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Fundamental Rights and the Legal Obligations of Business
Corporations can significantly affect the fundamental rights of individuals. This book investigates how to determine the substantive content of their obligations that emanate from these rights. In doing so, it addresses important conceptual issues surrounding fundamental rights. From an investigation of existing legal models, a clear structural similarity surfaces in how courts make decisions about corporate obligations. The book seeks to systematise, justify and develop this emergent 'multi-factoral approach' through examining key factors for determining the substantive content of corporate obligations. The book defends the use of the proportionality test for ascertaining corporations' negative obligations and outlines a novel seven-step test for determining their positive obligations. The book finally proposes legal and institutional reforms - on both the national and international levels - designed to enhance the quality of decision-making surrounding corporate obligations, and embed fundamental rights within the corporate structure and the minds of key decision-makers.
The Evolution of the Separation of Powers
To what extent should the doctrine of the separation of powers evolve in light of recent shifts in constitutional design and practice? Constitutions now often include newer forms of rights – such as socioeconomic and environmental rights – and are written with an explicitly transformative purpose. They also often reflect include new independent bodies such as human rights commissions and electoral tribunals whose position and function within the traditional structure is novel. The practice of the separation of powers has also changed, as the executive has tended to gain power and deliberative bodies like legislatures have often been thrown into a state of crisis. The chapters in this edited volume grapple with these shifts and the ways in which the doctrine of the separation of powers might respond to them. It also asks whether the shifts that are taking place are mostly a product of the constitutional systems of the global south, or instead reflect changes that run across most liberal democratic constitutional systems around the world.
Human Rights Obligations of Business
This book critically evaluates the Ruggie Framework and the Guiding Principles on Business and Human Rights, and investigates the normative foundations as well as the nature, extent and enforcement of corporate obligations for the realisation of human rights.
Poverty and Fundamental Rights
This book addresses the pressing issue of severe poverty and inequality, and questions why violations of socio-economic rights are treated with less urgency than violations of civil and political rights, such as the right to freedom of speech or to vote? Socio-economic rights have been widely regarded as aspirational goals, rhetorically useful, but having few practical implications for government policy and the distribution of resources within a polity. It is not therefore surprising that socio-economic rights have been systematically neglected in the world today, with millions still lacking access to even basic shelter, food or health care. This book seeks to provide a sustained argument fo...
Socio-Economic Rights, Economic Crisis, and Legal Doctrine
In his interesting criticism of our article, “Social Rights in the Age of Proportionality,” David Bilchitz rejects the potential of proportionality to give content to social rights. Proportionality is perceived as a “formal test ... that helps decision-makers reach determinations as to the circumstances in which it is permissible to limit rights,” which “only works if we have a pre-existing understanding of the content of particular rights and the weights to be accorded to them.” This preexisting content idea is central to the author's argumentation, being considered a precondition for the examination of necessity and stricto sensu proportionality as well as for the dialogical ap...
Building a Treaty on Business and Human Rights
This book provides a sustained treatment of the politico-legal context and content of a proposed business and human rights treaty.
Transitional Justice, Distributive Justice, and Transformative Constitutionalism
Emerging from national pasts marred by violence, conflict, and injustice, South African and Colombian societies have sought to establish futures founded on equality, democracy, and constitutionalism. Transitional Justice, Distributive Justice, and Transformative Constitutionalism: Comparing Colombia and South Africa offers the first dedicated scholarly comparison of the two countries in relation to the intersecting ideas of transitional justice, distributive justice, and transformative constitutionalism. Featuring contributions by Colombian and South African authors, this volume richly examines each country from a range of thematic perspectives as the basis for deep reflection and comparison...
Jurisprudence in an African Context
Jurisprudence in an African Context is devoted to the philosophy of law, in a way that engages earnestly with African thought and the African context. The text features primary texts by leading African intellectuals, putting these into critical dialogue with Western theorists. It addressescore jurisprudential topics, such as the nature and functions of law, the manner in which judges do and should interpret the law, theories of distributive justice, and accounts of civil and criminal justice. These abstract philosophical issues are considered in the context of salient controversieson the African continent, including: how cultural norms should influence judicial interpretation, who is obligat...
Review of David Bilchitz, 'Poverty and Fundamental Rights' (2007).
This essay reviews David Bilchitz's "Poverty and Fundamental Rights" (Oxford U. Press, 2007). Bilchitz's book divides into two parts. In the first, Bilchitz constructs a theory of basic rights, including socioeconomic rights. In the second, he examines how basic socioeconomic rights have been enforced by the South African Constitutional Court. A great strength of Bilchitz's book is that it aims to show the practical differences that a more philosophically adequate theory might have produced. The theory Bilchitz defends -- particularly in its distinction between conditional and unconditional rights -- is both theoretically satisfying and closely tailored to the South African context in which ...
