"Who says yes? Collective and individual framing of Pacific children`s consent to, and participation in, research in New Zealand"

The complex debate surrounding child consent has been addressed from a predominantly western perspective that often fails to address the important issue of collective rights. Indigenous groups argue that legal and ethical considerations of child consent and research participation are framed within concepts of individual rights and ownership. Such individualistic frameworks are problematic for Pacific communities where the rights of children in extended families are collectively framed, knowledge is collectively owned, and ‘life stage’1 is privileged over age. We discuss the need to frame Pacific children’s rights to consent to, and participate in, research within a collective Pacific worldview.

Sacred rules, secular revelations : the conceptions of rights in pre-modern Europe

This paper is an attempt to reflect on the methodological approaches that I bring to ‘reading law’ in my current project on understandings of individual rights in the legal and theological texts of the twelfth- and early thirteenth-century Middle Ages, entitled ‘Sacred Rules, Secular Revelations: The Conceptions of Rights in Pre-Modern Europe’

The disparity between human rights policy and parliamentary practice in Australia : a Victorian case study

Over the past decade alcohol-related violence in and around licensed premises has given rise to significant legislative, regulatory and operational policing developments. In Australia, the State of Victoria introduced police-imposed banning notices as part of a range of provisions and new powers targeting alcohol-related disorderly behaviour. Banning notices exemplify a broader shift towards discretionary, pre-emptive, regulatory, summary justice which circumvents the criminal law, dilutes individual rights, and reconfigures expectations of balance in the administration of justice. The legal principles upon which banning notices are based and the way in which they were enacted by the Victorian Parliament challenge both the purpose and specific requirements of Victoria’s Charter of Human Rights and Responsibilities Act 2006. Detailed analysis of the application of the Charter compliance processes to the banning notice provisions point to a notable disparity between the expectations of formal human rights policy and the reality of substantive practice. The broader effect of such a disconnect is potentially significant, but has been largely opaque to meaningful scrutiny.

A strategy for making media

It’s never been easier for rights advocates to create and distribute their own media productions, using text, audio, video and the internet. Rights advocates can make media to raise awareness about an issue, to convey new information that is not in the public domain, or to mobilise people to take action. However, careful planning, in the form of a strategy document, is essential to ensure that the media you make genuinely contributes to reaching your advocacy goals. Whether you are an individual rights advocate, a group or an organisation, this chapter will take you through the steps involved in creating a strategic plan for making any kind of media as part of a campaign or project.

To separate or not to separate? Parental decision-making regarding the separation of twins in the early years of schooling

In recent times concerns about possible adverse effects of early separation and advocacy for individual rights have resulted in a movement away from organizational level policies about the separation of twin children as they enter school. Instead, individualized approaches that focus on the twin children’s characteristics and family perspectives have been proposed. This study, conducted in Australia where all but a few families had choice about the class placement of their twin children, questioned parents (N = 156) about their placement decisions. Results indicated that most parents opted for placement together in the early years of schooling. The choice to separate twins at school entry was associated with parent identification of risk in the twin relationship, while being kept together was associated with parent identification of absence of such risk. The findings are discussed in light of the current evidence against separation, and suggest that parent choices regarding the separation of twin children in the early years are informative to educational policy and practice.

Globalisation and Health : Challenges for Health Law and Bioethics

This timely collection explores ethical and legal dilemmas in healthcare arising from globalization. Conflicts between public interests and individual rights, the challenge of regulating professionals and access to health services, and the effects of a global market all feature prominently in contemporary debates in this area. As a result of globalization, issues in health law and bioethics can no longer be understood solely within political boundaries that define traditional notions of individuals and communities. Rather, solutions for emerging problems require a global conception of rights and obligations, including the re-evaluation of ethical frameworks and legal regimes that currently govern exchanges in healthcare. Leading scholars in bioethics, law, medicine and philosophy from various jurisdictions engage these themes in this volume, and demonstrate the need for transnational solutions in a global age of healthcare.

