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Beyond Disagreement - Open Remedies in Human Rights Adjudication (Hardcover)
Loot Price: R5,217
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Beyond Disagreement - Open Remedies in Human Rights Adjudication (Hardcover)
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Examining the role of 'open remedies' in human rights adjudication,
this book provides a new perspective informing comparative
constitutional debates on how to structure institutional
relationships over fundamental rights and freedoms. Open remedies
declare a human rights violation but invite the other branches of
government to decide what corrective action should be taken. Open
remedies are premised on the need to engage institutions beyond
courts in the process of thinking about and acting on human rights
problems. This book considers examples across the United States,
South Africa, Canada, and internationally, emphasising their
similarities and differences in design and the diverse ways they
could operate in practice. he book investigates these possibilities
through the first systematic legal and empirical study of the
declaration of incompatibility model under the United Kingdom Human
Rights Act. This new model provides a non-binding declaration that
the law has infringed human rights standards, for the legislature's
consideration. By design, it has the potential to support
democratic deliberation on what human rights require of the laws
and policies of the State, however, it also carries uncertainties
and risks. Providing a lucid account of existing debates on the
relative roles of courts and legislatures to determine the
requirements of fundamental rights commitments, the book argues
that we need to look beyond the theoretical focus on rights
disagreements, to how these remedies have operated in practice
across the courts and the political branches of government.
Importantly, we should pay attention to the nature and scope of
legislative engagement in deliberation on the human rights matters
raised by declarations of incompatibility. Adopting this approach,
this book presents a carefully argued view of how courts have
exercised this power, as well as how the UK executive and
Parliament have responded to its use.
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