Oñati Socio-Legal Series

Right to health during COVID-19 pandemic

Giuseppe Ricotta — 2024-06-03

The paper deepens the right to health in COVID-19 pandemic, analyzing itsimpact in terms of social inequalities. The first section introduces concepts drawn fromthe global risk society approach, pointing out some of its limitations for an effectiveanalysis of the forms of social exclusion during the pandemic. The main statement is thatthe logic of inequalities emerged in COVID-19 pandemic can be interpreted moreeffectively in the light of postcolonial and decolonial sociology, with reference to theconcepts of coloniality of power (Quijano) and – specifically – colonial sociability(Santos). The way proposed is bringing into dialogue these concepts along with those ofadvanced marginality and territorial stigmatization (Wacquant). These approaches areuseful in understanding some data on the spread of contagion and deaths due toCOVID-19 in the contexts of Brazil and the United States of America, contagion and deaths that have particularly critically affected specific territories of advancedmarginality and exposed to stigmatization processes. Analyzing specific pathways forterritorial de-stigmatization – the paper also discusses the emancipatory task of asociological analysis of inequalities in COVID-19 pandemic era.

Functional differentiation of law in pandemic times

Germano Schwartz — 2024-06-03

Between 2020 and 2023, a period of time assailed by the COVID-19 pandemic, society – as a worldwide social system –experienced a novel kind of communication. The tendency for this communication to exponentially expand is due to the global numbers of people dead, dying or infected. Pandemic communication has arisen in the present to perpetuate itself in all ambiences for every social system around the globe. The health system, in turn, basing itself on the health/disease code, has reacted according to its own logic in the coordination of the actions of doctors. However, the true/false nature of communication arising from questions related to COVID-19 has taken a long time to be tested by the science system. Vaccines and possible treatments for the disease have created issues for political, economic, moral, religious and media matters. The continually expanding trend in pandemic communication has proven that it can hinder the functional differentiation of social systems. Legal communication has not been able to avoid all of the controversy. In the specific case of Law, the problem entails both the judicialization of health and the reverse (where Health becomes Law). Based on the Social Systems Theory Applied to Law, the paper argues that the maintenance of the functional differentiation of the Law system becomes necessary so as for Health not to become Law (and vice versa).

Challenges for the welfare state and the right to health after the pandemic

Carmelo Bruni — 2024-06-03

The COVID-19 pandemic affected an already critical state of the Italian National Healthcare System and of the Welfare State in general. The aim of this work is to describe how the challenge imposed by pandemic has been faced, and the possible directions that social and health policies could take in the country, also in light of the adoption of the National Recovery and Resilience Plan. Through the analysis of the deep-rooted contradictions in public policies and of the areas where the intervention is more urgent, the work underlines the structural factors which are leading to a progressive shift in the vision of health, from a perspective centred on the role of the State and the protection of the public interest, to one where the role of the private sector and the idea of individual interest are ever stronger, with a consequent change in the balance between economics, legal and political systems.

Regulation of digital misinformation

Marco Antonio Loschiavo Leme de Barros — 2024-06-03

The purpose of this paper is to present a socio-legal approach, mainly based on social systems theory, to the problem of mass disinformation through digital networks and platforms. To this end, the paper analyses fake news as a phenomenon emerging from a structural transformation in the means of communication dissemination, and then focuses on the case of Brazilian regulation on the subject. The guiding hypothesis of the research is that it is possible to identify a package of regulatory learning strategies by the legal system. The text specifically addresses the case of fake news on the subject of health. It notes that, in this field of medical fake news, there is a lack of proposals capable of combining forms of prevention and not only repression of damage.

