Reasoning Rights

ISBN-13: 9781509908431 / Angielski / Miękka / 2016 / 392 str.

Liora Lazarus; Christopher McCrudden; Nigel Bowles

Opis

This book is about judicial reasoning in human rights cases. The aim is to explore the question: how is it that notionally universal norms are reasoned by courts in such significantly different ways? What is the shape of this reasoning; which techniques are common across the transnational jurisprudence; and which are particular?
The book, comprising contributions by a team of world-leading human rights scholars, moves beyond simply addressing the institutional questions concerning courts and human rights, which often dominate discussions of this kind, seeking instead a deeper examination of the similarities and divergence of reasonings by different courts when addressing comparable human rights questions. These differences, while partly influenced by institutional concerns, cannot be attributed to them alone. This book explores the diverse and rich underlying spectrum of human rights reasoning, as a distinctive and particular form of legal reasoning, evident in the case studies across the selected jurisdictions.

Spis treści

Part 1: INTRODUCTION 1. The Pluralism of Human Rights Adjudication Christopher McCrudden Part 2: PROPORTIONALITY 2. Constructing the Proportionality Test: An Emerging Global Conversation Kai Möller 3. Necessity and Proportionality: Towards a Balanced Approach David Bilchitz 4. Proportionality Without Balancing: Why Judicial Ad hoc Balancing is Unnecessary and Potentially Detrimental to the Realisation of Individual and Collective Self-determination Jochen von Bernstorff 5. Proportionality in United States Constitutional Law Paul Yowell Part 3: NATIONAL SECURITY AND HUMAN RIGHTS 6. ‘To the Serious Detriment of the Public’: Secret Evidence and Closed Material Procedures Ryan Goss 7. National Security Law and the Creep of Secrecy: A Transatlantic Tale Tom Hickman and AdamTomkins 8. Navigating the Shoals of Secrecy: A Comparative Analysis of the Use of Secret Evidence and ‘Cleared Counsel’ in the United States, the United Kingdom, and Canada David Cole and Stephen I Vladeck 9. The Secret Keepers: Judges, Security Detentions, and Secret Evidence Shiri Krebs Part 4: RELIGION AND HUMAN RIGHTS 10. The Intersection of Religious Autonomy and Religious Symbols: Setting the Stage Christopher McCrudden and Brett G Scharffs 11. Principles and Compromises: Religious Freedom in a Time of Transition Carolyn Evans 12. State Interference in the Internal Affairs of Religious Institutions Johan D Van der Vyver 13. The Protection of Religious Freedom in Australia: A Comparative Assessment of Autonomy and Symbols Paul Babie and James Krumrey-Quinn Part 5: SOCIO-ECONOMIC RIGHTS 14. The Emergence and Enforcement of Socio-Economic Rights Murray Wesson 15. The Problematic of Social Rights – Uniformity and Diversity in the Development of Social Rights Review Colm O’Cinneide 16. A South African Perspective on the Judicial Development of Socio-Economic Rights 319 Edwin Cameron 17. Judicial Activism and the Indian Supreme Court: Lessons for Economic and Social Rights Adjudication Anashri Pillay 18. American Exceptionalism over Social Rights Jeff King