Research Handbooks in Comparative Law series
Edited by Mauro Bussani and Anthony J. Sebok
Chapter 4: Tort law and human rights
Human rights violations are often torts. In the national laws of the wealthy and well- developed first world, we often see human rights torts recognized as constitutional tortsand as a basis for judicial review of the legality of ordinary legislation against the Constitution, which raises the paradox of illegal law, of self-limiting law: that paradox is resolved by recognizing the mutually imbricated nature of national and international (human rights) law. National law is bound by international law because states in forming international rules bind other states. Each state is not hostage of all other states; rather, every state is some kind of partner with all other states. Constitutional torts generally invoke the domestic constitutional law of the state, though the rights of immigrants, legal or unauthorized, or of prisoners of war are sometimes implicated in constitutional tort cases. This chapter does not treat constitutional torts in national law. That is because the number of rights and countries involved would be intractable in a brief chapter (many states, numerous norms). In this chapter I instead wish to address a field where the law is not so well developed and to limit my inquiry to a more tractable field: personal injury torts where international human rights are implicated.
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