درخت حوزه‌های تخصصی

The first mistaken conception is this. Some Muslim theorists argue that only God can proclaim what justice, right, and rights are; hence parliaments and other state institutions lack the sovereignty to create laws and to proclaim rights. They presume that Western states in their legislation and the UN in their Universal Declaration of Human Rights of 1948 claim such sovereignty. Many Western theorists share their view, differing only in the evaluation. But human rights imply that states must follow them and lack the sovereignty for legislation incompatible with them. The German constitution is explicit on this lack of human sovereignty. It declares in Art.1: “The following basic rights shall bind the legislature, the executive, and the judiciary as directly applicable law.” Hence, the idea of human rights implies that human rights and basic principles of legislation are valid not because states have declared them but because of their inherent qualities. It also implies that states are legitimate only if they conform to such basic principles and excludes the idea that the principles are legitimate because states or mankind have accepted them. Therefore, Western and Islam conceptions of law and sovereignty are less different than they seem. Second, it is generally accepted in Islam and the West that there is a right and even the duty of every human being to fight for justice and the protection of human rights. But there are two conceptions of such a fight both in Islam and the West. The model of the fight for human rights in the centralist conception is a bureaucracy that imposes its rules on the cases it administers. The model in the autonomous conception is a scientific community that solves its differences by principles developed in the community itself.

Human rights are commonly portrayed as a narrative that passes through several chapters before reaching its inevitable conclusion. This narrative begins with the horror of Nazism, moves to the centrality of human rights in the UN Charter, eulogizes the Universal Declaration, celebrates the achievements of standard setting as set out in the major covenants, offers detailed analysis of methods of monitoring and, finally, speculates on the future of compliance. This narrative is sustained, firstly, by ‘naturalist’ foundationalism and, secondly, by a widely held assumptions about the move towards ‘settled norms’ in the contemporary world order. Although some pessimism is voiced over continued reports of torture, genocide, structural economic deprivation, disappearances, ethnic cleansing, political prisoners, the suppression of trade union rights, gender inequality, religious persecution, and many other violations of internationally agreed human rights, most commentators and activists tacitly adopt an optimistic stance that envisages a future rights based international order. The still prevalent naturalist account of human rights, together with a narrative that boasts ‘settled norms’, suggests that the human rights regime represents a final ‘truth’ about the essential nature of all humankind; a common identity that describes the individual in an increasingly globalized world. <br />This paper interrogates the ‘naturalist-settled norm’ account of human rights from the perspective of power and knowledge. It begins by distinguishing between the international human rights regime and the global discourse of human rights. The former adopts a legal approach, where the neutral, value-free, unbiased and impartial nature of the law is tacitly accepted. The latter refers to human rights as social, political and economic practice, and must therefore include an account of power. From this perspective, the discourse of human rights might be said to ascribe a particular identity to human beings as agents of a particular type and kind, which serves the interests of some groups over others. While the human rights regime is presented by world leaders, commentators and the majority of academics as the legitimate articulation of norms founded upon timeless ‘truths’ about human nature, the argument presented in this paper suggests that the norms associated with the discourse of rights offer a more cogent insight into the status of human rights in the current world order. Thus, complex questions arise about power/knowledge, foundationalism, the status of international human rights law, and the politics of rights. <br />The paper begins with an account of discourse as a meeting place for power and knowledge. A second section discusses ‘discipline’ as a mode of social organization that imbues the individual’s identity with particular ways of thinking, knowing and behaving, thereby instilling a particular social consciousness. A further section looks at the global development of ‘market disciplinary’ norms (as opposed to legal norms) that act as a guide for action. The paper concludes with a discussion on issues of human rights and identity in the age of globalization.

Contemporary Europe is undoubtedly a largely secular region where the notion that secularism and ‘progress’ are intertwined has long held sway. Religion in the public sphere is, for many Europeans, associated with emergent or conservative societies, whereas secularism is equated with modernism and seen as an indispensable component of modern governance. Recently, both domestic and European Court of Human Rights (ECtHR) case-law has highlighted the obvious tensions that arise in the manifestation of religion in the European public sphere. While Article 9 of the European Convention on Human Rights affords everyone the right to freedom of thought, conscience and religion (while allowing for certain limitations as imposed by domestic authorities), in matters related to religion, ECtHR has adopted a deferential attitude towards domestic authorities in the determination of the parameters of this right. This is reflected in the fact that it was not until 1993, some thirty-five years after the Court commenced operating, that a violation of Article 9 of the Convention was found. The Court’s jurisprudence on the Article is therefore somewhat troubling and nowhere is this more aptly illustrated than in the jurisprudence relating to the wearing of the Islamic headscarf. Recent case-law in fact suggests that in that the wearing of the headscarf is viewed both as being incompatible with the principle of gender equality and in direct opposition to the principle of secularism. Through the lens of recent Article 9 jurisprudence, this paper will assess the trends emerging in the European Court’s consideration of Islam. Discussion of relevant cases will include Dahlab v. Switzerland, Karaduman v. Turkey, Leyla Şahin v. Turkey, Refah Partisi (The Welfare Party) and Others v. Turkey as well as analysis of cases occurring at the domestic level, most notably the Teacher Headscarf Case of the German Constitutional Court and the English decision of R (on the application of Begum (by her litigation friend, Rahman)) v. Headteacher and Governors of Denbigh High School. This paper also seeks to challenge the ECtHR reasoning in the area of expression of religion (and particularly where that religion is Islam) by analysing the question of religion in the public sphere in the broader European context. There is in fact increasing evidence to suggest that Europe is undergoing a period of de-secularisation, a reality routinely ignored by the European Court of Human Rights.

