Human Dignity and Judicial Interpretation of Human Rights: A Reply

This essay is a reply to Christopher McCrudden\u27s Human Dignity and Judicial Interpretation of Human Rights, 19 EJIL 655 (2008). It argues that McCrudden\u27s study of the uses of the idea of human dignity in constitutional human rights adjudication confirms the thesis that there is at present an emerging global ius commune of human rights. Although McCrudden understates the existence and value of transnational agreement about human dignity and instead emphasizes divergences in the judicial uses of human dignity, in fact there is good reason to regard the core recognition of the status and principle of human dignity as more robust and useful and the disagreements as comparatively marginal and unimportant. Nevertheless, this article concludes, a substantive cross-cultural dialogue about the meaning and implications of human dignity for law is vital to the future of the human rights project; merely regarding the use of human dignity in functionalist terms as an empty placeholder for judicial discretion is inadequate

My Friend is a Stranger : The Death Penalty and the Global Ius Commune of Human Rights

This article examines the judicial use of foreign jurisprudence in human rights adjudication, using as data a set of court decisions regarding the death penalty from over a dozen different tribunals in different parts of the world. The global human rights norms and judicial discourse on human rights in these cases can be understood and explained by comparing the contemporary practices to the medieval ius commune. The modern ius commune of human rights has three distinct characteristics which it shares with the historical example to which it is analogized: it is broadly transnational in scope and application; it is grounded in certain universal principles that are assumed to have have cross-cultural and supra-positive validity (in the case of human rights, the idea of human dignity); and it neither trumps local law nor is necessarily subordinate to it, but rather exists in a symbiotic relationship with it. The article concludes with a suggestion to reexamine the way in which the United States Supreme Court has begun to engage foreign jurisprudence, as a consequence of this understanding of the new ius commune of human rights

My Friend is a Stranger : The Death Penalty and the Global Ius Commune of Human Rights

This article examines the judicial use of foreign jurisprudence in human rights adjudication, using as data a set of court decisions regarding the death penalty from over a dozen different tribunals in different parts of the world. The global human rights norms and judicial discourse on human rights in these cases can be understood and explained by comparing the contemporary practices to the medieval ius commune. The modern ius commune of human rights has three distinct characteristics which it shares with the historical example to which it is analogized: it is broadly transnational in scope and application; it is grounded in certain universal principles that are assumed to have have cross-cultural and supra-positive validity (in the case of human rights, the idea of human dignity); and it neither trumps local law nor is necessarily subordinate to it, but rather exists in a symbiotic relationship with it. The article concludes with a suggestion to reexamine the way in which the United States Supreme Court has begun to engage foreign jurisprudence, as a consequence of this understanding of the new ius commune of human rights

Continuity and Rupture in New Approaches to Comparative Law

In the course of this conference on new approaches to comparative law; it has struck me as curious that so little has been said about the old approaches to comparative law. In such a self-conscious effort to distinguish ourselves from our predecessors, one would expect at least some articulation of distinctive criteria, if not a full-fledged manifesto of novelty. Giinter Frankenberg gave us three ideal-type identities of the comparative lawyer; David Kennedy boxed up the old approaches in his taxonomical chart. They and others have referred to the expansion of capitalist market economics and liberal democratic political structures as the materialist catalyst for opportunities to deploy comparative law. But while these may help explain the sources of renewed interest in comparative law, they have not on the whole addressed what makes the current examples of comparative legal scholarship new in approach. To the extent that the New Approaches are able to bring us to a more critical self-awareness, they also reveal in the end a deeper and more basic continuity with old comparative legal studies. The value of comparative methods has always been in forcing us into sympathetic yet critical knowledge of law in another context, thereby disrupting our settled understandings, provoking us to new judgments, and demanding our response with new decisions, commitments, and actions. If comparative law does not do that, I would submit that it is hardly worth doing at all. To be sure, it requires the painstaking work of seeking to know law, language, politics, and culture in other contexts. But if comparative law is successful in this respect, there will be many more new approaches conferences in the future that will break with our work by characterizing it as hopelessly out of touch and that in that rupture will continue the critical tradition of comparative law of which we are a part

Organic Goods: Legal Understandings of Work, Parenthood, and Gender Equality in Comparative Perspective

The United States and Italy have taken quite different approaches toward providing legal protections for working parents. This Article uses a comparative perspective to highlight crucial aspects of the American legal and cultural attitudes towards parental leave. The author demonstrates how deeply rooted beliefs about equality, work, and family life have influenced the development of parental leave law. In particular, the Article describes how Italian law rests on notions of fundamental social equality, as well as on views concerning the importance of the interests of children and the family. As a result of this broad conception of the interests involved, Italy provides a great deal of benefits to aid in the support of childbirth and childrearing. In contrast, the author suggest that American legal developments have been based on a cramped deliberation over the issue of gender discrimination, which in turn has led to narrow judicial debates such as how pregnancy might be construed as analogous to a disability. While in recent years there has been some expansion of American parental leave benefits, the author contends that judicial doctrine and governmental benefits have been limited by the original legal framing of the debate. The author suggests that recent statutory developments in the United States are important precisely because they may provide the basis for a more expansive conceptual foundation for this area of law

From Conquest to Constitutions: Retrieving a Latin American Tradition of the Idea of Human Rights

This article explores the historical roots of the Latin American region\u27s strong commitment to the idea of universal human rights, focusing on four key intellectual moments: the ethical response to the Spanish conquest; the rights ideology of the continent\u27s liberal republican revolutions; the articulation of social and economic rights in the Mexican Constitution of 1917; and the Latin American contributions to the genesis of the Universal Declaration of Human Rights. Constructing a narrative from these examples, the article argues for the recognition of a distinct Latin American tradition within the global discourse of human rights

Subsidiarity as a Structural Principle of International Human Rights Law

This article argues that the principle of subsidiarity should be recognized as a structural principle of international human rights law primarily because of the way that it mediates between the universalizing aspirations of human rights and the fact of the diversity of human communities in the world. The idea of subsidiarity is deeply consonant with the substantive vision of human dignity and the universal common good that is expressed through human rights norms. Yet, at the same time it promotes respect for pluralism by emphasizing the freedom of more local communities to realize their own ends for themselves. Looking at the place of subsidiarity in international law generally, the article argues that subsidiarity is a more accurate and powerful way of understanding the relationship of human rights to international law and to the roles of states in the global community. Using the constitutional structure of the European Union as a starting point, the article presents subsidiarity as a conceptual alternative to classic notions of state sovereigny, which relativizes but does not eliminate the roles of nation states. The analysis shows that in many ways, subsidiarity is already immanent in the existing structures and doctrines of international human rights law, and provides a better explanation for a number of otherwise problematic features of international human rights law, such as the margin of appreciation and reservations to universal human rights treaties. Finally, the article defends the idea and use of the principle of subsidiarity against critiques that resist the legal pluralism that subsidiarity fosters and protects. It argues that philosophical, legal and political objections to pluralism in international human rights law are misdirected, and that an international legal system structured in accordance with subsidiarity can best combine the values of universality and diversity that respect for human rights requires