Very little of the expanding debate over private policing has employed the language of human rights. This is notable not just because private policing is a distinctly global phenomenon, and human rights have become, as Michael Ignatieff puts it, the lingua franca of global moral thought. It is notable as well because a parallel development that seems in many ways related to the spread of private policingthe escalating importance of private military companieshas been debated as a matter of human rights.This Article asks whether discussions of private policing have been impoverished by their failure to employ the language of human rights. It begins by discussing the dramatic rise, over the past several decades, in the size and significance of private policing. It then summarizes the academic and public policy debates about that development and considers what, if anything, the language of human rights could add to those debates, and whether the addition would be welcome. One strand of the Article compares the debate over private policing with the debate over private military companies. Another strand compares private policing with private prisons, in light of the recent ruling by the Supreme Court of Israel declaring private prisons unconstitutional. The Article concludes that the benefits of introducing the language of human rights into debates about private policing are far from clearwith one exception. Human rights, particularly as codified in international treaties, do seem a promising way to get traction on a particular aspect of police privatization that has received less attention than it deserves: the way in which widespread reliance on private security firms may weaken public commitment to providing everyone with a minimally acceptable degree of protection against private violence.
{"title":"Private Policing and Human Rights","authors":"D. Sklansky","doi":"10.2202/1938-2545.1054","DOIUrl":"https://doi.org/10.2202/1938-2545.1054","url":null,"abstract":"Very little of the expanding debate over private policing has employed the language of human rights. This is notable not just because private policing is a distinctly global phenomenon, and human rights have become, as Michael Ignatieff puts it, the lingua franca of global moral thought. It is notable as well because a parallel development that seems in many ways related to the spread of private policingthe escalating importance of private military companieshas been debated as a matter of human rights.This Article asks whether discussions of private policing have been impoverished by their failure to employ the language of human rights. It begins by discussing the dramatic rise, over the past several decades, in the size and significance of private policing. It then summarizes the academic and public policy debates about that development and considers what, if anything, the language of human rights could add to those debates, and whether the addition would be welcome. One strand of the Article compares the debate over private policing with the debate over private military companies. Another strand compares private policing with private prisons, in light of the recent ruling by the Supreme Court of Israel declaring private prisons unconstitutional. The Article concludes that the benefits of introducing the language of human rights into debates about private policing are far from clearwith one exception. Human rights, particularly as codified in international treaties, do seem a promising way to get traction on a particular aspect of police privatization that has received less attention than it deserves: the way in which widespread reliance on private security firms may weaken public commitment to providing everyone with a minimally acceptable degree of protection against private violence.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2011-03-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1054","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68764343","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article looks at aspects of the relationship between privatization in education and educational justice, examining these relationships from normative and empirical points of view. It explores different meanings of privatization in the realm of education and assesses underlying reasons for certain aspects of privatization in light of two educational justice: the adequacy approach and the fair equality of opportunity approach. The Article argues that given the competitive nature of the sphere of education, considerations of fairness, as well as utility, solidarity, and democracy supply strong reasons for rejecting various arguments that support the existence of private schools. In the last thirty years, vouchers and school choice schemes have constituted the main modes of privatization, importing market mechanisms and the logic of competition into the realm of education. Empirical evidence suggests that vouchers and school choice schemes have not fulfilled the promise of reducing educational inequalities, partly due to the political, social, economic and ideological background in which they were implemented. The introduction of competition in the realm of education has created a reality that encourages schools to prefer low cost studentsstudents from middle and upper classes familiesover high cost disadvantaged studentswho come mainly from the lower class, and students with special needs. Not only have marketization and privatization changed the way that society distributes educational services, they promote a social ethos that emphasizes self-interest over the advancement of the public good and erodes democratic public forums in which collective societal decisions should be resolved.
