Institutional and residual conceptions of human rights (original) (raw)
Related papers
The Human Rights Act in a Culture of Control
This paper uses a socio-legal perspective to shed light on the UK’s current backlash against human rights. While Euro-scepticism and the UK’s political constitutionalist tradition does somewhat explain the hostility towards judicial protection of human rights, this paper argues that this is not the entire picture. Perspectives from politics, sociology and criminology reveal that the political conditions in which the HRA were introduced were already inimical to the judicial protection of human rights. Since the mid-to late Twentieth Century, criminal justice policy in the UK underwent what David Garland terms ‘dramatic changes’. These changes include, amongst other factors: an increasingly active legislature in the criminal justice field; changes in the emotional tone of crime policy; the politicisation of crime; and populist rhetoric and policies. This paper will argue that the current political climate that is hostile towards criminals or other ‘others’ (e.g. immigrants) is symptomatic of this ‘culture of control.’ Defenders of human rights have identified this problem of unpopular ‘others’ and have attempted to counter them by downplaying the role that human rights have had in such contentious cases or emphasising the importance of human rights in cases that are seen as more publicly pleasing.These defences however, fail to address why this othering occurs, and what, if anything, can be done to counter this. At the same time, the reach of the legislature in other areas of public policy has receded to the rise of the executive and ‘technocracy’ in what has been termed ‘the decline of parliaments’. High profile projects such as Policy Exchange’s ‘Judicial Power Project’ which make the case for a more restrained approach to judicial review are conceptualising the increase in judicial powers as a unilateral decision made by the judicial branch. This, however, ignores the aforementioned sociological and political factors that affect the dynamic and balance of power between the legislature and the executive, and in turn how this affects judicial power. By placing the existing debate regarding the judicial protection of rights in this broader context, a more comprehensive explanation of rights hostility can be understood. This paper will conclude by arguing that as a result of this culture of control, hostility towards the judicial protection of human rights in the UK will not abate with the repeal of the HRA and its replacement with a ‘British Bill of Rights’.
Alternative Law Journal, 2008
Fostering the better protection of human rights It is a difficult predicament, in the current legal and political climate, to work in a legal practice where the clients are economically and socially disadvantaged and powerless. Sometimes, being an academic who is supposed to grapple with the theoretical and philosophical concepts in academic journals comes into conflict with the realities and practicalities of working as a clinical supervising solicitor in this academic role in a disadvantaged suburb of Melbourne. Yet from this vantage point, being an academic and a practitioner, a constructive interplay occurs where theory can inform practice and vice versa. It is this interplay which can make a valuable contribution to policy debates. From such a vantage point, I consider it incumbent on universities and policy-makers to tap into the experience of the day-today dilemmas facing members of the community for whom survival, emotional and physical well-being are precarious. With exposure to this in an academic/practitioner role, the theory and real life strategies can intersect to ensure strategies are realistic and can make a difference. This article challenges the prevailing 'legalistic' approach to human rights, where court litigation tends to be considered as the means by which human rights can be enforced. The new human rights legislation in Victoria and the Australian Capital Territory (ACT)-with Western Australia and Tasmania examining the possibilities for legislation-offer broader opportunities for improving the human condition of people on Australian shores. Furthermore, since the Rudd government was elected there may be brighter prospects for human rights protection at a federal level. The new human rights mechanisms in Victoria and the ACT present opportunities beyond litigation which can be utilised to ensure a culture of human rights develops in legislatures and bureaucrats and how they administer their policies on the ground. Audits, parliamentary scrutiny processes and direct mediation with regional public authorities are all fertile ground to enforce the human rights of community members. From my position as a community lawyer in a disadvantaged community, the limitations of a legalistic approach to human rights, without its grounding in the day-today realities of community, is highly problematic. 1 From this perspective, a human rights framework that consists of only civil and political rights, or which requires clients to use the courts to complain of ill-treatment, fails to recognise the integral connection between the economic and social position of human beings and their capacity to exercise civil and political rights. 2 Such a legalistic approach to human rights can overlook other opportunities for cultural change, negotiation and dialogue, which a less adversarial environment than the legal system can allow. These opportunities will be discussed in this article. The legal system certainly has a place within the human rights framework; however, debates should also be constructed around the need to adhere to human rights and how to best foster such adherence before matters are the subject of complaint. In other words, how can a respect for human rights become entrenched in day-today dealings with each other? Evans has argued that the human rights debate needs to be widened to have a 'focus beyond the legislative process'. 3 From my perspective, the offerings of a legalistic approach to human rights are restrictive in that some clients lack the money, power, capacity, confidence and knowledge to even realise their human rights. This article will discuss modest research undertaken by Mary Anne Noone and myself, which demonstrates this point. 4 A purely legalistic approach to human rights, with the limitations imposed by rules and procedures, not only constrains the opportunities for human rights mechanisms and frameworks to be applied more broadly but means that those who will be able to take advantage of their rights are people who have the resources to navigate these rules and procedures. 5 Such a concentration on legalistic approaches can also provide ammunition for those opposed to human rights protection. 6
Legislated Rights: Securing Human Rights through Legislation
The important aspects of human well-being outlined in human rights instruments and constitutional bills of rights can only be adequately secured as and when they are rendered the object of specific rights and corresponding duties. It is often assumed that the main responsibility for specifying the content of such genuine rights lies with courts. Legislated Rights: Securing Human Rights through Legislation argues against this assumption, by showing how legislatures can and should be at the centre of the practice of human rights. This jointly authored book (Grégoire Webber, Paul Yowell, Richard Ekins, Maris Köpcke, Bradley W. Miller, and Francisco J. Urbina) explores how and why legislatures, being strategically placed within a system of positive law, can help realise human rights through modes of protection that courts cannot provide by way of judicial review. This introductory chapter by Grégoire Webber and Paul Yowell introduces four theses animating human rights law and scholarship. It defends four counter-theses that motivate the book’s main arguments and explores the deep interconnectedness between human rights and positive law, before summarily reviewing the six substantive chapters that develop the argument for legislated rights.
