Current and Future Developments in Law

The connection between rights and the concept of human dignity works, basic but not exclusively, in the scope of founding the rights and in the development of a theory of justice. This paper addresses the difficulties of the concept of dignity and the need to avoid seeing it as an empty formula. The connection with the Kantian autonomy is an essential reference. From there, within the framework of a secular and anthropocentric discourse, are identified some consequences that a particular understanding of the meaning of dignity for the theory of rights has currently, such as those related to animal rights, bioethics, disability rights or the concept of universality of rights.

The idea of capacity is one of the main references of the ethical and legal discourse, and is used to define human beings as persons. The idea of the subject or moral agent, the subject of law, the notion of human dignity and the notion of the self in which both are founded, is based on the idea of capacity. The Convention on the Rights of Persons with Disabilities, approved on December 13, 2006 is a breaking point in the history of the treatment of disability, which now must be seen from the view of human rights. Thus, incorporating this regulatory instrument to our legal system requires a series of reforms, some of them of great importance. The Convention recognizes that persons with disabilities enjoy legal capacity on an equal basis, which implies a fundamental change in the legal treatment of disability. This is a change that can have very important consequences. But this requires changing and rethinking some assumptions, concepts and institutions that exceed the legal field. Indeed, some of these changes go beyond the legal projecting onto the contemporary ethical discourse.

The International Convention on the Rights of People with Disabilities marks a turning point in the treatment of disability and among its most noteworthy features is that it treats disability as a question of human rights. In Spain, this Convention, which is inspired by the so-called social model of disability (and also in the model of diversity), has relevance at the constitutional level. According to Article 10.2 of the Spanish Constitution, the Convention has a fundamental effect on how the rights recognized in it are to be understood. This article proposes a reading of the Constitution according to the social model of disability (and the diversity model).

The Convention on the Rights of Persons with Disabilities places disability in the human rights discourse and, at the same time, enriches the common heritage of human rights in so far as it is much more than a treaty concerning exclusively persons with disabilities. It imposes a new legal construction of “disability” focused on objective situations rather than subjective identities. Consequently, the notion of “person with disabilities” which denotes the subject entitled to rights is presented as an open and expansive concept, whose meaning goes beyond the circle of persons belonging to certain and predetermined vulnerable groups. Besides, through the “universal design” and “reasonable accommodation” strategies and the “nondiscrimination on the basis of disability” clause, the status of “right-holder”, according to the Convention, potentially opens itself up to a universal application. In the chapter, the guiding principles of Convention are reviewed, underlining the importance of legal capacity and accessibility as de jure and de facto prerequisites, respectively, for persons with disabilities to be able to exercise their rights in a real and effective manner.

This chapter presents a model based on Rawls-Senian equality discussion for the social inclusion and the effectiveness of the rights of people with special needs as a vulnerable group in Brazil. There are four topics. The main topics are the introduction and the conclusion, and the middle ones treated, respectively, about the conceptions of disability, and the social inclusion promotion, both according to the Brazilian legislation and practices. In the topic, the conceptions of disability, this chapter brings the three more widespread concepts in literature, that is, the medical, the social, and the biosocial ones, demonstrating which is formally adopted in Brazil, and which is practiced. In the topic, the promotion of social inclusion it is presented the Rawlsian conception of justice and it's Senian criticism, both applied to the issue of special needs as an attempt to establish the equality of opportunities as a first step toward a better society for all people.

In this chapter, I will examine the transcendence of the constitutional value of cultural plurality in the design of the hallmarks of the new model of the Plurinational State introduced in Bolivias Constitution: the legislative, executive, legal and electoral bodies and the State's institutional framework. I refer to these manifestations of cultural plurality, which are characteristic of the plurinational State, as ‘organic and institutional plurinationality’. Specifically, I analyze the ‘constitutional expressions’ of cultural plurality in the model of democracy and political representation, territorial organization, the legal system and constitutional justice and the social and economic model of State as they are set out in Bolivias Constitution.

The Human Development Report, 2000, conceives Human Rights as an intrinsic part of development, and development as a means to make Human Rights a reality. Before that, in 1995, it had already been pointed out that without equity of gender, human development would be seriously threatened. Therefore, without gender equity and an effective system of recognition, implementation and guarantee of women´s right there cannot be real progress, social justice and development. The problem regarding the rights of women is not a domestic but a universal reality which requires resources capable of transcending prejudices based on national, cultural, race, religious or social traditions. Definitely the promotion of women´s rights should no longer be regarded as a women´s issue but as a huge problem of social justice, that implies respect to the human dignity and as an obstacle to progress that affects both women and men.

Participating in a volume dedicated to rights and vulnerable groups makes it necessary to set out the axioms from which this chapter starts. Traditionally the legal efforts that have been made to recognize the rights of women have only been proposed as legal “addenda”, perfectly adaptable to the patriarchal system, and always considering women as a vulnerable group in need of protection, a condition also comparable to that of other groups on whatever may be the basis, whether of race, illness, disability or sexual orientation. But to misdiagnose a subject carries with it a nefarious prognosis. Classifying women as a vulnerable group, when they are over 52% of the world’s population, who in turn suffer the overlapping and systemic structures of exclusion due to race, disease, disability, age or sexual orientation is like treating a structural excluding cancer with sticking plaster. This poor diagnosis of the subjects whose rights must be recognized and protected transversely has forced the international, European, national, regional or even legal local orders to reconceptualize the principle of equality, but this time looking at women as a non-vulnerable group of citizens and to settle on a new way of making law. Here we will discuss one example of this new and complex manner of creating law, although aware of its weaknesses and strengths.