{"title":"Privatization, School Choice and Educational Equality","authors":"Yossi Dahan","doi":"10.2202/1938-2545.1061","DOIUrl":"https://doi.org/10.2202/1938-2545.1061","url":null,"abstract":"This Article looks at aspects of the relationship between privatization in education and educational justice, examining these relationships from normative and empirical points of view. It explores different meanings of privatization in the realm of education and assesses underlying reasons for certain aspects of privatization in light of two educational justice: the adequacy approach and the fair equality of opportunity approach. The Article argues that given the competitive nature of the sphere of education, considerations of fairness, as well as utility, solidarity, and democracy supply strong reasons for rejecting various arguments that support the existence of private schools. In the last thirty years, vouchers and school choice schemes have constituted the main modes of privatization, importing market mechanisms and the logic of competition into the realm of education. Empirical evidence suggests that vouchers and school choice schemes have not fulfilled the promise of reducing educational inequalities, partly due to the political, social, economic and ideological background in which they were implemented. The introduction of competition in the realm of education has created a reality that encourages schools to prefer low cost studentsstudents from middle and upper classes familiesover high cost disadvantaged studentswho come mainly from the lower class, and students with special needs. Not only have marketization and privatization changed the way that society distributes educational services, they promote a social ethos that emphasizes self-interest over the advancement of the public good and erodes democratic public forums in which collective societal decisions should be resolved.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2011-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1061","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68764583","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article develops a theory of inherently governmental functions and argues that these functions concern powers designed to execute or implement fundamental state decisionse.g., the decision to criminalize certain behavior, the decision to inflict a certain sanction, or to the decision to initiate or end a war. While most theorists agree that fundamental state decisions of the types described above ought only to be made by the State, some believe that the power to execute or implement these decisions can be transferred to private entities. Thus, for instance, theorists maintain that while only the State can criminalize behavior, private prisons can execute the punishment; while only the State can declare a war, mercenaries can carry it out, etc. This Article disputes this claim. By transferring powers of execution or implementation of fundamental state decisions to private entities, the State severs the link between its fundamental societal decisions and the actions designed to execute or implement these decisions. Private entities that imprison people or soldiers hired to fight a war ought to be regarded not merely as executing or implementing public decisions. Instead, they ought to be regarded as private entities whose own private judgments concerning the justness of the sanctions they inflict or the justifiability of the wars they fight are prerequisite for the performance of their jobs. The contribution to the genesis of the action of the private entity made by the courts decision to inflict a sanction or the States decision to go to war is, so to speak, superseded by the individuals own judgment. The Article further argues that being punished by another private individualrather than by the Stateinfringes upon ones dignity as it subjects the will of one person to the will of another. The justifiability of the exertion of violence hinges upon the agent performing it. Hence, I maintain that it is impermissible on the part of the State to privatize the execution or implementation of some fundamental societal decisions.
{"title":"Outsourcing Violence?","authors":"Alon Harel","doi":"10.2202/1938-2545.1063","DOIUrl":"https://doi.org/10.2202/1938-2545.1063","url":null,"abstract":"This Article develops a theory of inherently governmental functions and argues that these functions concern powers designed to execute or implement fundamental state decisionse.g., the decision to criminalize certain behavior, the decision to inflict a certain sanction, or to the decision to initiate or end a war. While most theorists agree that fundamental state decisions of the types described above ought only to be made by the State, some believe that the power to execute or implement these decisions can be transferred to private entities. Thus, for instance, theorists maintain that while only the State can criminalize behavior, private prisons can execute the punishment; while only the State can declare a war, mercenaries can carry it out, etc. This Article disputes this claim. By transferring powers of execution or implementation of fundamental state decisions to private entities, the State severs the link between its fundamental societal decisions and the actions designed to execute or implement these decisions. Private entities that imprison people or soldiers hired to fight a war ought to be regarded not merely as executing or implementing public decisions. Instead, they ought to be regarded as private entities whose own private judgments concerning the justness of the sanctions they inflict or the justifiability of the wars they fight are prerequisite for the performance of their jobs. The contribution to the genesis of the action of the private entity made by the courts decision to inflict a sanction or the States decision to go to war is, so to speak, superseded by the individuals own judgment. The Article further argues that being punished by another private individualrather than by the Stateinfringes upon ones dignity as it subjects the will of one person to the will of another. The justifiability of the exertion of violence hinges upon the agent performing it. Hence, I maintain that it is impermissible on the part of the State to privatize the execution or implementation of some fundamental societal decisions.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2011-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1063","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68764742","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
What is the appropriate division of power between public officials and private individuals? The straightforward answer to this question, it seems, is that an official should have a power if she employs it (morally) better compared to a private individual. However, Alon Harel argues that this answer is misguided, or at least partially, since there are some decisionsmainly concerning the employment of violencethat should be made and implemented only by public officials regardless of the (relative) moral quality of the decision or action. In this comment I consider and criticize this argument.
