Douglas, Benedict (2018) 'Too attentive to our duty : the fundamental conflict underlying human rights protection in the UK.', Legal studies., 38 (3). pp. 360-378.
Are we defined by the choices we make or the duties we owe? This paper argues that there is a conflict between the fundamental conception of the individual as possessing the capacity to choose how to live, which has been held to be the foundation of the European Convention on Human Rights, and the understanding of the individual as a bearer of duties which has long underpinned the UK Constitution. Through case law analysis, it is shown that the tension between these two understandings of the individual underlies the troubled acceptance of the Human Rights Act 1998, and influences the UK judiciary's substantive interpretations of the Convention rights. It is ultimately argued that for the Convention rights to be fully accepted in the UK, the evolution from a duty to a choice-based understanding of the individual, which was artificially accelerated by the Human Rights Act, must be more widely accepted by society and the courts.
|Full text:||(AM) Accepted Manuscript|
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|Publisher Web site:||https://doi.org/10.1017/lst.2017.25|
|Publisher statement:||This article has been published in a revised form in Legal Studies https://doi.org/10.1017/lst.2017.25. This version is free to view and download for private research and study only. Not for re-distribution, re-sale or use in derivative works. © The Society of Legal Scholars 2018.|
|Date accepted:||13 October 2017|
|Date deposited:||16 October 2017|
|Date of first online publication:||02 July 2018|
|Date first made open access:||No date available|
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