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Human Rights Transformed

Human Rights Transformed Positive Rights and Positive Duties

Author: Sarah Fredman
Publisher: Oxford University Press
ISBN: 9780199535057
Published In: March 2008
Format: Paperback , 286 pages
Jurisdiction: U.K. ? Disclaimer:
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Moves beyond existing debates about socio-economic and civil and political rights and focuses on the theoretical and practical issues raised by positive duties
Applies political theory and social policy to illuminate important legal issues
Comparative analysis incorporates India, South Africa, Canada, and the UK and the EU and ECHR

Human rights have traditionally been understood as protecting individual freedom against intrusion by the State. In this book, Sandra Fredman argues that this understanding requires radical revision. Human rights are based on a far richer view of freedom, which goes beyond being let alone, and instead pays attention to individuals' ability to exercise their rights.

This view fundamentally shifts the focus of human rights. As well as restraining the State, human rights require the State to act positively to remove barriers and facilitate the exercise of freedom. This in turn breaks down traditional distinctions between civil and political rights and socio-economic rights. Instead, all rights give rise to a range of duties, both negative and positive. However, because positive duties have for so long been regarded as a question of policy or aspiration, little sustained attention has been given to their role in actualising human rights. Drawing on comparative experience from India, South Africa, the European Convention on Human Rights, the European Union, Canada and the UK, this book aims to create a theoretical and applied framework for understanding positive human rights duties.

Part I elaborates the values of freedom, equality, and solidarity underpinning a positive approach to human rights duties, and argues that the dichotomy between democracy and human rights is misplaced. Instead, positive human rights duties should strengthen rather than substitute for democracy, particularly in the face of globalization and privatization. Part II considers justiciability, fashioning a democratic role for the courts based on their potential to stimulate deliberative democracy in the wider environment. Part III applies this framework to key positive duties, particularly substantive equality and positive duties to provide, traditionally associated with the Welfare State or socio-economic rights.

Readership: Scholars and advanced students of human rights, European law, social and economic rights, social, economic and development issues, political theory, social policy, public law and equality and discrimination law

Introduction

Part I: Understanding Positive Duties

1: Human Rights Values Refashioned: Liberty, Equality, and Solidarity

2: The Nature of the State: Democracy, Globalization, and Privatization

Part II: Judging and Enforcing: Courts and Compliance

3: The Strcture of Positive Duties

4: Justiciability and the Role of Courts

5: Restructuring the Courts: Public Interest Litigation in the Indian Courts

6: Achieving Compliance: Positive Duties Beyond the Courts

Part III: Substantive Rights and Positive Duties

7: Equality

8: Socio-Economic Rights and Positive Duties

Sandra Fredman FBA, Professor of Law, Oxford University; Fellow of Exeter College Oxford

"[The volume] impressively refutes previously raised objections to social rights, develops the field with a truly universal vision and sense of the socio-philosophical aspects of the subject, and thereby achieves something undeniably important for the theoretical foundations of social rights" - Eberhard Eichenhofer, University of Jena

"This book is a sustained attempt to refocus the human rights debate and promote a more accurate picture of the field. It succeeds in this aim...Professor Fredman is to be commended for confronting directly a view of human rights that consistently impedes sensible debate...the book encourages innovation, whether through the courts or in the conversations that drive law, policy and practice forward...As work continues to explore how human rights objectives become credibly and effectively embedded within national traditions and contexts (for the overriding purpose of achieving just political, social and legal outcomes), this book is an impressive and welcome contribution which should generate more informed political and legal debate." - Colin Harvey, The Modern Law Review (72)6, 2009

"...a timely and valuable contribution to this growing field...Human Rights Transformed: Positive Rights and Positive Duties addresses difficult questions about courts and human rights with both insight and perception, covering a broad range of comparative experience in doing so. Fredman's book is a substantial contribution to theoretical and legal debates about human rights and social justice. Its subject matter resonates well with topics in law, socio-legal studies, politics and development studies. It is highly recommended." - Cathi Albertyn, Public Law 2010