The ‘Tinkerbell moment”: why we should care about Comparative Human Rights Law

The human rights contestations facing courts in different jurisdictions are remarkably similar. Does the death penalty breach human rights? Does freedom of speech include racist speech? What are the appropriate limits of freedom of religion? Is there a right to health? On the one hand, the shared language of human rights suggests that there should be similar solutions to comparable problems. On the other hand, there are important differences. Constitutional texts are worded differently; courts have differing relationships with the legislature; and there are divergences in socio-economic development, politics, and history. Comparative law provides a fascinating prism to examine the growing transnational conversation between courts and the myriad ways in which these difficult questions are decided. Comparative Human Rights Law (OUP, 2018) does not aim to provide a comprehensive textbook of human rights law, but takes a thematic approach to find the commonalities and understand the divergences between judicial responses to very similar and highly demanding human rights issues.

The first Part sets out the main cross-cutting themes which form the analytic framework for the subsequent substantive chapters. By considering the same topics over five jurisdictions, and drawing on international human rights law where relevant, many of the themes in the first part are illuminated; and in turn cast light on these difficult issues.

Chapter One throws down the gauntlet with Scalia’s J’s trenchant criticism of comparative human rights law as ‘dangerous dicta’ attempting to impose ‘foreign moods, fads or fashions’ on Americans. The chapter argues that while these difficulties arise in comparative law more generally, human rights law is distinctive. On the one hand, there is a broadly similar common core of human rights both internationally and domestically, and human rights guarantees in different jurisdictions have important central affinities, often through conscious adoption or adaptation.  On the other hand, human rights are inevitably formulated in open-textured terms, requiring interpretation and application in specific contexts. The differences in text, culture, history and institutions might be more important than the similarities. Thus, posing the same questions does not necessarily entail that different jurisdictions should give the same answers.

The book suggests the main function of comparative law is deliberative. Judges making decisions on complex issues of human rights law need to adopt a reasoning process which is thorough and persuasive. In contested human rights cases, there will be no single right answer; but the suspicion that judges are imposing their own subjective beliefs can only be dispelled by reasoning which is capable of being persuasive and openly canvasses a range of alternative solutions. Comparative materials constitute an important contribution to the rigour of this process, particularly with respect to canvassing alternative solutions. A deliberative approach does not expect convergence in human rights decision-making world-wide. But whether the outcomes converge or diverge, there need to be good reasons, articulated in the decision explaining why the textual, institutional, legal, social or cultural context demands convergence or divergence.

Chapter 2 asks whether there can be a universal understanding of human rights and sets out ways in which universality and cultural relativity are balanced in human rights law. How can the liberal ideal of tolerance embrace disagreement, without permitting intolerance to thrive? Chapter 3 challenges the traditional distinction between socio-economic rights and civil and political rights and shifts the focus to duties to respect, protect and fulfil human rights.

Chapter 4 confronts the difficult question of how to reconcile justiciable human rights with a commitment to participative democracy. It argues that, properly configured, justiciable human rights should contribute to rather than detract from democracy. As well as addressing the question from the perspective of judicial legitimacy, this chapter  examines limits on judicial competence and assesses different ways in which such limits can be addressed.

Chapter 5 examines the challenging question of how judges interpret open-textured and abstract human rights instruments. Can decisions which inevitably require value judgments be made without bringing into play judges’ personal predilections?  The chapter assesses different theories of interpretation, including ‘original intent’, textualism, ‘living tree’ approaches, and ‘transformative constitutionalism.’ It shows that, on closer inspection from a comparative perspective, the contrasts between these approaches are less vivid than one would expect.

The second part of the book uses these five cross-cutting themes to assess comparative human rights law across seven substantive topics. Each chapter considers the crucial role of the textual mandate given to courts, as well as the interpretive theory judges use and the values they draw on. Comparative law is used both to cast light on contrasting ways judges make decisions, and the extent to which judges expressly draw on comparative materials. Framing these questions is the judicial consciousness of the limits of their own role, both from a legitimacy and a competence perspective. Since the substance of the chapters span both civil and political rights and socio-economic rights, it is possible to highlight their interaction, particularly when it comes to positive duties. The book focuses on the US, Canada, India and South Africa. These jurisdictions are chosen because  they use English as their legal medium, share a colonial history and largely use the common law method. They also span the global North and the global South, and have differing social organization and levels of economic development. The book also draws on the European Convention on Human Rights, as well as international human rights instruments.

Chapter 6 considers whether capital punishment is compatible with human rights. This is a complex issue, since the text in several of the jurisdictions appears to mandate the death penalty, and others are silent on this issue. Judges’ own  interpretive theory is therefore put to the test. The chapter explores divergent judicial approaches on three main issues: whether there can be a fair procedure for imposing the death penalty; whether the death penalty can be justified by penological goals; and whether there are clear value-based reasons for determining compliance with human rights. It shows how judges’ choice of answers to these issues further depends on their background positions on the cross-cutting issues identified earlier, particularly their constitutional interpretation, their view of the proper role of the court, their approach to comparativism, and their background values.

Chapter 7 turns to the highly-contested issue of abortion. Given the emotive nature of abortion, there are many trenchant voices that argue that, like capital punishment, this should be an issue left entirely to the legislature. However, a comparative insight demonstrates that in all jurisdictions there has been a complex relationship between legislatures and courts, both complementary and conflictual. The comparative approach also reveals the pivotal role of the characterization of the rights at stake. Is this an issue of the right to life, the right to privacy, or the right to equality and reproductive freedom?

From the chapters on capital punishment and abortion, we turn to two different sorts of challenges, namely health and housing, where their very status as fundamental rights remains controversial. Here the background values of human rights, including dignity and equality, play a central role in determining whether and in what ways these fundamental human needs can be addressed through justiciable human rights, rather than being left to the political process.

Chapter 10 on freedom of speech moves back into the heartland of justiciable human rights. Despite judicial confidence in courts’ counter-majoritarian role in this context, the values behind freedom of speech remain highly contested. Freedom of speech is clearly crucial to counter the State’s power to intrude on individuals’ right to speak. But is it legitimate to limit the speech of powerful individuals and corporations whose speech might silence those who have less power and wealth?   These challenges are highlighted by the transnational power of the internet, which has both democratized speech and magnified the voices of the powerful.

Chapter 11 turns to the right to education, which is characterized as a freedom right, an equality right, and a social right. A comparative approach casts important light on the interface between these facets of the right. The final substantive chapter on freedom of religion is perhaps the most complex, given the great diversity in the State-religion relationship, the nature of religious demands, and the need to balance freedom of religion with equality concerns.

The coverage of Comparative Human Rights is not intended to be complete. Instead, it aims to provide a lively account of the study of comparative human rights, asking similar questions across jurisdictions and human rights topics, with the aim of inspiring further comparative examination of other pressing human rights issues. Judges faced with acutely difficult questions must refer to their textual mandate, the fundamental values informing the text, their own interpretive philosophy, and their perception of their role relative to the legislature. But their decision-making is undoubtedly enriched by considering, in a deliberative sense, how judges in other jurisdictions have faced these questions. This is true whether or not they regard other approaches as relevant to their own. As teachers of human rights law, we are in a position to hasten what Jeremy Waldron calls the ‘Tinkerbell moment’: when judges believe enough in the value of comparative approaches to human rights law to begin articulating this belief into practice.[1]

Posted by Professor Sandra Fredman (Rhodes Professor of Law, Oxford University)

[1] J Waldron, Partly Laws Common to Mankind: Foreign Law in American Courts (Yale University Press, 2012)