The Pluralism of Human Rights Adjudication
Forthcoming As Chapter 1 of Liora Lazarus, Christopher Mccrudden, And Nigel Bowles (Eds), Reasoning Rights: Comparative Judicial Engagement (Hart Publishing, 2014)
30 Pages Posted: 1 Aug 2014 Last revised: 26 Aug 2014
Date Written: March 30, 2014
Abstract
This chapter forms the introductory chapter of a recently published collection concerned with the adjudication of human rights in domestic courts. The book is primarily about judicial reasoning in ‘human rights’ cases. ‘Human rights’ includes both the application of international human rights at the domestic level, and what some jurisdictions include under an idea of domestic ‘constitutional rights’. The issue considered in the book, and previewed in the introduction concerns the techniques adopted, to decide how human rights, in this broader sense, are protected. The book aims to adopt a comparative approach to the examination of this reasoning, through a detailed examination of similar human rights issues in a range of jurisdictions. The aim of the book, then, is to examine the similarities and divergences in the reasoning developed by courts when addressing comparable human rights questions. The book shows that human rights reasoning involves distinctive and particular forms of legal reasoning, but that its form and content differs significantly from jurisdiction to jurisdiction, and over time within jurisdictions. Building upon these findings, the introduction explores what these similarities and differences tell us about the nature, and the direction of travel, of human rights law which comprises notionally universal norms.
Keywords: Human rights, constitutional law, judicial reasoning, comparative law
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