Professional Documents
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Ceblano
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r State.
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Four Human Rights Myths
Abstract
This paper examines work by three scholars who have recently subjected the
intellectual framework of human rights to critical scrutiny. For one, the central
problem is that the universality of human rights is too readily presumed. For another,
it is that the relative novelty of human rights is not properly appreciated. For yet
another, it is that human rights are treated as somehow beyond politics, as opposed to
being a politics in themselves. What are we to make of these claims? Where do they
lead us in policy terms? How does each stand with respect to the core practical
objective of putting abuses of human rights to an end?
Prepared by: Leri James B. Ceblano
LLB-I-A
This paper examines work by three scholars who have recently subjected the
intellectual framework of human rights to critical scrutiny. For one, the central
problem is that the universality of human rights is too readily presumed. For another,
it is that the relative novelty of human rights is not properly appreciated. For yet
another, it is that human rights are treated as somehow beyond politics, as opposed to
being a politics in themselves. What are we to make of these claims? Where do they
lead us in policy terms? How does each stand with respect to the core practical
objective of putting abuses of human rights to an end? In early August 2011 riots
broke out in England. They started with the torching of two police cars in a suburb of
London, and before long there was arson and looting in cities across the country. How
could this happen? Why did it happen? There was much national soul-searching. In
his initial response, British Prime Minister David Cameron denounced the riots as
sheer deviance. ‘This is criminality, pure and simple’, he declared.1 But it soon
became clear that more needed to be said, and by the next week his analysis had
shifted to highlight what he took to be the underlying problem, namely, ‘the slow-
motion moral collapse that has taken place in parts of our country these past few
generations. Irresponsibility. Selfishness. Behaving as if your choices have no
consequences. Reward without effort. Crime without punishment. Rights without
responsibilities. In a later statement, Cameron elaborated on that last aspect of the
moral collapse. ‘The greed and thuggery we saw during the riots did not come out of
nowhere’, he said. ‘There are deep problems in our society’, among which is ‘a
growing sense that individual rights come before anything else’.
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A ‘concerted cuts that served to force the costs of financial crisis onto those
who could least afford them. In this context, the homology was, for Klein, again plain:
‘the people committing night-time robbery sure as hell know that their elites have
been committing day-time robbery’.10 So although the rioters issued no political
demands,11 the riots were, in her assessment, inescapably political – not so much a
mark of moral collapse as a sign of our ‘time of great taking’.12 In their respective
contributions to this debate over the English riots of August 2011, Cameron,
Chakrabarti and Klein each orient us in a different way in thinking about the
interrelation of human rights, morality and politics. Cameron sets a moralistic tone.
He is concerned about how human rights affect moral progress, or rather, how they
promote moral decline. Chakrabarti is a professional defender of human rights. For
her, on the contrary, it is necessary to insist on human rights as a core social good, and
she worries about how politics may be used to undermine their legal protection. In
Klein’s assessment, the real problem is instead depoliticisation – the transformation
into moral panics of phenomena that are rooted in the political economy of
contemporary capitalism. Klein does not refer to human rights in the article I spoke
of. Yet that very silence prompts reflection. If, as she puts it, governments, financial
institutions and other powerful economic agents are ‘looting with the lights on, as if
there was nothing at all to hide’,13 what kind of mythbusting about human rights is
indicated? That is the question I want to take up in this chapter, and in doing so, I
want to consider three different projects of mythbusting.
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The projects I will discuss are not vindicationist campaigns like Chakrabarti’s.
They are academic studies, undertaken for the sake of subjecting the general
intellectual framework of human rights to critical scrutiny. But how, on what basis,
and with reference to which perceived fallacies, illusions and mystifications? The first
author I will discuss is Joseph Raz. As we shall see, he points to misconceptions
touching on the justification for human rights and whether particular rights can be
shown really to exist. The second author is Samuel Moyn. He analyses distortions to
do with the history of human rights and how we tell it. And the final author is Wendy
Brown. She criticises ideological representations that belong with the legitimation of
human rights advocacy. Together these three scholars put before us an array of human
rights-related myths. But I shall argue that they leave out of account a powerful myth
which itself affects those myths and which cannot be captured in their terms.
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Prepared by: Leri James B. Ceblano
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International Human Rights Law Theory
30 Pages Posted: 21 Jan 2010
Frederic Megret
McGill University - Faculty of Law
Date Written: January 20, 2010
Abstract
This draft textbook chapter on international human rights law theory aims to
give a comprehensive overview of the field to those interested in its ongoing
dilemmas. It covers both the theory of human rights, of international human rights,
and of international human rights law, as three integrated dimensions: human rights,
the international and the legal. I would recommend the chapter as an introduction to a
class on international human rights, at both the undergraduate and graduate levels.
