Human Rights on the Road to Nowhere

Ratio Juris, 2010

In a variety of disciplines, there exists a consensus that human rights are individual claim rights that all human beings possess simply as a consequence of being human. That consensus seems to me to obscure the real character of the concept and hinder the progress of discussion. I contend that rather than thinking of human rights in the first instance as "claim rights" possessed by individuals, we should regard human rights as higher order norms that articulate standards of legitimacy for sociopolitical and legal institutions. Not the least of our difficulties when we think about rights is that, despite their ubiquity in our discourse, it is unclear just what a right is. (Weinreb 1992, 281) * I would like to thank Ana Vrdoljak, Gianluigi Palombella, and Nicholas White for helpful criticisms and comments. 1 As has become clear to me from our conversations, Palombella 2000 argues for an account of fundamental rights that is very similar to my account of human rights.

Journal of Human Rights, 2004

The spirit of human rights has been transmitted consciously and unconsciously from one generation to another, carrying the scars of its tumultuous past. Today, invoking the United Nations Universal Declaration of Human Rights, adopted by the General Assembly in 1948, one may think of human rights as universal, inalienable and indivisible, as rights shared equally by everyone regardless of sex, race, nationality and economic background. Yet conflicting political traditions across the centuries have elaborated different visions of human rights rooted in past social struggles. That historical legacy and current conflicting meanings of human rights are, despite the admirable efforts of the architects of the declaration, all reflected in the structure and the substance of this important UN document. Using the main keys developed in the declaration, this article engages six core controversies over human rights that have shaped human rights debate and scholarship. It also draws on the historical record in order to identify and to clarify several misconceptions that persist both within and outside the human rights community today. René Cassin, one of the main drafters of the universal declaration, classified the central tenets of human rights by comparing them to the portico of a temple. Drawing on the battle cry of the French revolution, Cassin identified the four pillars of the declaration as: 'dignity, liberty, equality, and brotherhood'. The 27 articles of the declaration were divided among these four pillars. The pillar supported the roof of the portico (articles 28-30), which stipulated the conditions in which the rights of individuals could be realized within society and the state. Each of the pillars represents a major historical milestone. The first pillar covered in the first two articles of the declaration stands for human dignity shared by all individuals regardless of their religion, creed, ethnicity, religion, or sex; the second, specified in articles 3-19 of the declaration, invokes the first generation of civil liberties and other liberal rights fought for during the Enlightenment; the third, delineated in articles 20-26, addresses the second generation of rights, i.e. those related to political, social and economic equity and championed during the industrial revolution; the fourth (articles 27-28) focuses on the third generation of rights associated with communal and national solidarity, as advocated during the late 19th century and early 20th century and throughout the postcolonial era. In a sense, the sequence of the articles corresponds to the historical appearance of successive generations and visions of universal rights. 1 Yet throughout history, the human rights projects reflected in the declaration-whether liberal, socialist, or 'third world' in origin-generated internal contradictions concerning both how to promote human rights and who should be endowed with equal human rights. For instance, while the modern nation-state was originally justified by claims that it would promote human rights, the subsequent prevalence of realpolitik and particularism inspired 19th and 20th century efforts to embody universalism in the form of a succession of