{"title":"Governmental Power: Quality or Identity? Comment on Alon Harel's Argument against Outsourcing Violence","authors":"Re’em Segev","doi":"10.2202/1938-2545.1064","DOIUrl":"https://doi.org/10.2202/1938-2545.1064","url":null,"abstract":"What is the appropriate division of power between public officials and private individuals? The straightforward answer to this question, it seems, is that an official should have a power if she employs it (morally) better compared to a private individual. However, Alon Harel argues that this answer is misguided, or at least partially, since there are some decisionsmainly concerning the employment of violencethat should be made and implemented only by public officials regardless of the (relative) moral quality of the decision or action. In this comment I consider and criticize this argument.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2011-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1064","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68764769","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The relationship between private and state power in a pluralist liberal democracy raises complex issues that this article explores, focusing on control over childrens education. While rights are the default vocabulary of liberal theory and practice, they do not suffice to characterize either the claims of children or the responsibilities of adults. While many theorists have followed Joel Feinberg in proposing that children have the right to an open future, there are good reasons to doubt that they do. Within limits, parents convictions appropriately enter into the content of their childrens education and instruction, and the integrity of civil associations supplements (without supplanting) the discourse of individual rights. John Stuart Mill points toward a triadic understanding of educational authority that coordinates three sets of intereststhe developmental interests of children, the civil interests of the state, and the expressive interests of parents. To explicate expressive interests, the Article lays out a theory of expressive libertythe value of being able to live in a manner consistent with our deepest understanding of what gives meaning and value to our lives. While raising children is an important aspect of parents expressive liberty, it is limited by the separateness of each childs existence, the fact of human diversity, and the requisites of civil order. Nonetheless, in societies characterized by a deep diversity of moral and religious views, the requirements of both practicality and legitimacy point toward a social order that offers maximum feasible scope for different ways of life to find expression in the choices of parents and civil associations. The Article explores this thesis with particular reference to U.S. history and law.
在多元自由民主制度下，私人权力与国家权力之间的关系引发了一些复杂的问题，本文将重点探讨对儿童教育的控制。虽然权利是自由主义理论和实践的默认词汇，但它们不足以描述儿童的要求或成人的责任。虽然许多理论家都追随乔尔·范伯格的观点，认为儿童有权拥有“开放的未来”，但我们有充分的理由怀疑他们确实有这样的权利。在一定范围内，父母的信念适当地进入了子女教育和指导的内容，民间团体的完整性补充(而不是取代)了个人权利的话语。约翰·斯图亚特·密尔(John Stuart Mill)提出了一种对教育权威的三合一理解，它协调了三组利益——儿童的发展利益、国家的公民利益和父母的表达利益。为了阐明表达的兴趣，这篇文章提出了一个“表达自由”的理论——能够以一种与我们对赋予我们生活意义和价值的最深刻理解相一致的方式生活的价值。虽然抚养孩子是父母表达自由的一个重要方面，但它受到每个孩子存在的独立性、人类多样性的事实和社会秩序的要求的限制。尽管如此，在以道德和宗教观点的深刻多样性为特征的社会中，实用性和合法性的要求都指向一种社会秩序，这种社会秩序为不同的生活方式在父母和公民协会的选择中找到表达提供了最大可行的空间。本文特别以美国的历史和法律为参照来探讨这一论题。
{"title":"Parents, Government, and Children: Authority over Education in a Pluralist Liberal Democracy","authors":"W. Galston","doi":"10.2202/1938-2545.1060","DOIUrl":"https://doi.org/10.2202/1938-2545.1060","url":null,"abstract":"The relationship between private and state power in a pluralist liberal democracy raises complex issues that this article explores, focusing on control over childrens education. While rights are the default vocabulary of liberal theory and practice, they do not suffice to characterize either the claims of children or the responsibilities of adults. While many theorists have followed Joel Feinberg in proposing that children have the right to an open future, there are good reasons to doubt that they do. Within limits, parents convictions appropriately enter into the content of their childrens education and instruction, and the integrity of civil associations supplements (without supplanting) the discourse of individual rights. John Stuart Mill points toward a triadic understanding of educational authority that coordinates three sets of intereststhe developmental interests of children, the civil interests of the state, and the expressive interests of parents. To explicate expressive interests, the Article lays out a theory of expressive libertythe value of being able to live in a manner consistent with our deepest understanding of what gives meaning and value to our lives. While raising children is an important aspect of parents expressive liberty, it is limited by the separateness of each childs existence, the fact of human diversity, and the requisites of civil order. Nonetheless, in societies characterized by a deep diversity of moral and religious views, the requirements of both practicality and legitimacy point toward a social order that offers maximum feasible scope for different ways of life to find expression in the choices of parents and civil associations. The Article explores this thesis with particular reference to U.S. history and law.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2011-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1060","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68764963","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Waging war for money has been frowned upon since the Peace of Westphalia and the rise of the modern nation-state. The stigma associated with private warfare translates, in legal terms, into a prohibition on mercenary activity and denying mercenaries the protection afforded to regular combatants (in particular, prisoner of war status). Noting the apparent similarities between mercenaries and private military contractors, some have sought to extend to the latter the restrictive regime applicable to the former. But the resemblance between these two types of actors should not imply that private warfare, in its modern form, is condemnable outright. This Article argues that an inclusive approach to military outsourcingdrawing upon historical, legal and moral perspectivesis necessary to contend with the challenges raised by the growth of the private military industry. I examine the connection between history (highlighting the shared roots of private military contractors and mercenaries), morality (through which the stigma against private warfare developed), and law (the formal vehicle of such stigma), to show that private warfare deserves a more nuanced and pragmatic treatment under international law.
