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1
Gydal, Cecilia. The principle of proportionality. [Stockholm]: Distributed by Juristförlaget, Stockholm, 1996.
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2
hulsroj, peter. The Principle of Proportionality. Dordrecht: Springer Netherlands, 2013. http://dx.doi.org/10.1007/978-94-007-5775-2.
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3
Emiliou, Nicholas. The principle of proportionality in European law: A comparative study. London: Kluwer Law International, 1996.
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4
Arai-Takahashi, Yutaka. The margin of appreciation doctrine and the principle of proportionality in the jurisprudence of the ECHR. Antwerp: Intersentia, 2002.
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5
Bi li yuan ze yan jiu: Yi ge xian zheng de shi jiao = Research on the principle of proportionality : a constitutionalism of study. Beijing Shi: Fa lü chu ban she, 2008.
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6
Lun bi li yuan ze: Zheng fu gui zhi gong ju xuan ze de si fa ping jia = Principle of proportionality : as a standard of review towards regulatory alternatives. Beijing Shi: Fa lü chu ban she, 2010.
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7
Carpenter, Marlene. The goddess: The difference between the feminine principle and the feminine person, the legacy of this distinction from mythology through Judeo-Christian thought to modern western culture. Dubuque, Iowa: Kendall/Hunt, 1990.
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8
Round-Table of Experts on International Humanitarian Law Applicable to Armed Conflicts at Sea (1989 Ruhr-Universität Bochum). The military objective and the principle of distinction in the law of naval warfare: Report, commentaries, and proceedings of the Round-Table of Experts on International Humanitarian Law Applicable to Armed Conflicts at Sea, Ruhr-Universität Bochum, 10-14 November 1989. Bochum: UVB-Universitätsverlag Dr. N. Brockmeyer, 1991.
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9
YAchin, Syergyey. The Human Existence Analytics: an Introduction to the Experience of Self-discovery. a Systematic Study. ru: INFRA-M Academic Publishing LLC., 2014. http://dx.doi.org/10.12737/3476.
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This paper aims to reveal the multidimensionality of human being-in-the-world within the human existence analytics and to show that human existence is reflexively correlated with the Other. The key question is how the subject ontologically lives and at the same time existentially experiences his relations to the world. The distinction between be-living and living through human’s being-in-the-world is substantiated as the principle of onto-phenomenological differentiation. Within the irreducible multiplicity of human relations to the world four modes of human experience are formed: the transcendent, the symbolic, the objective and the sensual ones. Ultimately, it is shown that the key to understanding the human existence is the highest form of its correlation with the Other: the ethical relation. Thus, the universal for the world philosophy understanding of man as ethical and, as such, reasonable being is expounded.
The paper can be of interest to anyone who is concerned with the problem of man and who is familiar with some basic philosophical approaches to it.
10
Steiner, Eva. Administrative Law. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198790884.003.0011.
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This chapter concerns French administrative law. It examines the characteristic features and principal rules, procedures, and remedies related to administrative activities. The chapter also considers administrative law in its historical perspective and how this has led to a major structural distinction which has been applied in France since the 1789 Revolution the distinction between public and private ‘functions’. It is important to note that in the last decades, there has been a significant impact of EU law on the development of administrative law in the legal system of EU Member States, including France and the United Kingdom. In this respect, the common adoption by European states of general principles such as the principle of legitimate expectation and the principle of proportionality have had the effect of bringing the public law body of these countries closer together.
11
Hulsroj, Peter. The Principle of Proportionality. Springer, 2012.
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12
Tesón, Fernando R. Humanitarian Intervention as Defense of Persons. Oxford University Press, 2017. http://dx.doi.org/10.1093/oso/9780190202903.003.0002.
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This chapter lays the foundation of the argument for part I. It starts by rejecting the distinction between offensive and defensive wars. All justified wars are wars in defense of persons. Humanitarian intervention, therefore, has the same rationale as national self-defense. Humanitarian intervention is defined as a war to defend persons attacked in their territory by their own government or other political group. The chapter also locates war as part of a coercion continuum, and claims that the justification of coercion depends crucially on the principle of proportionality. This means that coercion to remedy rights violations will be justified if it incurs an acceptable cost. Because war is an extreme form of coercion, it will be justified only when the predictable costs are morally unacceptable.
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1948-, Ellis Evelyn, ed. The principle of proportionality in the laws of Europe. Oxford: Hart Pub., 1999.
