Realizing Rights Here and Now

(2016) 22:2 Australian Journal of Human Rights 61-80

27 Pages Posted: 19 Oct 2016 Last revised: 27 Feb 2017

See all articles by Robert Leckey

Robert Leckey

McGill University - Faculty of Law

Date Written: October 18, 2016

Abstract

This paper pushes back at the conjuncture of Utopia and human rights. A focus on Utopia risks obscuring complexities in the process of realizing rights in time through institutions of governance. The first part recounts judicial rituals by which judges delay the coming into effect of their conclusion that a law violates human rights. Reference to Utopia exposes tension in the rights enterprise insofar as the more ‘radical’ approach involves not imagining rights for the future, but insisting on their enforcement now. The second part addresses a controversy around the moment when a right, on its best understanding, began to produce legal effects binding on governments. This issue raises questions about how evolving understandings of rights fit into theories of the Constitution and of judicial power – and about responsibility for the blind spots of the past. The third part analyzes these examples’ effect of displacing human rights from past and present to future. If such a displacement appears natural to philosophers who view human rights as intrinsically Utopian and future-oriented, it is disruptive for jurists’ theory of a supreme Constitution and its effect on laws that infringe rights. Where a Utopian focus on rights may imply a static condition, this paper’s cases underscore the processes of governance and of working out an inter-institutional division of labour. They invite attention not only to ends, but also to means.

Keywords: Human Rights, Utopia, Remedies, South Africa, Canada

JEL Classification: K19

Suggested Citation

Leckey, Robert, Realizing Rights Here and Now (October 18, 2016). (2016) 22:2 Australian Journal of Human Rights 61-80. Available at SSRN: https://ssrn.com/abstract=2854318

Robert Leckey (Contact Author)

McGill University - Faculty of Law ( email )

3644 Peel Street
Montreal H3A 1W9, Quebec
Canada
514-398-4148 (Phone)
514-398-4659 (Fax)

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