Surviving the electronic panopticon: New lessons in democracy, surveillance, and community in young adult fiction

The ability of new information and communication technologies to pierce previously impenetrable physical, personal, and social boundaries has particular relevance to contemporary society and young people as there is now more information that can be collected, accessed, and distributed about individuals and groups. The ability to know about each other has become a central feature of many young people’s lives. The need to know is further complicated by other questions – Who knows? What do they know? What are the implications of this knowledge?. These questions are a consequence of society having become more mobile and networked enabling increased surveillance, tracking, and spreading of dis/information. With the acceleration of new pervasive and immersive technologies, these questions have taken on a new urgency and significance that go beyond an Orwellian Big Brother scenario. This chapter extends Foucault’s notion of the panopticon to take account of the challenges of an AmI environment of smart networked devices. By drawing on examples of recent young adult fiction, I examine some of the ways in which these texts invite their readers to reflect and speculate on the uneasy relationship between surveillance and democracy and what this means for individual rights and freedom, and a sense of place and belonging.

A theoretical framework for designing and evaluating strategies to identify cases of serious child abuse and neglect

A central dimension of the State’s responsibility in a liberal democracy and any just society is the protection of individuals’ central rights and freedoms, and the creation of the minimum conditions under which each individual has an opportunity to lead a life of sufficient equality, dignity and value. A special subset of this responsibility is to protect those who are unable to protect themselves from genuine harm. Substantial numbers of children suffer serious physical, emotional and sexual abuse, and neglect at the hands of their parents and caregivers or by other known parties. Child abuse and neglect occurs in a situation of extreme power asymmetry. The physical, social, behavioural and economic costs to the individual, and the social and economic costs to communities, are vast. Children are not generally able to protect themselves from serious abuse and neglect. This enlivens both the State’s responsibility to protect the child, and the debate about how that responsibility can and should be discharged. A core question arises for all societies, given that most serious child maltreatment occurs in the family sphere, is unlikely to be disclosed, causes substantial harm to both individual and community, and infringes fundamental individual rights and freedoms. The question is: how can society identify these situations so that the maltreatment can be interrupted, the child’s needs for security and safety, and health and other rehabilitation can be met, and the family’s needs can be addressed to reduce the likelihood of recurrence? This chapter proposes a theoretical framework applicable for any society that is considering justifiable and effective policy approaches to identify and respond to cases of serious child abuse and neglect. The core of the theoretical framework is based on major principles from both classical liberal political philosophy (Locke and Mill), and leading political philosophers from the twentieth century and the first part of the new millennium (Rawls, Rorty, Okin, Nussbaum), and is further situated within fundamental frameworks of civil and criminal law, and health and economics.

Inconsistencies in and the inadequacies of the family counselling and FDR confidentiality and admissibility provisions: The need for reform

In this article the author discusses issues arising from counselling and family dispute resolution (FDR) in relation to confidentiality and admissibility, such as whether an admission of abuse to a child, or a threat to harm the other parent, can be disclosed by the counsellor or family dispute resolution practitioner (FDRP) and used in court proceedings. It is found that the admissibility provisions in the Family Law Act 1975 (Cth) are far more narrowly defined than the confidentiality requirements and have been interpreted strictly by the courts. There are competing policy considerations: the strict “traditionalist” approach, that people can have absolute faith in the integrity of counsellors and mediators and in the confidential nature of the process, must be balanced against a more “protectionist” stance, being the individual rights of victims to have all relevant information placed before the court and to be protected from violence and abuse. It is suggested that legislative reform is required to ensure that courts balance these considerations appropriately and don’t compromise the safety of victims of abuse and family violence.

Yhteisön ja yhteiskunnan ehdoilla : Seurakuntien ja kuntien yhteistyö vuorovaikutuksen näkökulmasta