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14
Melzer, Nils. The Principle of Distinction Between Civilians and Combatants. Edited by Andrew Clapham and Paola Gaeta. Oxford University Press, 2014. http://dx.doi.org/10.1093/law/9780199559695.003.0012.
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This chapter examines the provisions of international humanitarian law (IHL) concerning the distinction between legitimate military targets and persons protected against direct attacks. It explains that the practical application of the principle of distinction in contemporary armed conflicts has become increasingly difficult because of a number of factors. These include the growing asymmetry of military confrontations, the intermingling of armed actors with the civilian population, and the increasing involvement of civilians in the conduct of hostilities.
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Christodoulidou, Theodora, and Kalliopi Chainoglou. The Principle of Proportionality from a Jus Ad Bellum Perspective. Edited by Marc Weller. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780199673049.003.0056.
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This chapter analyses the principle of proportionality from a jus ad bellum perspective and its application in the exercise of the right of self-defence, in the use of force to protect human rights, and against terrorism. It first gives an overview of the contemporary law of the use of force as codified in the UN Charter, followed by a discussion on proportionality in customary international law. It then considers the measures by which double proportionality is calculated and, in particular, how proportionality can be measured when it seeks to meet the general objective of the use of force. Finally, the chapter examines the concept of proportionality as reflected in the judicial decisions of the International Court of Justice (ICJ) and in the legal opinions of the ICJ judges.
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Clapham, Andrew, and Paola Gaeta, eds. The Oxford Handbook of International Law in Armed Conflict. Oxford University Press, 2014. http://dx.doi.org/10.1093/law/9780199559695.001.0001.
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TheHandbookconsists of 32 Chapters in seven parts. Part I provides the historical background and sets out some of the contemporary challenges. Part II considers the relevant sources of international law. Part III describes the different legal regimes: land warfare, air warfare, maritime warfare, the law of occupation, the law applicable to peace operations, and the law of neutrality. Part IV introduces key concepts in international humanitarian law: weapons and the notion of superfluous injury and unnecessary suffering, the principle of distinction, proportionality, genocide and crimes against humanity, grave breaches and war crimes, internal armed conflict. Part V looks at key rights: the right to life, the prohibition on torture, the right to fair trial, economic, social and cultural rights, the protection of the environment, the protection of cultural property, and the human rights of the members of the armed forces. Part VI covers key issues such as: the use of force, terrorism, unlawful combatants, the application of human rights in times of armed conflict, forced migration, and issues of gender. Part VII deals with accountability issues including those related to private security companies, the need to focus on armed groups, as well as questions of state responsibility brought before national courts, and finally, the book addresses issues related to transitional justice.
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N Jansen, Calamita. The Principle of Proportionality and the Problem of Indeterminacy in International Investment Treaties. Oxford University Press, 2015. http://dx.doi.org/10.1093/law-iic/9780190265779.016.0004.
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This chapter focuses on the principle of proportionality, examining its potential to act as a unifying guiding framework for the application and interpretation of investment treaties. It addresses threshold concerns about the legitimacy of introducing without state consent a concept that is not a general principle of law or customary norm, and then addresses whether proportionality can really be used to develop coherent treaty interpretations in the absence of fundamental agreement on questions regarding the relative strength of the rights and interests to be balanced in the analysis. It also considers the potential inutility of proportionality as a mode of analysis without agreement on the standard of review employed by tribunals in their application of a proportionality standard.
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Frowe, Helen. The Just War Framework. Edited by Seth Lazar and Helen Frowe. Oxford University Press, 2017. http://dx.doi.org/10.1093/oxfordhb/9780199943418.013.27.
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Much work in the ethics of war is structured around the distinction between jus ad bellum and jus in bello. This distinction has two key roles. It distinguishes two evaluative objects—the war ‘as a whole’, and the conduct of combatants during the war—and identifies different moral principles as relevant to each. I argue that we should be sceptical of this framework. I suggest that a single set of principles determines the justness of actions that cause nonconsensual harm. If so, there are no distinctive ad bellum or in bello principles. I also reject the view that whilst the justness of, for example, ad bellum proportionality rests on all the goods and harms produced by the war, the justness of combatants’ conduct in war is determined by a comparatively limited set of goods and harms in a way that supports the ad bellum–in bello distinction.
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Gender, Conflict and International Humanitarian Law: A Critique of the 'Principle of Distinction'. Taylor & Francis Group, 2018.
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20
Cohen, Amichai, and David Zlotogorski. Proportionality in International Humanitarian Law. Oxford University Press, 2021. http://dx.doi.org/10.1093/oso/9780197556726.001.0001.
