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Rights in Divided Societies

Editor(s): Colin Harvey, Alex Schwartz
Media of Rights in Divided Societies
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Published: 20-07-2012
Format: Hardback
Edition: 1st
Extent: 284
ISBN: 9781849461009
Imprint: Hart Publishing
Series: Human Rights Law in Perspective
Dimensions: 234 x 156 mm
RRP: £65.00
Online price : £58.50
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Loren Epson

About Rights in Divided Societies

This collection examines the role and value of rights in divided and post-conflict societies, approaching the subject from a comparative and theoretical perspective.
Societies emerging from violent conflict often opt for a bill of rights as part of a wider package of constitutional reform. Where conflict is fuelled by longstanding ethno-national divisions, these divisions are often addressed through group-differentiated rights. Recent constitutional settlements have highlighted the difficulties in drafting a bill of rights in divided/post-conflict societies, where the aim of promoting unity is frequently in tension with the need to accommodate difference. In such cases, a bill of rights might be a rallying point around which both minorities and the majority can articulate a common vision for a shared society. Conversely, a bill of rights might provide merely another venue in which to play out familiar conflicts, further dividing an already divided society.
The central questions that animate the collection are: (1) Can constitutional rights provide a basis for unity and a common 'human rights culture' in divided societies? If so, how? (2) To what extent should divided societies opt for a universalistic package of rights protections, or should the rights be tailored to the specific circumstances of a divided society, providing for special group-sensitive protections for minorities? (3) Is a divided society more or less likely to adopt a bill of rights? (4) How does the judiciary figure in the management or resolution of ethno-national conflict? (5) What are the general theoretical and philosophical issues at stake in a rights-based approach to the management or resolution of ethno-national divisions or other conflicts?

Table Of Contents

1 Introduction 1
Colin Harvey and Alex Schwartz
I. Divided Democracy
2 Rights versus Democracy? The Bill of Rights in Plurinational States
Stephen Tierney
3 Managing Conflict Through Democracy
Samuel Issacharoff
4 Ethnicity and Competing Nations of Rights
Yash Ghai
II. Judicial Independence and Empowerment
5 Independent or Dependent? Constitutional Courts in Divided Societies
Sujit Choudhry and Richard Stacey
6 Judicial Empowerment in Divided Societies: The Northern Ireland Bill of Rights Process in Comparative Perspective
Alex Schwartz and Colin Harvey
III. Post-Conflict Constitutions
7 The Nature and Effects of Constitutional Rights in Post-conflict Bosnia and Herzegovina
David Feldman
8 Constitutional Change and the Quest for Legal Inclusion in Nepal
Mara Malagodi
IV. Pluralism
9 The Charter of Rights and Freedoms and Canadian Unity
Daniel Weinstock
10 Education, Crucifixes and Headscarves: The Appropriation of Meanings and the Content of Rights in Divided Societies
Ruth Rubio-Marín and Leonardo Álvarez-Álvarez
11 Forcing Consensus: Challenges for Rights-based Constitutionalism in Chile
Amaya Alvez Marin


“… the contributions are all well written and offer the reader an understanding of the challenges of human rights and constitutionalism within divided societies. Moreover, this volume is rich in its thematic and geographic analysis. The use of concrete examples drawing on case studies from around the world is highly useful. It not only increases our appreciation of somewhat abstract debates of the issue and concretizes them, but it also allows the readers to reflect upon how different theories apply in practice and to perhaps reconsider them. Most importantly, it forces us to think realistically about the opportunities of human rights in divided societies and to be sensible to their limitations.All in all, the editors have put together a thought-provoking set of essays by both leading authorities and emerging scholars in human rights law, constitutional law, and political theory. Rights in Divided Societies is a stimulating collection of essays which merits the attention of scholars interested in issues surrounding comparative constitutional law, constitutional design, minority rights and multiculturalism in divided societies. I join the editors' aspiration that this collection will stimulate further comparative and theoretical legal scholarship on divided societies.” –  Yaniv Roznai, Public Law

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