This essay advances a libertarian theory of moral rights, which responds effectively to some serious objections that have been raised against libertarianism. I show how libertarianism can explain children’s rights to certain physical integrity and aid. I defend strong moral rights of human, pre-natal organisms, infants and children against all agents to certain non-interference with their physical integrity. I also argue that parents’ moral obligation to aid their offspring follows from a moral principle that prohibits agents to actively harm rights-bearers. Since this is the core principle of all versions of libertarianism, we gain simplicity and coherence. In chapter two, I explain my theory’s similarities and differences to a libertarian theory of moral rights advanced by Robert Nozick in his 1974 book Anarchy, State, and Utopia. I explain the structure and coherence of negative moral rights as advanced by Nozick. Then, I discuss what these negative rights are rights to, and the criteria for being a rights-bearer. In chapter three, I formulate a clear distinction between active and passive behaviour, and discuss the moral importance of foreseeing consequences of one’s active interventions. In chapter four, I claim that some pre-natal human organisms, human infants, and children, are rights-bearers. I formulate a morally relevant characterization of potentiality, and argue that possession of such potentiality is sufficient to have negative rights against all agents. In chapter five, I discuss whether potential moral subjects, in addition, have positive moral rights against all agents to means sufficient to develop into actual moral subjects. I argue that this suggestion brings some difficulties when applied to rights-conflicts. In chapter six, I argue that potential moral subjects’ rights to means necessary to develop into actual moral subjects can be defended in terms of merely negative rights. By adopting the view advanced in this chapter, we get a simple, coherent theory. It avoids the difficulties in the view advanced in chapter five, while keeping its intuitively plausible features. In chapter seven, I discuss whether the entitlement theory is contradictory and morally repugnant. I argue that my version of the entitlement theory is not.

Made available in DSpace on 2016-04-27T17:27:33Z (GMT). No. of bitstreams: 1 Samuel Antonio Merbach de Oliveira.pdf: 35956675 bytes, checksum: 74eec15f01414cfe7928d91593ddd657 (MD5) Previous issue date: 2010-06-17 / Coordenação de Aperfeiçoamento de Pessoal de Nível Superior / The thesis has as objective to answer equally to the philosophical union between the phases and the generations of rights of the man. ln turn, the specific objectives are: to study the historical evolution of the rights of the mau since the antiquity until the contemporaries treats; to show that the choice of the person as a new citizen of international law can guarantee the protection of the dignity of the human being; to examine the development and to effect of the rights of the man in the contemporary society in agreement of the teachings of Norberto Bobbio. The Age of the Rights subject in Norberto Bobbio: Phases and Generations are of great relevance, therefore, following the trend of the contemporary philosophy, the recognition and the protection of the rights of the man are presented in the Constitutions of the modern democratic States, as we has in the international system of rights of the man, representing a way to long for the ideal of the pacific coexistence between the nations. For Bobbio the most important problems of our time are mentioned to the rights of the man and to the peace, in the way that the solution for the peace problem depends on our survival; and the solution of the rights of the man problem is the only certain signal of the civil progress. Bobbio understands this reason, the dialogue and the moderation are specific and valid elements of the culture and the human being condition to minimize the disrespect and the breaking of the rights of the man in the contemporary society, even in a historical time of great violence and not of lesser injustices. To the Bobbio's philosophy the Rights afield Man are developed in four phases: the first phase -Right Born Universal moment where the Natural Rights was not positive; the second phase -Particular Positive Rights are characterized for the fact of the State recognizes part of the Natural Rights in Constitution Letters (particular positive); the third phase -Universal Positive Rights