This paper is an attempt to fill the gap in the literature by presenting a language policy formulated according to the idea of constitutional patriotism that overcomes the charge of ineffectiveness. I will argue that the procedural character of constitutional patriotism and its emphasis on the practice of law-making is best suited to allow for a pragmatic answer to the questions of language policy-making in multicultural societies. Unlike the instrumental and intrinsic arguments, the pragmatic approach views language as the matrix of communication where the goal of engaged citizens is mutual understanding. The pragmatic approach is also more effective because unlike the principled approaches, which tend to homogenize the composition of diverse societies, it constrained by (1) values of political culture of the society; (2.a) historical contingencies such as the founding role of national minorities; and (2.b) practical feasibilities such as size, vitality and concentration of linguistic populations. <br />In recent years the normative status of minority rights as a species of human rights has been widely discussed by political theorists. In this context, the issue of minority language rights is one of the most hotly contested topics in the prevailing debate over the claims of culture. Mainstream political theories approach this topic differently, depending on their view of an appropriate model of political association. Liberal egalitarians emphasize the significance of the liberal ideals of neutrality and autonomy in deciding appropriate language policy, while liberal culturalists focus on the constitutive role of language and culture for the individual’s exercise of rights and liberties that translate into a language policy that ranges from recognitions and accommodation to maintenance and protection of group identity and language.

A person’s identity is their sense of who and what they are, of who stands in significant relations to them, and of what is valuable to them. This is inevitably very broad, an immediate implication of which is that the concept of identity taken alone cannot do significant normative work. In some cases a person’s identity is bound up with the evil that they do or wish to do, and cannot thereby give them any right to do it. In other cases very powerful elements of a person’s identity – such as their attachment to loved ones – is certainly related to important rights, but it is not entirely clear that one needs the concept of identity to explicate or justify these rights; the deep involvement of their identity is arguably a byproduct of other important values in these cases (such as love), and those values can do the grounding work of the rights by themselves and more simply and clearly. <br />Nevertheless, when suitably qualified, a person’s identity is central to accounting for important political rights. These ranges from rights to participate in cultural practices of one’s group, which sometimes implies duties on governments to support minorities threatened with extinction, to – at the outer limit – rights to arrange political administration. <br />These rights are connected to both autonomy and fairness. Cultural rights are often taken either to be opposed to autonomy, or at best instrumental to personal autonomy (by providing ‘options’), but in fact, the ideal of autonomy, expressed by Mill as being the author of one’s life, requires that one be in control of significant aspects of one’s identity. Significant aspects of one’s identity are collectively determined within a culture. Cultures are not static, and their development is particularly affected by political boundaries. A fundamental right of autonomy implies, therefore, that groups be allowed, within reasonable constraints of general feasibility and stability, to arrange political boundaries to enhance their control over their identity. This shows the fundamental link between individual and collective ‘self-determination’. The right of collective self-determination is also based on fairness, since cultural majorities in existing states enjoy advantages that minorities frequently lack. <br />Spelling out the basis of identitarian rights in autonomy contributes to determining both the upper and lower limits of this and other rights of universal scope. First, it is important to distinguish between two senses of ‘human right’. The first sense is a right that a person has simply in virtue of being a person, or simply by being a human being. A second sense is a right of cosmopolitan scope. Every right in the first sense is a right in the second sense but not vice versa. That is, every right that people have merely in virtue of being people is a right that everyone has. But not every right that everyone has (and should have) is a right that they have merely in virtue of being a human or a person. Some rights that everyone has or should have today people could not have had in the past because institutional, economic, technological or other prerequisites were lacking. Some that everyone has today they may not have in the future because other values will have superseded them in a different institutional, economic, or technological setting.

War’s historical relationship to the creation of territorial nation-states is well known, but what empirical and normative role does war play in creating the citizen in a modern democracy? Although contemporary theories of citizenship and human rights do not readily acknowledge a legitimate, generative function for war – as evidenced by restrictions on aggression, annexation of occupied territory, expulsions, denationalization, or derogation of fundamental rights – an empirical assessment of state practice, including the interpretation of international legal obligations, suggests that war plays a powerfully transformative role in the construction of citizenship, and that international law and norms implicitly accept this. <br />Dominant discourses on citizenship in the liberal and cosmopolitan traditions focus on the individual as the unit of analysis and normative concern, and on his rights against the state. At the same time, the choice of how to construct citizenship – to whom to grant it or from whom to withhold it, and what content to give citizenship – is closely linked to questions of security and identity: citizenship either presupposes or purports to create some measure of common identity among citizens, and implies obligations as well as rights. This chapter argues that, in assessing legal and moral positions, this role – if not necessarily approved – must be accounted for to achieve a fuller understanding of how peace, war and rights are related. <br />Human rights may be conceptualized as universal, but their application and specific content are often mediated through the state, and therefore understanding how states retain the ability to define the contours of citizenship, including through the effects of war, is critical to an understanding of the actual scope of human rights as a legal enterprise and a lived experience. <br />The article will examine the formal limits placed on war as an instrument that could affect citizenship; then it will examine the evidence for war’s continued effect (through means such as differentiation between citizens and alien residents, expulsion of aliens, assimilation of refugee flows, and border changes); then it will advance an argument about how the factual effects of war interact with legal doctrine (such as through selective definition and interpretation of wars, perfection of wartime changes in peace treaties, and novel demographic changes introduced by peace treaties). <br />The article considers the concepts of participation, loyalty, and treason; the evidence and implications of wartime propaganda; the rules and practice governing transfer of populated territory between sovereigns; the incentives that the laws of war create for individuals’ identification with the state; and the accommodation in peace plans of demographic change wrought by war. <br />Principal reference is made to changes in citizenship status following the wars of the former Yugoslavia, the Algerian decolonization, the postwar settlement of Europe, and to the debates about the contours of citizenship in Israel and the Palestinian territories.