Rhodes Professor of the Laws of the British Commonwealth and the United States
Sandra Fredman is Rhodes Professor of the Laws of the British Commonwealth and the USA at Oxford University. She was elected a Fellow of the British Academy in 2005. She is Honorary Professor of Law at the University of Cape Town and a fellow of Pembroke College Oxford. She has written and published widely on anti-discrimination law, human rights law and labour law, including numerous peer-reviewed articles, and three monographs: Human Rights Transformed (OUP 2008); Discrimination Law (2nd ed, OUP 2011); and Women and the Law (OUP 1997),as well as two co-authored books: The State as Employer (Mansell, 1988), with Gillian Morris, and Labour Law and Industrial Relations in Great Britain (2nd ed Kluwer, 1992) with Bob Hepple. She has also edited several books: Discrimination and Human Rights: The Case of Racism (OUP,2001); and Age as an Equality Issue (Hart, 2003) with Sarah Spencer; and has written numerous articles in peer-reviewed law journals. She was awarded a three year Leverhulme Major Research Fellowship in 2004 to further her research into socio-economic rights and substantive equality. She is South African and holds degrees from the University of Witwatersrand and the University of Oxford.. She has acted as an expert adviser on equality law and labour legislation in the EU, Northern Ireland, the UK, India, South Africa, Canada and the UN; and is a barrister practising at Old Square Chambers.
S Fredman, 'From Dialogue to Deliberation: Human Rights Adjudication and Prisoners’ Rights to Vote'  Public Law 292 [...]
The interpretation of human rights inevitably requires value judgements. But if the power of interpretation and limitation of human rights is left to elected legislators on the basis of majority voting, perpetual minorities may be perpetually subordinated. But leaving judges to make the final decision flies in the face of the basic principle that all fundamental decisions in society should be taken by the people themselves. Prisoners’ voting rights throw the dilemma into particularly sharp relief. Should an elected legislature have the final say on removing the fundamental right to vote from a section of the population, particularly one which is deeply unpopular and which politicians have no natural interest in defending? The most promising way out of this dilemma is to move away from a polarisation between courts and legislatures, and instead regard both as contributing to a democratic resolution of human rights disputes. An increasingly influential stream of thought characterises the relationship as one of dialogue. Rather than courts having the final say, judicial decisions provoke a response from the legislature. In this paper, I aim to go beyond a dialogic model and propose one based on deliberative democracy. Drawing on the distinction between interest bargaining and value-based or deliberative decisions, I argue that human rights can only be properly addressed within a democracy through deliberative means. In other words, the power of the principle should constitute the reason for adopting it, rather than the power of those whose interests it serves. Otherwise, those without political power risk perpetual subordination, undermining the raison d’être of human rights protection. It is here that the courts are in a position to make a unique contribution to the democratic resolution of human rights issues. I argue that courts should ensure that human rights decisions are indeed taken deliberatively within the constraints set by the human rights themselves. I call this a ‘bounded deliberative’ approach. The final section applies these principles to prisoners’ voting rights cases in South Africa and the UK.
S Fredman, 'Breaking the Mold: Equality as a Proactive Duty ' (2012) 60 American Journal of Comparative Law 263 [...]
Despite increasingly sophisticated antidiscrimination laws, dis- crimination and inequality have proved remarkably resilient. This prompts questions about the limits of law’s ability to achieve social change. One way forward is to fashion new legal tools, which impose duties to promote or achieve equality, rather than focusing on individual rights against specific perpetrators. In the past decade in Britain, such fourth generation equality laws have been developed in a distinctive format, requiring the decision-maker to “have due regard” to equality, rather than taking action to achieve such objectives. Thisstandard has triggered a spate of judicial review cases, particularly in response to austerity measures imposing deep budgetary cuts on disadvantaged groups. This Paper’s aims are two-fold. The first is to examine the judicial approach to the due regard standard in the light of recent regulatory theory. Do courts consider the due regard standard as a signal for deference, or can it be understood as an example of “reflexive law,” facilitating deliberative decision-making rather than imposing external standards likely to meet with resistance from the regulated body? The Paper concludes that courts have struggled to deal with the regulatory challenges presented by the “due regard” standard, wavering between appropriate and inappropriate intervention. The second aim is an analysis of whether a deliberative standard is appropriate in the equality context. The record of judicial review cases demonstrates that such a standard risks legitimating or simply reconfiguring existing inequalities.
S Fredman, 'The Potential and Limits of An Equal Rights Paradigm In Addressing Poverty ' (2011) 22 Stellenbosch Law Review [...]
Poverty is increasingly a human rights issue. The aim of this paper is to consider what role the right to equality can and should play in relation to poverty. It draws on the experience in Britain, Canada, the US and South Africa to develop several ways in which equality could function in relation to poverty. It concludes that while the right to equality can make a valuable contribution to apsects of pvoerty based on misrecognition and oscial exclusion, it has not yet been sufficiently developed to address distributive inequalities in its own right.