examines the magnifing of the recognition of the Natural Rights and its positive consequent that occurs by means of Treat International(universal positive)and the fourth phaseis called phase of Specification deals with the gradual passage for a later determination of the titular citizens ot rights. In a complementary way, the jointed previously phases have five deriving generations of the historical development of the rights of the man: Ia Generation -the Individual Rights: that estimates individual freedoms and the formal equality in front of the law; 2a Generation -the Colective Rights: established on the social rights that have for objective to guarantee to the people material conditions as essential for the full joy of their rights, where detaches the right to 'the work; 3a Generation - the Rights of Fraternity or Solidarity: deals with the collective and diffuse rights, that basically understand the environrnental and the consumer rights; 4a Generation: The Rights of Genetic Manipulation: that are related with the biotechnology and to bioengineering, reflecting ethical concerning questions of life and death. Although the Bobbio's philosophy has not placed the peace as element of fifth generation, Bobbio gave a special attention to the subject of the peace. In fact, if Bobbio was present in the current days, certainly would have replaced the peace of third for the fifth Generation of the Rights of the Man, for considering it as necessary estimated for the recognition and the effective protection rights of the man in each State. Finally, the conclusion deals with the roain arguments pointed out in the course of the thesis in front of the referring observations to the rights of the man. In this association, was overcome a position concerning the diverse problems and the viable solutions to subject them, printing evaluations of the points longed for in the thesis / A tese tem como objetivo responder reflexivamente à conjugação filosófica entre as fases e as gerações de direitos do homem. Por sua vez, os objetivos específicos são: estudar a evolução histórica dos direitos do homem desde a antiguidade até os tratados contemporâneos; mostrar que a escolha da pessoa humana como novo sujeito de direito internacional pode garantir a proteção da dignidade do ser humano; examinar o desenvolvimento e a efetivação dos direitos do homem na sociedade contemporânea à luz dos ensinamentos de Norberto Bobbio. O tema A Era dos Direitos em Norberto Bobbio: Fases e Gerações é de grande relevância, pois, seguindo a tendência da filosofia contemporânea, o reconhecimento e a proteção dos direitos do homem estão presentes nas Constituições dos Estados democráticos modernos, bem como no sistema internacional de direitos do homem, representando um meio para se almejar o ideal da coexistência pacífica entre as nações. Para Bobbio os problemas mais importantes do nosso tempo referem-se aos direitos do homem e à paz, no sentido de que da solução do problema da paz depende a nossa sobrevivência,e a solução do problema dos direitos do homem é o único sinal certo de progresso civil. Bobbio entende que a razão, o diálogo e a moderação são elementos específicos e válidos da cultura e da condição humana para minimizar o desrespeito e a violação dos direitos do homem na sociedade contemporânea,mesmo numa época histórica de grandes violências e não de menores injustiças. À filosofia de Bobbio os direitos do homem desenvolvem-se em quatro fases: a primeira fase -Direitos Natos Universais momento em que o direito natural não se encontrava positivado; a segunda fase - Direitos Positivos Particulares caracteriza-se pelo fato do Estado reconhece parte dos direitos naturais em Cartas Constitucionais (positivação particular); a terceira fase -Direitos Positivos Universais examina a ampliação do reconhecimento dos direitos naturais e sua conseqüente positivação que ocorre por meio, dos Tratados Internacionais (positivação universal) e, a quarta fase denominada de Especificação-trata da passagem gradual para uma ulterior determinação dos sujeitos titulares de direitos. De modo complementar, as fases anteriormente elencadas tem-se cinco gerações oriundas do desenvolvimento histórico dos direitos do homem: 1a Geração- Os Direitos Individuais: pressupõem as liberdades individuais e a igualdade formal perante a lei; 2a Geração - Os Direitos Coletivos: estabelecem sobre os direitos sociais que têm por objetivo garantir aos indivíduos condições materiais tidas como imprescindíveis para o pleno gozo dos seus