In this research, the cooperation between Finnish municipalities and Evangelical Lutheran parishes is studied from the standpoint of institutional interaction. The most essential theoretical background for the study is the differentiation thesis of the secularization theory. Cooperation from the viewpoints of both organizations is examined using the functional approach. Furthermore, the market theory and other theories are applied in order to place the studied phenomenon in the wider context of the theories of the sociology of religion. Sacralization in modern society and its relationship with the differentiation thesis of the secularization theory are in the theoretical foci. In addition, along with a descriptive examination of cooperation, the normative sides of the phenomenon are discussed. The survey was conducted among all municipalities and parishes in continental Finland. The questionnaires were sent to all municipal managers of youth work and afternoon activities and to all managers of child, youth and social work in the parishes. The response rate for the municipalities was 73.9 % and for the parishes 69.5 %. In addition, two qualitative data were utilized. The aim of the study is to scrutinize what kind of limitations of differentiation can be caused by the interaction between the secular and the religious. In order to solve the problem, an empirical study of sacralization in the modern context is required. For this purpose, the survey was carried out to determine the effects of the religious on the secular and the impact of the secular on the religious. In the articles of the study the following relationships are discussed: the positions of municipalities and parishes in relation to the state and civil society; cooperation in relation to differentiation; sacralization in relation to the differentiation thesis and cooperation in relation to pluralism. The results of the study highlighted the significance of the cooperation, which was contrary to the secularization theory connected to religious sacralization. The acceptance of the appearance of religion in cooperation and parishes support for municipal function was high in municipalities. Religious cooperation was more active than secular cooperation within all fields. This was also true between fields: religiously orientated child work was more active than the societally orientated social work of the church. Religious cooperation in modern fields of activity underlined sacralization. However, the acceptance of sacralization was weaker in cities than rural areas. Positive relationships between the welfare function of municipalities and the religious function of parishes emphasized the incompleteness of differentiation and the importance of sacralization. The relationship of the function of municipalities with parishes was neither negative nor neutral. Thus, in the most active fields, that is, child work and the traditional social work of the church, the orientation of parishes in cooperation supported the functions of both organizations. In more passive fields, that is, youth work and the societal social work of the church, parishes were orientated towards supporting the municipal function. The orientation of municipalities to religion underlined the perception that religious function is necessary for cooperation. However, the official character of cooperation supported accommodation to the requirements of societal pluralism. According to the results, sacralization can be effective also at the institutional level. The religious effect of voluntary cooperation means that religious sacralization can also readjust to modern society. At the same time, the results of the study stressed the importance of institutional autonomy. Thus, the public sector has a central role in successful cooperation. The conditions of cooperation are weakened if there is no official support of cooperation or adjustment to the individual rights of modern society. The results called into question the one-directional assumptions in the secularization paradigm and the modernization theory in the background. In these assumptions, religion that represents the traditional is seen to give way to the modern, especially at the institutional level. Lack of an interactional view was identified as a central weakness of the secularization paradigm. In the theoretical approach created in the study, an interactional view between religious and secular institutions was made possible by limiting the core of the differentiation thesis to autonomy. The counter forces of differentiation are despecialization and sacralization. These changes in the secularization theory bring about new interactivity on the institutional level. In addition to the interactional approach, that is, the secularization and sacralization theory created as a synthesis of the study, interaction between the religious and the secular is discussed from the standpoint of multiple modernities. The spiritual welfare role of religion is seen as a potential supporter of secular institutions. Religion is set theoretically amongst other ideologies and agents, which can create communal bonds in modern society. Key words: cooperation, municipalities, parishes, sacralization, secularization, modernization, multiple modernities, differentiation, interaction, democracy, secularism, pluralism, civil society

Consent Practices and Biomedical Knowledge Production in Tissue Economies

The use of human tissue sample collections has become an important tool in biomedical research. The collection, use and distribution of human tissue samples, which include blood and diagnostic tissue samples, from which DNA can be extracted and analyzed has also become a major bio-political preoccupation, not only in national contexts, but also at the transnational level. The foundation of medical research rests on the relationship between the doctor and the research subject. This relationship is a social one, in that it is based on informed consent, privacy and autonomy, where research subjects are made aware of what they are getting involved in and are then able to make an informed decision as to whether or not to participate. Within the post-genomic era, however, our understanding of what constitutes informed consent, privacy and autonomy is changing in relation to the needs of researchers, but also as a reflection of policy aspirations. This reflects a change in the power relations between the rights of the individual in relation to the interests of science and society. Using the notions of tissue economies and biovalue (Waldby, 2002) this research explores the changing relationship between sources and users of samples in biomedical research by examining the contexts under which human tissue samples and the information that is extracted from them are acquired, circulated and exchanged in Finland. The research examines how individual rights, particularly informed consent, are being configured in relation to the production of scientific knowledge in tissue economies in Finland from the 1990s to the present. The research examines the production of biovalue through the organization of scientific knowledge production by examining the policy context of knowledge production as well as three case studies (Tampere Research Tissue Bank, Hereditary Non-polyposis Colorectal Cancer and the Finnish Genome Information Center) in which tissues are acquired, circulated and exchanged in Finland. The research shows how interpretations of informed consent have become divergent and the elements and processes that have contributed to these differences. This inquiry shows how the relationship between the interests of individuals is re-configured in relation to the interests of science and society. It indicates how the boundary between interpretations of informed consent, on the one hand, and social and scientific interests, on the other, are being re-drawn and that this process is underscored, in part, by the economic, commercial and preventive potential that research using tissue samples are believed to produce. This can be said to fundamentally challenge the western notion that the rights of the individual are absolute and inalienable within biomedical legislation.

