Introduction to Human Rights – part two

So what are human rights? To answer this I will jump for a moment into W102.

There is no formal definition of human rights – however, "’The jurisprudence of human rights’ (Shestack, 1986)" describe rights as "an array of legal relationships. Rights can be seen as entitlements, immunities (from having a legal status altered), privileges and powers (e.g. to create legal relationships)."

• Entitlements
• Immunities
• Privileges
• Powers

Of the above, can we say if any take precedence over the others? There is no fixed hierarchy of human rights. However, it has been observed that Western countries prioritise civil and political rights over economic and social rights, whereas in Third World and communist countries the reverse is true.

So where do our rights come from? Shestack again identified five sources of rights:

• theology (religion) – from religious texts.
• natural law – based upon "the law of nature", identified in the writings of Aristotle and John Locke.
• Positivism – rights derived from the laws of the state. Writers such as Jeremy Bentham focused on what rights are actually written into the law rather than what ought to be rights.
• Marxism – collective rights (of the society) are given preference as opposed to individual rights.
• The sociological approach – perspectives developed from the rise of social sciences.

The above was included to avoid confusion at this stage, but will be encountered again in W102.
Rights can be broken down into three categories:

1. Absolute Rights – these are rights that may never be breached under any circumstances, even under the conditions of war. For example, the right not to be a slave is an absolute right (‘No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms’ (article 4 ECHR). Note: just because it is an absolute right does not mean that it never happens!
2. Limited rights – these rights have specific limitations built into the rights themselves. For example, ‘Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court’ (Article 5 ECHR).
3. Qualified rights – may be restricted to protect the rights of others or the interests of the public. For example,‘Everyone has the right to freedom of peaceful assembly ... No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society’ (Article 11 ECHR).

Most human rights are qualified rights. They may be restricted only to the extent necessary, and any further restrictions may be challenged by the judicial process.

Human rights may be separated into different categories:

Civil rights – Rights that protect individual liberty and secure equality under the law. These are often viewed as private rights and are in place to ensure dignity.

Political rights – Rights that ensure participation in the political process.
Cultural rights – Rights that ensure cultural identity can be preserved and practised.
Social rights – Rights that ensure equal participation in society.
Economic rights – Rights that concern economic security and independence in the workplace as well as in society.
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Note: even though I have listed the categories above, does not mean that these rights are in a hierarchy. See paragraph 3. Rights may intersect in different categories as well. Human rights are usually described as being indivisible, interdependent and interrelated. For example, in order to exercise the right to vote an individual also needs basic literacy to read a ballot (right to an education). Additionally, states may create/identify new rights within its legal system.

Next: a discussion on torture.

Exam Results

Yippee. Another pass with very good marks. Results released yesterday.

Moving on to W202: Contracts and Tort come October 1st.

Exam techniques

Tomorrow is the big day. Exam for W102, a real, live, sit-down exam. First exam I’m having in approximately 30 years. The last exam I did was in electrical engineering and that was in another country altogether.

So I'm as nervous as a mouse in a roomful of cats. I have so many questions in my mind, for example, will the exam be in the same format or similar as I knew in my past experiences? Still, I think I am fully prepared, and having answered the sample papers, reviewed my TMA's, and checked and rechecked my planning and my strategies, I am off now to pack my bag.

Yes you heard me right. I am packing my bag with: pens, pencils, identification, notification of examination allocation (absolutely necessary to enter the exam room), a drink and a couple of energy bars. Oh, and some headache pills. If I begin to get a headache in the exam room, I want to stop it in its tracks.

In preparation for the exam, I have been revising for the past several weeks. The OU has many different ways to support students for examinations and revision: http://www2.open.ac.uk/students/help/topic/study-skills/

The advice and guidance are great and I strongly recommend that students use these skills in conjunction with their study modules.

Some more advice:

• Listen to your tutor and pay attention to the feedback you were given. Also, redo the activities from your face-to-face tutorials.

• Pay attention to your TMA's; they were designed to help you answer the exam questions

• Try to do the sample paper; answer all the questions as this will give you the experience to answer a greater number of options in the exam room

• Read the examination guidelines carefully – my own is 25 pages long!

• Plan to get there at least half an hour before the examination begins to give yourself time to find your seat and relax.

• It's okay to speak to other students but try to avoid speaking about the exam or any module topics – this may create doubts in your mind if someone mentions something you think you did not study properly and cause you to feel unprepared.

• Give yourself time to read the exam paper carefully before beginning to write.

• Make sure you understand what the questions are asking. Pay attention to the wording so that you do not begin to answer incorrectly down the wrong path. For example, one sample question asked what year was the legal age for homosexual relationships made the same as that for heterosexual relationships. Note carefully what it was asking. It is NOT asking what year homosexual relationships was made legal.

