Constitutions for the 21st Century: Emerging Patterns-The EU, Iraq, Afghanistan…

Professor Mallat delivered the Third Annual Herbert L. Bernstein Memorial Lecture in Comparative Law in 2004 and this article is based on his remarks. The article is included in the inaugural volume of CICLOPs that collects the first six Bernstein lectures. Strong moments in constitution-making often result from traumas; the breakthroughs by the European Union and constitutional achievements by both Iraq and Afghanistan stand as modern examples. The traumas of Europe, Afghanistan, and Iraq have been typified by violent conflict over the past century, including two World Wars, the Cold War, and the ‘war on terrorism’. Efforts and successes at constructing 21st Century constitutions can largely be seen as a response to these 20th Century traumas. Looking beyond the black-letter law of the European, Afghani, and Iraqi constitutions, emerging patterns in constitution making are to be found, including the recent international drive behind constitutions and the classical Montesquieuian separation of powers. Though these are two major driving forces in constitutional design, three ‘acid tests’ are not only heavily considered in the creation of these constitutions, but they are also heavily determinative in the success of any given constitution: religion, federalism, and, most importantly, the presidency. By analyzing these considerations and the acid tests in the context of the European Union, Iraq, and Afghanistan, their overwhelming importance and the difficulties in negotiating each within varied political climates becomes apparent. The hope is that these attempts and successes at constitutional design can serve as examples for other regions suffering from intense and prolonged violent turmoil, such as the successful resolution of the Northern Ireland problem or the as yet resolved Arab-Israeli conflict concerning Palestine. Further, these shifts in constitutional design over the past century act as signposts, pointing in the direction of change as the process and needs of constitutional design evolves from old concerns of self-contained internal affairs to a new modern concern of internationalism and, eventually, to a state of depoliticisation of constitutions

Government Action on Disability Policy: A Global Survey

A study conducted by the Special Rapporteur on Disability of the United Nations Commission for Social Development for the purpose of monitoring the implementation of the Standard Rules on the Equalization of Opportunities for Persons with Disabilities, in accordance with the United Nations General Assembly resolution 48/96

Ability, inability, disability, and antidiscrimination law

In this article the new disability anti-discrimination law in Sweden is considered. The underlying prejudice-causes-discrimination model is criticised. It is argued that the new law - which makes unlawful to discriminate persons with disabilities by applying stereotypes in evaluating them as job applicants outlaws prejudiced behaviour on the part of employers as such, without connecting it with any outcome in employment opportunities. The disability anti-discrimination law is elitist in so far as it only assists those disabled workers whose profile is rather congruous with the profile of non-disabled employees. The law individualises a systemic problem; it makes discrimination and exclusion of disabled persons from the labour market a problem concerning the prejudiced individual, thereby simplifying both the problem and the way to solve it. The lawmaker has not taken into consideration systemic aspects or gain-motivated discrimination, neither that which might appear, as a gulf between ideals and practice are the outcome of a whole range of different practices that respond to different needs. The antidiscrimination law - as if guided by neo-liberal considerations, i.e. rules are not drawn up in order to direct the behaviour of the market - rescues governments from the requirements of acting on behalf of the disadvantaged group.

A revaluation of the cultural dimension of disability policy in the European Union: The impact of digitization and web accessibility

Reflecting the commitments undertaken by the EU through the conclusion of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), the European Disability Strategy 2010–2020 not only gives a prominent position to accessibility, broadly interpreted, but also suggests an examination of the obligations for access to cultural goods and services. The European Disability Strategy 2010–2020 expressly acknowledges that EU action will support national activities to make sports, leisure, cultural and recreational organizations and activities accessible, and use the possibilities for copyright exceptions in the Directive 2001/29/EC (Infosoc Directive). This article discusses to what extent the EU has realized the principle of accessibility and the right to access cultural goods and services envisaged in the UNCRPD. Previous research has yet to explore how web accessibility and digitization interact with the cultural dimension of disability policy in the European Union. This examination attempts to fill this gap by discussing to what extent the European Union has put this cultural dimension into effect and how web accessibility policies and the digitization of cultural materials influence these efforts

The responsibility principle. Contradictions of priority-setting in Swedish healthcare

Abstract In Sweden medical priority-setting have been discussed heatedly since the 1990s. While criteria such as medical need, solidarity and cost-effectiveness were established early, they failed to give clear directives for decision-makers how to prioritize. The notion of individual responsibility for one's health was suggested as solution out of the impasse. According to the responsibility principle, those who fail to live up to the expectations of a healthy lifestyle can legitimately be downprioritized. Although the principle gains increasing support, its effectiveness is hampered by structural problems. We analyzed official reports and pertinent forums of the Swedish debate on priority-setting from 1990-2009. The article examines the responsibility principle with a Luhmannian framework. Unlike common criticisms which emphasize difficulties of assessing whether individuals actually can be held accountable for their lifestyle, we found that the responsibility principle fails in its current form because it unifies two incompatible logics that are deeply rooted in the functionally differentiated structure of society: that of medical reasoning (connecting health condition with lifestyle) and political expediency (attributing responsibility). We conclude that future policy-making cannot tacitly pass over this conflict but has to acknowledge its presence and constructively utilize its potential

Communication Overload in Interaction Systems

The article aims at exploring the relevance of Luhmann's sociological systems theory to understand disability as communication about impairments. The questions to be considered in the following are: What happens to interaction systems when confronted with individuals with psychical or physical impairments (deviating bodies, perception difficulties, difficulties to process information)? What are the essential characteristics of interaction where disabled people participate? Trying to answer these questions, a broader question is raised: In which ways does communication in interaction systems become strained or overloaded? I argue that from the viewpoint of systems theory, disability as a social phenomenon, as part of social systems ‐ historically evolved and intelligible only in a systems/environment relationship ‐ must be linked to communication. Individuals’ impairments strain interaction with respect to time, objectively and socially because interaction systems are a combination of perception and communication.</p

Autopoiesis och styrning : En studie av handikappolitiska program

Autopoiesis and steering: a study on disability policy programs In this article Luhmanns autopoiesis theory is discussed in relation to a specific case; namely political programs with regard to inclusion of disabled persons in the labour market and the implementation difficulties that arise. The article does not attempt to explain the increasing amount of disabled persons excluded from the labour market system. It attempts to explain something more fundamental; how inequality in the labour market system can have such a permanent character. The central question is thus: How come that different programs designed to steer towards an increasing integration of disabled people in the labour market system, does not lead to the intended effect? According to autopoiesis theory, real steering can only be self-steering. Even when steering addresses systems in the environment, is it still self-steering because it is directed towards the system’s own environment, that is, as it is internally constructed by the steering system. Disability policy programs with the objective to increase the inclusion in the labour market of disabled persons, are political programs and as such unable to steer the labour market system.Sociologisk Forsknings digitala arkiv</p

Swedish family policy – facts and prospects

Sweden has since 1970’s step-by-step developed several foundational welfare policies that have helped to encourage equality. Family policy is based on the dual-earner family and asserts the same rights and obligations regarding family and labour market work for both partners.Sweden was the first country to introduce paid parental leave also to fathers in 1974. Swedish family policies encourage both parents to work and share the upbringing of children. Parents receive a generous parental leave package, have flexible employment choices, and a relatively low gender wage gap, while children have high quality childcare, and other services, and a substantial child benefit programme. A brief review of the Swedish welfare state is discussed parallel with critical appraisals of family policie