Victims of terrorism are particularly vulnerable because this type of crime is one of the violent crimes that constitutes a fundamental violation of human rights. Thus, we could classify this special group as a vulnerable group that, as such, deserves special protection within the legal sphere. So, in our opinion, one of the procedural rights that should make up the legal status of victims of terrorism is “the right to the truth of the facts”, in which the moral aspect is so important. That is why the reconstruction of the truth of the facts serves as the basis for proper reparation of the damage suffered by the victims and, therefore, for dispensing justice, one of the higher values in our legal system, which is effectively attained in judicial proceedings when a just ruling is issued, with the judge being the main guarantor thereof. Therefore we analyse what constitutes “the right to the truth” at the procedural level, specifically, that is construed as the right of the parties to know the truth of the facts in judicial proceedings and the judge's corresponding duty to direct the proceedings towards discovering the truth.

This chapter is aimed at reviewing post-traumatic stress disorder (PTSD) after terrorist attacks. The data and results of a meta-analysis by DiMaggio and Galea [1] were reviewed and its conclusions were qualified, upgraded and extended with the results from new studies and new analyses. After terrorist attacks, 18-40% of direct victims will develop PTSD, whereas the percentage of indirect victims with PTSD will be lower, but nonetheless above its habitual prevalence in the general population. At one year of terrorist attacks, a significant reduction of PTSD can be expected in the affected community and in the emergency and rescue personnel, but not in the injured victims and in the friends and relatives of the injured and mortal victims. The implications of these results for the psychological treatment of terrorism victims are discussed.

In this chapter, we address the evolution of the legal protection for victims of terrorism in Spain over two centuries. Due to the escalating terrorist violence that affected Spain in the second half of the 20th century, we will highlight the fact that lawmakers, up until the ‘80s, adopted a punitive approach to terrorists and, consequently, delayed the adoption of measures of assistance and reparation for victims of terrorism. In addition, we will stress that, from the '80s of the 20th century, thanks to the demands of a number of survivors and relatives of victims of terrorism, lawmakers became aware of the needs required by victims of terrorism and tried to meet the most urgent ones via compensatory legislative measures, specifically dedicated to this collective. With this in mind, we will show how Spanish lawmakers have taken a path to the adoption of specific legal protection for victims of terrorism, differentiating this vulnerable group from other victims of violent crime. However, although needs of victims of terrorism generated by the personal dimension of the crime of terrorism have been exhaustively met, we will highlight that the public dimension of the harm caused by terrorism creates certain needs that have not yet been fully met by lawmakers in Spain (and in the rest of the world).

Traditionally employment was the best instrument to fight against poverty and social exclusion. This explains that the right to work had been included in the Universal Declaration of Human Rights of 1948 and in some constitutions. Right to work has been interpreted as right to a job and a duty for all citizens. However, one of the consequences of the economic crisis started in 2008 has been the precarization of working conditions. In this context appears the phenomena of working poor, people who have a job but they do not earn enough money to cover their basic needs. In this chapter, the phenomenon of working poor will be studied from the perspective of human rights and a new interpretation of the right to work will be proposed in the sense that work is a wider concept than jobs. Some possible political responses to working poverty will also be studied. The phenomenon of working poor is understood as negation of the right to work and the human right to live with dignity

This paper analyses the emergence of fundamental social rights in the European integration process. As the initial design of the European Union was not for a European society, such rights have emerged slowly. Analysing some European Court of Justice case law, this paper reaches some conclusions about issues of fundamental rights for shaping European rule of law. Firstly, it is necessary to observe the provisions of the European Charter of Fundamental Rights, other European treaties clauses, national constitutional provisions, and the national and European courts case law. Secondly, it is necessary to observe the common constitutional traditions of the member states. Thirdly, the European Court of Justice has constitutional competence, and must maintain a dialogue with the other Courts. Finally, there seems to be a kind of European constitutional judicial review emerging, underlining the necessity of new rules and a more adequate judicial protection of fundamental rights in the European Union.

In this chapter, the right to housing and its enforceability will be discussed, excluding the analysis of the enforcement of rights, economic, social and cultural rights and then the law on the subject will be discussed. Finally, I observe the right to housing in the context of freedom of contract.

In this chapter it is analyzed that how issues of internal security and good order in prisons can enter in conflict with the rights of inmates; in many cases these security measures are logical constraints, appropriate and proportional, but in others these should be considered as mere arbitrariness of the Administration without any basis. Particularly, the actuation of the Spanish Ombudsman is studied.

The present work aims to understand the formation of identity of children in a consumer society. The study is extremely important to verify the need that many children have to be part of the social networks, to consume certain products so as to be accepted and conform to what is established by fashion. With that, through the phenomenological method, it was possible to analyze the phenomenon of a consumer society and, as it occurs, the formation of identity of children in this society. In studies done through field research conducted in the municipality of Conceição da Barra [ES], where we interviewed 12 children – the majority were of low-income – residents in the municipality – it was verified that the ideas of disposability of objects, bought only to satisfy dreams and desires are also present in the reality of the children of Conceição da Barra, who can be considered potential consumers.