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The principle of proportionality is one of the cornerstones of International Humanitarian Law (IHL). Almost all states involved in armed conflicts recognize that it is prohibited to launch an attack that is expected to cause incidental harm to civilians that exceeds the direct military advantage anticipated from the attack. This prohibition is included in military manuals, taught in professional courses, and accepted as almost axiomatic. And yet, the exact meaning of this principle is vague. Almost every issue is in dispute—from the most elementary question of how to compare civilian harm and military advantage, to the possible obligation to employ accurate but expensive weapons. Controversy is especially rife regarding asymmetrical conflicts, in which many modern democracies are involved. How exactly should proportionality be implemented when the enemy is not an army, but a non-state actor embedded within a civilian population? What does it mean to use precautions in attack, when almost every attack is directed at objects that are used for both military and civilian purposes?
21
William H, Boothby. 4 The Use of Weapons and the Law of Targeting. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198728504.003.0004.
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This chapter summarizes the core rules of the law of targeting making particular reference to Additional Protocol 1 (AP1). It examines the legal constraints that apply to the use of any weapon to undertake attacks. Customary law principles and rules and treaty provisions that regulate targeting are all noted. So, the principles of distinction and discrimination are explained, the rule of proportionality and other particular targeting law rules are summarized and the precautions that the law requires in attack and against the effects of attacks are mentioned. Specific rules of protection for particular persons and objects are also included in the discussion. The chapter concludes with an overview of reprisals.
22
Stone Sweet, Alec, and Jud Mathews. Proportionality Balancing and Constitutional Governance. Oxford University Press, 2019. http://dx.doi.org/10.1093/oso/9780198841395.001.0001.
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This book focuses on the law and politics of rights protection in democracies, and in human rights regimes in Europe, the Americas, and Africa. After introducing the basic features of modern constitutions, with their emphasis on rights and judicial review, the authors present a theory of proportionality that explains why constitutional judges embraced it. Proportionality analysis is a highly intrusive mode of judicial supervision: it permits state officials to limit rights, but only when necessary to achieve a sufficiently important public interest. Since the 1950s, virtually every powerful domestic and international court has adopted proportionality as the central method for protecting rights. In doing so, judges positioned themselves to review all important legislative and administrative decisions, and to invalidate them as unconstitutional when they fail the proportionality test. The result has been a massive—and global—transformation of law and politics. The book explicates the concepts of “trusteeship,” the “system of constitutional justice,” the “effectiveness” of rights adjudication, and the “zone of proportionality.” A wide range of case studies analyze: how proportionality has spread, and variation in how it is deployed; the extent to which the U.S. Supreme Court has evolved and resisted similar doctrines; the role of proportionality in building ongoing “constitutional dialogues” with the other branches of government; and the importance of the principle to the courts of regional human rights regimes. While there is variance in the intensity of proportionality-based dialogues, such interactions are today at the heart of governance in the modern constitutional state and beyond.
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Paust, Jordan. Remotely Piloted Warfare as a Challenge to the Jus Ad Bellum. Edited by Marc Weller. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780199673049.003.0052.
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This chapter examines the use of remotely piloted and other robotics during war and outside the context of war during permissible measures of self-defence and their implications for the jus ad bellum, interpretation of Articles 2(4) and 51 of the UN Charter, and applications of underlying general principles. It discusses the phenomenon of ‘remotely piloted warfare’ as it applies to the use of force by state and non-state actors with respect to self-defence, collective self-defence, self-determination assistance, regional action, and enforcement action authorized by the Security Council. It then considers the use of remotely piloted attacks, self-defence, and warfare in relation to compliance with the principles of reasonable necessity, distinction in targeting, and proportionality. In particular, the chapter looks at the use of weaponized drones and the possible challenges they present to compliance with basic legal principles that limit violence, and some current applications and issues regarding compliance.
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Kreß, Claus, and Robert Lawless, eds. Necessity and Proportionality in International Peace and Security Law. Oxford University Press, 2020. http://dx.doi.org/10.1093/oso/9780197537374.001.0001.
