R. Catterwell, A Unified Approach to Contract Interpretation, Oxford: Hart Publishing, 2020, 320 pp, hb £72.00
| Published date | 01 November 2022 |
| Author | Timothy Pilkington |
| Date | 01 November 2022 |
| DOI | http://doi.org/10.1111/1468-2230.12725 |
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S.Fredman,Comparative Human Rights Law,Oxford: Oxford University Press,
2018, 512 pp, pb £47.49
There are various ways of approaching the law from a comparative perspective.
First, a comparative law study may focus on the socio-political context that
led to the elaboration of similarities or dierences in the protection of rights.
In this respect, a study of comparative law is by denition an interdisciplinary
study. It involves studying the social context which led to the emergence of
legal rules, understood as a subcategory of social rules that regulate human in-
teraction. This approach would aim to propose a framework for understanding
similarities and dierences in the protection of human rights. Second, a com-
parative law approach can be a normative enterprise. It can focus on engaging
in a philosophical analysis enlightened by the dierences or similarities in the
regulation of human rights issues, in order to propose concrete solutions for the
regulation of a human right. In this approach,the legal similarities or dierences
under comparison would provide inspiration for theoretical arguments for and
against a solution to human rights cases. Third,a comparative law approach can
combine both elements of the two previously mentioned approaches. It can
aim at studying the sociopolitical frame that led to the emergence of legal rules
and challenge them in the cases where it seems that there is some agrant in-
justice in the application of rules upon concrete cases of human rights. If we
understand how legal rules emerged, this can help us realise whether we have
good reasons to sustain them. Fourth, a comparative law approach can focus on
some themes that are raised in relation to human rights and examine how they
are regulated in various legal systems that are signicant. This problem-based
approach helps ‘canvass alternative solutions’ (458) to a series of legal problems
raised by human rights law.
In this book, Sandra Fredman follows the fourth approach.The book focuses
on selected themes in human rights law and studies them from a comparative
perspective.It discusses thoroughly issues related to capital punishment and the
rights to abortion, health, housing, education, freedom of speech and freedom
of religion. In the course of that discussion, it analyses an impressive array of
cases from all over the world.It is based on a signicant amount of research and
deep engagement with the relevant materials. Fredman approaches comparative
law as a ‘deliberative’enter prise (458). The central idea is that if judges decid-
ing on human rights issues are obliged to engage in a thorough and persuasive
reasoning process, comparative mater ials can contr ibute important insights to
this process. Whether legal solutions to human r ights problems converge or
not, familiarity with the variety of reasonings that are relevant in this respect
is itself meaningful. Judges may have the opportunity to engage creatively with
© 2022 The Author.The Modern Law Review © 2022 The Modern Law Review Limited. (2022)85(6) MLR 1592–1607
Reviews
those materials either accepting or rejecting the relevant legal solutions.In Fred-
man’s view, human rights are themselves the result of deliberative consensus,
while the legal reasoning of courts in this area can expand these deliberations
and compromises (460). Through this reasoning, courts can provide valuable
information to the other branches of government as to the sense that the citi-
zens have of what rights they should have.This is particularly relevant in the area
of socio-economic rights which cover a large part of the analysis in the book.
This deliberation is qualitatively superior to mere bargaining and compromising
of interests because it presupposes understanding between government and civil
society, as much as between civil society actors themselves.Haber mas’ distinc-
tion between ‘interest-governed’ and ‘value-oriented’ co-ordination is relevant
in this respect, because it emphasises the importance of good reasons and the
value of the better argument (J.Habermas, Between Facts and Norms (Polity Press
1997), discussed by Fredman at 82-85).
Moreover, the involvement of courts in this deliberative process enhances
government legitimacy.Through their reasoning on human rights issues, courts
not only express dominant ideas on government legitimacy to realise rights,but
simultaneously contribute to their formation. In other words, judges express
and form a conception on the legitimate extent of government intervention in
order to help the citizens realise their rights.
The book engages creatively with some theories which are important for
human rights law. The discussion of the complexities in the realisation of
deliberative democracy proposes innovative combinations of thoughts. Fred-
man discusses various theories which relate to resolving the tension between
protecting rights in a way that is meaningful and reacting to the challenges of
relativism in the foundation of rights: Berlin’s pluralist approach, Rawls’ over-
lapping consensus and Sunstein’s incompletely theorised agreements (51 and
folllowing). For Berlin, rapprochement between people of var ious cultural
backgrounds is possible thanks to the imaginative ability of humanity to under-
stand the values of another culture or society (I.Berlin, ‘The Pursuit of the Ideal’
in H. Hardy and R. Hausheer (eds), The Proper Study of Mankind: An Anthol-
ogy of Essays (Pimlico, 1998)). This means that disagreements can be softened
through compromise. Rawls proposes the idea of overlapping consensus, ac-
cording to which some political ideas may be supported by various doctrines,
religious, philosophical and moral, even if the grounds for this support dier
within each one of these theories (J. Rawls, Political Liberalism (Columbia Uni-
versity Press, 1993) and Justice as Fairness (Harvard University Press, 2001) 34).
Sunstein suggests that for participants in legal controversies,even if there is dis-
agreement on fundamental principles, they may reach agreements on particular
issues, even if these issues are not theorised (C. Sunstein, ‘Incompletely Theo-
rized Agreements’ (1995) 108 Harvard LR 1733).These incompletely theorised
agreements are important as they ensure coexistence despite disagreement on
more abstract questions. A legal solution on the right to abortion, for instance,
may be reached by an agreement on some practical aspects of the right without
the need for agreement on deeply held commitments. People may agree on
outcomes while disagreeing on solutions.
© 2022 The Author.The Modern Law Review © 2022 The Modern Law Review Limited.
(2022) 85(6) MLR 1592–1607 1593
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