemic features of democracy and of the requirements of democratic legitimacy. I develop a revised pragmatist argument for democracy which relies on three presumptive aims of decision-making: justice, sustainability and concord. In the third and last section, I first argue for the desirability of constitutionalism. I then explain why constitutionalism, as it is usually understood, is incompatible with my procedural epistemic account of democratic legitimacy. In the last chapter, I offer a two-pronged solution to the apparent incompatibility of constitutionalism and epistemic democracy. I first argue for the appropriateness of political constitutionalism, as opposed to legal constitutionalism, in understanding the relationship between rights and democracy. I then provide an account of rights protection and judicial review compatible with epistemic democratic legitimacy. Finally, I use the notion of pragmatic encroachment to explain how constitutional laws can achieve normative supremacy through the increased epistemic credentials of the procedure. (shrink)

Despite the persistence of violence inside and around prisons, and the dubious adequacy of criminal law to respond to victim–survivors, international human rights (IHR) discourse increasingly promotes the mobilisation of the state’s penal apparatus to respond to human rights violations, including violence against women (VAW). Using an anticolonial feminist approach, this article scrutinises the ontological and epistemological commitments underlying ‘human rights penality,’ by analysing features of the Western-colonial register vis-a-vis more relational worldviews. Separateness, abstraction, and transcendence broadly (...) underpin the exclusion of embodied experience, context, and material reality from the juridical field. In the second part, through discourse analysis of Inter-American and European case law, the author shows the deployment of human rights penality, the displacement of experience, and the disregard of context in IHR discourse. VAW is construed as a procedural and penal matter: it is the absence of a penal process that courts regard as failure to protect women, rather than the state’s inability/unwillingness to address structural subordination. Moreover, the ‘virtues’ attributed to the penal system justify its expansion, which facilitates the continuity of penal violence and debilitates alternative approaches to justice. Finally, the author posits penal abolition as an anticolonial praxis, pointing at examples of anti-carceral feminist work. (shrink)

Since the start of the new millennium, many contemporary jurisdictions have been revisiting the fundamental principles of their civil procedures. Even the core areas of the civil process are not left untouched, including the way in which evidence is introduced, collected and presented in court. One generator of the reforms in the field of evidence-taking in recent decades has been slow and inefficient litigation. Both in Europe and globally, reaching a balance between the demands of factual accuracy and the need (...) to adjudicate disputes in a swift, cost-effective and efficient way is still one of the key challenges. The second reason that many countries are reforming their law of evidence is related to cultural and technological changes in modern societies. As the balance between, on the one side, traditional human rights such as the right to privacy and due process is shifting towards, on the other side, the modern need for security, efficiency and quick access to justice, the perception of what is admissible or not in the context of evidence-taking is changing as well."--Back cover. (shrink)

The extent to which the legal doctrine addresses manifestations of constitutionalism has been constantly growing. However, the majority of research in constitutionalism focuses on the analysis of the power of the Constitution and the fundamental principles entrenched in it whereas ordinary branches of law, including civil procedure, affected by the constitutional law remains outside the scope of a deeper analysis. The author of the present paper is convinced that certain aspects of the impact of constitutional justice on such branches as, (...) in particular, civil procedure deserve deeper interest. The modest scope of the paper precludes an extensive analysis of the role of the Constitution as a fundamental binding Act and today’s abundant doctrine of Lithuania’s Constitutional Court in civil procedure. Therefore, the present paper is confined to an analysis of individual aspects of direct application of the Constitution and the doctrine of the Constitutional Court. The article analyses the power of the Constitution and its impact on the civil procedure as an Act laying down the fundamental principles binding the legislator in adopting procedural instruments and principles to be followed by courts and as a remedy for violations of rights or a tool to address loopholes and collisions of law. Courts of general jurisdiction perform the control of legitimacy of legal Acts by checking their compliance with the Constitution in individual cases and by applying to the Constitutional Court for repeal of anticonstitutional norms or by applying the Constitution as an Act of direct effect to eliminate loopholes, interpret statutes and deal with collisions of legal norms. The author believes that the fact that the courts of general jurisdiction frequently raise questions of incompliance of legal Acts with the Constitution and decisively apply to the Constitutional Court evidences a high level of legal culture and legal consciousness of the judges. That fact may also serve as a precondition for the growth of confidence in the judiciary as judicial procedures may contain no uncertainties as to the constitutionality of the statutes to be followed in litigation. (shrink)

This chapter contains section titled: The Political Context The Status of Rights What Counts as a Right? Who Gives Us Our Rights? Are ‘Rights’ Merely a Western Idea?

