Voting machines offer convenience. They economise infrastructure and potentially increase voter turnout. Yet, we are trading in information security, a bad deal for democracy indeed. I propose a right a vote analogously, using pen and paper. The machines may suffer technical failure, changing data. Implanting malware or hacking the network can compromise the vote tally. The ODNI concluded that Russia tried to influence the 2016 US election without tampering with the results; still, some experts claim a tendency of defeat for Clinton in counties which used electronic voting machines. Also, they breach the voting principle of publicity. An election must be public to ensure ex post verifiability without special technical knowledge, as the German Federal Constitutional Court ruled in 2009. Electronic voting machines jeopardise democracy. Voters do not need to trust the technical integrity of an electronic system. They do need a right to vote analogously.
In the late 1980s and early 1990s, South Africa started a journey towards a negotiated settlement of its political crisis, and it was against the historical background of the crimes committed by both sides of the struggle in the apartheid-era that the National Party and the African National Congress reached an agreement on how to deal with the crimes of the nation’s immediate past, namely conditional amnesty through a Truth and Reconciliation Commission (TRC). When the TRC and the Amnesty Committee reached the end of their mandates in 1998 and 2003 respectively, the TRC recommended that more than 300 cases should be prosecuted. These involve, among others, people whose applications for amnesty have failed The State has no political will to prosecute the cases recommended by the TRC, and the impact the “unfinished business” has on victims, their families and South African society in general challenges democracy. This paper will aim to establish how public law should respond.
This paper asks whether non-human persons, especially corporations, can be the subject of human rights, whether they can possess such rights.The paper attempts to offer a general, conceptual analysis of this question, irrespective of the particular legal system. A danger exists, that corporate resources, which individuals seldom have, will mean that the most prevalent use of human rights instruments will be made to protect companies rather than individuals, and could even lead to the relative marginalization of humans within human rights law. This paperargues that corporations cannot be bearers of human rights. It shows that the European Court of Human Rights has assumed without discussion that such rights exist. It argues, through analysis of the theoretical justifications for human rights, that corporate human rights cannot exist. It suggests however attributing 'derivative rights', in some cases, to corporations.
This research examines the concept of democracy in the jurisprudence of the European Court of Human Rights (ECHR). Reasoning from the case law related to national security – one of those exceptions – we highlighted three main ideas developed by the Court. Those are the concepts of rule of law, lawfulness, pluralism and broadmindedness. We preferred this broad approach encompassing a full range of cases – since the beginning of the creation of the Court – and avoiding picking one specific right. This permitted us to develop an analysis as objective as possible.The goals pursued in this research are to have a greater picture of the balance realized between individual and state’s interests. Those are very sensitive in matters related to terrorism or state surveillance. While balancing those different aspects is considered as one of the core elements of the democratic society, it is not always clear to infer the Court’s reasoning patterns. This is particularly true in the application of article 8, where by contrast to article 10, the analysis seems to be more flexible and evolving. Applying those three aforementioned concepts, the ECHR is building a way of reasoning far beyond the text of the Convention. The Court has as a consequence a margin of appreciation in defining the content of the concept of democracy, while it recognizes that the article does not contain procedural requirements.
El siguiente trabajo se propone contrastar ciertas visiones que sostienen que los jueces deben mantener una posición aislada frente a la sociedad y las restantes ramas de gobierno, con una propuesta dialógica según la cual la interacción deliberativa es deseable, en la medida que contribuye a dotar de imparcialidad las decisiones públicas. A fin de cumplir tal objetivo, en primer lugar, se expone la teoría de la toma de decisiones judiciales habida al interior de El Federalista, junto con el correlativo modelo constitucional. En segundo lugar, se pone en evidencia cómo, a pesar del llamado giro deliberativo de la democracia, algunas de las ideas subyacentes en dicha obra permanecen vigentes en ciertos desarrollos teóricos. Finalmente, se demuestra que los recientes procesos de apertura dialógica del Poder Judicial suponen una puesta en práctica del marco teórico-normativo de la democracia deliberativa.