A key advance of the Equality Act 2010 is its introduction of a single equality duty. The new ‘public sector equality duty’ harmonises the earlier duties and extends its coverage to include other protected characteristics. In addition, the statutory aims have been deepened to reflect a substantive conception of equality. However, the core of the duty is unchanged. It is a duty to ‘have due regard’, not to take steps or to achieve equality. Is this an attempt to incorporate a deliberative, reflexive approach to achieving equality, recognising that a straightforward command and control approach might encounter unproductive resistance? Or does it reflect a fundamental ambivalence as to the importance of equality issues? Section 2 below examines the structure of the statutory provisions. Section 3 asks whether the statutory provision is an example of reflexive law. Particular attention is paid to the spate of judicial review cases relying on the equality duty to challenge a range of budget cuts. It is argued that courts have struggled to deal with the regulatory challenges presented by the equality duties. Nor is it clear that a reflexive approach is appropriate to achieve substantive equality.
S Fredman, 'New Horizons: Incorporating Socio-Economic Rights in a British Bill of Rights '  Public Law 297
S Fredman, 'Positive Duties and Socio-economic Disadvantage: Bringing Disadvantage onto the Equality Agenda ' (2010) European Human Rights Law Review 290
S Fredman, 'Engendering Socio-economic rights ' (2009) 25 South African Journal of Human Rights 410
S Fredman, 'Reforming equal pay laws' (2008) 37 Industrial Law Journal 193 [...]
Despite 33 years of equal pay legislation, the gender pay gap remains stubbornly high. Multiple equal pay claims in the public sector have forcefully exposed the weaknesses, both of the Equal Pay Act and of the complaints-led model of enforcement on which it is based. This article argues that the equal pay apparatus is in need of radical reform. Single Equality legislation, due to be introduced in the autumn, is the ideal forum to do so. Substantively, it is essential to move beyond the current narrow range of comparison, the limited definition of equality and the lack of a collective dimension. So far as enforcement is concerned, the way forward lies in a positive duty to eliminate pay discrimination, which builds on and strengthens the current gender duty. Women's right to equal pay for equal work is often represented as an unreasonable demand on resources, carrying with it an unsustainable cost. In fact, it is a fundamental right recognised by major human rights instruments and the International Labour Organization (ILO). It is to be hoped that the Single Equality Bill will give equal pay reform the serious attention so urgently needed.
S Fredman, 'Recognition or Redistribution: Reconciling Inequalities' (2007) 23 South African Journal of Human Rights 214 [...]
This paper examines the traditional dichotomy between measures addressing socio-economic inequalities and those aimed at inequality based on status, such as race, gender, disability or sexual orientation. Using the conceptual framework of recognition and redistribution developed by Nancy Fraser and others, I argue that it is no longer tenable to keep the two spheres separate. Constructing a concept of socio-economic equality without considering the implications for status-based inequality can be damaging and ineffective. Conversely, status-based measures are limited by their inability to mobilise the redistributive measures necessary to make real equality of opportunity and genuine choice possible. The paper begins by examining the interaction between socio-economic and status-based equality. I then sketch out a multi-dimensional notion of substantive equality which attempts to create a synthesis between the aims of both spheres. In the final part, I make some very tentative suggestions as to how the interpenetration can be more meaningfully captured in legal frameworks.
S Fredman, 'From Deference to Democracy: the Role of Equality under the Human Rights Act 1998' (2006) 122(Jan) Law Quarterly Review 53
S Fredman, 'Human Rights Transformed: Positive Duties and Positive Rights'  2006(Autumn) Public Law 498
S Fredman, 'Transformation or Dilution: Fundamental Rights in the EU Social Space' (2006) 12(1) European Law Journal 41
S Fredman, 'Changing the Norm: Positive Duties in Equal Treatment Legislation' (2005) 12 Maastricht Journal of European and Comparative Law 369 [...]
This paper assesses the emergence of a new proactive model to achieve gender equality, and compares it with the more established complaints led model based on individual rights. While transcending many of the weaknesses of the individual complaints model, the proactive model ains ambiguous in many crucial respects, particularly as to its objectives, its use of participation, and how compliance is to be achieved. The paper aims to shed more light on these key aspects by drawing on the experiences of such models in Canada, Northern Ireland,Britain, and the EU itself. This demonstrates that the location of proactive strategies on the borderline between law and politics makes them highly dependent on political will. The key challenge is therefore to ensure that proactive strategies are based on a ecognition that equality is a fundamental right, not a discretion, without reverting to individualised complaints mechanisms with all their inbuilt weaknesses. I conclude by considering how wemight achieve a fundamental and non-derogable core of rights within a proactive model
S Fredman, 'Providing Equality: Substantive Equality and the Positive Duty to Provide' (2005) 21 South African Journal on Human Rights 163 [...]
