Published since January 1, 2007

Law & Ethics of Human Rights

ISSN: 1938-2545

Editor-in-chief: Gila Stopler

Editorial Board: Eyal Benvenisti, Moshe Cohen-Eliya, Stephen Macedo, Nancy Rosenblum

About this journal

Objective
Law & Ethics of Human Rights (LEHR) aspires to analyze and clarify the concepts of moral and legal rights, and to contribute to conflict resolution in human rights law. Each issue of LEHR focuses on one contemporary dilemma that raises major moral and legal questions. Each such dilemma is examined using an interdisciplinary approach to human rights law, an approach which strives to create associations between legal provisions and the philosophical thinking underlying them. Moreover, it is our hope that publishing the work of distinguished scholars from various countries will mitigate the problem of culturally insensitive application of human rights norms.

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Important contributions to the resolution of conflicts within human rights law
Integrated approach based on associations between legal provisions and the philosophical thinking underlying them
Distinguished human rights scholars from leading international law schools in the Editorial Board
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Law & Ethics of Human Rights is published in cooperation with the College of Law & Business, Ramat Gan, Israel. For more information, please visit their website.

History

Content available since 2007 (Volume 1, Issue 1)

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Volume 16 Issue 2

November 2022

Publicly Available February 13, 2023

Frontmatter

Page range: i-iii

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February 13, 2023

What are We Talking About When We Talk About “Mixed Constitutions”? Towards a Typology of Constitutional Mixture

Yaniv Roznai

Page range: 193-215

Abstract

This article argues that constitutional mixture should be regarded as an inherent, inevitable feature of constitutions, and to some degree all constitutions are mixed. Thus, “mixed constitutions” should not be regarded as a distinct category of constitutions. Instead of asking whether a constitution is mixed, it might therefore be more useful to ask in which characteristics and to what extent a constitution is mixed. To demonstrate this, the article provides a preliminary typology of constitutional mixture considering the form or system of government; the nature or character of government; the religious or secular identity; the flexibility or rigidity of the constitution; and its model of judicial enforcement—judicial or parliamentary supremacy. Examining these constitutional features, allows to shed light on the three different dimensions of “constitutional mixture”: First, the various features of the constitutional order do not function in a binary yes-or-no manner but appear and move along a spectrum. Second, the various features of the constitution change with time. Third, the various features of the constitutional text may be in tension with the features of the society.

Open Access February 13, 2023

Ideation and Innovation in Constitutional Rights

Tom Ginsburg, Zachary Elkins

Page range: 217-244

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Abstract

This article explores the development of ideas in constitutional design. The point of departure is a perspective of constitutions-as-products , and thus, an examination of the invention, innovation, and an uptake of these products. The article conceptualizes constitutional innovation and distinguishes its manifestations with respect to constitutional products , the process of constitution-making, and in supporting institutions. The last two elements, in line with Schumpeter’s approach to innovation, would seem especially important to constitutional development. The article provides several examples from the area of human rights and argues that innovations tend to be found in situations in which there is strong aversion to a prior order. It also shows that innovations tend to come from the periphery rather than the global core of the field. One of the sources of “mixed” constitutions is precisely such innovations, which then form raw material for further mixing.

Open Access February 13, 2023

Hybridity and Constitutional Taxonomy in Latin America

Francisca Pou Giménez

Page range: 245-272

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Abstract

This article focuses on Latin American constitutionalism with two goals in mind. The first goal is to identify narratives of constitutional mixity or hybridity that have been influential in Latin America, something that habilitates a comparative analysis with references to mixed or hybrid constitutionalism in other scenarios. One narrative underlines the combination of U.S.-inspired constitutionalism with background civil law systems. Another narrative highlights the way classic regional constitutional designs feature a liberal-conservative hybridation that, some claim, continue to influence constitutional dynamics up to this day. And the third narrative is associated with the establishment in regional countries of hybrid or mixed systems of judicial review. The second goal of the article, more methodological in kind, is to explore what do Latin American narratives on mixity teach in the way to clarifying the nature and implications of exercises constitutional taxonomy. As it emerges, constitutional taxonomy is a way of organizing and generating knowledge which is useful to describe, but most meaningful when addressed to provide an explanation, which is often just an antechamber to normative evaluation. Whether a particular exercise of constitutional taxonomy makes sense in a particular scenario, however, is a different matter, and the article suggests that describing, explaining and evaluating Latin American constitutions as hybrid is illuminating but also problematic in a number of ways.

February 13, 2023

Mixed Constitutions in East Asia: South Korea and Taiwan as Examples

Yi-Li Lee, Wen-Chen Chang

Page range: 273-294

Abstract

The study of illiberal constitutions has recently generated enormous scholarly interests. Few, however, have focused on whether democracies may still embrace constitutionalism mixed with illiberal elements. This article explores mixed constitutions of South Korea and Taiwan, the two democracies with vibrant civil societies in East Asia. Three distinctive features in both constitutions have demonstrated illiberal elements, including duty clauses imposed upon citizens, directives requiring the State to enact laws to fulfill the goals of governance, and constitutional cultures that exhibit high deference to political elites based on the Confucian tradition. This article further examines the impacts of such mixed constitutions on three challenging issues: managing pandemic crisis, applying artificial intelligence, and combating fake news. This article finds mixed features of illiberal and democratic constitutions in the two countries by giving their governments more space in managing urgent crises, showing higher deference to experts who are generally trusted by the public, and making compromises to individual rights for greater public good. However, this does not imply that the government is not made democratically accountable, or rights and freedoms are not asserted or valued by individuals. To the contrary, nongovernmental organizations and courts in the two countries continue to act as a counterbalancing force, challenging the government’s policies and decisions if not reasonably balanced, weakening the tendency of power concentration that has been seen in other countries where democratic backsliding or authoritarian governance is gradually revived.

