The ‘Tinkerbell moment': why we should care about Comparative Human Rights'
Professor Sandra Fredman
As we celebrate the 70th anniversary of the United Nations Declaration of Human Rights, the project of creating a global conversation to further human rights is more urgent than ever. On the day of the adoption of the Declaration, one of its drafters, Chilean jurist Hernán Santa Cruz, was moved to state:
“I perceived clearly that I was participating in a truly significant historic event in which a consensus had been reached as to the supreme value of the human person, a value that did not originate in the decision of a worldly power, but rather in the fact of existing—which gave rise to the inalienable right to live free from want and oppression and to fully develop one’s personality.”
Yet, seven decades on, the space for asserting the supreme value of the human person, and for developing the inalienable right to live free from want and oppression, is narrowing rapidly. In established democracies, populism threatens to engulf political processes, while autocratic governments, having extinguished popular uprisings at home, are increasingly expansionist. Human rights, both at the international and national level, are more contested than ever. In an era dominated by claims of ‘fake news,’ freedom of speech is ever more dislocated from any attempt to further the quest for truth, and instead harnessed for the pursuit of personal and political power. Freedom of religion is asserted to defeat rights to equality and tolerance. At the same time, the ascendancy of neo-liberal policies has legitimated the claim that a shortage of resources justifies displacing rights to health, housing and education in favour of ideologies of efficiency and private profit.
It is in this climate that the need for a vigorous transnational interaction on the meaning and application of human rights becomes particularly pressing. The human rights contestations facing courts in different jurisdictions are remarkably similar. Does the death penalty breach human rights? Does freedom of speech include racist speech? What are the appropriate limits of freedom of religion? Is there a right to health? On the one hand, the shared language of human rights suggests that there should be similar solutions to comparable problems. On the other hand, there are important differences. Constitutional texts are worded differently; courts have differing relationships with the legislature; and there are divergences in socio-economic development, politics, and history. Comparative law provides a fascinating prism to examine the growing transnational conversation between courts and the myriad ways in which these difficult questions are decided.
This is not to say that we should expect to find a single meaning or truth in all jurisdictions. We need not agree with Cicero that ‘there is a true law, a right reason, conformable to nature, universal, unchangeable, eternal law of justice’ But nor do we need to subscribe to the view that all values are culturally relative, and claims of universality merely a cover for a particular perspective, a hegemonic exercise of the ‘West’. Instead, we should continue to participate in a collaborative development and implementation of a set of human rights which is both sensitive to local context and true to universal values rooted in the intrinsic worth of each person and their right to be free of fear and want.
The need to study comparative human rights law is not just an academic one: budding lawyers who study the human rights judgements of other countries will be able to cite them in cases before courts in their own countries; judges trained in comparative human rights law will be in a position to assess the value of judgements from comparable jurisdictions and incorporate them into their reasoning, whether by accepting them or diverging from them. As Aharon Barak has put it, a virtuous circle will be established: ‘Judges will start to rely on comparative law; lawyers will tend to cite it to judges; law schools will start teaching comparative law; scholars will be encouraged to research in comparative law; judges will rely more and more on comparative law.’ This does not mean that judgments from other jurisdictions can or should be regarded as binding. But nor should they be rebuffed as ‘foreign fads and fashions’ as the late US Justice Scalia would have it. Instead, comparative human rights are an important deliberative resource, for judges to refer to in order to enhance their own decision-making, and to explain both concurrence and divergence. As teachers of human rights law, we are in a position to hasten what Jeremy Waldron calls the ‘Tinkerbell moment’: when judges believe enough in the value of comparative approaches to human rights law to begin articulating this belief into practice.
These are not simply abstract issues. What matters are the stories behind human rights cases, the urgent issues that real people in many countries pursue all the way to apex courts and beyond. For the prisoner on death row and the victim of their crime; the pregnant woman seeking an abortion and her opponents; the homeless person among many millions of other homeless people; the women seeking religion and the women oppressed by religion: what can a comparative approach to human rights law add? Judges faced with acutely difficult questions need to refer to their textual mandate, the fundamental values informing the text, their own interpretive philosophy and their perception of their role relative to the legislature. But more and more, their decision-making can be enriched by considering how judges in other jurisdictions have faced these questions, not to be bound by them, but in a deliberative sense. I have been enormously enriched in my own perceptions of these issues by discussions and debates with generations of human rights law students from many different jurisdictions, and with colleagues and friends across national and disciplinary boundaries. This is a journey which requires much thoughtfulness and an openness to new perspectives, but also the commitment to the ultimate destination of human rights for all. It is a journey best taken together.
Sandra Fredman is Rhodes Professor of the Laws of the British Commonwealth and the USA at the University of Oxford. She is the author of Comparative Human Rights Law, a new release from Oxford University Press.