Manchester University Press eBooks, 2010

The construction of human rights: dominant approaches 19 T he idea of human rights covers a complex and fragmentary terrain. As R. J. Vincent comments near the beginning of his work on human rights in international relations, 'human rights' is a readily used term that has become a 'staple of world politics', the meaning of which is by no means self-evident (1986: 7). After glossing the term as the 'idea that humans have rights' (1986: 7)-a deceptively simple approach-Vincent notes that this is a profoundly contested territory, philosophically as well as politically. This is not surprising, as notions of human rights draw indirectly or directly on some of our most deeply embedded presumptions and reference-points-for those of us in liberal democracies, particularly those cosmologies concerning the nature of the person and of political community. Questions about and concepts of the human as individual, of what is right, the state, justice, freedom, equality, and so on, flicker like a constellation of stars just off the edge of our fields of analysis-fading in and out, holding much, promising or claimed as anchorage, yet elusive and obscure. For many, the assertion of human rights has become a kind of repository of secular virtue-a declaration of the sacred in the absence of the divine. In the Western liberal democracies, human rights are claimed as political home or as a principal 'instrument of struggle' by the libertarian right, by liberals of various persuasions, by socialists who feel the traditional socialist agenda has been overtaken by events and by 'post-liberal democrats'. To declare in a debate that the matter at hand involves rights can be to 'trump' discussion, drawing the limits beyond which exchange may not go, in a way that Ronald Dworkin (1977, 1984) probably did not intend. The language of rights thus carries great power while being potentially deeply divided against itself. The purpose of this chapter is to draw attention to some of the orders of thought that dominate human rights promotion and shape the meaning of this powerful, complex and in some ways contradictory tool of rights and 'rights talk'. In particular, I want to underline the limitations of these orders of thought, the narrowness of some of their central categories and the disfiguring M. Anne Brown-9781526121110

Contemporary Political Theory, 2015

"Human Rights" are the height of political fashion all over the world, but human rights, as such, have no legal validity anywhere. They are, at best, candidates for becoming legal rights -- but even when they receive governmental approval, they are widely disrespected. They are supposed to be universal and objective, but they went unnoticed until the 17th century (and then only in western Europe). These "natural rights" (the earlier name) supposedly derive from "natural law," but for over 2,000 years, even believers in natural law knew nothing of natural rights. It was only when legal rights emerged, that, later, natural rights were by analogy invented. "Human rights" is a myth, in the precise sense that (1) they're not true: they don't exist the way real things exist, and (2) they justify certain political institutions and political claims. Human rights are supposedly deduced from human nature. But there is no universal, immutable nature, just as there is no universal, immutable, objective morality. Critics of human rights (including some Asians, Muslims, anarchists and feminists) argue that they are Eurocentric, ethnocentric, sexist, statist, and instruments of neo-colonialism. Rights legitimate states and their power. These rights, which are so easy to dream up, are by now so numerous that inevitably they contradict each other. The very concept of rights is incoherent, in the sense that there is no credible answer to the question, how do they work? The Will Theory is that rights are certain protected choices. The Interest Theory is that rights are certain protected interests. Each theory is easily debunked. Even the desperate claim that rights are a Platonist noble lie -- an expedient for political mobilization -- gives the lie to any moral basis for rights-claims, and it has little empirical support. Rights-claims are inherently privatizing, alienating, and adversarial. Marx was right this time: all rights are class-specific, bourgeois rights. Liberation -- liberty, equality, fraternity -- necessarily involves the rejection of rights and the affirmation of community.

International Human Rights, Social Policy and Global Development: Critical Perspectives., 2020

This chapter discusses the historical development of ‘rights’ and how these transformed into ideas about ‘universal human rights’. It shows how the concept of rights developed historically from notions of legal through to political, social/economic and cultural rights and from individual to group rights. It describes how thinking about rights has developed from identifying rights solely with clans, tribes, communities, ethnic groups and then nation states, to linking them to all humanity - including minorities - through concepts of universal human rights. It recognises the contribution of philosophical ideas about humanity, equality, democracy and social justice, as well as the impact of human agency on the development of a range of rights, and argues that such developments do not take place in a vacuum (Donnelly, 2013: 75-92). Social, economic, ideological, cultural and geo-political influences engender our power to change society and ensure that human rights are a contested site. Rights are contested in their conceptualisation and in the development of oversight mechanisms. They are also contested in their implementation, enforceability and realisability on the ground (Freeman, 2017). In essence, it is argued that humans make human rights. As Karl Marx (1851-52) wrote in The Eighteenth Brumaire: ‘Men make their own history, but they do not make it as they please; they do not make it under self-selected circumstances, but under circumstances directly encountered, given and transmitted from the past’ (Marx, 1851: 103).