• Make a plan regarding time strategy with respect to the total time of your exam. Balance it in terms of how many marks you will be able to obtain in comparison to the length of the entire exam. For example, in a three-hour exam, the recommended time of 20 multiple-choice questions worth 20 marks total, is 40 minutes. It is recommended to spend one hour (60 minutes) each on sections 2 and 3 which are worth 40 marks each. This is total for the number of questions so you need to break down what you will spend on each question within each section.

• Stick to your plan! If you have a question that is not fully answered,  and the time is up, move on!! If you have time at the end you may return to it. It is better to partially answer a question, and obtain some marks rather than to spend a lot of time on it to gain just a few more marks. In the end, you may miss more marks by not having the time to answer another question.

• For the multiple-choice, if you do not know the answer, guess. You have a one in four chance to get it right but your instinct may actually help you to get the answer correct. It is better than having an unanswered question which would bring you zero marks.

• Remember to prepare your answers properly. By this I mean, if you have an essay type question, remember your introduction, body and conclusion. You are not required to put a reference list at the end.

• Develop your techniques to help you remember case law with regard to legal principles, rather than situations.

• Get a good night’s sleep before the exam day, go to bed early and do not try to cram.

• Do not panic! You have been preparing for this for the past year.

Law and Morality 3

Continuing from W102 on Law and Morality.

How does the law reflect Moral values?

While many laws have a moral aspect to them – think of murder which is frowned upon by almost all societies – there are important differences. Remember that law has legal sanctions and moral rule breaking has ‘social’ sanctions. As an example, think of all the news headlines where a paedophile is found in a neighbourhood. Even if he has served his punishment and been placed in the Sexual Offences Register, the public’s disapproval is sometimes bordering on violence. On the other hand, parking on double yellow lines, or going 5 mph over the speed limit will not bring so much emotions out. Ah, but parking in a handicap parking spot when you’re able-bodied?

“These general principles may be summed up in two propositions: first, the law holds liable, as a general rule, only the actual wrongdoer; and second, the law insists, as a general rule, that a person's liability will depend on whether that person may be said to be morally blameworthy. These underlying general principles, referred to by such phrases as 'individual responsibility' and 'no liability without fault', have long been at the root of liability in English law” (Harris, P. (2007) An Introduction to Law p 29). [More reading on Law and Morality may be found at the end of this webpage]

For a quick understanding of how morality crosses societies, cultures and religions, take a look at the ‘pillars of morality.

As you can see, the issues surrounding law and morality become more complex the further we delve into them. With this in mind, I draw this topic to a close here, and will take this up again when I am dealing with W102. However, for those who have the time and interest, I suggest reading

Wacks, R. (2012) Understanding Jurisprudence, 3rd edn, New York, Oxford University Press, p 265-268

which you can find through your OU library link.

Law and Morality 2

At the end of the last blog post, I said I was going to move on to “Law and Justice”. However, the W102 module, Unit 16 also deals with law and morality, and I suspect that this is a good time to summarise this unit as well. However, if you are using this blog to revise for W101, please ignore this post.

Learning outcomes

After studying this unit you should be able to:

• define law and morality
• identify key similarities and differences between law and morality
• identify the moral dimension of legal rules
• consider whether there is a moral duty to obey the law
• compare the argument from natural law and positivism
• consider whether there is a necessary connection between law and morality
• be aware of, and be able to form an opinion on, the debate on whether the law should enforce morality
• use your research skills to find journal articles and other relevant content.

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The Unit begins by defining law as: “Law is a system of enforceable rules that regulate the conduct of people in society.” (The Open University, 2014)

Morality as defined by Phil Harris (2007, p 26): “A society’s ‘code of morality’ may be defined as a set of beliefs, values, principles and standards of behaviour, and such codes are found in all social groups.”

Bernard Gert (2011) postulates:

“The term “morality” can be used either

1)    descriptively to refer to some codes of conduct put forward by a society or,

a. some other group, such as a religion, or

 

b. accepted by an individual for her own behavior, or

2)    normatively to refer to a code of conduct that, given specified conditions, would be put forward by all rational persons.”

It is important to point out here, I think, one of Gert’s followup points; namely, that if a person is not part of a particular group, then s/he does not in any way feel obligated to conform to the morality of the group. This is a key difference in the descriptive and normative senses of morality.

Connection between law and morality

Phil Harris (An introduction to Law, 2007, p27 – p29) shows that there is a connection between law and morality in that aside from the actual wrongdoing/wrongdoer, there must be the mental aspect (mens rea) or ‘blameworthiness’ which is a moral principle.

(to be continued)