Citizenship and housing cultures after COVID-19

Marina Ciampi — 2024-06-03

Citizenship appears to us as an incessant constituent process, as a dynamic that is never stabilised, as a continuous development of struggles, conflicts, tensions, relationships, contestations and negotiations between social groups and rulers, between subordinate movements and hegemonic institutions. On this level, we can already understand the city (both conceptually and practically) as a political space that crosses bodies, arranging, placing and dislocating them in a series of interactions and relations that configure sociality and power. It is from these interactions that a process of subjectification (valorisation and qualification) and social de-subjectification is initiated: a process that finds in the urban fabric the prerequisites for political realisation (individual and collective) and for the social recognition of human beings. Beyond the many aspects that accompany this discourse, what we are most interested in emphasising here is the relationship between the idea of citizenship, the exercise of political rights and the cultures of living, which after the state of emergency linked to COVID-19 has redesigned an idea of public health as a form on which to redefine social relations.

Legal Mobilization From Above

Juliana Jaramillo — 2024-06-03

Although courts are not usually perceived as forums for democratic participation, the existence of legal mechanisms such as amicus curiae briefs has allowed civil society organizations to actively participate in judicial debates. This article examines amicus curiae participation in LGBT rights cases decided by the Colombian Constitutional Court between 1992 and 2022. Based on interviews and a review of norms, rulings, and amicus curiae briefs, I argue that the accessibility of the Court's rules and the presence of justices interested in promoting the participation of non-judicial actors in constitutional debates created legal opportunities that encouraged and shaped amicus curiae participation in LGBT rights litigation. This article contributes to a better understanding of the role that courts can play in legal mobilization and in building a more democratic judicial system.

Do you practice what (E)U preach?

Rosanna Amato — 2024-06-03

Victims of recurrent crimes, particularly Intimate Partner Violence (IPV) victims, encounter unique challenges with the criminal justice system. The risk of repeat violence and retaliation deters them from engaging with legal processes, emphasising the critical need for effective protection measures in domestic and cross-border contexts. Protection orders, pivotal in preventing further victimisation, primarily operate within the issuing State, which has prompted the European Union to establish legal instruments based on the principle of mutual recognition to extend their applicability beyond national borders. Despite this, these measures are strikingly underused. This article delves into the root causes of this underutilisation and questions the overall usability of these measures by its beneficiaries. It also explores potential legal and non-legal solutions to transform them into a tangible resource for victims of recurring crimes across the EU.

Challenging the past in Spain

Elena Martínez Barahona — 2024-06-03

In recent decades, Spain has enacted two national laws on historical and democratic memory (in 2007 and 2022), alongside numerous laws at the sub-national level. The significance of these laws goes beyond their symbolic value; they not only contribute to collective memory but also acknowledge the plight of victims. This paper aims to analyze the factors influencing regional regulations on historical and democratic memory in Spain. Our focus will be on the drafting processes, exploring the political factors that shape their approval in different regions. Additionally, we will investigate regions that have yet to enact memory laws to understand the reasons behind the absence of such legislation.

The concept of institution in the theories of Luhmann and Schelsky

Santiago Calise — 2024-06-03

This paper presents a comparative study of Luhmann's and Schelsky's formulations of the concept of institution, with a focus on the fundamental role played by third parties in the emergence of institutions. The authors have different views on the characterization of relevant third parties. Luhmann believes that the institution assumes the presumed opinion of unknown and anonymous third parties based on the assumption that almost everyone assumes, that almost everyone agrees. In contrast, Schelsky's theory states that 'superior third parties' function as the foundation of the legal relationship, assuming the sanction that guarantees personal social relations. Currently, there is a disagreement regarding whether the sanction is an internal function of the institution or another field of the legal system.

Introduction

Germano Schwartz — 2024-06-03

Today claims relating to health are so common that distinguishing between rights and interests is harder and harder: definitions of health as the one provided by the World Health Organization legitimise the expectation of a continuous improvement in standards of care, access to treatment and measures of prevention. Moreover, with COVID-19 pandemic, health seems to gain the status of a supreme and unquestionable value. Here the hypotheses of a “Healthization of Law” is presented: it indicates both a kind of supremacy of Law on other spheres of society when health (public or individual) is at stake, and also the fact the Law is strongly conditioned by the emergence of health as the highest value to which all spheres of society must orient themselves. Then analysing the relationship between the structural conditions of world society and the semantics of health it is urgent than ever, in order to understand which kind of expectations and claims pandemic legitimised, and how the semantics of health (and wellbeing) describes social structure and its changes.