Jason Varuhas, Damages and Human Rights, Oxford: Hart Publishing, 499 pp, hb £95.00.

AuthorMatthew S. R. Palmer
Publication Date01 January 2018
Jason Varuhas,Damages and Human Rights, Oxford: Hart Publishing, 499 pp,
hb £95.00.
‘Damages and Human Rights’ is both an important topic and the title of
a thought-provoking book which represents a valuable contribution to legal
scholarship. It treats a subject of significance to lawyers, to judges and, most
importantly, to those who wish to use the law to protect and vindicate their
human rights. Part 1 of the book presents a tort-based approach to damages
for breaches of human rights. Part 2 analyses human rights damages in ter ms of
the public law – private law distinction. Part 3 examines alternative approaches
to damages for human rights breaches.
I sympathise with most of the points in the book, but I particularly applaud
one of its distinguishing characteristics, of speaking plainly, which is increasingly
valuable in today’s convoluted legal world. The reader will not die wondering
what Jason Varuhas thinks. He dismisses the analytical significance of the public
law/private law divide, saying ‘nothing of legal significance should ever be
allowed to rest on this distinction alone’ (470). He demolishes the United
Kingdom’s ‘mirror’ approach to damages under the Human Rights Act which
he says ‘ought to be abandoned forthwith’ (471) for a number of reasons: the
normative foundations of such an approach are obscure; it cannot be justified by
reference to the terms of the Act; it cannot be supported as a matter of principle;
it cannot be supported on a practical level; and altogether, the experience with
the mirror approach has been a tortured one which has led to significant
unfairness for victims who are, for example, systematically under-compensated
relative to domestic scales. Varuhas also argues that the ‘interest-balancing’
approach is difficult to reconcile with the terms of the Human Rights Act, that
it would invariably lead to violations of the European Convention, and that it
undermines fundamental and long standing principles of English law (472).
This is a technically complex legal topic. It requires mastery of the case
law regarding damages in multiple jurisdictions in the common law and civil
law worlds. Varuhas deploys expert legal analysis to achieve that. But the
book goes further. It delves into the theoretical and functional underpinnings
of different approaches to damages. Varuhas unabashedly argues in favour of
one: an approach to human rights damages that is normatively defensible on
its merits, given the distinctive nature of human rights law. This is a second
distinguishing characteristic of the book; it is, explicitly, a normative enterprise.
It is replete with technical legal analysis, and distinguishes and reconciles lines
of cases with the best of other doctrinal works, but this book treats what
is fundamentally a normative issue of public policy: how should the state
recognise, in monetary terms, proven breaches of human rights?
The combination of normative and doctrinal analysis raises a number of
issues both for how to think about the book and how to think about the
C2018 The Author.The Moder n Law Review C2018 The Modern Law Review Limited. (2018) 81(1) MLR 179–189
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA

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