It has been argued that rhetoric about rights takes a different tone in different legal cultures because the histories and traditions of the countries being analysed have produced “different conceptions about the right and the role of fundamental rights”.
I recently completed writing the last chapter of my dissertation, a chapter that caused me to look back at the full content of my dissertation and consider some of the most interesting similarities and differences that I’ve uncovered in my analysis of Canada and the United Kingdom’s anti-terrorism mechanisms and wider frameworks for human rights protection. While there were many (almost 20), one of the most surprising and topical pertains to societal attitudes towards human rights in the two countries. Perhaps I was naïve when I first moved to the UK in thinking that the commonwealth roots and common law legal systems shared by the two countries meant that the systems for protecting human rights and the societal attitudes behind them would be very similar. Boy, was I wrong.
For those of you who don’t know, human rights are protected in Canada in a codified Bill of Rights, The Canadian Charter of Rights and Freedoms, delivered by Pierre Trudeau’s Liberal government as part of the nation-building exercise that was the 1982 patriation of our Constitution. Human Rights in the U.K. are protected under the common law, but also by the Human Rights Act 1998 (HRA), which gives effect to the European Convention on Human Rights (ECHR).
Over the course of the last year, it has been near impossible to follow news here in the U.K. without coming across a story that has expressed some form of anti-HRA or anti-ECHR sentiment. This has occurred particularly in the context of the deportation of Abu Qatada, but has recently resurfaced in the Conservative government’s pronouncements about the possibility of repealing the HRA and possibly even considering withdrawing from the ECHR. While Home Secretary and Justice Secretary Chris Grayling have often made comments in the media about such a repeal or withdrawal, it seems as though David Cameron has now hardened his position on this withdrawal, and it is looking like more and more of a reality that it will be included in the party’s platform for the 2015 election.
To contrast, commentators have argued that the Charter has been received as a distinctly Canadian achievement, given a warm reception by Canadian judges and enjoying widespread popular support for its adoption. This is not to suggest that the Charter didn’t have its critics when it was developed, nor is it to suggest that these critics don’t still exist, particularly in Quebec. The Charter was, and is, a pragmatic compromise and there have, and will always be, arguments raised in reference to it about its protection of (particularly language) rights and the powers it bestows to courts (in the wider context of debates about parliamentary sovereignty and the appropriate role of courts).
That said, there is frequently a sentiment expressed in the U.K. media and by various politicians that judgments of the Strasbourg court are “externally imposed”. The sentiment has no parallel in Canada where the Canadian Supreme Court is truly the court of last resort. The complex process under s. 2(1) of the HRA, wherein UK courts are required to “take into account” Strasbourg jurisprudence, is a nuanced exercise of legal and political tight-rope walking not easily understood by the average citizen without any legal training. Proper understanding of this process is only further obscured in high-profile terrorism cases, like the Qatada deportation, where us. vs. them rhetoric abounds and Strasbourg is argued to be hampering attempts to protect the country’s safety and security and impeding the ability of the U.K. to deport dangerous criminals.
Much more will be said in the coming months and years about just how exactly the next U.K. government will go about framing the discussion around maintaining/altering the arrangements for human rights protection. Several commentators have already started to envision what new options for these arrangements would look like, including Mark Elliott, who writes a clear and concise summary of what he sees about four possible ways forward here. But there is something else going on here that speaks usefully to the purposes of comparative law.
Let’s return back to my most recent dissertation chapter, which was principally concerned with evaluating arguments about the purposes of comparative law. There is a distinct divide on this subject between those who might be described as universalists, and those who believe in the importance of engaging in social, political and cultural analysis in their comparative legal projects. The universalist sees law “as an autonomous system ultimately similar in form and content across all cultures”, a form of “universal legal science” where there is no room for cultural analysis and “local substance”. The modern universalist view is most often and forcefully posited by Zweigert and Kotz, who argue that, “The solutions we find in the different jurisdictions must be cut loose from their conceptual context and stripped of their national doctrinal overtones so that they may be seen purely in the light of their function”.
The opposite camp, made up of comparativists such as Liora Lazarus, Pierre Legrand, and David Nelken argue that understanding the social, political and cultural contexts in which rules operate is crucial to a full picture of how laws operate differently in different jurisdictions. These comparativists are not naïve to the fact that concepts such as culture lack a certain ‘scientificity’ about them, in the sense that they are not measurable variables to understand. While this is undoubtedly the source of angst for any comparativist who wishes to engage in social, political and cultural analysis, it is this writer’s humble opinion that it is the very breadth and fluidity of concepts such as culture that provide for the most useful comparative legal analyses.
The aforementioned anti-HRA and anti-ECHR sentiment here in the U.K., and the contrasting patriotic attachment to the Charter in Canada, is an excellent example of how comparative legal studies that go beyond the mere rule-comparison of universalism provide a fuller picture behind how legislation is developed, implemented, defended or attacked, and amended. The universalist is quite right to argue that political and cultural analyses can be criticized as unscientific. As such, comparativists such as Lazarus, Nelken and Legrand go to great lengths in their work to discuss the complexities associated with using concepts such as culture. The difference is that these comparativists make this accommodation, and also allow for the rule-comparison that the universalist champions, when they engage in their research. The universalist makes no such accommodation, and rejects outright the validity of such analyses, viewing them as a hindrance of the end goal of arriving at a “unitary sense of justice”.
In doing so, they miss out on a crucial part of the story when analysing legislation in different jurisdictions. Societal attitudes towards human rights matter (or should) to decision-makers who are (or should be) concerned about the political costs associated with implementing rights-infringing legislation. Law is not produced in a vacuum. This is certainly even more true for anti-terrorism legislation, an inherently controversial, political and international form of law.
Regardless of how the U.K.’s arrangements for protection of human rights may have changed by 2015, the need for legal comparison that takes into account social, political and cultural contexts will remain.
 Liora Lazarus, Contrasting Prisoner’s Rights: A Comparative Examination of Germany and England (Oxford University Press, 2004), 16
 Helen Fenwick, Gavin Phillipson and Roger Masterman, ‘The Human Rights Act in Contemporary Context’ in Helen Fenwick, Gavin Phillipson and Roger Masterman (eds), Judicial Reasoning under the Uk Human Rights Act (Cambridge University Press 2007)
 Lazarus, CPR, 7
 The idea of a universal legal science was developed by Anselm von Feuerhach in his essay ‘Idee und Notwendigkeit einer Universaljurisprudenz’, cited in W. Hug, ‘The History of Comparative Law’ [1931/32] XLV Harvard L Rev 1027
 B. Puchalska-Tych and M. Salter, ‘Comparing legal cultures of Eastern Europe: the need for a dialectical analysis’ (1996) 16 LS 157, 175
 Zweigert, K and Kötz, H (1998) An Introduction to Comparative Law (3rd rev ed) Weir, T (trans) Oxford University Press, 44
 See David Nelken, Comparative Criminal Justice: Making Sense of Difference (Sage Publications, London 2010); Liora Lazaras, Contrasting Prisoner’s Rights: A Comparative Examination of Germany and England (OUP, 2004); Pierre Legrand, ‘Comparative Legal Studies and the Matter of Authenticity’, Journal of Comparative legal Studies (2006) Vol. 1, pp. 365-460
 Zweigert and Kotz, Comparative Law, 3