Using Comparative Reasoning in Human Rights Adjudication:The Court of Justice of the European Union and the European Court of Human Rights Compared

This article examines the relationship between the methods that the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) use to decide disputes that involve ‘human’ or ‘fundamental’ rights claims, and the substantive outcomes that result from the use of these particular methods. It has a limited aim: in attempting to understand the interrelationship between human rights methodology and human rights outcomes, it considers primarily the use of ‘comparative reasoning’ in ‘human’ and ‘fundamental’ rights claims by these courts. It is not primarily concerned with examining the extent to which the use of comparative reasoning is based on an appropriate methodology or whether there is a persuasive normative theory underpinning the use of comparative reasoning. The issues considered in this chapter do some of the groundwork, however, that is necessary in order to address these methodological and normative questions.

Beyond Criminal Justice: An anthology of abolitionist papers presented to conferences of the European Group for the Study of Deviance and Social Control over the past decade

Beyond Criminal Justice presents a vision of a future without brutal, authoritarian and repressive penal regimes. Many of the papers brought together here have been unavailable for more than two decades. Their republication indicates not only their continuing theoretical importance to abolitionist studies but also how they provide important insights into the nature and legitimacy of criminal processes in the here and now. Contributors highlight the human consequences of the harms of imprisonment, evidencing the hurt, injury and damage of penal incarceration across a number of different countries in Europe. Focusing on penal power and prisoner contestation to such power, the moral and political crises of imprisonment are laid bare. The contributors to Beyond Criminal Justice explore the urgent need for a coherent, rational and morally and politically sophisticated theoretical basis for penal abolitionism. Advocating a utopian imagination and at the same time practical solutions already implemented in countries around Europe - alongside grappling with controversial debates such as abolitionist responses to rape and sexual violence - the book steps outside of common sense assumptions regarding 'crime', punishment and 'criminal justice'. Beyond Criminal Justice will be of interest to students of criminology, zemiology, sociology, penology and critical legal studies as well as anyone interested in rethinking the problem of 'crime' and challenging the logic of the penal rationale.

Gendered Violence and International Human Rights: Thinking Non-Discrimination Beyond the Sex Binary

The concept of non-discrimination has been central in the feminist challenge to gendered violence within international human rights law. This article critically explores non-discrimination and the challenge it seeks to pose to gendered violence through the work of Judith Butler. Drawing upon Butler’s critique of heteronormative sex/gender, the article utilises an understanding of gendered violence as effected by the restrictive scripts of sex/gender within heteronormativity to illustrate how the development of non-discrimination within international human rights law renders it ineffective to challenge gendered violence due to its own commitments to binarised and asymmetrical sex/gender. However, the article also seeks to encourage a reworking of non-discrimination beyond the heteronormative sex binary through employing Butler’s concept of cultural translation. Analysis via the lens of cultural translation reveals the fluidity of non-discrimination as a universal concept and offers new possibilities for feminist engagement with universal human rights.

A Constitution of Social Governance for the European Union

his chapter considers the EU’s socio-economic constitution under the lens of humaneness. It argues that the EU’s unique socio-economic constitution demands equilibrium of socio-economic integration instead of widening the gap between economic integration at EU levels and social integration at national levels. While the EU lacks the legislative competences to achieve this equilibrium, the constitutional principle still prevails. Indeed, the EU competences reflect its own values as well as the socio-economic constitutions of its constituent Member States. These frequently do not allow for total state-governance of social spheres such as working life, education, care or other social services. Instead, societal actors are given scope to (co-)govern these spheres at national levels. Accordingly, the apparent tension between the EU’s socio-economic values and principles and its limited competences in the social policy field can be resolved through a dynamic interpretation of the EU Treaties towards a “constitution of social governance”. This interpretation reads the Treaties as authorising governance by societal actors. The chapter connects the idea of humanness to the ideals of social governance at EU level and proposes two options for practical application of the concept. These are rules for trans-national labour markets based on European collective labour agreements and a European higher education sector developed by agreements between universities.

Regulating Digital Financial Services Agents in Developing Countries to Promote Financial Inclusion

Limited access to bank branches excludes over one billion people from accessing financial services in developing countries. Digital financial services offered by banks and mobile money providers through agents can solve this problem without the need for complex and costly physical banking infrastructures. Delivering digital financial services through agents requires a legal framework to regulate liability. This article analyses whether vicarious liability of the principal is a more efficient regulatory approach than personal liability of the agent. Agent liability in Kenya, Fiji, and Malawi is analysed to demonstrate that vicarious liability of the principal, coupled to an explicit agreement as to agent rewards and penalties, is the more efficient regulatory approach.

C Dupré, The Age of Dignity (Hart 2015)

Bob Dylan famously searched high and low for it and left us wondering ‘what it’s gonna take’ to find it. These days, the elusive dignity – and her equally, if not more, elusive cousin human dignity – has captured the imagination of not just the poet and philosopher, but also, in light of its increasing prominence in an array of legal contexts, the legal scholar. Catherine Dupré’s The Age of Dignity comes at a high point in (human) dignity scholarship, with the publication of numerous texts in the English language emerging on the subject, and with interest in it looking unlikely to dissipate any time soon. In this review, I consider (human) dignity’s promise and pitfalls as it transpires in Dupré’s wide-ranging and ambitious monograph.

The Council and the Court: Shared Objectives or Opposing Views on the Crime of Aggression

This paper argues that an important part of ensuring the jurisdictional basis of the crime of aggression is to secure a partnership between the UN Security Council and the ICC. Such a partnership should be conducive towards the reality of holding to account individuals that undertake an illegal use of force. This Paper puts forward guiding principles for a model that would benefit a constructive institutional relationship between the Council and the Court. It is through the application of these five guiding principles that the inclusion of the crime of aggression in the Rome Statute can translate into a constructive relationship between the International Criminal Court and the Security Council for the betterment of international peace and security as well as international justice. I maintain that it would be damaging to both the legitimacy and operational effectiveness of the Security Council and the ICC and detrimental to the overall institutional relationship if the final outcome proves unfavourable to international action against the crime of aggression and nothing more than dead letter law. Essentially the key to a viable cooperation regime between the Court and the Council will hinge on shared objectives regarding the crime of aggression rather than opposing views, namely combating impunity by holding individuals accountable for the illegal use of force.

Gender implications of UK welfare reform and government equality duties: evidence from qualitative studies

The UK coalition government is bound by equality duties to have regard to the impact of its policies on various groups, including women. This article investigates how far this legislative commitment is influencing debates about current welfare reforms, especially plans for ‘universal credit’ (a new means-tested benefit).
The authors draw on findings from recent studies of within-household distribution from a gender perspective, including in particular their own qualitative research involving separate semi-structured interviews with men and women in 30 low/moderate-income couples in Britain. A major aim of this research was to facilitate more nuanced analysis of the effects of welfare reforms in terms of gender roles and relationships within the household.
This article therefore explores how far these findings, together with key principles for assessing the gender impact of welfare reforms, can be used to assess ‘universal credit’, and to what extent they influenced the UK government’s proposals and analysis.