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Necessity and proportionality hold a place in the international law governing the use of force by states and in the law of armed conflict (LOAC). However, the precise contours of these two requirements are uncertain and controversial. This book explores in 5 parts how necessity and proportionality manifest under the law governing the use of force and the LOAC. First, the book introduces the reader to how necessity and proportionality factor in the debate about the interaction between morality and law in the use of military force. Second, the book addresses the issue of how proportionality in the law governing the use of force relates to proportionality in the LOAC. Third, the book addresses a number of pressing legal issues including: how proportionality and necessity are linked under international law, the controversial “unwilling and unable” test, drones and targeted killing, their application during civil war, and the need for further transparency in states’ justification for the use of force in self-defense. Fourth, the book analyzes the role of military necessity within the LOAC on the battlefield. This includes discussions about the history and nature of the principle of military necessity, the proper application of the principle of proportionality, how commanders should account for mental harm in calculating proportionality, and the role artificial intelligence and autonomous weapons systems may play in a proportionality analysis. Finally, the book concludes with a discussion on the potential role of proportionality in the law governing post-conflict contexts.
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Ober, Josiah, and Barry R. Weingast. The Sparta Game. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780190649890.003.0007.
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In this chapter, Ober and Weingast find the roots of some of the most unusual features of Archaic/Classical-era Sparta in the “proportionality principle.” That principle holds that the stability of a regime in which ruling elites extract revenues from nonelites through violence (or its threat) requires that each elite receive a share of rents proportionate to his potential to employ disruptive violence. When proportionality is respected, no one with the power to disrupt society has an incentive to do so. This equilibrium situation helps explain the high degree of stability in Sparta’s sociopolitical system, but it also held the seeds of Sparta’s demise. Proportionality meant that rents could not be redistributed in ways that would have been more economically productive, and the Spartans’ failure to redistribute rents led to the regular demotion of the least successful Spartiates from the ruling class and hence to demographic and military collapse.
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Pierre, d’Argent, and de Ghellinck Isabelle. Part IV The Right to Reparation/Guarantees of Non-Recurrence, A The Right to Reparation, Principle 32 Reparation Procedures. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198743606.003.0036.
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Principle 32 deals with the procedural aspect of the right to reparation, that is, the right for victims of human right violations to access remedial procedures. It addresses three issues: the right to access remedial procedures, procedural requirements of national reparation programmes, and regional and international procedures. While the obligation of states to provide effective remedies is enshrined in most of, if not all, the key international human rights treaties, Principle 32 provides for a right to all victims to access remedies. ‘Reparation’ and ‘remedies’ are both envisioned as victims’ rights, but the distinction between them is vague. After providing a contextual and historical background on Principle 32, this chapter discusses its theoretical framework and how the reparation procedure, judicial or administrative, dealing with gross violations of human rights at national or international level has been implemented.
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Hermansson, Jörgen. The Election System. Edited by Jon Pierre. Oxford University Press, 2016. http://dx.doi.org/10.1093/oxfordhb/9780199665679.013.6.
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The key word for understanding the essence of the election system in Sweden is proportionality. The proportional representation system was introduced in 1911 by a Conservative government before the introduction of universal and equal suffrage. The goal was to avoid a catastrophe for the political right as a consequence of a coming change to democracy. The party interests have continued to shape the politics in this area, and the principle of proportionality has increasingly become the norm for all political parties. They have been engaged in an ever-present and ongoing fine-tuning of the system with improved proportionality as the primary purpose.
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Margaret M, deGuzman. Part V Fairness and Expeditiousness of ICC Proceedings, 37 Proportionate Sentencing at the ICC. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198705161.003.0037.
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In sentencing decisions, the concept of proportionality is often understood in purely retributive terms-punishment should accord with the desert of the perpetrator. This contribution argues that the ICC should use retributive proportionality at most as a limiting principle. It begins with a brief critique of ICC sentencing approaches, including the Lubanga sentencing judgment. Next, it provides an overview of the dominant theories of proportionality and some of their implications for sentencing. Third, the chapter examines the sources of law available to the ICC in relation to proportionality analysis, demonstrating that they support a focus on crime prevention. Fourth, the chapter explains why retributive proportionality would be both impracticable and dangerous. Finally, it proposes a preventive theory of proportionate punishment, arguing that the ICC should focus primarily on appropriate norm expression and other aspects of prevention, such as deterrence, incapacitation, and restorative justice.
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The military objective and the principle of distinction in the law of naval warfare: Report, commentaries, and proceedings of the Round-Table of Experts ... und zum humanitaren Volkerrecht). UVB-Universitatsverlag Dr. N. Brockmeyer, 1991.
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30
Jacobs, Jonathan A. The Liberal State and Criminal Sanction. Oxford University Press, 2020. http://dx.doi.org/10.1093/oso/9780190863623.001.0001.
