Human Rights Transformed Positive Rights and Positive Duties

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ISBN: 9780199535057 | 0199535051
Cover: Paperback
Copyright: 5/15/2008

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Human rights have traditionally been understood as protecting individual freedom from intrusion by the State. In this book, Sandra Fredman argues for a 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.

Table of Cases	p. xvii
Table of Legislation	p. xxi
Introduction	p. 1
Understanding Positive Duties
Human Rights Values Refashioned: Liberty, Equality, and Solidarity	p. 9
Positive Freedom and Positive Duties	p. 10
From non-intervention to enhancing choice	p. 10
From preference to choice	p. 14
Choice in context: care, responsibility, and dignity	p. 15
Individualism and Community	p. 16
The Good and the Right: can the State be Neutral?	p. 18
Theories of State neutrality	p. 18
The perfectionist State and positive duties	p. 23
Who Pays? Reconceptualizing Responsibilities	p. 25
Reciprocity	p. 25
Solidarity and civic virtue	p. 27
The harm principle and positive duties	p. 29
Conclusion	p. 30
The Nature of the State: Democracy, Globalization, and Privatization	p. 31
Positive Duties and Democracy	p. 32
Justiciability distinguished	p. 32
'We the people': participation and democracy	p. 33
Enhancing democracy through positive duties	p. 38
Globalization and Positive Duties	p. 40
The 'free market' and positive duties	p. 42
Free global markets are the best means to advance human welfare	p. 44
The hollowing out of the State	p. 47
The WTO and human rights	p. 48
Globalization and the EU	p. 53
Privatization and Positive Duties: whose Responsibility?	p. 58
Conclusion	p. 61
Judging and Enforcing: Courts and Compliance
The Structure of Positive Duties	p. 65
The Indivisibility of Duties	p. 66
Civil and political rights v socio-economic rights	p. 66
Beyond the boundaries	p. 67
Redrawing the boundaries: the nature of obligations	p. 69
Understanding Positive Duties	p. 70
Indeterminacy and incommensurability	p. 70
Duties to protect	p. 73
The duty to fulfil: specifying the duty	p. 77
The duty to fulfil: progressive realization	p. 80
The minimum core obligation	p. 84
Rights and duties: the individual claim	p. 87
Conclusion	p. 90
Justiciability and the Role of Courts	p. 92
Introduction	p. 92
Drawing the Boundary	p. 93
Distorting democracy: privileging duties of restraint	p. 96
A difficult distinction	p. 98
Strengthening Democracy through Justiciability	p. 100
Arguments from democracy: refashioning justiciability	p. 100
Justiciability: a democratic role?	p. 103
Accountability	p. 103
Participation through deliberation	p. 105
Equality and the representation reinforcing theory	p. 109
Adjudicating Positive Duties	p. 113
Conclusion	p. 123
Restructuring the Courts: Public Interest Litigation in the Indian Courts	p. 124
Introduction	p. 124
Institutional change	p. 126
Social change via the courts	p. 128
Courts and transformation: the social conversation	p. 133
Activation or paralysis: the judges and the executive	p. 134
Straying too far? Relaxing the criteria	p. 136
Who is the 'public'? The role of the public interest litigant	p. 137
Consensus and controversy: the appropriate role of the court	p. 141
Urban development	p. 142
Environmental cases	p. 143
Development and dams	p. 145
Conclusion: a peril and a promise	p. 148
Achieving Compliance: Positive Duties Beyond the Courts	p. 150
Introduction	p. 150
Challenges	p. 151
Applying the Model: Compliance Mechanisms for Positive Duties	p. 159
The right to work: the European Employment Strategy and the Open Method of Coordination	p. 159
Reporting mechanisms and socio-economic rights	p. 165
Domestic compliance mechanisms: human rights commissions and triggers for change	p. 166
A Synergistic Approach	p. 169
Substantive Rights and Positive Duties
Equality	p. 175
Recognition and Redistribution: Negative and Positive Dimensions	p. 176
Equality and the Courts	p. 181
Principles of justiciability	p. 181
Justiciability in practice	p. 182
Beyond the Courts: Positive Duties to Promote Equality	p. 189
Proactive models: principles and practice	p. 189
Achieving compliance	p. 192
The deliberative dimension: participation and the participants	p. 199
Functions of participation	p. 199
The participants in the process	p. 201
Conclusion	p. 203
Socio-economic Rights and Positive Duties	p. 204
Housing and Shelter	p. 204
Beyond the divide: human rights values and the right to housing	p. 204
Sources of positive duties in respect of housing	p. 206
Positive and negative duties: distinctions and relationships	p. 209
Participation and deliberative democracy	p. 210
Determining the content	p. 212
Monitoring compliance	p. 214
Education	p. 215
Beyond the divide: human rights values and the right to education	p. 215
Positive and negative duties: distinctions and relationships	p. 216
Positive duties and distributive consequences	p. 218
Equality and education	p. 220
Justiciability and compliance	p. 222
Welfare Rights	p. 226
Human rights values and the right to welfare	p. 226
The content of the positive duty	p. 232
Sources of duties	p. 236
Conclusion	p. 240
Index	p. 241
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Human Rights Transformed Positive Rights and Positive Duties

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