Law Commons^™

A Positive Right To Protection For Children, Tamar Ezer

Articles

Concepts that are useful in other areas of human rights break down in the context of children. Because children are dependent on adults for their development, they are an anomaly in the liberal legal order, which views negative rights as implying fully rational, autonomous individuals that can exercise free choice. This Article argues for a positive right to protection for children, rooted in dignity, by probing the problematic nature of the positive/negative rights duality and exploring alternate legal approaches to protecting children 's rights in both international and comparative law. The adoption of positive rights for children would help assure …

Beware Of Lawyers Bearing Gifts:A Critical Evaluation Of The Proposals On Fundamental Rights In The Draft Constitutional Treaty., Stephen Carruthers

Articles

The article assesses how far the provisions on fundamental rights contained in the draft Treaty Establishing a Constitution for Europe advance the objectives of promotion of the rule of law, transparency, a balanced relationship between the Union and national legal orders, and effective judicial redress. Argues that while the proposed accession of the Union to the European Convention on Human Rights 1950 and incorporation of the Charter of Fundamental Rights of the European Union 2000, notwithstanding justiciability problems, deserve support, the retention of the general principles of law as a source of fundamental rights and the suggested amendments to the …

Beyond Rights: Legal Process And Ethnic Conflicts, Elena Baylis

Articles

Unresolved ethnic conflicts threaten the stability and the very existence of multi-ethnic states. Ethnically divided states have struggled to build safeguards against such disputes into their political and legal systems by establishing federal political structures, designing elections to encourage participation, and entering complex power-sharing arrangements, but such measures cannot be expected to prevent all conflict. Human rights and minority rights guarantees likewise have proven unable to accommodate all relevant groups and interests. Accordingly, multi-ethnic states facing persistent ethnic conflicts need to develop effective dispute resolution systems for resolving those conflicts as they arise. This presents an important question: what kinds …

Racism's Past And Law's Future, Vivian Grosswald Curran

Articles

Legal scholars, lawmakers and, increasingly, the general public seem to place ever-increasing hope in the potential of law and legal theory, and of enforceable uniform international legal standards. Many appear to believe that identifying and enacting laws and a legal framework that correspond worldwide to human rights will solve the age-old problem of legalized barbarism. The historical propensity of courts, even in democratic states, to legitimate and enable racist policies provides compelling evidence that the current level of faith in law is misplaced.

This Article argues the limitations of law and legal theory, contesting the view that on their own …

Degrees Of Freedom: Building Citizenship In The Shadow Of Slavery, Rebecca J. Scott

Articles

By seeing events in the past as part of a dynamically evolving system with a large, but not indefinite, number of degrees of freedom, we can turn our attention to the multiple possibilities for change, and to the ways in which societies that are initially similarly situated may go on to diverge very sharply. Thus it is, I will argue, with societies in the 19th century that faced the challenge of building citizenship on the ruins of slavery.