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Vol 21 No 9 Sept/Oct 2016

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Goode on Commercial Law

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Human Rights Transformed: Positive Rights and Positive Duties (eBook)

ISBN13: 9780191021701
Published: March 2008
Publisher: Oxford University Press
Country of Publication: UK
Format: eBook (ePub)
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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, 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.

Human Rights and Civil Liberties, eBooks
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 ;