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Current forms of incarceration in the U.S. and U.K. are morally problematic in ways that are antithetical to the values and principles of liberal democracy. While indicating those morally problematic features the book defends the basic political and legal culture of the U.S. and U.K. A significant remaking of the political order is not needed for the required reforms of incarceration to be made. Greater faithfulness to the values and principles of liberal democracy could be adequate for such reforms. It is crucial to make those reforms because of the ways prisoners are currently being harmed, rendering many of them incapable of reintegrating successfully into civil society. The liberal order makes a dynamic, pluralistic civil society possible, and participating in civil society gives people a reason to value the liberal order. That relation is weakened by penal practices that diminish the agential capacities of offenders and fail to respect them as members of society. The book explores the relation between criminal justice and justice more comprehensively understood, highlighting the distinctive elements of criminal justice. It explains the role of desert in criminal justice and why criminal justice needs to be distinguished from distributive justice. Criminal justice includes a retributivist conception of punishment, one in which desert, proportionality, and parsimony are centrally important. A retributivist conception of punishment most effectively respects the voluntariness and accountability of agents in ways well suited to a liberal political order. The account examines misinterpretations of retributivism and highlights weaknesses of consequentialist approaches to sanction.
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Veatch, Robert M., Amy Haddad, and E. J. Last. Avoidance of Killing. Edited by Robert M. Veatch, Amy Haddad, and E. J. Last. Oxford University Press, 2017. http://dx.doi.org/10.1093/med/9780190277000.003.0010.
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Avoidance of killing is a moral consideration that arises in health care controversies involving the notions that human life is sacred or that killing is morally wrong. Pharmacists may find themselves in positions where they must reconcile the idea that generally killing is a harm to be avoided based on the principle of nonmaleficence with the idea that death might be perceived by a particular patient as a beneficial outcome. This chapter explores the principle of avoidance of killing, highlights differences between active, merciful killing and decisions to forgo treatment, and discusses the concept of proportionality. The cases presented involve topics such as withholding treatment and withdrawing treatment and direct versus indirect killing.
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Sime, Stuart. 46. Costs. Oxford University Press, 2018. http://dx.doi.org/10.1093/he/9780198823100.003.5605.
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This chapter focuses on legal costs. It discusses the two main principles for deciding which party should pay the costs of an application or of the whole proceedings; the rule that costs follow the event; range of possible costs orders; interim costs orders; indemnity principle; basis of quantification; proportionality; summary and detailed assessments; fast track fixed costs; fixed and scale costs; costs and track allocation; publicly funded litigants; pro bono costs orders; costs against non-parties; and wasted costs orders.
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Sime, Stuart. 46. Costs. Oxford University Press, 2016. http://dx.doi.org/10.1093/he/9780198747673.003.5605.
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This chapter focuses on legal costs. It discusses the two main principles for deciding which party should pay the costs of an application or of the whole proceedings; the rule that costs follow the event; range of possible costs orders; interim costs orders; indemnity principle; basis of quantification; proportionality; summary and detailed assessments; fast track fixed costs; fixed and scale costs; costs and track allocation; publicly funded litigants; pro bono costs orders; costs against non-parties; and wasted costs orders.
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Sime, Stuart. 46. Costs. Oxford University Press, 2017. http://dx.doi.org/10.1093/he/9780198787570.003.5605.
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This chapter focuses on legal costs. It discusses the two main principles for deciding which party should pay the costs of an application or of the whole proceedings; the rule that costs follow the event; range of possible costs orders; interim costs orders; indemnity principle; basis of quantification; proportionality; summary and detailed assessments; fast track fixed costs; fixed and scale costs; costs and track allocation; publicly funded litigants; pro bono costs orders; costs against non-parties; and wasted costs orders.
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Christopher, Gosnell. Part III The Right to Justice, C Restrictions on Rules of Law Justified By Action to Combat Impunity, Principle 28 Restrictions on the Effects of Legislation on Disclosure or Repentance. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198743606.003.0032.
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Principle 28 deals with restrictions on the effects of legislation on disclosure or repentance. According to this Principle, a person’s formal confession of a crime may, pursuant to ‘provisions of legislation on disclosure and repentance’, justify a ‘reduction of sentence’ but not ‘exempt[ion]’ from ‘criminal or other responsibility’. Such a person may be granted asylum, presumably by another State, where such a confession ‘may subject the perpetrator to persecution’. Principle 28 thus highlights the maximum benefit that may be accorded to a confession under an amnesty program: a reduction of sentence but not ‘exemption’ from responsibility altogether. However, this distinction does not reflect any established practice or norms of international law. This chapter first provides a contextual and historical background on Principle 28 before discussing its theoretical framework and how exemption from criminal responsibility in return for confession has been applied in practice.
