Fredman, Sandra. Comparative Human Rights Law. (Oxford University Press, 2018) 476 p. Softcover $65.00
Comparative human rights law is a deeply complex subject, with no direct course of action to find a solution to these global humanitarian issues. In Comparative Human Rights Law, author Sandra Fredman delves into these complexities and offers readers a deep dive into the multi-layered approaches judges and countries take to remedy injustices and uphold human rights. Fredman states that, after having been a student of the topic herself, her exposure to this area of law in this class “fundamentally shaped [her] thinking on the subject ever since.” (Acknowledgments page, Fredman S.) Fredman brings her experience and knowledge forth to give a concise background on the last 70 years of the study and practice of this area of law, particularly focusing on the countries of the United States, Canada, South Africa, and India for primary comparative sources.
Fredman divides her treatise into two major parts of study. The first part of the treatise focuses primarily on cross-cutting themes, with a focus on judicial reactions and responses to the challenges of issues of human rights. The second part of the treatise takes the themes of cross-cutting to make assessments of human rights across specific substantive topics. Readers explore crucial roles of textual mandates as well as interpretive theories, finishing with a conclusion threading together the themes discussed and drawing parallels to the decisions of judges across multiple countries attempting to answer different human rights narratives.
Human rights law complexities are explored further in the first five chapters. Chapter 1 begins exploring the “broadly similar common core of human rights” globally. (p. 4) Judicial approaches using comparative laws are discussed, using precedent in their own country of origin as well as abroad. Chapter 2 seeks to answer the question of what is considered a human right? The Universal Declaration of Human Rights attempted to answer this question, yet there is no consensus this document is a primary source for rights. Principles of “rationality and autonomy are among the most commonly cited principles,” (p. 30) but still others argue that dignity is a key right. Chapter 3 explores the idea that socio-economic rights are human rights, separate and “apart from civil and political rights” of the individual and layer the relationship of the State with liberty. (p. 60) Rights and duties are also discussed in the context of the Fourteenth Amendment of the Constitution of the United States. Chapter 4 takes a closer look into the judicial roles in human rights and the paradoxical take of human rights as being something solved by humans, aka collective society, or by elected representatives “interpret[ing] and apply[ing] human rights on the basis of majority voting.” (p. 79) Chapter 5 questions the judgments made on human rights laws and the interpretations and values which are applied to the laws in question. Interpretations are varied amongst judges, as are values applied to the law. In the United States, original intent versus relativity, explored in this final section of part one.
The second part of this treatise explores specific human rights topics by chapter. Chapter 6 focuses on capital punishment, and whether or not this is a violation of human rights. Is this considered cruel and unusual punishment, or a due process of law? Discussions on the topics of capital punishment as procedural, as reference to “penological goals,” or as substantive issues (p. 155.) Chapter 7 covers “one of the most contested issues in the human rights arena,” abortion. (p. 187.) Issues such as right to life, right to privacy, right to equality, and right to reproductive freedom are brought into focus throughout this chapter. Chapter 8 brings forth the question “is health a human right?” and discusses causes and causations of health and healthcare, of human versus State actions, and trying to define this right for all. (p. 231) Chapter 9 explores housing as a human right. While many view housing as a basic human right, there isn’t any defining law or charter in the countries focused on in this treatise making it required for all. The EU comes closest to defining housing in their European Social Charter. (p. 265.) Chapter 10 provides the statement “unlike the rights to housing and health, there is a universal consensus that speech is a fundamental right.” (p. 305.) Theories behind why freedom of speech is such a universal right are discussed in detail. Following freedom of speech is the right to education in Chapter 11, considered a “multiplier” or springboard for other rights such as freedoms of speech, employment, and democratic participation. (p. 355.) Rounding up our rights discussed is freedom of religion in Chapter 12. Religious freedoms in practice become contaminated with sources such as “politics, power, community identities, custom, and tradition,” making the right of religion all the more complex to define. (p. 401)
At the conclusion of the treatise, readers will have a better understanding of the difficulties faced in defining what these rights are and how to judiciously find meaning and application. Fredman allows the reader to reach their own conclusions on these rights while providing a narrative of past judicial interpretation concerning these global issues. While not promising solutions to such contemporary problems, careful analysis and review help to assist in understanding the complexities and goals in identifying human rights globally.