Human Rights Transformed: Positive Rights and Positive Duties

Paperback | March 10, 2008

bySandra Fredman FBA

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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, andinstead 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 andsocio-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. Drawingon 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, particularlysubstantive equality and positive duties to provide, traditionally associated with the Welfare State or socio-economic rights.

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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, andinstead pays attention to individuals' abil...

Sandra Fredman is Professor of Law at Oxford University and Fellow of Exeter College, Oxford. In 2000, she became the first woman professor in the Oxford law faculty and she was elected a Fellow of the British Academy in 2005. She has also been active in the policy field, including acting as an expert advisor on a range of human right...

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Format:PaperbackDimensions:290 pages, 9.21 × 6.14 × 0.59 inPublished:March 10, 2008Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0199535051

ISBN - 13:9780199535057

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Table of Contents

IntroductionPart I: Understanding Positive Duties1. Human Rights Values Refashioned: Liberty, Equality and Solidarity2. The Nature of the State: Democracy, globalization and privatization3. The Structure of Positive DutiesPart II: Judging and Enforcing: Courts and Compliance4. Justiciability and the Role of Courts5. Widening Competence: Public Interest Litigation in the Indian Courts6. Achieving Compliance: Positive duties beyond the courtsPart III: Substantive Rights7. The Duty to Provide: Welfare State and socio-economic rights8. Promoting Substantive Equality