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Ryberg, Jesper. Neuroscientific Treatment of Criminals and Penal Theory. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198758617.003.0010.
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Does the implementation of treatment schemes as an integrated element in the sentencing of offenders violate a retributivist view of punishment? Traditional rehabilitationism has often been held to conflict with retributive justice. However, in this chapter it is argued that: 1) treatment schemes can be designed in a way that is fully consistent with retributive proportionality constraints; 2) treatment schemes cannot plausibly be rejected by retributivists as a type of punishment that should be banned in principle; 3) there may be circumstances under which the retributivist should accept treatment schemes even if criminals are being disproportionately punished.
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Blum, Gabriella. The Dispensable Lives of Soldiers. Oxford University Press, 2017. http://dx.doi.org/10.1093/oso/9780198796176.003.0002.
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This chapter challenges the status-based distinction of the laws of war, calling instead for revised targeting doctrines that would place further limits on the killing of enemy soldiers. The chapter argues that the changing nature of wars and militaries casts doubts on the necessity of killing all enemy combatants indiscriminately. The chapter proposes two amendments. The first is a reinterpretation of the principle of distinction, suggesting that the status-based classification be complemented by a test of threat. The second is a reinterpretation of the principle of military necessity, introducing a least-harmful-means test, under which, whenever feasible, an alternative of capture or disabling of the enemy would be preferred to killing.
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Sweet, Alec Stone, Clare Ryan, and Eric Palmer. A Kantian System of Constitutional Justice. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198825340.003.0003.
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This chapter develops an account of a Kantian system of constitutional justice based on a series of interlocking claims: (i) that the People have placed their freedom in trust, in the form of a charter of rights; (ii) that rights provisions instantiate the foundations on which the external freedom of all persons may be constructed; (iii) that public officials are under a duty to make and enforce law in ways that fulfill the rights of persons that come under their authority; (iv) that an omnilateral trustee, a constitutional court, supervises the lawmaking activities of officials, through the enforcement of the Universal Principle of Right (UPR); and (v) that the UPR, as operationalized through the proportionality principle, lays down the basic criterion for the legitimacy of all positive law. Insofar as these structural features combine to render rights protection more effective, they will also maximize a polity’s capacity to achieve a Rightful condition.
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Smith, Holly M. Using Moral Principles to Guide Decisions. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780199560080.003.0002.
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The Usability Demand is a demand that an acceptable moral theory be usable by those governed by it. For an inquiry into whether and how moral theories meet this demand, it is crucial to understand “usability.” Chapter 2 analyzes the concepts of what it is for a decision maker to use a moral principle to make a decision, and what makes a moral principle usable. It introduces the distinction between an agent’s ability in the core and the extended senses to use a moral principle as a decision-guide, and offers a formal definition of “usability” that tells us how a principle can prescribe an act under an “immediately helpful” description. The question of whether the Usability Demand requires extended or merely core usability is deferred to subsequent chapters.
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Sutton, Rebecca. The Humanitarian Civilian. Oxford University Press, 2021. http://dx.doi.org/10.1093/oso/9780198863816.001.0001.
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In international humanitarian law (IHL), the principle of distinction delineates the difference between the civilian and the combatant, and it safeguards the former from being intentionally targeted in armed conflicts. This monograph explores the way in which the idea of distinction circulates within, and beyond, IHL. Taking a bottom-up approach, the multi-sited study follows distinction across three realms: the Kinetic realm, where distinction is in motion in South Sudan; the Pedagogical realm, where distinction is taught in civil–military training spaces in Europe; and the Intellectual realm, where distinction is formulated and adjudicated in Geneva and the Hague. Directing attention to international humanitarian actors, the book shows that these actors seize upon signifiers of ‘civilianness’ in everyday practice. To safeguard their civilian status, and to deflect any qualities of ‘combatantness’ that might affix to them, humanitarian actors strive to distinguish themselves from other international actors in their midst. The latter include peacekeepers working for the UN Mission in South Sudan (UNMISS), and soldiers who deploy with NATO missions. Crucially, some of the distinctions enacted cut along civilian–civilian lines, suggesting that humanitarian actors are longing for something more than civilian status–the ‘civilian plus’. This special status presents a paradox: the appeal to the ‘civilian plus’ undermines general civilian protection, yet as the civilian ideal becomes increasingly beleaguered, a special civilian status appears ever more desirable. However disruptive these practices may be to the principle of distinction in IHL, it is emphasized that even at the most normative level there is no bright-line distinction to be found.