direitos, em que se destaca o direito ao trabalho; 3 Geração - os Direitos de Fraternidade ou de Solidariedade: tratam dos direitos coletivos e difusos, que basicamente compreendemo direito ambiental e do consumidor; 4a Geração: Os Direitos de Manipulação Genética: relacionam-se à biotecnologia e à bioengenharia, refletem eticamente acerca de questões da vida e da morte. Embora a filosofia bobbiana não tenha colocado a paz como elemento da quinta geração, Bobbio deu especial atenção ao tema da paz. De fato, se Bobbio estivesse presente nos dias atuais, certamente teria reposicionado a paz da terceira para a quinta Geração dos Direitos do Homem, por considerá-la como pressuposto necessário para o reconhecimento e a efetiva proteção dos direitos do homem em cada Estado. Por fim, a conclusão trata dos principais argumentos salientados no curso da tese ante os óbices referentes aos direitos do homem. Nesta seara, tomou-se uma posição acerca dos diversos problemas e as soluções viáveis para debelá-los, imprimindo avaliações dos escopos almejados na tese

The purpose of this study is to examine how Swedish inmates can utilize the right to vote during their time in prison. To fulfill the purpose, the study investigates how the Swedish Prison and Probation Service arrange elections in different prisons. Interviews with representatives of the Swedish Prison and Probation Service, as well as with a previous inmate, are conducted to show how the different prisons work with arranging elections and encouraging the prisoners to vote. The results are analyzed with a qualitative method. A theory of social inclusion and the right to vote as a positive right is used to analyze the data. The data shows that prisons work differently with arranging elections and most of the prison representatives thinks that there should be room for different approaches due to security level, clients and other conditions. The representatives of the prisons that participated in the study perceive the directions from the Swedish Prison and Probation Service differently which could imply a need for clearer information. The level of participation from the inmates differs, which could correlate to the efforts being done by the prison to encourage the inmates to vote. The conclusions that can be drawn from the study is that cooperation with other relevant actors is necessary to arrange elections where all inmates can participate, and that encouraging efforts from the prisons are needed to secure the inmates’ right to vote.

The thesis offers new paradigms for advancing socio-economic rights in Africa. Many States Parties to human rights instruments have failed to promote the common welfare of their citizens partly because of the justiciability debate, which continues to complicate intellectual and practical efforts at advancing socio-economic rights. The debate also prevents the normative development of these rights through adjudication. Furthermore, traditional human rights theory and practice have been state-centric, with non-state actors largely ignored in the identification, formulation, and implementation of human rights norms. Yet, the involvement of non-state entities in international arena has limited states' autonomies considerably, with serious implications for human rights. Transnational Corporations (TNCs) have capacities to foster economic well-being, development, tenchnological improvement, and wealth, but they also often cause deleterious human rights impacts through thei employment practices, environmental policies, relationships with suppliers and consumers, interactions with governments, and other activities. The thesis argues that socio-economic rights are normative and justiciable. It argues that traditional approaches are no longer sufficient to secure human rights and calls for a dismantatling of some structures erected by doctrinal systems; for realignment of relationships among social institutions; and for integrated bundles of fundamental interests that harness benefits of human rights norms and widen the landscape to commit both formal and informal regimes. Fashioning out a new paradigm for advancement of socio-economic rights requires addressing state capacity. It requires an integrative and global interpretive framework. It requires, finally, a new paradigm to commit non-state actors in Africa. The illustrative chapter uses the rights to work and to social security as templates for some prescriptions towards reaslising socio-economic rights in Africa. / Jurisprudence / LL.D.

