Rights and the Art of Boundary Maintenance
| Published date | 01 January 1997 |
| DOI | http://doi.org/10.1111/1468-2230.00071 |
| Date | 01 January 1997 |
REVIEW ARTICLE
Rights and the Art of Boundary Maintenance
Gavin W. Anderson*
Andrew Clapham,Human Rights in the Private Sphere, Oxford: Clarendon
Press, 1993, xxxvii + 385pp, pb £19.99.
The issue at the heart of Andrew Clapham’s book, Human Rights in the Private
Sphere, is whether human rights have a role in controlling the abuse of private
power. It directly confronts the question of the purposes that human rights should
serve and, as such, is an important contribution to the human rights literature and
necessary reading for the ongoing Bill of Rights debate in the UK. The book,
written primarily in the context of the European Convention on Human Rights,
presents a choice between two ideal-types of human rights adjudication: classical
liberalism and social democracy. The former broadly corresponds to the idea that
the state (qua government) is the main threat to freedom, where rights are
conceived of as essentially negative limits on what the public institutions of
government can do; the latter considers private sources of power to represent as
great a danger to freedom and equality, and argues that human rights should also
impose positive redistributive obligations on private actors. Clapham rejects the
hitherto predominance of the classical liberal vision and proposes a social
democratic alternative in which the rigid public/private distinction is set aside. In
this essay, I examine Clapham’s argument that human rights can be used to serve
social democratic ends.
The public/private divide: a ‘difficult and dangerous’ distinction
Clapham’s book is organised into two parts. The first deals in a general fashion
with the relevance of the Convention in the UK’s courts. This serves as a prelude to
the second part by clarifying that much of his remarks are directed towards the
future operation of the Convention incorporated into the UK’s constitution (pp83–
86). It is in the second part that we turn in detail to the question of the application
of human rights in the private sphere, where he discusses (primarily in the
Convention context, but also with reference to the US, Canada and the EC) cases
where ‘the immediate violation [of human rights] is by private individuals or
bodies’ (p89). It is here that he turns his attack on the limitations of classical
liberalism, arguing that restricting the application of human rights to public bodies
creates a ‘difficult and dangerous distinction’ between the public and private
spheres (pp 124–133). The difficulty of the distinction restson the idea that there is
little qualitative difference between political power exercised by a government and
The Modern Law Review Limited 1997 (MLR 60:1, January). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.120
*School of Law, University of Warwick.
I would like to thank John McEldowney and Joe McCahery for their helpful comments on earlier drafts.
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