Substantive equality and positive duties to redress disadvantage in society, a critical comparison of South African, Canadian and ECHR approaches to the relationship between substantive equality and socio-economic rights
This article argues that it is no accident that the flexible workforce is largely made up of women in precarious jobs. The change in women's role, as both breadwinners and home-makers, has not been matched by changes in the legal structure of employyment law, and particularly the contract, with its assumption of bilateral, mutual, transactional exchange. Rights should be afforded to all who participate in the paid workshop, however marginally.
ISBN: 0305 9332
S Fredman, 'Equality: A New Generation?' (2001) 30 Industrial Law Journal 145
S Fredman, Discrimination Law (Clarendon Series (OUP , 2nd ed) 2011) [...]
Equality is an ideal to which we all aspire. Yet the more closely we examineit, the more its meaning shifts. This book examines the differing conceptions of equality in discrimination law, in the accessible yet challenging format of the Clarendon series. It uses a thematic approach to elucidate the major conceptual issues, while at the same time imparting a detailed understanding of the legal provisions, including the Equality Act 2010, human rights law, and EU law. Particularly illuminating is the comparative approach. By examining comparable law in the US, India, Canada, and South Africa, as well as the UK, the book exposes common problems and canvasses differing solutions.
S Fredman, Human Rights Transformed: Positive Rights and Positive Duties (Oxford University Press 2008) [...]
Human Rights have traditionally been understood as protecting individual freedom against intrusion by the State. This book argues that human rights are based on a far richer view of freedom, going beyond absence of coercion and focussing on the ability to exercise such freedom. This view means that, as well as restraining the State, human rights require the State to act positively to remove barriers and facilitate the exercise of freedom. But because positive duties have for so long been regarded as a question of policy or aspiration, little sustained attention has been given to their role in actualising human rights. The book moves beyond the artificial boundary between socio-economic and civil and political rights and instead focuses on the positive duties to which all human rights give rise. It draws on political theory and social policy to illuminate important legal issues, and uses comparative material from India, South Africa, Canada, the US, the ECHR and the UK.
S Fredman and M. Wesson, 'Social, Economic and Cultural Rights' in David Feldman (ed), English Public Law ( 2009)
S Fredman, 'The Shape of Things to Come: Substantive Equality under the Spotlight ' in O. Dupper and C Garbers (eds), Equality in the Workplace: Reflections from South Africa and Beyond (Juta 2009)
S Fredman, 'Positive Rights and Duties: Addressing Intersectionality' in D. Schiek, V Chege (eds), European Union Non-Discrimination Law: Comparative Perspectives on Multidimensional Equality Law (Routledge-Cavendish 2008)
S Fredman, 'The Positive Right to Security' in B J Goold and L Lazarus (eds), Security and Human Rights (Hart 2007) [...]
This chapter examines the notion of a positive right to security. I argue that the right arises from a deeper understanding of human freedom, one which does not simply prevent interference in free choice but instead seeks actively to remove constraints on choice. The right to security is a right not just to non-interference but to state action, that aims to protect the individual from risks to the person, whether caused by fellow citizens, poverty or the state itself.
S Fredman, 'Precarious Norms for Precarious Workers' in J Fudge and R Owens (eds), Precarious Work, Women and the New Economy (Hart Publishing 2006) [...]
The chapter assesses the legal position of precarious workers from a feminist perspective and in the light of the development of flexible working and New Labour and 'Third Way' policies
S Fredman, '‘Disability Equality: A Challenge to the Existing Anti-Discrimination Paradigm’' in A Lawson and C Gooding (eds), Disability Rights in Europe: From Theory to Practice (Hart 2005) [...]
This chapter assesses existing discrimination paradigms and their applicability to disability discrimination.It argues that a possible way forward lies in a duty to promote equality based on social rights.
S Fredman, 'Social, Economic and Cultural Rights' in D Feldman (ed), English Public Law (Oxford University Press 2004) [...]
This chapter examines the nature of socio-economic rights and challenges the contrast with civil and political rights. It argues that the focus should be on differences in the nature of the duty, and particularly the differences between duties to refrain from infringing on a right, duties to protect against infringement by others, and duties to take active measures to facilitate or promote the exercise of teh right. It examines sources of socio-economic rights, and assesses the contribution of domestic courts to the development of such rights.
S Fredman, 'The Ideology of New Labour Law' in C Barnard, S Deakin and G Morris (eds), The Future of Labour Law: Liber Amicorum Sir Bob Hepple (Hart 2004) [...]
A critical analysis of third way ideology in the field of labour law.
