Monday, November 30, 2009
Victor Tadros (University of Warwick - School of Law) has posted A Human Right to a Fair Criminal Law (ESSAYS IN CRIMINAL LAW IN HONOUR OF GERALD GORDON, J. Chalmers, L. Farmer and F. Leverick, Forthcoming) on SSRN. Here is the abstract:
A human rights approach to scrutinising our criminal justice systems has gained considerable momentum in the UK, particularly since the Human Rights Act 1998 came into force, with Andrew Ashworth at the forefront. I don’t believe that this approach provides the sole way of critically investigating the quality of our law. After all, to say that our law is human rights compatible is not to say that it is just, a distinction that I will interrogate in a moment. But I do believe that a human rights approach can provide an important component of critical enquiry into the quality of the law. Violation of human rights is a distinctive kind of injustice, one that deserves to be marked out as special.
It is in this spirit that I offer an investigation of whether there is a human right to a fair criminal law. To make progress in that enquiry, we will need to know something about how best to understand human rights. I am interested here, I should say, not in the human rights that we have agreed in human rights documents such as the Universal Declaration of Human Rights or the European Convention of Human Rights. We can easily agree that there is no human right to a fair criminal law in this positivist sense. But human rights documents may be flawed: they may institutionalise as human rights things that are not really human rights at all and they may fail to institutionalise things that are human rights. Our enquiry is, in this way philosophical and moral rather than legal.