In this thesis I offer a brief overview of the current legislative, regulatory and treaty frameworks impacting emergency management in British Columbia, with a particular emphasis on Crown-identified First Nation roles. I show that the regime overwhelmingly positions non-First Nation governments, contractors and other organizations to manage emergencies on behalf of First Nations. I explore emergency management as a manifold process that includes protracted planning, mitigation and recovery phases, which, unlike emergency response, are carried out with lower levels of urgency. I consider Canadian Constitution Act, 1982 (s. 35) Aboriginal rights in light of the lack of statutorily prescribed inclusion of First Nations in off-reserve emergency management, particularly at the planning, mitigation and recovery phases concluding that the jurisprudence to date (including the duty to consult and Aboriginal title) does not appear to have revolutionized the regime. While the constitutional status of Aboriginal rights should operate to insure adequate First Nation direction in each stage of emergency management, the regime continues to restrictively prioritize other constitutional priorities, such as division of powers and civil liberties. To better understand the omission, I theorize the lack of Crown implementation of s. 35 Aboriginal rights generally as an ‘obligation gap’, highlighting how an analysis of s. 35 Aboriginal rights as ‘negative rights’ fails to compel implementation of the full scope of Crown obligations implicit within the jurisprudence to date. I then offer a new framework for s. 35 as justiciable ‘recognition rights’ and juxtapose ‘recognition rights’ with the idea of justiciability of government inaction through a brief comparative analysis of socioeconomic rights in South Africa’s constitution and Canada’s constitutional Aboriginal rights. With a decided emphasis on the obligations of the Crown, this thesis attempts to offer fodder to First Nations and legal practitioners seeking to challenge the emergency management landscape where First Nations seek an enhanced role in protecting and restoring their respective territories in anticipation of, and in the wake of, disaster. For convenience and clarity, contemporary geographical and jurisdictional references to the areas now known as Canada and British Columbia are used throughout the thesis without intention to detract from the integrity of First Nation claims to their traditional and ancestral territories.

The thesis offers new paradigms for advancing socio-economic rights in Africa. Many States Parties to human rights instruments have failed to promote the common welfare of their citizens partly because of the justiciability debate, which continues to complicate intellectual and practical efforts at advancing socio-economic rights. The debate also prevents the normative development of these rights through adjudication. Furthermore, traditional human rights theory and practice have been state-centric, with non-state actors largely ignored in the identification, formulation, and implementation of human rights norms. Yet, the involvement of non-state entities in international arena has limited states' autonomies considerably, with serious implications for human rights. Transnational Corporations (TNCs) have capacities to foster economic well-being, development, tenchnological improvement, and wealth, but they also often cause deleterious human rights impacts through thei employment practices, environmental policies, relationships with suppliers and consumers, interactions with governments, and other activities. The thesis argues that socio-economic rights are normative and justiciable. It argues that traditional approaches are no longer sufficient to secure human rights and calls for a dismantatling of some structures erected by doctrinal systems; for realignment of relationships among social institutions; and for integrated bundles of fundamental interests that harness benefits of human rights norms and widen the landscape to commit both formal and informal regimes. Fashioning out a new paradigm for advancement of socio-economic rights requires addressing state capacity. It requires an integrative and global interpretive framework. It requires, finally, a new paradigm to commit non-state actors in Africa. The illustrative chapter uses the rights to work and to social security as templates for some prescriptions towards reaslising socio-economic rights in Africa. / Jurisprudence / LL.D.

This thesis is an examination of whether the “egalitarian model” for political finance that has been established by the Supreme Court of Canada, other Canadian courts and legal scholars and commentators is actually egalitarian and has been applied consistently (in Chapter 2), and whether Canada’s political finance system measures up to the Court’s model (in Chapters 3 and 4), and how it could be changed to comply with a more egalitarian model that would also be ethical in terms of preventing even the appearance of a conflict of interest (in Chapters 6 and 7). Chapter 1 sets out a general theoretical framework for evaluating the Supreme Court’s egalitarian model, and I develop and set out a more egalitarian model in Chapter 5. In the Chapter 8 conclusion, I summarize the findings and propose structural and positive Charter rights court cases as a way forward, given that the platforms federal politicians and political parties from the past few elections, and the reports of parliamentary committees, have not called for the most of the changes I propose are needed to make the system more egalitarian. The thesis addresses political finance broadly defined as money, property, use of property, gifts, services, favours and other benefits and advantages provided to nomination contestants, election