Oñati Socio-Legal Series

Intellectual disability and borderline intellectual ability: keys for a better labour market insertion

2025-01-20T11:02:39+01:00

People with intellectual disabilities and people with borderline intellectual abilities have high poverty rates and greater difficulties in joining the workforce than the rest of the collective of people with disabilities. The need for their inclusion in the labour market is not only translated into economic terms but also into the improvement of other aspects such as identity and self-esteem. Nowadays, neither collective bargaining nor the business culture through the Corporate Social Responsibility has considered as a priority the treatment of the diversity presented by disabled workers, and even less with intellectual disabilities. This article will analyse the challenges and difficulties that both, people with intellectual disabilities and people with borderline intellectual abilities, have to face in order to take a step forward into the desired full integration into the labour market, and will make some political and legislative proposals to try to alleviate and minimize the current situation.

Designing and managing support for a life of dignity, fulfilment and conscious choice

2025-01-13T11:05:44+01:00

When it comes to social inclusion, the right to participate in areas like education, employment, and personal relationships is essential and unquestionable. Despite the adoption of the UN Convention on the Rights of Persons with Disabilities in 2006, which affirms that people with disabilities have full rights and inherent dignity, data still show persistent inequalities in terms of access to rights, opportunities for participation, and the ability to build self-determined life projects. In this article, we will examine the factors contributing to these inequalities faced by people with disabilities, as well as the proposals and measures being implemented to promote the development of independent and fulfilling life paths.

The contractual capacity of people with disabilities in the Spanish Civil Code and in the 2023 modernization proposal

2025-02-13T02:26:31+01:00

With the reform of the Spanish Civil Code in 2021 regarding support for persons with disabilities, the legislator intended to change the paradigm in the legal treatment of these persons, with special emphasis on what refers to their capacity to act in legal transactions. Naturally, this affects the regulation of the contractual capacity of persons with disabilities, which, according to the intention of the legislator of 2021 expressed in the preamble of Law 8/2021, is intended to be equal to that of persons without disabilities. What is intended to be seen in this work is whether, with the current regulation after 2021 and in the proposal for modernization of the Civil Code on obligations and contracts of 2023, this wish of the legislator has been fulfilled or, in fact, people with disabilities affecting their volitional and cognitive ability continue to have limitations in their capacity to contract.

Disability and fundamental rights

2025-01-20T11:02:36+01:00

In 2006, the United Nations Convention on the Rights of Persons with Disabilities gave international impetus to the social visibility of disability, and articulated the legal treatment of disability on the basis of new principles linked to human rights. Among these values, the right to an independent life was especially enshrined. In Spain, this transition was supported by an incessant regulatory process of adaptation, which culminated in 2024 with the constitutional reform of Article 49 of the Spanish Constitution. This paper will reflect on this recent constitutional response which contemplates, from a renewed discourse, inspired by the principles of the Convention, the commitment of the public authorities to the fundamental rights of persons with disabilities, and in particular, to the promotion of personal autonomy, universal accessibility and social inclusion.

Disability in the European Digital Identity Wallet (EUDI wallet)

2025-02-20T17:44:37+01:00

This article addresses the legal reflection raised by the recent European Regulation (EU) 2024/1183, of 11 April 2024 on the establishment of the European digital identity framework, known as “eIDAS 2”, in relation to the attention that this regulation grants to people with disabilities. The relevant provisions in this regard are analysed and put in context with the Spanish regulation contained in the Civil Code amended by Law 8/2021, of 2 June, reforming civil and procedural legislation for the support of people with disabilities in the exercise of their legal capacity. Specifically, the possibility of including among the attributes of the European wallet those attributes related to support measures for the performance of legal acts and contracts is explored due to their possible facilitating impact on the contracting process with people with disabilities.

The impact of the digital divide on the employment of people with disabilities

2025-03-24T16:24:53+01:00

It is undeniable that Information and Communication Technologies (ICTs) have brought countless advances for most people. However, they may pose greater difficulties especially when we are dealing with people with disabilities. This is known as the digital divide and represents a decrease in the inclusion of people with disabilities in the workplace, constituting a new form of discrimination and exclusion of people with disabilities. Thus, this article aims to expose the lack of legislative attention and political carelessness in promoting the rights of workers with disabilities in the use of new technologies, showing some ongoing issues that are currently detrimental to the inclusion of disabled people in digital environments.

The protection of the person with intellectual disability as a victim of criminal offences in the Penal Code

2025-01-28T15:13:17+01:00

This paper makes a detailed study of the precepts in which the Penal Code considers in a special way people with intellectual disabilities as victims of crime, limiting ourselves to the cases in which the victim is of legal age. Firstly, we will present the social model of disability and intellectual disability from which we start and, subsequently, these precepts will be analysed, emphasizing the different expressions that the legislator uses to refer to victims with intellectual disabilities in order to determine whether or not they refer to the same reality. Likewise, we will try to give content to these expressions and propose, if necesary, the appropriate lege lata and lege ferenda proposals.

Opportunities and impacts of a state social services law in Spain

2025-02-10T17:59:59+01:00

The approval of the draft law on social services by the Spanish Government justifies the purpose of this article: to analyse the opportunities and regulatory and rights impacts that this law would mean for the regulation of social services in Spain. The research method is mixed, qualitative and quantitative. The first is through the content analysis of documents, compiling proposals that respond to which actors demand this state law and what type of law is proposed, what this aspiration has been, what content it was understood it should contain and the attempts to materialise it carried out. The second is through the participation of experts and professionals in Spain (n=587) using previously validated questionnaires. The conclusions of the study show great variability in the typology of the norm to be approved, but great coincidence in the content and in what it would contribute to the system in terms of universalisation, financing and inter-territorial equality.