Human Rights Ethics makes an important contribution to contemporary philosophical and political debates concerning the advancement of global justice and human rights. Butler's book also lays claim to a significant place in both normative ethics and human rights studies in as much as it seeks to vindicate a universalistic, rational approach to human rights ethics. Butler's innovative approach is not based on murky claims to "natural rights" that supposedly hold wherever human beings exist; nor does (...) it succumb to the traditional problems of justification associated with utilitarianism, Kantianism, and other procedural approaches to human rights studies. Instead, Butler proposes "a dialectical justification of human rights by indirect proof" that claims not to be question begging. Very much in the spirit of Hegel and Habermas, Butler proposes to vindicate a "totally rational account of human rights," but one that depends concretely and historically on a dialectically constructed "right to freedom of thought in its universal modes.". (shrink)

I argue that the Universal Law formulation of the Categorical Imperative is best interpreted as a test or decision procedure of moral rightness and not as a criterion intended to explain the deontic status of actions. Rather, the Humanity formulation is best interpreted as a moral criterion. I also argue that because the role of a moral criterion is to explain, and thus specify what makes an action right or wrong, Kant's Humanity formulation yields a theory of relevant descriptions.

The present paper deals with an investigation of the conception and development of the idea (principle) of proportionality, the variety of concepts and the procedure for the verification of the principle of proportionality. The genesis of the conception of coercive measures is studied by reviewing the process of the formation of the current principle of proportionality manifested in the historical sources of the law of Prussia, Germany, and the evolution of the principles consolidated in them. The principle of proportionality consolidated (...) in the case-law of the European Court of Justice and of the European Court of Human Rights is analyzed as well. (shrink)

Remarkably, there have been three decisions by the Court of Appeal and one decision by the Supreme Court (including notably R(G) v Governors of X School) in the space of three years on the same question as to whether the procedural guarantees of Article 6 European Convention on Human Rights (ECHR) can apply to disciplinary proceedings in the workplace. The earlier recent domestic decisions held that Article 6(1) could apply or did apply to workplace disciplinary procedures and could (...) imply or did imply a right to legal representation. More recently, employees have used Article 6 to argue for a right to independent disciplinary panels. In comparison, the more recent domestic decisions have held that Article 6(1) did not apply to workplace disciplinary procedures. This article explores the scope for Article 6(1) to apply to workplace disciplinary procedures by looking at the Strasbourg case law and explores the additional possibility that Article 6 could be engaged in workplace disciplinary procedures based on the alternative civil rights not to be wrongfully dismissed or unfairly dismissed. The benefit of these alternative civil rights would be that they would open up the protection of Article 6 to more employees than just professionals. This article also discusses the apparent conflict between the aims of employees in the cases on Article 6 ECHR and recent broader policy developments in favour of early and informal resolution of employment disputes. It is concluded that these cases reinforce objections to the Coalition Government’s broader ‘rebalancing’ agenda, as dismissal laws require strengthening and not further weakening. (shrink)

While philosophers are often concerned with the conditions for moral knowledge or justification, in practice something arguably less demanding is just as, if not more, important – reliably making correct moral judgments. Judges and juries should hand down fair sentences, government officials should decide on just laws, members of ethics committees should make sound recommendations, and so on. We want such agents, more often than not and as often as possible, to make the right decisions. The purpose of this paper (...) is to propose a method of enhancing the moral reliability of such agents. In particular, we advocate for a procedural approach; certain internal processes generally contribute to people’s moral reliability. Building on the early work of Rawls, we identify several particular factors related to moral reasoning that are specific enough to be the target of practical intervention: logical competence, conceptual understanding, empirical competence, openness, empathy and bias. Improving on these processes can in turn make people more morally reliable in a variety of contexts and has implications for recent debates over moral enhancement. (shrink)

This article argues that there is no human right to cross borders without impediment. Receiving states, however, must recognize the procedural rights of those unable to protect their human rights in the place where they currently reside. Asylum claims must be properly investigated, and in the event that the state declines to admit them as refugees, it must ensure that the third country to which they are transferred can protect their rights. Both procedural and substantive (...) rights apply while refugees are physically present in the state’s territory and their immigration status is being investigated. The state’s obligation to protect these rights arises from the power it exercises over them. In contrast, the state does not exercise equivalent power over those it declines to admit in the first place, even though its immigration criteria – if discriminatory in the negative sense – can be faulted on other grounds. Beneath these arguments lie two basic assumptions: one is the need to separate human rights claims from other claims of justice, especially those deriving from citizenship; the other is the need to determine who bears the obligations that correspond to these rights. Attention to the different relations in which prospective immigrants may stand toward the state they hope to enter can help us understand how border regimes may comply with, or violate, human rights. (shrink)

This article discusses the role of individual rights in the production of active citizenship. In recent years, the notion of ‘active citizenship’ has become an object of research in both political and social science. Studies that draw on the Foucaultian governmentality tradition have been particularly interested in various societal discourses and practices through which active citizenship is being produced. However, the role of law and rights has been neglected or even rejected in these studies. The aim of this (...) article is thus to show that certain procedural rights, the right to participate in particular, constitute an important legal technology in the production of active citizenship. The analysis is based on the recent developments in Finnish social and health care law. It will also be argued that despite the apparently convergent subject-matter, Jürgen Habermas’s normative theory of the ‘procedural paradigm of law’ does not offer a meaningful framework in which to address the relationship between active citizenship and procedural rights since it is based on an overly narrow conception of subjectivity. (shrink)