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Roberts, Julian V., Jesper Ryberg, and Jan W. de Keijser. Sentencing the Multiple Offender. Oxford University Press, 2017. http://dx.doi.org/10.1093/oso/9780190607609.003.0001.
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This book examines the complexities of sentencing when the offender stands convicted of multiple crimes. Contributors tackle the problem of multiple-offense sentencing in different ways and diverse perspectives. They consider the potential justifications for adopting a different approach when sentencing multiple offenders, one that results in more lenient sentences than would be the case if the crimes had been committed (and punished) as single offenses. They also discuss the courts’ pragmatic solutions to the problem, including the totality principle and the concept of overall proportionality, as well as proposals to justify the so-called bulk discount for multiple offending. Finally, they address the tension that exists between multiple concurrent crimes, and multiple crimes committed and punished sequentially.
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Quong, Jonathan. The Morality of Defensive Force. Oxford University Press, 2020. http://dx.doi.org/10.1093/oso/9780198851103.001.0001.
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This book provides an account of the central moral principles that regulate the permissible use of defensive force. The book argues that we cannot understand the morality of defensive force until we ask and answer deeper questions about how the use of defensive force fits with a more general account of justice and moral rights. In developing this view the book offers original accounts of liability, proportionality, and necessity. It also argues, contra the dominant view in the literature, that self-defence can sometimes be justified on the basis of an agent-relative prerogative to give greater weight to one’s own life and interests. The book also provides a novel conception of individual rights against harm. Unlike some, who believe that our rights against harm are fact-relative, Quong argues that our rights against being harmed by others must, in certain respects, be sensitive to the evidence that others can reasonably be expected to possess. The final chapter provides an extended defence of the means principle, a principle that prohibits harmfully using other persons’ bodies or other rightful property unless those persons are duty bound to permit this use or have otherwise waived their claims against such use.
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Armstrong, Chris. Rewarding Improvement. Oxford University Press, 2017. http://dx.doi.org/10.1093/oso/9780198702726.003.0005.
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This chapter introduces one source of special claims over natural resources, based upon ‘improvement’. It sketches a responsibility-catering principle which would underpin local claims over the economic value which is ‘added’ to a natural resource when it is improved. If the principle can be defended it might provide defenders of national claims over natural resources with an argument for reducing the scope o egalitarian redistribution across borders. The chapter, however, raises several doubts about responsibility-catering claims over ‘added value’. The upshot is that rather less flows from improvement—and indeed the distinction between improved and unimproved resources—than is sometimes thought to be the case.
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Sweet, Alec Stone, and Clare Ryan. Constitutional Pluralism and Transnational Justice. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198825340.003.0004.
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In Europe, a cosmopolitan legal order was instantiated through the combined impact of Protocol no. 11 of the ECHR (1998), and the incorporation of the Convention into national legal systems. As a result, two processes—(i) the evolution of constitutional pluralism at the national level; and (ii) the development of rights protection at the transnational level—became causally connected to one another. The first undermined traditional models of domestic orders wherein the notions of constitutional unity and centralized sovereignty reinforced one another. The second process created a multi-level legal system whose effectiveness depends on the extent to which the European Court is able to induce and sustain the cooperation of national courts and officials. The constitutionalization of the proportionality principle, at both the domestic and transnational levels, provided a doctrinal interface for inter-jurisdictional dialogue, and the collective enforcement of the UPR.
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de Keijser, Jan, Julian V. Roberts, and Jesper Ryberg, eds. Sentencing for Multiple Crimes. Oxford University Press, 2017. http://dx.doi.org/10.1093/oso/9780190607609.001.0001.
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Most people assume that criminal offenders have only been convicted of a single crime. However, in reality almost half of offenders stand to be sentenced for more than one crime. The high proportion of multiple-crime offenders poses a number of practical and theoretical challenges for the criminal justice system. For instance, how should courts punish multiple offenders relative to individuals who have been sentenced for a single crime? Should a court simply determine a specific sentence for each individual crime and then impose the total sentences on the offender? If this happens, an offender convicted of a large number of crimes of low seriousness will receive a sentence comparable to that which would be appropriate to a single very serious crime. Such an outcome would violate the principle of ordinal proportionality in sentencing. This book discusses a range of questions relating to multiple crime cases from the perspective of several legal theories. It considers questions such as the overall proportionality of the crimes committed, the temporal span between the crimes, and the relationship between theories about the punitive treatment of recidivists and multiple offenders. Contributors representing six different countries and the fields of legal theory, philosophy, and psychology offer their perspectives to the volume, broadening the scope beyond that of the United States. The chapters in this volume therefore contribute to international and domestic efforts to promote a more principled approach to sentencing offenders convicted of multiple offences.