Open Access February 13, 2023

Vietnam’s Mixed Constitution and Human Rights

Ngoc Son Bui

Page range: 295-319

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Abstract

This article develops a discursive explanation of mixed constitution: mixed constitutional ideas and discourse generate mixed constitutional design and practice. On that base, it explores the nature, factors, and functions of the mixed constitution in Vietnam. The emergence of competing constitutional ideas (Confucian, socialist, liberal, universal) animates a constitutional discourse in which different actors adhere to different ideas. Consequently, the 2013 Constitution of Vietnam embodies a mixture of the ideas in its provisions on political institutions, economy, and especially human rights. The enforcement of the constitution induces competing claims to constitutional meanings. The mixed constitution is shaped by path dependency and global diffusion of constitutional ideas. It functions as the base to constrain ideational monopoly and widen the public discourse on constitutional development.

February 13, 2023

Permissive and Unpermissive Constitution Making

Hanna Lerner

Page range: 321-346

Abstract

The article explores the long-term consequences of permissive constitutional arrangements, drawing on a comparative study of Israel, India and Sri Lanka. In all three countries, constitutional drafters at the foundational stage adopted permissive arrangements that avoided controversial decisions on conflicted identity-related issues. In all three cases, three to six decades after independence, the permissive constitutional approach was replaced by more decisive formal constitutional principles. Such unpermissive constitution making was meant to limit the range of options available for future legislation or constitutional interpretation by courts, and preferred nationalist, religious and ethnocentric identity. This article seeks to investigate why such developments occurred in the three countries, and what can be learned from them about the durability and normative advantages of permissive constitutional arrangements. Empirical analysis of the long-term consequences of permissive arrangements illustrates the limited durability that appeared to characterize some of these arrangements. The present assessment also reveals how in some cases, the main ideational conflict at the heart of the constitutional debates has shifted over the years. Nevertheless, the central argument put forth by this article is that, despite ongoing challenges, permissive constitutional arrangements should still be regarded as a valuable constitutional tool for advancing political compromise and facilitating stable democratic institutions. The analysis demonstrates the crucial role permissive constitutions may have as a political tool designed to circumvent violent conflicts and as an analytical tool, thereby offering insight into current constitutional conflicts over ideational issues.

Volume 16 (2022)

Volume 15 (2021)

Volume 14 (2020)

Volume 13 (2019)

Volume 12 (2018)

Volume 11 (2017)

Volume 10 (2016)

Volume 9 (2015)

Volume 8 (2014)

Volume 7 (2013)

Volume 6 (2012)

Volume 5 (2011)

Volume 4 (2010)

Volume 3 (2009)

Volume 2 (2008)

Issue 1 Demography and Human Rights

Volume 1 (2007)

Issue 1 Multiculturalism & the Anti-discrimination Principle

CiteScore	1.1
European Reference Index for the Humanities
SCImago Journal Rank	0.247
Source Normalized Impact per Paper	0.782

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In this journal, authors have the option to publish their article under an open access license. Open Access allows you as an author to retain copyright and share your findings with colleagues and interested parties worldwide without any restraints.
Please note that authors from institutions with which we have a transformative agreement can publish open access without paying an article processing charge (APC). More information on the eligible institutions and articles can be found under the "Funding and Support" tab here.

Editorial

Editor-in-Chief
Gila Stopler, College of Law & Business, Israel

Editors
Eyal Benvenisti, Tel Aviv University, Israel
Moshe Cohen-Eliya, College of Law & Business, Israel
Stephen Macedo, Princeton University, USA
Nancy Rosenblum, Harvard University, USA

Production Editor
Michele Manspeizer

Advisory Board
Seyla Benhabib, Yale University, USA
Chaim Gans, Tel-Aviv University, Israel
Alon Harel, Hebrew University, Israel
Thomas Pogge, Columbia University, USA
Judith Resnik, Yale University, USA
Ayelet Shachar, University of Toronto, Canada
Henry Steiner, Harvard University, USA

Volume 11, Issue 2 Guest Editors
Dr. Tally Kritzman-Amir, College of Law & Business, Israel
Iddo Porat, College of Law & Business, Israel

Volume 11, Issue 1 Guest Editors
Dr. Tally Kritzman-Amir, College of Law & Business, Israel
Iddo Porat, College of Law & Business, Israel

Volume 10, Issue 2 Guest Editors
Avigail Eisenberg, University of Victoria, Australia
Patti Lenard, University of Ottawa, Canada

Volume 8 Guest Editors
Shelly Kreiczer-Levy, College of Law & Business, Israel
Pamela Laufer-Ukeles, University of Dayton, School of Law, USA

Volume 7 Guest Editors
Dr. Tally Kritzman-Amir, College of Law & Business, Israel
Dr. Ronit Donyets-Kedar, College of Law & Business, Israel

Volume 4 Guest Editor
Iddo Porat, College of Law & Business, Israel

Volume 3 Guest Editors
Yossi Dahan, College of Law & Business, Israel
Faina Milman-Sivan, University of Haifa, Israel

Volume 2 Guest Editor
Gila Stopler, College of Law & Business, Israel

Student Editors
Dor Alfassi
Meshi Biton
Keren Cohen
Renana Cohen
Daniel Farkash
Hannah Finkel
Itamar Fisher
Noa Kadmon
Benjy Lankin
Daniel Moran
Ruth Naor
Keren-or Zacharia
Coral Salomonovitch

(Deutsch)

Online ISSN: 1938-2545
Print ISSN: 2194-6531
Type: Journal
Language: English
Publisher: De Gruyter
First published: January 1, 2007
Publication Frequency: 2 Issues per Year
Audience: Law scholars, ethicists, policy researchers, as well as government practitioners