candidates and political party leadership contestants, electoral district associations, political parties, politicians and their staff during election campaign periods and also during the time period between elections, including support provided by “third-party” interest groups, lobbyists and other individuals, and by media outlets. In Chapter 3, I examine the rules that apply to each of these political actors in the areas of registration, donations and loans, spending, public subsidies and disclosure (including auditing), including a separate section on the role of media and social media. Given that political systems include providers (whether as contractors or donors) of money, property and the use of property (including gifts and other benefits and advantages), and services (including favours) to politicians, and given that providers could be lobbyists, I also examine in Chapter 4 the rules concerning gifts, favours and other benefits and relations between voters, lobbyists and politicians, and concerning the conflicts of interest that can be caused by these activities. Other than disclosure and auditing, I do not cover enforcement measures or systems in any of the areas. However, I do note at various points in the thesis that, as several studies and history have shown clearly, effective enforcement measures, policies and practices are key to ensure compliance with such rules. The main contentions that I make are: that the key principles of the Supreme Court of Canada’s egalitarian model have not been consistently upheld by the Court and other Canadian courts, that Canada’ federal political finance system does not fulfill the Court’s egalitarian model, and that several changes are needed to make the model and the system more egalitarian, only a few of which have been addressed by Canadian courts and scholars to date. These contentions counter the claim made in the Court’s rulings, and by many scholars and commentators, that Canada’s political finance system has developed and is based on an egalitarian model. In Chapters 5 through 7, I develop a more egalitarian model and set out specific proposed changes to make Canada’s systems more egalitarian, both in theory and in practice, within the framework of a democratic good government political system (meaning a system with separation of powers, elections, human rights protections, rule of law etc.) and a mixed market economy with both public sector institutions and private sector businesses, unions and other organizations (cooperatives, non-profit, religious organizations etc.). Both the model and many of the specific proposed measures should also be applicable in other jurisdictions with different political systems and economic systems. The framework of 19 standards for a more egalitarian model that I develop in Chapter 5 is based mainly on John Rawls’ theory of justice, but modified and expanded to incorporate critiques of Rawls’ theory, other legal principles and democratic good government theories, international standards, government ethics case law, behavioural psychology studies, and evidence of the public’s expectations. The 201 proposals I make in Chapters 6 and 7 for specific changes to the rules of Canada’s current federal political finance system (again, broadly defined), are based on the model, measures from various jurisdictions in Canada and elsewhere, and international standards. I am not claiming that these changes would definitely result in “better” or more “public interest” policy-making decisions, however that would be determined. I am only contending that the framework I develop is more egalitarian than the Supreme Court’s model, and that the rule changes I suggest would make the political finance, gifts, favours, conflict of interest and lobbying systems align with the more egalitarian model I propose. I primarily use the doctrinal research methodology by examining scholarly research and, given I also examine aspects of the laws of Canadian provinces and municipalities, and other countries, I also deploy some aspects of the comparative methodology (most fully when comparing Canada’s federal rules to Quebec’s rules, and somewhat when comparing Canada’s rules to the U.S. and U.K. rules). The research results from these sources inform the conclusions I set out in my thesis. The thesis advances knowledge in the following areas: 1. It is the first complete evaluation of the federal Canadian political finance, gifts-favours-benefits, conflict of interest and lobbying rules and systems in their current state as of May 2023, based on the findings of extensive new research into key parts of these systems; 2. It sets out the first comprehensive analysis of how the Supreme Court of Canada’s egalitarian model has been applied by the Court and other courts inconsistently, in ways that do not comply with the model; 3. It sets out the first analysis of how Canada’s political finance statutory rules, again defined broadly to include rules that apply to donations, loans, gifts, services, favours and other benefits, lobbying and conflicts of interest, do not comply with the Supreme Court’s egalitarian model, based in part on new statistical research set out in 28 charts, and; 4. It sets out a new theoretical framework based on 19 standards, and a comprehensive set of 201 innovative proposals for changes to make Canada’s political finance rules (again defined broadly) more egalitarian, and more ethical in terms of preventing conflicts of interest. Five comprehensive studies of key parts of the political finance, ethics and lobbying systems are also proposed to gather key information needed to inform the design of some of the 201 proposed changes. Eight structural and positive Charter rights cases are also proposed to challenge current rules that do not comply with the egalitarian model.