El derecho natural y el nuevo paradigma del derecho

Resumen: En las últimas décadas, mientras en el pensamiento mo - ral asistimos al panorama sobre las últimas consecuencias del relativismo, en el derecho se ha ido conformando un nuevo paradigma: el “Estado de derecho constitucional” cuyo fundamento se halla en la defensa de los derechos humanos y en el principio democrático en la organización social. Para poder comprender tal nuevo modelo sobre el derecho se hace necesario analizar previamente los fundamentos filosóficos en que se sustenta, caracterizados por la dialéctica modernidad- posmodernidad. La modernidad asentada en el desencantamiento del mundo, la descontextualización del saber y el subjetivismo; y la posmodernidad que le ha agregado la instrumentalización de la razón, el aumento del nominalismo lingüístico y un mero pragmatismo han generado el nacimiento de una “nueva ética” totalmente individualista y un neo-constitucionalismo que ha colocado a la Constitución, fundada en los derechos individuales y en la democratización de la vida pública, en el núcleo del pensamiento jurídico actual. Frente a tal panorama, se indican a modo de contribución académica, las ventajas y desventajas o peligros que tal modelo jurídico- político lleva implícito.

A imputação penal dos dirigentes de estruturas organizadas de poder: teoria do domínio da organização

Analisa-se a imputação penal dos dirigentes de estruturas organizadas de poder, buscando definir os requisitos configuradores e o âmbito de aplicabilidade da teoria do domínio da organização, uma modalidade de autoria mediata em que o executor direto do delito atual de forma livre e responsável. Então, são apreciados os casos de maior notoriedade internacional, notadamente de criminalidade estatal, sobre os quais incidiu a referida construção. A carência de uniformidade no emprego da teoria da autoria mediata em virtude de aparatos organizados de poder pelos tribunais estrangeiros constitui corolário das discussões existentes na seara doutrinária. Tais divergências são abordadas no presente trabalho, bem como os modelos propostos por alguns doutrinadores. Por fim, efetua-se uma análise com base em um processo de imputação que respeite os direitos e garantias individuais fundamentais a um Estado Democrático de Direito.

O justo processo coletivo laboral

Este trabalho se propõe a desvendar os contornos principiológicos e instrumentais daquilo que doravante iremos chamar Justo Processo Coletivo Laboral, ramo especialíssimo do processo dedicado à resolução de lides trabalhistas metaindividuais. O foco de nossas atenções é a tutela que é prestada em favor e não contra a coletividade. A falta de disposições específicas na CLT a respeito da tutela de direitos difusos, coletivos e individuais homogêneos próprios à realidade do trabalho torna imperiosa a inserção do Processo Trabalhista no circuito normativo de tutela coletiva, no chamado microssistema coletivo de tutela, composto, dentre outros diplomas, pelo Código de Defesa do Consumidor e pela Lei da Ação Civil Pública. A acomodação do Processo do Trabalho no ambiente coletivista será feita à luz da constelação de princípios constitucionais do processo e sob influxo do paradigma processual instrumental. A partir da identificação das principais barreiras que repelem o trabalhador do Poder Judiciário, procura-se demonstrar de que modo podem as ações coletivas contribuir para sua superação e assim para alavancar e universalizar o acesso à justiça, meta síntese para a qual convergem todos os esforços da processualística contemporânea. Apresentadas suas nuanças principiológicas, parte-se para a análise de seus principais institutos e do modo como deverá ser operacionalizado no dia-a-dia, isto é, de como irá funcionar. A crise de efetividade do processo de bases individualistas, especialmente para o trabalhador hipossuficiente, acentua a importância do devido processo legal coletivo do trabalho, instrumentalmente vocacionado a tornar justo o embate Capital X Trabalho e a conduzir grupos de trabalhadores de uma só vez à justa ordem jurídico-social.