Human Rights: Where Do We Go from Here?

AuthorLaurence Lustgarten
Publication Date01 September 2006
Human Rights:Where DoWe Go from Here?
Laurence Lustgarten
Tom Campbell, Je¡rey Goldsworthyand AdrienneStone (eds), Protecting Human Rights:
Instruments and Institutions,Oxford: Oxford University Press,2003, xxii þ344pp,
hb d60.00.
‘This volume was inspiredby the increasing dominance of human rights in world
legal and political systems’. So runs the opening sentence of the Introduction to
Protect ing Huma n Rights, a multi-national, multi-disciplinary collection of essays.
This dubious premiseçit is doubtful whether the reality of human rights has
been anywhere near as dominant as its rhetoric, even before the beginning of
the s o-called ‘war on ter ror’çremains unchalle nged t hroughout. Instead, Adri-
enne Stone’s Introduction proceeds to identify the focus of the collection as ‘two
enduring problems for human rights theory and practice’.
The ¢rst is the content
and form of human rights; the s econd is how they may most e¡ectively be imple-
mented. The essays which follow are gene rally thoughtful and some are of very
high quality, but theydo not entirelycover the promised ground.They share the
characteristic common to much writing on human rights, which su¡ers from an
excess of philosophising and a dearth of empirically-grounded analysis. It is not
that thelatter is absent here,just that there is a seriousimbalance. Putanother way,
there is a shortage of discussion about ‘institutions’, as opposed to concepts and
theories. (There is also relatively little attention directed to ‘instruments’ in the
sense of detailed textual analysis of speci¢c constitutions or treaties). Nonetheless,
the book grapples with large themes and merits engagement both on its own
terms and as a pointer to where thinking about rights might go next. The essays
which form its core address the fundamental tension between democracy in the
sense of simple majority rule, and any serious attempt to protect human rights
throughsome form of legal provisionor i nstrument.The problem notonly arises,
but becomes i nescapable,whe n the instrument for the protect ion of human rights
takes a form which, under the constituent rules of the legal system, places those
rights beyond the immediate reach of majoritydecision.
The admirably eclectic group of contributors can draw upon their experience
of four leading Anglophone jur isdictionsçAustrali a, Canada, the UK, and the
USAçeach of which attempts to resolve the tension very di¡erently. (Of the
Visiting Professor of Law,University of Southampton.
1 A. Stone,‘Introduction’ inT. Campbell,J. Goldsworthyand A. Stone (ed),ProtectingHuman Rights:
Instrumentsand Institutions(Oxford: OxfordUniversity Press, 2003).Unattributed references are to
this book.
2 A. Stone,‘Introduction’,1^14;both quotations are to be found at p1.
rThe Modern LawReview Limited 2006
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2006) 69(5)MLR 843^854

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