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New Directions in Comparative Law

New Directions in Comparative Law

Edited by Antonina Bakardjieva Engelbrekt and Joakim Nergelius

This in-depth book explores the changing role of comparative law in an era of Europeanisation and globalisation. It explains how national law coexists and interacts with supranational and international law and how legal rules are produced by a variety of institutions alongside and beyond the nation-state. The book combines both theoretical and practically oriented contributions in the areas of law and development, comparative constitutional law, as well as comparative private and economic law.

Chapter 4: Can Human Rights be Exported? On the Very Idea of Human Rights Transplantability

Claudio Corradetti

Subjects: law - academic, comparative law


Claudio Corradetti INTRODUCTION In order to formulate an answer to the question of human rights transplantability, it is essential to refer, first, to the idea of a conceptual-legal status of human rights, and then to provide an understanding of the notion of transplantability itself. These points can be validly argued only if a general precondition is first satisfied: general comparability among systems of rights. Indeed, it is only if the possibility of general comparability among legal systems can be admitted that the moral and political obligation might arise to expand, through legal transplantability, the system of protected liberties and fundamental rights. Now, as within one single system of fundamental rights there seem to arise several difficulties in commensurating between individual rights themselves, in the same way, between different right-systems there seems to be little utility in looking for a common neutral ground of commensuration assessing whether one exemplar liberty in a legal system S1 is better formulated than an analogous liberty exemplarily formulated in a legal system S2. And yet, a form of partial commensurability among different systems of liberty-rights can be conceived as taking the form of a general balance of satisfied freedoms. While exemplar rights per se remain reciprocally incommensurable, both at an infrasystem level and at an inter-system level, in relation to general balance of guaranteed freedoms it is still possible to provide a general assessment confronting the overall fulfilment of freedoms among different legal systems.1 A further reason for a preliminary clarification of the concepts at...

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