Chapter

Judicial Recognition of Human Rights

Carl Wellman

in The Moral Dimensions of Human Rights

Published in print December 2010 | ISBN: 9780199744787
Published online January 2011 | e-ISBN: 9780199827138 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199744787.003.0009
Judicial Recognition of Human Rights

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This chapter weighs the judicial recognition of human rights in the common law of a national legal system against their recognition in a written constitution. Although judicial recognition is more flexible and defines more determinate rights, it offers less protection of human rights because of judicial restraint, especially in times of crisis. Most importantly, judicial recognition protects human rights only in a nation with a robust common law tradition and a high respect for individual moral rights, things lacking in many nations. Therefore, in most national legal systems, recognition in a written constitution is preferable. However, judicial recognition ought to supplement this by the redefinition of recognized rights, the derivation of specific rights, and the recognition of additional rights.

Keywords: judicial recognition; common law; Moral rights; Human rights; derivation; redefinition; national legal systems; constitutional rights

Chapter.  9329 words. 

Subjects: Philosophy

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