Full Description
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.
Contents
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
