Toward a Theory of Human Rights: Religion, Law, Courts by Michael J Perry
| Date | 01 November 2007 |
| Author | Lorenzo Zucca |
| Published date | 01 November 2007 |
| DOI | http://doi.org/10.1111/j.1468-2230.2007.00677_1.x |
Michael J Perry, Toward a Theory of Human Rights: Religion, Law, Courts,
270 pp, hb d40, Cambridge: Cambridge University Press, 2007
This book does exactly what it claims: it attempts to develop a theoryof human
rights. Perry suggests that a theory of human rights should deal with three basic
issues, which correspond tothe three main parts of the book. Part Onedeals with
the moral foundation of human r ights.Part Two cons iders the normative relation-
ship between the morality and the law of human rights. PartThree concerns the
institutional arrangements that best protect human rights.
To each of these three issues Perry o¡ers a very stimulating, and conspicuously
controversial, treatment. He argues that the moral foundation of human rights
can be de¢ned in terms of the principle of the dignity and inviolability of each
human being. The trouble is, Perry argues, that secular people cannot o¡er a
proper justi¢cation of dignity and inviolability of human beings. They cannot,
in other words, explain why it is the case that every human being has inherent
dignity andis inviolable. Religious people, on the contrary, have a much stronger
religious rationale to say so, Perry claims.
Once the foundation is established, the following step is to explain in what
way the morality of human rights in£uences the law of human rights. This is
inextricably linked to the two claims of inherent dignityand inviolability. In legal
terms, it means that those who commit to that morality will have to do all they
can to enact laws that do not violate human beings, and refrain from relying on
laws thatdo violate human beings.
Perry takes three areas to illustrate his claims: the death penalty, abortion, and
same sex unions. Not afraid of challenging conventional understanding, he
argues that his morality of human rights requires that the death penalty be abol-
ished; that pre-viability abortions be banned, at least partly; and that same sex
unions be recognised.
All this, however, is not as straightforward as it looks in normative terms, for
the institutional perspective nuances the general picture in many ways. The
remaining question is to know what role should the courts play. Perry argues that
the US system of judicial review coupled with judicial supremacy gives excessive
powers to courts. In other words, he disapproves of judicial ‘ultimacy’ ^ the fact
that the US Supreme Court has the last word on the most controversial issues.
Instead, he favours something close to the Canadian system, which he deems a
system of judicial ‘penultimacy’. The Canadian Supreme Court expresses itself
on controversial issues, but the parliament can, if it wants, overrule the court’s
decision thanks to the‘notwithstanding clause.’ Perry presents this solution as an
elegantcompromise thatreconciles judicialreview with democratic participation.
He says the same for the UK Human Rights Act 1998.
In the US, regrettably for Perry, judicial ultimacy is not likely to be removed.
To mitigate its e ¡ect, Perry suggests t hatcou rts should adopt a deferential attitude
along the lines proposed by James BradleyThayer. Roughly,Thayerian deference
requirescourts to apply therule of the clear mistakeçthat is, interfereonly when
the statuteis clearly wrong.Thayerian deference is not grounded on the belief that
the legislative or the executive are betterequipped to take hard decisions. Thayer
believes instead that a non-deferential system of judicial ultimacy would render
Reviews
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r2007 The Authors.Journal Compilation r2007 The Modern Law Review Limited.
(2007) 70(6) 1023^1043
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