S Fredman, 'Discrimination' in P Cane and M Tushnet (eds), The Oxford Handbook of Legal Studies (OUP 2003)
S Fredman, 'The Age of Equality' in S Fredman and S Spencer (eds), Age as an Equality Issue (Hart 2003) [...]
A critical examination of the meaning of age discrimination and an exploration of possible legislative frameworks to implement age discrimination legislation.
S Fredman, 'Sceptism under Scrutiny: Labour Law and Human Rights' in T Campbell, K D Ewing and A Tomkins (eds), Sceptical Essays in Human Rights (OUP 2001) [...]
An examination of sceptical approaches to human rights, in order to move through sceptism towards a possible reconstruction of human rights in a social democratic context
S Fredman and Sarah Spencer (eds), Age as an Equality Issue (Hart 2003 2003) [...]
A series of chapters by experts from a wide range of disciplines on age discrimination, considering the central aims of a policy on age equality, as part of the process of implementing EU requirements for age discrimination legislation and moving beyond it.
S Fredman (ed), Discrimination and Human Rights: The Case of Racism (OUP 2001) [...]
Book of eight essays with introduction and one chapter by the editor. Chapters deal with the concept of equality, the rights of minority cultures, the internet, international law, EU law and remedial structures
This paper was commissioned by the Equal Opportunities Commission as an independent contribution to the debate around the single equality body. Its focus is on the vision and objectives such a body might pursue, and in particular, on the principles of equality informing policy decisions.
ISBN: 1 84206 038 4
S Fredman, 'Anti-discrimination laws and work in the developing world: A thematic overview' (Background Paper for the World Development Report 2013 2013) [...]
This is a background paper for the World Development Report 2013. It aims to provide a literature review of legal and other instruments aimed at addressing labour market discrimination in developing countries,. The analysis takes place in the context of the understanding of jobs as providing the hinge connecting the three identified transformations at the centre of economic development: living standards, productivity gains and social cohesion. As Juan Somavia, ILO Director -General stated in June 2001: „Every day we are reminded that, for everybody, work is a defining feature of human existence. It is the means of sustaining life and of meeting basic needs. But it is also an activity through which individuals affirm their own identity, both to themselves and to those around them. It is crucial to individual choice, to the welfare of families and to the stability of societies.‟ Yet many people are unable to access decent work because of their gender, race, disability, sexual orientation, age or poverty. Disadvantage in the labour market is disproportionately concentrated among women, ethnic minorities, people with disabilities, older or younger people and poor people. The report deals with a brief discussion of de jure equality; anti-discrimination laws; the informal sector; and implementation (including affirmative action) in a range of countries: among low income countries, the briefing note considers Kenya, Bangladesh and Nepal; among lower middle income countries, it examines India, the Philippines and Zambia; and among upper middle income countries, it examines South Africa, Botswana, Brazil, Jamaica and the Czech Republic. The countries were chosen to reflect a spread of different cultural, regional, historical and developmental factors, as well as the availability of literature in English. .
S Fredman, 'A Comparative Study of Anti-Discrimination and Equality Laws of the US, Canada, South Africa and India' (Office for Official Publications of the European Communities 2012) [...]
The aim of this study is to compare and contrast anti-discrimination and equality laws in the US, Canada, South Africa and India, with a view to inform future development of EU anti-discrimination laws. Comparative law is of great value, particularly in the equality field, where there is increasing cross-pollination across different jurisdictions. At the same time, comparative law carries with it important challenges, as the harmonising project of the EU has itself demonstrated. The four jurisdictions to be examined here share English as a common language as well as, in varying degrees, a common law heritage. However, there are significant differences in historical, socio-economic and political contexts as well as in legal institutions. The challenge is therefore to illuminate universalisableconceptions while at the same time recognising context specificity.
ISBN: ISBN 978-92-79-23769
S Fredman, 'Making Equality Effective: The Role of Proactive Measures ' (2009)
Oxford Pro Bono Submissions on the Reform of India's Sexual Violence Laws
On the invitation of the Justice Verma Committee investigating the reform of India's sexual violence laws, Professor Sandra Fredman, with the assistance of members of Oxford Pro Bono Publico, has made submissions urging law reform on five central issues: a) the framing of the issue in human rights terms; b) the removal of the exception for marital rape; c) the definition of rape; d) discrimination under Article 15 of the Indian Constitution; e) services to support victims of rape.
The Justice Verma Committee was established on 21 December 2012 following the brutal gang rape of an Indian woman the previous week [more…]
Professor Sandy Fredman, QC
The Oxford Law Faculty congratulates Professor Sandy Fredman who has been made Honorary Queen's Counsel [more…]
Research: Labour Law, Constitutional and Administrative Law, Human Rights, Anti-discrimination Law