THE STRUCTURE OF A HUMAN RIGHT IN LAW: SETTING THE CRITERION FOR A RIGHT LEGALLY SO-CALLED
Inadequate formulation of human rights provisions is idle endowment that promotes idle entitlement and idle expectations. The law must accord structure to a legislated right. This piece distinguishes human rights as species of law from human rights rhetoric, by examining the internal structure of the former. It emphasises the significance of adequate formulation of human rights provisions while highlighting the elements that accord justiciability or legal force to an otherwise moral appeal. There is a subtle but significant distinction between human rights and human rights law. The rights discourse has to find premise within the legal discourse in order to profit from the long established compelling attributes of the law. The article also makes a case for severance of human rights norms from morality, and reveals how the state of entitlement is obliging in itself.
Responding to Disadvantage and Inequality through Law
Oslo Law Review, 2017
Introductory chapter to a special issue on developments in legal theory and practice concerning equality, vulnerability and non-discrimination. This special issue also includes the following articles: - Martha Albertson Fineman: Vulnerability and Inevitable Inequality - Oddný Mjöll Arnardóttir: Vulnerability under Article 14 of the European Convention on Human Rights. Innovation or Business as Usual? - Henriette Jakobien Liesker: Caught in a Balancing Act. The European Court of Human Rights and the Road to Recognition for Sexual Minorities
Legal Enforcement of Social Rights: Enabling Conditions and Impact Assessment
2009
This article commends the concise and useful analysis of courts and the legal enforcement of economic, social and cultural rights given in Christian Courtis’ book, Courts and the Legal Enforcement of Economic, Social and Cultural Rights: Comparative Experiences of Justiciability. Yet, in order to complete the picture, a broader analysis of the enabling conditions for litigation and of the social and political impact of judicial activity in this field is required. There are a number of reasons why attempts to litigate economic, social and cultural rights may not result in judicial enforcement and why, even if enforcement is achieved in formal terms, this may not necessarily protect or fulfill the right in practice. Even when compliance is secured in terms of individuals, this may be insignificant or even detrimental to the realisation of the right from a societal perspective. While not dismissing a constructive role for courts in the enforcement of economic, social and cultural right...
Law as Discourse: Bridging the Gap between Democracy and Rights
Harvard Law Review, 1995
In complex pluralist and multicultural societies, successful social integration depends increasingly on law's predictability and on its justice. With the ever greater functional differentiation typical of contemporary societies, however, these two requirements seem more and more incompatible. On the one hand, law's predictability depends on the systematic reduction of complexity to stabilize expectations.3 On the other hand, justice becomes more complex. Regulation through law becomes more encompassing, calling for more finely tuned calibrations between relevant equalities and inequalities. Legal norms also become more contested as normatively integrated, prevailing communal conceptions of religion, morals, and law give way to a disparate plurality of antagonistic v i~i o n s .~ Competition among conflicting visions of justice and conceptions of the good, moreover, sets up an antinomy between process and substance. Indeed, in the face of disagreement over substantive justice and the common good, processoriented decisionmaking becomes eminently desirable. But as deeply rooted concerns over the "tyranny of the m a j~r i t y "~ and the difficulties of achieving procedural justice independently of substantive justice evi d e n~e ,~ exclusively relying on process and procedure is unlikely to
The modern possibilities of human rights. A critique of the negative critique of law and rights.
This note analyzes the relations between human rights discourse and Critical Legal Theory, focusing on what can be called " the negative critique of law and rights ". Although the negative critique is important to any kind of critical approach (especially those which deal with something that seems beyond the possibilities of the critique), the note presents the multiple problems of the total rejection of human rights in contemporary societies.