Refine
Document Type
- Conference Proceeding (3)
- Article (1)
- Doctoral Thesis (1)
Has Fulltext
- yes (5)
Is part of the Bibliography
- no (5)
Keywords
- Human Rights (5) (remove)
Institute
Il saggio indaga le connessioni tra l’abolizione della prostituzione legalizzata e i processi di democratizzazione in Germania e Italia, a partire dalla storia dei diritti umani nella sua interazione con il sistema politico. Le fonti principali sono i dibattiti parlamentari e le leggi che portarono alla chiusura dei bordelli e all’abolizione del sistema di sorveglianza nel 1927 in Germania e nel 1958 in Italia. I dibattiti sulla prostituzione pongono anche la questione dell’uguaglianza e della giustizia di genere. In particolare, il problema della regolamentazione della prostituzione, la cui efficienza viene verificata da un numero sempre maggiore di ricercatori nel corso del XX secolo, dispiega fattori di politica sanitaria, di diritti umani e di morale, aspetti di politica sociale e di sicurezza, mettendo in discussione non solo la gerarchia tra i generi, ma anche quella tra gli strati sociali.
In the intersection between law, science and technology lies the debate on the overcoming of the boundaries of the biological structure of the human being and its implications on the idea of human rights, on the concept of person and on the conception of equality – being the latter a fundamental tenet of a democracy.
Posthumanism assumes a biological inadequacy of the human body regarding the quantity, complexity and quality of information which it can muster. The same occurs with the needs of accuracy, speed or strength demanded by the contemporary environment. Under such perspective, the body is considered to be an inefficient structure, with a short lifespan, easy to break and hard to fix.
The body, always seen as the locus for the definition of human, emerges as the object of a commodification process that seeks to exonerate men from their burden - by declination towards a virtual existence, totally free and rational - or to enhance them with bionic devices or drugs.
This issue has already been the subject of attention by many scholars like Savulescu, Rodotà, Broston, Fukuyama and even Habermas.
Therefore, the aim of this paper is to seek, by criticism and revision of the positions on the foreseen problems of this process, an adequate theoretical approach on issues like the concept of person and its connection with the idea of human rights in order to promote the fundamental statement that all men are equal without disregard to the values of diversity and personal identity.
As is well known, the 2nd Spanish Republic (1931-1936) was toppled by a military uprising which, after a cruel Civil War, set up an autocratic regime led by General Franco which lasted until his natural death in 1975. According to the contemporary theory of the legal system, a legal order exists on the sole condition that it is efficient in general terms and this was the case for both the Republic and the Dictatorship. In turn, the validity of the legal norms of all legal orders is based on its respective rules of recognition. Thus, neither the existence of the legal order nor the validity of its respective legal norms depends on moral considerations. In this paper, we call this affirmation into question on the base of the fact that the compensatory methods adopted from the Transition to Democracy show an evident concern to repair the damage of taking away a person’s basic rights (life, health, freedom, expression, association etc) although the Spanish Constitution, with its catalogue of fundamental rights was not in force at that time. But these measures would not have much sense if, as Raz says, there was no shared content which is common to all legal systems. Like Nino, we claim that one must discriminate between a democratic legal order and an autocratic one to establish the level of validity of its respective legal norms. Thus it can be assigned a presumption of justice to democratic norms. Finally, we state that the criteria to weigh up the justice or injustice of legal norms, as that of legal orders, takes root in the level of respect they show towards human rights.
A discussion regarding the complex relationship that exists between the concepts of efficiency and justice goes a long way back and raises several relevant arguments. One of them, and it must be rejected in advance, is that justice is in the realm of public law, while efficiency in that of private law. Is it unacceptable that the balance between public and private law leads to the belief of a divided legal system; one system, one set of laws, one legal system. Legislators and judges are responsible for determining a balance and no theory can postulate that the balance will always be found with a simple cut between public and private law to distinguish when the criterion should be justice or when it should be efficiency. It is reductionist to confine the discussion to single goals of efficiency and justice, when human dignity and human rights should also be considered when one is discussing law. Moreover, a discussion limited to only the concepts of justice and efficiency, relies on a belief that the terms are mutually exclusive. Posner has said that the economic analysis of law has limits and philosophy of law plays an extremely important role in this discourse, which must be interdisciplinary. There can be no goal other than the realization of human rights and there can be no justice if not shared by all of mankind.
The marginalization of the hijra identity in postcolonial Pakistan perpetuates the inequalities that have dogged the transgender community since the colonial era. Although Pakistan has since ratified all concerned UN treaties aimed at protecting transgender people and preventing human rights violations against them, the country’s gender-variant population nevertheless remains vulnerable to these transgressions. As such, this study aims to explore the following inquiry: “What are the lifeways of the hijra community and how do hijra people face human rights violations in their daily life activities?”
The identity construction of the hijra is a complex process. Pakistan is a patriarchal society that determines gender based on biological sex. While a genitally ambiguous child is generally recognized as intersexed, the family usually obscures this circumstance or tries to enforce a predominantly male identity onto the child. To some degree, an intersexed child is allowed to perform feminine roles, particularly when compared to a biologically male individual who is inclined toward femininity. They may partake in “girls’ games” or in “women’s chores” like cooking; they may opt to don feminine clothing and jewelry or practice walking and talking “like a girl.” Many family members and relatives consider such actions a threat to family honor and/or an indication of weakness, which in turn renders the child vulnerable to sexual or physical assault. Abuse also causes some gender-variant children to drop out of school. As adults, many hijras do not see childhood sexual encounters as assault, particularly because they considered themselves to be feminine even from a young age. Nevertheless, experiences of isolation, abuse, and exclusion often compel a gender-variant child to seek company outside of his/her family of orientation.
Many transgender individuals see redemption in joining the hijra community: there, a new identity is defined and shaped. New members mirror themselves after more senior hijras. In the community, relationships are solidified through similar childhood experiences and interests as well as a shared freedom to express the outer reflection of an “inner feminine soul.” Here, they accept the childhood label affixed to them by heteronormative society: hijra. In fact, the identity now becomes the key to economic viability and socialization.
The predominant livelihood strategies within the hijra community are dancing and prostitution. New members must adhere to stringent norms and rules; they risk (sometimes severe) punishment if they do not. For example, a new hijra must adopt a very strict feminine appearance; if she does not appear feminine enough she may be socially isolated or physically punished. Similarly, a hijra is required to remain passive during sex. In fact, because hijras are stereotyped as passive and vulnerable, many clients physically exploit or even rape them. If she tries to resist, a hijra may face physical violence and, in extreme circumstances, death. Reporting abuse to law enforcement authorities often leads to further exploitation. As such, whether dancing or performing sexually, hijras are encouraged to do whatever is asked of them.
In the last decade, the Supreme Court of Pakistan has taken significant steps to ensure the rights of transgender people. The Court has similarly compelled local governments to amend existing legislation in order to protect the transgender community. Nevertheless, discrepancies exist in legislative and judicial interpretations of the transgender identity, which continues to impede the struggle for basic rights. Indeed, there is a long way to go in the effort to incorporate transgender people into the folds of mainstream Pakistani society.