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Heintschel von Heinegg, Wolff. Blockades and Interdictions. Edited by Marc Weller. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780199673049.003.0044.
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This chapter examines the rules and principles that govern a naval or aerial blockade or some other form of interference with foreign vessels and aircraft in the absence of an explicit authorization by the UN Security Council. After clarifying the concept of blockade under the jus ad bellum and the jus in bello, it considers blockades authorized as military enforcement measures. It also discusses some unresolved or even contested issues regarding the legality of blockades, with reference to blockades in situations other than international armed conflict and the principle of proportionality in relation to humanity. The scope of interdiction operations and its legal bases under international treaties are analysed next, together with maritime interdiction operations and the applicability of prize law during non-international armed conflicts. Finally, the chapter explores the right of individual or collective self-defence as a basis for interdiction operations.
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Pouillaude, Frédéric. Identity: Two Regimes. Translated by Anna Pakes. Oxford University Press, 2017. http://dx.doi.org/10.1093/acprof:oso/9780199314645.003.0010.
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This chapter examines in detail the identity of the choreographic work, which has the peculiarity of being unwritten yet repeatable. In order to do so, the chapter constructs a theoretical framework and a minimal idea of what is more or less commonly understood by the term “work.” It borrows these concepts from Nelson Goodman (1976) and Gérard Genette (1997). From Goodman, the chapter retains the distinction between autographic and allographic works. This distinction enables two broad regimes of existence and identity to be delineated for art objects: that of the singular, material object (the painting or sculpture) and that of the ideal object in principle susceptible of multiple correct instantiations (the novel or symphony, for example.
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Carruth, Alexander, and Sophie Gibb. The Ontology of E. J. Lowe’s Substance Dualism. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198796299.003.0010.
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E. J. Lowe’s model of psychophysical causation offers a way of reconciling interactive substance dualism with the causal completeness principle by denying the homogeneity of the causal relata—more specifically, by invoking a distinction between ‘fact causation’ and ‘event causation’. According to Lowe, purely physical causation is event causation, whereas psychophysical causation involves fact causation, allowing the dualist to accept a version of causal completeness which holds that all physical events have only physical causes. But Lowe’s dualist model is only as plausible as the distinction between fact and event causation upon which it rests. In this chapter it is argued that a suitable distinction between fact and event causation is difficult to maintain within most common ontological systems. It is examined whether accepting the four-category ontology that Lowe defends can alleviate the problem, but it is argued that it is not clear that it can.
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Monteiro, Cássia Juliana de Souza. A liberdade religiosa dos professores, na Alemanha - A proibição geral do uso do véu islâmico por professoras de escolas públicas, em especial. Brazil Publishing, 2021. http://dx.doi.org/10.31012/978-65-5861-351-0.
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In this study, we used as a basis the examination of the German Constitutional Court case law of January 27th, 2015, in which the right of two Muslim employees at public schools to use hijab in the workplace was discussed. We cover the protection of religious freedom in Germany, as defined in art. 4th of the German Basic Law; the relevance of abstract risk and concrete risk in the rationale for an eventual restriction on the fundamental right to religious freedom; the difference and the application of “weighting” and “proportionality”, within the scope of the constitutional interpretation principle of “practical agreement”, where the legal assets to be protected must be coordinated with each other, so that each of them, individually, gain reality, being applied in the relationship “positive religious freedom v. negative religious freedom”; and we highlight the importance of the concept of “neutrality” adopted by States, where some of them are based on secularity and others on secularism.
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Zangwill, Nick. Beauty. Edited by Jerrold Levinson. Oxford University Press, 2009. http://dx.doi.org/10.1093/oxfordhb/9780199279456.003.0018.
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This article discusses several related issues about beauty. These are: the place of beauty among other aesthetic properties; the general principle of aesthetic supervenience; the problem of aesthetic relevance; the distinction between free and dependent beauty; the primacy of our appreciation of free beauty over our appreciation of dependent beauty; personal beauty as a species of beauty; and the metaphysics of beauty. In contemporary philosophy, beauty is often thought of as one among many aesthetic properties, albeit one with a special role.