Before proceeding it is worth remembering that, although immigration detention has become a customary feature and standard practice of different European legal systems, this is nevertheless an exceptionally severe juridical measure. Barring capital punishment, deprivation of liberty is the most serious sanction that a state can levy against an individual. Against this background, several authors, particularly those from the field of criminal law, have focused on the effects of resorting to administrative law in the implementation of immigrant detention. Ericson (cited in Broeders, 2010) describes this practice or measure as a form of ‘counter-law’ – laws invented to “erode or eliminate traditional principles, standards, and procedures of criminal law that get in the way of pre-empting imagined sources of harm.” On a similar track, Becket and Herbert (2010) discuss the proliferation of legally hybrid techniques that blend elements of civil and criminal law, and as a result, often shift the burden of proof away from the state, providing minimal avenues for contestation, and diminishing the rights-bearing capacity of their targets. The general problem facing detainees of lack of access to judicial remedies and legal contestation is all the more critical when considering the use of waiting zones and extra-territorial detention, the latter of which is promoted and funded as a strategic element of the EU’s migration policy. Such measures detain people even before they’ve arrived on the territory of a state, situating them in a legal grey area and without even the minimal guarantees applicable to the deprivation of liberty (Cornelisse 2010; Guild, 2005).
The Art and Liberty Group was formed during a time that has become commonly known in the historiography of modern Egypt as the liberal era, spanning the years between 1922 and 1952. In 1922, the Egyptian Kingdom was established following the declaration of Egypt’s independence from British rule. Though no longer governing the country officially, the British Crown retained a large military presence and thus remained a major player in Egyptian politics. In 1936, the Anglo-Egyptian Treaty practically ended British presence, seemingly paving the way for equal relations and thus alleviating anti-colonial sentiments. However, when the Second World War (hereinafter WWII) broke out, British military presence in Egypt was restored to occupation levels. This, along with heavy-handed political intervention brought about by the circumstances of global conflict, stoked nationalist sentiments to their pre-independence heights. 25
Art 5(1)(d) permits detention of minors for the purpose of educational supervision or to bring them before a competent legal authority (usually the juvenile courts seized of non-criminal cases). It does however preclude detention under any other heading of Article 5 such as pursuant to criminal proceedings. The official age of majority varies between States. The concept of a ‘minor’ however has an autonomous meaning for Art 5(1)(d) purposes which is distinct from national law and is presently eighteen. 99 Under the first limb, the detention must have genuine educational aspects in order to be lawful. Where a boy was detained in an adult prison, prior to placement, because no suitable juvenile institution would accept him immediately, there was a violation. 100 This said, the concept of ‘educational supervision’ is flexible and not to be equated with traditional classroom teaching; the crucial issue is that a caring regime, including education elements, is provided.
also relate to initiation of drug use. It is noteworthy that the influence of peers is considered one of the main factors for the beginning of use, encouraged by the desire to belong to a group, characteristic of the adolescent population (23-24). It is inferred that the researched adolescents are implicated in the conditions mentioned above which is believed to have fostered drug use, the practice of infractions and the consequent loss of freedom. Regarding the time elapsed from the adolescent's first admission to the provisional inpatient unit and the re-entry it was possible to verify that the highest prevalence was from 1 to 2 years with 52.6% of admissions, followed by those who had less than 1 year of admission. First ticket with 35.5%. This interval of up to less than 2 years was more prevalent, given the period chosen for collection. However, in the study, other time intervals appear, this was due to the fact that some adolescents are complying with measurements in the defined collection period, but that their first entry was before the determined collection time. While criminal responsibility is primarily concerned with repression and punishment, statutory responsibility has as its main objective the education of adolescents, since it is determined according to pedagogical needs, prioritizing those aimed at strengthening family and community ties as mentioned in art. 100 of the Child and Adolescent Statute (ECA) (15)
Last resort presupposes that deprivation of liberty can only be used if other resorts are not considered appropriate or have proven to be inappropriate. This assumes that the objectives of the deprivation of liberty are clear. Both the objectives and the alternatives will be largely deﬁned by the speciﬁcs of the context in which the deprivation of liberty takes place. For example, in the context of juvenile justice, it is important to differentiate between arrest, police custody, pre-trial detention, and forms of deprivation of liberty after conviction. These forms of deprivation of liberty serve different objectives, and the implementation of the last resort requirement requires that these objectives are given due consideration (see, e.g., Van den Brink 2018 on pre-trial detention). In the child protection system, deprivation of liberty may serve as a form of alternative care, but should be used only if family- or community-based alternatives, such as foster care or kafalah, are not appropriate (see Art. 20 (3) CRC). Article 5 (1)(d) ECHR allows for the use of detention for “educational supervision” of minors, but this means that the deprivation of liberty should result in placement in an institution that is designed and provided with sufﬁcient resources for this purpose (Bouamar v. Belgium (1988), para. 50; see also D.G. v Ireland (2002) and Blokhin v Russia [GC] (2016)). Within the context of (im)migration, there are different forms of deprivation of liberty serving different purposes, such as immigration control or deportation; also the objective of protection of children is used in this context (see, e.g., Hamilton et al. 2011). The necessity and appropriateness of these forms of detention