Dialogues on Human Rights and Legal Pluralism

T h e C o n c e p t o f H u m a n R ig h t s a n d T h e ir E x t r a -L e g a l J u s t if ic a t io n 1. INTRODUCTORY REMARKS 1 The author wishes to thank the Netherlands Institute for Advanced Studies (NIAS) for the assistance received during work on this contribution. 2 H ersch, 1986, p. 132. 3 See H ersch, 1969. 4 W eston, 1991. On the history of the concept of hum an rights, see Oestreich, 1968; Tierney, 1989. 5 Suggested reading on the philosophy of hum an rights: Belden Fields and N arr

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

Current Legal Problems, 2012

Two important trends are discernible in the contemporary philosophy of human rights. According to foundationalism, human rights have importantly distinctive normative grounds as compared with other moral norms. An extreme version of foundationalism claims that human interests do not figure among the grounds of human rights; a more moderate version restricts the human interests that can ground human rights to a subset of that general class, eg basic needs or our interest in freedom. According to functionalism, it belongs to the essence of human rights that they play a certain political role or combination of such roles, eg operating as benchmarks for the legitimacy of states or triggers for intervention against states that violate them. This article presents a view of human rights that opposes both the foundationalist and the functionalist trends. Against foundationalism, it is argued that a plurality of normative values ground human rights; these values include not only the equal moral status of all human beings but also potentially all universal human interests. Against functionalism, it is argued that human rights are moral standards-moral rights possessed by all human beings simply in virtue of their humanity-that may perform a plurality of political functions, but that none of these functions is definitive of their nature as human rights. The ensuing, doubly pluralistic, account of human rights is one that, it is claimed, both makes best sense of the contemporary human rights culture and reveals the strong continuities between that culture and the natural rights tradition.

papers.ssrn.com

This paper defends several highly revisionary theses about human rights. §1 shows that the phrase “human rights” refers to two distinct types of moral claims. §§2-3 argue that several longstanding problems in human rights theory and practice can be solved if, and only if, the concept of a “human right” is replaced by two more exact concepts: International human rights: moral claims sufficient to warrant coercive domestic and international social protection. Domestic human rights: moral claims sufficient to warrant coercive domestic social protection but only non-coercive international action. §3 then argues that because coercion is central to both types of human right, and coercion is a matter of justice, the traditional view of human rights – that they are normative entitlements prior to and independent of substantive theories of justice – is incorrect. Human rights must instead be seen as emerging from substantive theories of domestic and international justice. Finally, §4 uses this reconceptualization to show that only a few very minimal claims about international human rights are presently warranted. Because international human rights are rights of international justice, but theorists of international justice disagree widely about the demands of international justice, much more research on international justice is needed – and much greater agreement about international justice should be reached – before anything more than a very minimal list of international human rights can be justified.

Applied human rights

1.1 Introduction 1.2 The structure of this book 1.3 Building bridges and inclusive authorship References 2. A legal approach to human rights Bernd van der Meulen Abstract Key concepts 2.1 Introduction 2.2 On the plural nature of human rights 2.3 Working with law 2.4 Rules and rights 2.5 Establishing the situation 2.6 Classification of facts 2.7 Establishing the law 2.8 Other issues 2.9 The structure of human rights 2.10 Get up, stand up References Legal documents

2014

[The historian's] role is to put in order in its historical setting what we experience piecemeal from day to day, so that in place of sporadic experience, the continuity of events becomes visible. An age that has lost its consciousness of the things that shape its life will know neither where it stands nor, even less, at what it aims.

2016

'Now architect, now archaeologist, now a man whose hand is in the past. Somebody is made to face the changes; somebody is built to last. What do you know, still living so young? Tomorrow is no burden; time can be overcome.' -The Constantines, "Time Can Be Overcome" I am a human being. You are a human being. We are human. These simple propositions have become ethical claims of the highest order. They express expectations of recognition, concern and equality. Those expectations take social form as rights: rights that protect us from torture, from arbitrary imprisonment, from hunger and deprivation, which entitle us to standing within our communities, participation in politics, productive work, engagement in cultural life, privacy sufficient to live without undue interference and many other protections and privileges. In promising these protections and privileges human rights redefine political relationships by altering how we see ourselves and how we share our lives with others. Human rights are a transformative political idea, although one that many of us now take for granted. Yet, if we take the ethical value of human rights seriously then we need to recognise the profound claims they make along with the radical social changes they demand. Human rights assert that everyone (whether alone or in community with others) counts for something; that we are owed respect and voice whomever we are, irrespective of existing hierarchies of protection and privilege; and they assert that political authority is only legitimate when everyone counts. These profound claims force us to reconsider the known coordinates of social justice and in doing so upsets the given order. Human rights are disruptive.