{"title":"Rethinking Private Warfare","authors":"Daphné Richemond-Barak","doi":"10.2202/1938-2545.1056","DOIUrl":"https://doi.org/10.2202/1938-2545.1056","url":null,"abstract":"Waging war for money has been frowned upon since the Peace of Westphalia and the rise of the modern nation-state. The stigma associated with private warfare translates, in legal terms, into a prohibition on mercenary activity and denying mercenaries the protection afforded to regular combatants (in particular, prisoner of war status). Noting the apparent similarities between mercenaries and private military contractors, some have sought to extend to the latter the restrictive regime applicable to the former. But the resemblance between these two types of actors should not imply that private warfare, in its modern form, is condemnable outright. This Article argues that an inclusive approach to military outsourcingdrawing upon historical, legal and moral perspectivesis necessary to contend with the challenges raised by the growth of the private military industry. I examine the connection between history (highlighting the shared roots of private military contractors and mercenaries), morality (through which the stigma against private warfare developed), and law (the formal vehicle of such stigma), to show that private warfare deserves a more nuanced and pragmatic treatment under international law.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2011-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1056","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68764066","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article adopts a comparative perspective on the use of privatization by governments in the welfare context. It begins by reviewing the extent of welfare privatization in the US, the UK, and Ireland, considering notable examples such as privatized welfare-to-work schemes and residential care. For example, the question of privatized welfare accommodation in the UK has resulted in significant litigation and a major judgment on privatization handed down by the House of Lords in 2007. The Article turns to a consideration of the challenges that arise from using privatization in the welfare context from the perspective of i) accountability and ii) human rights. The ways in which the different jurisdictions respond to the challenges of welfare privatizationand the lessons to be learned from those responsesare then assessed. Overall, it is argued that judicial or doctrinal responses to privatization are often inadequate and the extent to which there exist alternative mechanisms to ensure accountability and human rights protection in the context of welfare privatization are explored.
{"title":"Privatization and Welfare: A Comparative Perspective","authors":"C. Donnelly","doi":"10.2202/1938-2545.1062","DOIUrl":"https://doi.org/10.2202/1938-2545.1062","url":null,"abstract":"This Article adopts a comparative perspective on the use of privatization by governments in the welfare context. It begins by reviewing the extent of welfare privatization in the US, the UK, and Ireland, considering notable examples such as privatized welfare-to-work schemes and residential care. For example, the question of privatized welfare accommodation in the UK has resulted in significant litigation and a major judgment on privatization handed down by the House of Lords in 2007. The Article turns to a consideration of the challenges that arise from using privatization in the welfare context from the perspective of i) accountability and ii) human rights. The ways in which the different jurisdictions respond to the challenges of welfare privatizationand the lessons to be learned from those responsesare then assessed. Overall, it is argued that judicial or doctrinal responses to privatization are often inadequate and the extent to which there exist alternative mechanisms to ensure accountability and human rights protection in the context of welfare privatization are explored.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2011-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1062","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68764720","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Across a broad range of subjects, there is now wide agreement that the principle of proportionality governs the extent to which a provocation may lawfully be countered by what might otherwise be an unlawful response. That is the central role assigned to proportionality in international law and it is deeply rooted in the cultural history of societies. However, if the core institutions of a legal system are too weak to be relied upon to take remedial action against wrongdoers, then they must at least be authorized to license appropriate action by the wronged party and to insure that its response remains within prescribed parameters.The practice described in this essay demonstrates that a high degree of accord is emerging across a broad range of issues to the appropriate standards by which the proportionality of countermeasures can be assessed. The practice of various institutions authorized to render second opinions as to the compliance with those standards is gradually narrowing the range of indeterminacy inherent in the term proportionality. Some of this case law has been disappointingly episodic. The well-crafted second opinion, through its precision, its invocation of precedent, and its careful weighing of the probity of the facts presented to it, deepens and narrows the jurisprudential stream while strengthening its embankments.If applied in practice through second opinions rendered by legitimate institutions, proportionality is an example of an indeterminate principle becoming gradually empowered to provide persuasive answers to difficult questions and, thereby, case by case, building the objective determinacy of the principle.
