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Ngày đăng: 21/09/2012, 11:02 This page intentionally left blankWho Believes in Human Rights?Reflections on the European ConventionMany people believe passionately in human rights. Others – Bentham, Marx,cultural relativists and some feminists amongst them – dismiss the concept ofhuman rights as practically and conceptually inadequate. This book reviews theseclassical critiques and shows how their insights are reflected in the case law of theEuropean Court of Human Rights. At one level an original, accessible andinsightful legal commentary on the European Convention, this book is also aground-breaking work of theory which challenges human rights orthodoxy. Itsnovel identification of four human rights schools proposes that we alternativelyconceive of these rights as given (natural school), agreed upon (deliberativeschool), fought for (protest school) and talked about (discourse school). Whichof these concepts we adopt is determined by particular ways in which we believe,or do not believe, in human rights.MARIE-BE´NE´DICTEDEMBOURis Senior Lecturer in Law at the Sussex Law School,University of Sussex.The Law in Context SeriesEditors: William Twining (University College London) and Christopher McCrudden(Lincoln College, Oxford)Since 1970 the Law in Context series has been in the forefront of the movement tobroaden the study of law. It has been a vehicle for the publication of innovative scholarlybooks that treat law and legal phenomena critically in their social, political and eco-nomic contexts from a variety of perspectives. The series particularly aims to publishscholarly legal writing that brings fresh perspectives to bear on new and existing areas oflaw taught in universities. A contextual approach involves treating legal subjects broadly,using materials from other social sciences, and from any other discipline that helps toexplain the operation in practice of the subject under discussion. It is hoped that thisorientation is at once more stimulating and more realistic than the bare exposition oflegal rules. The series includes original books that have a different emphasis fromtraditional legal textbooks, while maintaining the same high standards of scholarship.They are written primarily for undergraduate and graduate students of law and of otherdisciplines, but most also appeal to a wider readership. In the past, most books in theseries have focused on English law, but recent publications include books on Europeanlaw, globalisation, transnational legal processes, and comparative law.Books in the SeriesAnderson, Schum & Twining: Analysis of EvidenceAshworth: Sentencing and Criminal JusticeBarton & Douglas: Law and ParenthoodBeecher-Monas: Evaluating Scientific Evidence: An InterdisciplinaryFramework for Intellectual Due ProcessBell: French Legal CulturesBercusson: European Labour LawBirkinshaw: European Public LawBirkinshaw: Freedom of Information: The Law, the Practice and the IdealCane: Atiyah’s Accidents, Compensation and the LawClarke & Kohler: Property Law: Commentary and MaterialsCollins: The Law of ContractDavies: Perspectives on Labour LawDembour: Who Believes in Human Rights?: The European Convention in Questionde Sousa Santos: Toward a New Legal Common SenseDiduck: Law’s FamiliesElworthy & Holder: Environmental Protection: Text and MaterialsFortin: Children’s Rights and the Developing LawGlover-Thomas: Reconstructing Mental Health Law and PolicyGobert & Punch: Rethinking Corporate CrimeHarlow & Rawlings: Law and Administration: Text and MaterialsHarris: An Introduction to LawHarris, Campbell & Halson: Remedies in Contract and TortHarvey: Seeking Asylum in the UK: Problems and ProspectsHervey & McHale: Health Law and the European UnionLacey & Wells: Reconstructing Criminal LawLewis: Choice and the Legal Order: Rising above PoliticsLikosky: Transnational Legal ProcessesLikosky: Law, Infrastructure and Human RightsMaughan & Webb: Lawyering Skills and the Legal ProcessMcGlynn: Families and the European Union: Law, Politics and PluralismMoffat: Trusts Law: Text and MaterialsNorrie: Crime, Reason and HistoryO’Dair: Legal EthicsOliver: Common Values and the Public–Private DivideOliver & Drewry: The Law and ParliamentPicciotto: International Business TaxationReed: Internet Law: Text and MaterialsRichardson: Law, Process and CustodyRoberts & Palmer: Dispute Processes: ADR and the Primary Forms of Decision-MakingScott & Black: Cranston’s Consumers and the LawSeneviratne: Ombudsmen: Public Services and Administrative JusticeStapleton: Product LiabilityTamanaha: The Struggle for Law as a Means to an EndTurpin: British Government and the Constitution: Text, Cases and MaterialsTwining: Globalisation and Legal TheoryTwining: Rethinking EvidenceTwining & Miers: How to Do Things with RulesWard: A Critical Introduction to European LawWard: Shakespeare and Legal ImaginationZander: Cases and Materials on the English Legal SystemZander: The Law-Making ProcessWho Believes in HumanRights?Reflections on the European ConventionMarie-Be´ne´dicte DembourCAMBRIDGE UNIVERSITY PRESSCambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São PauloCambridge University PressThe Edinburgh Building, Cambridge CB2 8RU, UKFirst published in print formatISBN-13 978-0-521-68307-4ISBN-13 978-0-511-34870-9© Marie-Benedicte Dembour 20062006Information on this title: publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press.ISBN-10 0-511-34870-3ISBN-10 0-521-68307-6Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.Published in the United States of America by Cambridge University Press, New Yorkwww.cambridge.orgpaperbackeBook (EBL)eBook (EBL)paperback163000To Bob, againTo Ellis too, of courseTo Franc¸oise and all judges and lawyers like her . 304 The Convention in a utilitarian light 685 The Convention in a Marxist light 1146 The Convention in a particularist light 1557 The Convention in a feminist. page intentionally left blank Who Believes in Human Rights? Reflections on the European ConventionMany people believe passionately in human rights. Others
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