“A Common Law of Human Rights: History, Humanity and Dignity”: Danny Friedman QC publishes article in the latest edition of the European Human Rights Law Review


Whatever the fate of the direct incorporation of European rights treaties in the United Kingdom, the article takes as its starting point that the common law method will become more relevant. Some judges have called for this in any event, whereas others have cautioned against the dangers of using law to fix politics. The common law was once a formidable thing: the legal reasoning of the English-speaking peoples reflected through their judges. However, it could often distort historical understanding, deny the humanity of others and favour a set of political and economic rights over human ones. In defence of the Human Rights Act, the article begins by identifying how the legal culture surrounding the Act has nevertheless served to limit common law thinking. It then asks whether this is therefore a moment to reinvigorate the common law by particularly focusing on history, humanity and dignity. The effect of the exercise is to strip the common law of its original context of nation-building and empire, and to update it as a means of doing justice in a democratic pluralist society. That revelation is important in the present political climate, because it shows that sovereignty is not singular and democracy is not simply majoritarian. The Human Rights Act has been important in protecting marginalised people; a journey into the wider landscape of the common law is now required to protect the Act itself from being marginalised.

For the article, see [2016] E.H.R.L.R. Issue 4 pp 378-397.