{"title":"Proportionality in International Law","authors":"T. Franck","doi":"10.2202/1938-2545.1049","DOIUrl":"https://doi.org/10.2202/1938-2545.1049","url":null,"abstract":"Across a broad range of subjects, there is now wide agreement that the principle of proportionality governs the extent to which a provocation may lawfully be countered by what might otherwise be an unlawful response. That is the central role assigned to proportionality in international law and it is deeply rooted in the cultural history of societies. However, if the core institutions of a legal system are too weak to be relied upon to take remedial action against wrongdoers, then they must at least be authorized to license appropriate action by the wronged party and to insure that its response remains within prescribed parameters.The practice described in this essay demonstrates that a high degree of accord is emerging across a broad range of issues to the appropriate standards by which the proportionality of countermeasures can be assessed. The practice of various institutions authorized to render second opinions as to the compliance with those standards is gradually narrowing the range of indeterminacy inherent in the term proportionality. Some of this case law has been disappointingly episodic. The well-crafted second opinion, through its precision, its invocation of precedent, and its careful weighing of the probity of the facts presented to it, deepens and narrows the jurisprudential stream while strengthening its embankments.If applied in practice through second opinions rendered by legitimate institutions, proportionality is an example of an indeterminate principle becoming gradually empowered to provide persuasive answers to difficult questions and, thereby, case by case, building the objective determinacy of the principle.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2010-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1049","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68764163","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article discusses two issues of majority-minority relations in deeply divided societies. The first is the legitimacy of the transfer of a homeland minority (or a part of it) along with the territory it inhabits to a neighboring kin-state against the will of the minority or most of its members. The second is the constitutional validity of legislation that renders citizenship or the right to vote contingent upon an oath of allegiance to the state or to its fundamental attributes. These two interrelated steps, advanced by a central partner in the current government coalition in Israel, are aimed at the Arab-Palestinian minority. This articles main focus is the examination of Israeli constitutional law safeguards that may prevent the implementation of these initiatives, which I find to be very dangerous.
{"title":"Citizenship and Its Erosion: Transfer of Populated Territory and Oath of Allegiance in the Prism of Israeli Constitutional Law","authors":"Ilan Saban","doi":"10.2202/1938-2545.1051","DOIUrl":"https://doi.org/10.2202/1938-2545.1051","url":null,"abstract":"This article discusses two issues of majority-minority relations in deeply divided societies. The first is the legitimacy of the transfer of a homeland minority (or a part of it) along with the territory it inhabits to a neighboring kin-state against the will of the minority or most of its members. The second is the constitutional validity of legislation that renders citizenship or the right to vote contingent upon an oath of allegiance to the state or to its fundamental attributes. These two interrelated steps, advanced by a central partner in the current government coalition in Israel, are aimed at the Arab-Palestinian minority. This articles main focus is the examination of Israeli constitutional law safeguards that may prevent the implementation of these initiatives, which I find to be very dangerous.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2010-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1051","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68764224","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Proportionality, as a concept, does not contain any inherent standards, but rather refers to a proper balance between all relevant factors. It is nevertheless necessary to make analytical distinctions that help identify the premises of its application within different contexts. This is particularly true for an area like international humanitarian law in which a proper focusing of the principle of proportionality is crucial. This article suggests that the distinction between a thin and a thick approach is a helpful analytical tool depending on the number and the character of factors to be taken into account in the application of the principle of proportionality. The judgment of the Supreme Court of Israel on the permissibility of targeted killings is used to exemplify the drawbacks and advantages of both approaches.
{"title":"Thin or Thick? The Principle of Proportionality and International Humanitarian Law","authors":"Georg Nolte","doi":"10.2202/1938-2545.1050","DOIUrl":"https://doi.org/10.2202/1938-2545.1050","url":null,"abstract":"Proportionality, as a concept, does not contain any inherent standards, but rather refers to a proper balance between all relevant factors. It is nevertheless necessary to make analytical distinctions that help identify the premises of its application within different contexts. This is particularly true for an area like international humanitarian law in which a proper focusing of the principle of proportionality is crucial. This article suggests that the distinction between a thin and a thick approach is a helpful analytical tool depending on the number and the character of factors to be taken into account in the application of the principle of proportionality. The judgment of the Supreme Court of Israel on the permissibility of targeted killings is used to exemplify the drawbacks and advantages of both approaches.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2010-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1050","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68764189","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：