Applicability of Human Rights Standards to Private Corporations: An American Perspective

Wood, Steve; Scharffs, Brett G.

doi:10.1093/ajcl/50.suppl1.531

Cited by 4 publications

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“…At a most general level, for example, expectations in respect of rights filter pervasively into private law, and they increasingly shape cross-boundary guidelines in respect of trade, labour, employment, medicine, healthcare, sport, media, electronic communications (Internet), etc 53 . Across national divides, these standards then gain growing (although always contested) obligatory force for both private and public actors (Wood and Scharffs, 2002, p. 566). In some cases, more specifically, rights are assimilated directly in judicial rulings to establish a body of international private law containing quasi-constitutional obligations for public bodies 54 .…”

Section: From Constituent Power To Rights: New Patterns Of Inclusion mentioning

confidence: 99%

Rights and constituent power in the global constitution

Thornhill¹

2014

International Journal of Law in Context

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Using an approach derived from sociological functionalism, this paper proposes a distinctive reconstruction both of the history of constitutionalism and of the changing form of constitutional law in global society. It argues that constitutional norms form adaptive principles for stabilising the inclusionary legal and political functions of society. Classical patterns of legal/political inclusion tended to rely on democratic forms of will formation (constituent power). Contemporary patterns of legal/political inclusion rely, in contrast, on rights. The shift in emphasis from constituent power to rights forms the constitutional foundation for the emerging global political system.proposed here, certain norms are indispensable for certain historical époques, and they are not, as for Luhmann, mere hyper-fictitious projections of inner-systemic communications. Nonetheless, the argument that public legal norms are generated, not through rational interpersonal deliberation, but within different social systems, has its origins in Luhmann's thought. The specific benefit derived from the use of a broadly Luhmannian approach is that it enables us to renounce the construction of constitutional norms as simply materialised principles, and we can penetrate the reflexive adaptive meanings contained beneath the literal surface of constitutional concepts. This in turn means that we can observe the societal pressures articulated through constitutional norms, and we can present a broad sociological analysis of the correlation between constitutional norms, changes in societal structure, and evolving societal demands for political power and law. In particular, this approach brings into view the role of concepts in stabilising societal structure, and it allows us to see the submerged functional meaning beneath the literal implications of normative claims. Overall, this approach creates a perspective in which we can interpret newly emergent expressions of constitutional normativity as part of deeper patterns of societal adaptation, in the context of embedded processes of systemic formation. In each respect, the paper proposes an encompassing theory of constitutionalism, both classical (national) and contemporary (global), as an account of the social construction of power, and it attempts to locate current analysis of global constitutionalism on more deeply reflected sociological foundations.4 On constituent power in the English revolution, see Pincus (2009, pp. 283−286). The classic expression of constituent power was formalised in revolutionary France

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Section: From Constituent Power To Rights: New Patterns Of Inclusion mentioning

confidence: 99%

Rights and constituent power in the global constitution

Thornhill¹

2014

International Journal of Law in Context

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“…5 As a result of globalisation, law "is, on the one hand, based on the law of co-operation, but transcends it by the new formation of law-creating entities. On the other hand, it is characterised by the recognition of an objective legal regime of certain ground rules of jus cogens and erga omnes character, which binds even the new actors" (Wood and Scharffs 2001).…”

Section: Globalisation Transnational Law and The Increasing Role Of mentioning

confidence: 99%

“…385 and 388. On the theoretical changes that led to take private actors into consideration, see also Wood and Scharffs (2001). 6 Ratner (2001): The author maintains that international law approaches to individual responsibility have not beneficed from the examination provided by the International Law Commission with respect to state responsibility (ibid, p. 461).…”

Section: Which Rights Can Tncs Be Accountable For? Human Rights and Cmentioning

confidence: 99%