for children have increasingly been questioned. The CRC Committee has stated that unaccompanied and separated children should not be deprived of their liberty and that “[d]etention cannot be justiﬁed solely on the basis of the child being unaccompanied or separated, or on their migratory or residence status or lack thereof” (CRC Committee 2005, para. 61). The CRC Committee and the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families have furthermore taken the ﬁrm position that children should not be deprived of liberty based on their or their parents’ migration status. The committees observe that “the possibility of detaining children as a measure of last resort, which may apply in other contexts such as juvenile criminal justice, is not applicable in immigration proceedings as it would conﬂict with the principle of the best interests of the child and the right to develop- ment” (CRC Committee 2017b, para. 10). As a consequence, they argue that “child and family immigration detention should be prohibited by law and its abolishment ensured in policy and practice” and that “[r]esources dedicated to detention should
2 no constitutional issue. In Windsor, a 5-4 majority had concluded that s.3 of the Federal Defence of Marriage Act 1996 (DOMA) was inconsistent with the Fifth Amendment. S.3 was a broad interpretation clause, which provided that any reference to ‘marriage’ in federal legislation should be construed as referring only to marriages between a man and a woman. The effect of s.3 was to deny any benefits accruing to married couples under such legislation to same sex spouses. DOMA had been a pre-emptive strike against the possibility that some States might permit same sex marriages, 4 and seems to have been enacted to give legislative force to majoritarian bigotry against homosexuals. 5 It is a measure of how swiftly the cultural landscape in the USA has shifted in respect of sexual orientation discrimination that by the time Windsor came before the Court in 2103 a dozen States had legalised same sex marriage. The majority judgment in Windsor invalidated s.3 on the basis that it infringed an individual liberty interest arising under the Fifth Amendment. That liberty was not for a person to marry another person of the same sex. DOMA did not purport to ‘ban’ such marriages, and save in Washington DC or the territories, Congress would have no such power in any event. The liberty in issue was an entitlement not to be denigrated, belittled and stigmatised by legislation motivated by moral disapproval of a person’s sexual orientation. The majority also accepted that the due process clause of the Fifth implicitly contained a proviso equivalent to the equal protection clause under the Fourteenth, 6 and seemingly indicated - but did not expressly assert - that sexual orientation discrimination had now become a ‘suspect category’ for equal protection purposes such that it could only be justified by compelling public policy concerns (which did not and could not include simple moral disapproval).
Revolution was a time of limitless hope and shattering violence. It was a time of unprecedented, cataclysmic events, vertiginous reversals of fortune, and of contrasts far more dramatic than in any novel, even one by Dickens. It was also the moment at which the modern political world was invented, a turning point, not just in the history of France, but in that of the wider world. Many of the rights that people fought for then are ones we expect in our own lives. How should we understand the French Revolution? What moment, what image, best expresses it? The Declaration of the Rights of Man and of the Citizen, perhaps, with its bold series of statements about the rights of all people to liberty and equality? Or the guillotine, standing tall and sinister, its blade dripping red with the blood of the Revolution’s enemies? No single book can give a full sense of the sheer scale of the Revolution – the social and economic transformations, the cultural revolution, the religious divisions, the regional experiences in a large and diverse country, the global dimensions, the wars with their national and international impact – all driven on by the tumultuous, complex and ever- changing politics. In trying to chart this seismic event, Peter McPhee has set himself a seemingly impossible task, yet it is one that he brings off with aplomb.
Religious Liberty in the Balance SMU Law Review Volume 47 | Issue 2 Article 6 1994 Religious Liberty in the Balance Mark G Yudof Follow this and additional works at https //scholar smu edu/smulr This[.]
Interestingly, in “The Church” Mill asserts explicitly that the need for inquiry and discussion would remain even if (given the subject of his essay) the clergy taught only truths: “The good of mankind requires that nothing should be believed until the question be first asked, what evidence there is for it” (CW XXVI, 425). Mill would later assert a version of this thesis in his famous discussion of freedom of speech in Chapter II of On Liberty, in which he argues that the value of free speech is not lessened when we assume that prevailing opinion is true. In Representative Government, Mill relatedly argues that his concern with progress implies a concern with staving off social deterioration, and that the practices of discussion and experience are required in both cases. And, as he would also emphasize later, in “The Church” he argues that we cannot claim confidence in our own opinions sufficient to justify undermining further discussion and experience: “It would be a considerable stretch of arrogance in mankind to suppose that they had already attained the pinnacle of knowledge either in religion or politics; it is highly probable that there is still room for improvement in both” (CW XXVI, 425). This claim, as we saw, is at the heart of Mill’s disagreement with Rousseau.
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Yet such a move, though reasonable enough on the surface, disguises assumptions about the methodology of philosophical and political argument that are quite astonishing. Consider, for instance, what is to be said about the liberty of those born with physical disabilities. On a standard negative account, these disabilities do not count as impediments to freedom. A negative libertarian responding along the lines sketched above will defend this result by saying that, while there is some sense in which the physically disabled are unfree, it is not one relevant to liberty in its political sense. Now I am ultimately unsure exactly what force is supposed to be behind the charge that a type of liberty is not a type of political liberty; I can only presume it means that such a liberty is not of political