Domestic violence and its treatment from a protective perspective

2024-12-31T16:55:21+01:00

The objective of the research is oriented to determine the jurisdictional criteria that are considered for the granting of protection measures in cases of domestic violence in Latin America, taking as a data base registered pages such as Legis Pe, Colectivo Derecho de Familia and the Constitutional Court of Colombia. The methodology applied was projected under a qualitative approach, of non-experimental design and with a descriptive level applying the documentary review through the analysis of three jurisprudences issued in judicial processes in the countries of Peru, Argentina and Colombia. As results, it was determined that, in Peru, judges issue extra and ultrapetita protection measures applying jurisdictional criteria. In Argentina, it was found that conflicts of violence against women are approached from the perspective of the impact on human rights and individual freedom that this implies. On the other hand, in Colombia, when issuing protection measures, the judiciary is based on the differential gender approach. Finally, it is concluded that, in Peru, Argentina and Colombia, the judicial bodies apply jurisdictional criteria oriented to a preventive purpose, since they seek to prevent new acts of violence in any of its modalities.

Beyond possessive agency: TikTok, YouTube, and the inadequacies of GDPR, OSA, DSA, and AIA

2025-03-27T15:51:11+01:00

This paper critiques the foundational assumption underpinning UK and EU regulations—including the GDPR, Online Safety Act, Digital Services Act, and Artificial Intelligence Act—that agency is a possessive attribute rooted in individual autonomy. Using YouTube and TikTok as case studies, it examines how advanced recommendation systems powered by deep neural networks, multi-armed bandits, and reinforcement learning blur the boundaries between user agency and platform influence. Drawing on feminist relational theory and Karen Barad’s concepts of intra-action and diffraction, the paper argues that contemporary platforms generate a distinct, relational form of agency that operates interstitially in the ‘in-between’ of user actions and algorithmic systems. This emergent directive power challenges existing law in the EU and UK concerning online safety, which position platforms as neutral tools rather than co-constitutive entities. The paper calls for a re-imagination of legal ontologies and for a shift from possessive agency to relational governance to address the complexities and risks posed by modern algorithmic assemblages.

An assessment of the arguments against gender inclusivity in rape law in India

2025-04-03T10:02:41+02:00

The article critically analyses the arguments against gender inclusivity in rape law in India using doctrinal, theoretical, and normative methodologies. The article does engage in a comparative assessment with literature from other international jurisdictions albeit in a restricted yet contextual way. The article begins by analysing the legislative proceedings and judicial precedents concerning gender neutrality in rape law since 2000. Then the article critically assesses the strength of major arguments against gender inclusivity in rape laws in India namely insufficient number of non-female victims of rape, dilution of importance given to female rape victims, fear of counter allegations and the adequacy of existing provisions of the Indian Penal Code,1860 and the Transgender Protection of Persons Act, 2019 to deal with issues of sexual violence towards non-female victims. The article concludes by recommending a revision in the existing law in India.

Amnesties for crimes against humanity and justice for victims?

2025-01-27T11:44:50+01:00

States emerging from internal armed conflicts and/or repressive dictatorships face the complex challenge of how to address the serious crimes committed during those periods. Solutions oscillate between justice approaches and the application of amnesty. The aim of this article was to identify the main contributions of amnesty for crimes against humanity and to assess their implications for access to justice. To this end, a scoping review was conducted in accordance with the guidelines of the PRISMA declaration and its extension PRISMA-ScR, which included the examination of a sample of 47 scientific publications. The results revealed several amnesties created under a variety of terms, as well as a growing trend towards restricting their legal effects. The relationship between amnesty and justice was highlighted as debatable, since it involves evaluating, on the one hand, the interests of the victims, the context in which amnesty is approved and the interests that oppose justice; and on the other, the international obligation to investigate, prosecute and punish serious human rights violations.

Land, law, and indigeneity in Mexico

2025-04-10T10:11:42+02:00

Despite the 2024 constitutional reform that acknowledges legal standing to indigenous communities, in Mexico there is still no legal provision to protect and recognize indigenous territories at the national level. Conversely, since the agrarian legal reforms of the 1990s, the commodification of communal landholdings (ejido and agrarian communities) considered a safeguard for “indigenous lands” have escalated. How do indigenous communities, landed property, and territory intersect in contemporary Mexico? Furthermore, which legal frameworks interact in the resolution of ongoing agrarian conflicts involving indigenous communities? This article addresses these questions by conceptualizing agrarian and indigenous communities as intertwined and evolving sociopolitical institutions. It challenges a long-standing judiciary’s formalist approach, which, by conceiving these communities, primarily as transhistorical and self-contained subjects of rights, with apparently juxtaposed claims (i.e., the right to landed property versus the right to self-governance and territory) have precluded the peaceful and effective resolution of historical agrarian conflicts.

Introduction

2025-06-02T09:36:40+02:00

This monographic issue ‘Social and legal challenges of the new paradigm of intellectual disability. A commitment to human rights, inclusion and equality’, has its origin in the framework of a multidisciplinary research project involving researchers from three universities, namely: the University of Deusto, the Comillas Pontifical University and the Ramon Llull University. The research, whose results are presented here, focuses on the rights of persons with intellectual disabilities, and takes an interdisciplinary look at the different realities and difficulties posed by the so-called social and rights model of intellectual disability, interpreted in the light of human rights, from an interdisciplinary perspective. The adoption of the New York Convention on the Rights of Persons with Disabilities in 2006 woke up national legislators from their long lethargy and made visible the legislative neglect in which the rights of persons with disabilities had been submerged until then. Thus, the idea of disability linked to care and health needs, reflecting a medical model of disability, has given way to the social paradigm and disability rights.