Note: although the chapter will be published in a different form in an actual book, I
anticipate that this electronic version will be updated at regular intervals, and will
therefore emerge as a live (although probably not quite real time) resource, that makes
the most of a medium such as SSRN to post up to date content.
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state, for example, refuses to recognize them at all. Moreover, purely positivist
justifications of the existence or importance of rights can be quite shallow, as many
different actual attitudes to rights might lie behind the bare act of ratifying a human
rights treaty. Today, the foundation of human rights is more often seen to lie in a
variety of alternative foundations which one might describe as “intermediary”, i.e.
neither entirely metaphysical nor entirely positivist.10 Rights may not exist in a
strong sense, but they are not simply a random political choice and exert some sort of
higher claim to our normative commitments. Rights might not exist, in other words,
but they can certainly be justified. If nothing else, according to one popular
interpretation, the late modern claim to rights is based on the historical affirmation,
intuitive and empirical as it may be, that rights are necessary if humanity is to avoid a
repeat of the Holocaust (or various episodes of systematic rights violations
experienced in given society). 11 Alternatively, rights are presented sociologically as
a social construct emerging from the need to fight against oppression;12 In terms of
more distinctly philosophical and speculative discourse, the search for a foundation of
rights is marked by work at the intersection between moral and political philosophy.
Rights are a moral theory that calls to be translated in a particular political system.
Inevitably, the attempt to ground human rights involves difficult exercises about what
makes humans human, and how rights can respond to that fundamental intuition.
Possible foundations of rights thus include human beings’ rationality, their autonomy,
their aspiration to happiness, their fundamentally social nature, their inherent
freedom, etc. An alternative to looking at what human beings are, is to look at what
they want. Some utilitarian theorists, in particular, have sought to show how human
rights can protect certain values that are in themselves goods that all human beings
aspire to. The problem is that we know human beings to want very different things,
and that utilitarianism tends not to take their autonomy very seriously.13 The
temptation, thus, is to return to a naturalist or Kantian notion of human rights, based
on a moral theory about how human beings should treat each other (e.g.: as ends
rather than means), although how one translates an inter-personal theory of morality
into a fundamental political system is problematic. A certain skepticism has at times
emerged that the tension between utilitarian and deontological conceptions of rights
can ever be alleviated.14 Much thought has also gone into renovating some of the
bases of social contract theory in the context of a renewed interest in the notion of
justice. For example liberal theories of rights present them as the minimal
requirements of being able to live the good life, in a world that has become skeptical
of ever fully determining what the good life might be. In other words, liberalism
emphasizes a “thin theory” of the good society, one in which what matters is that
individuals be able to self-determine themselves and choose their own ends.15 Others,
expanding on earlier Enlightenment themes, have emphasized that rights are what the
members of a particular society
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there will be harmony in the home. If there is harmony in the home, there will
be order in the nation. If there be order in the nation, there will be peace in the world."
Great Learning, cited in Smith, 181. • Christianity: A message of equality: "there is
neither Greek nor Jew, nor slave nor free, nor man nor woman, but we are all one in
Christ." Gal. 3:28. Respect for others: "Do unto others as you would have them do
unto you." • Islam: Charity or lifting the burdens of those less fortunate is one of the
pillars of belief. The Qur-an speaks to justice, the sanctity of life, freedom, mercy,
compassion and respect for all human beings. All races are equal and religious
toleration should be guaranteed. The first declaration of religious freedom in the
world proclaimed that Jews and Christians shall be protected from all insults and
vexations; they shall have an equal rights and shall practice their religion as freely as
the Muslims. Note that these texts generally do not speak of rights, but instead address
moral duties and responsibilities towards others. At the same time, the rationales
underlying these duties -- equality, human dignity, and the sacredness of life --
provide a foundation for the concept of human rights. b. Cultural and philosophical
roots • Hsün-tzu, Chinese philosopher @ 400 B.C.: "In order to relieve anxiety and
eradicate strife, nothing is as effective as the institution of corporate life based on a
clear recognition of individual rights." UNESCO, p. 303 • African traditions: see
UNESCO, pp. 43, 189, 269. • Greek philosophy: developed the idea of natural law
including equal respect for all citizens, equality before the law, equality in political
power and suffrage, and equality of civil rights. • Cicero: natural law and universal
justice binds all human society together and applies to all without distinction. Each
person has unique dignity which imposes on all the responsibility to look after others.
This natural law is eternal and unchangeable and valid for all nations and all times. •
John Locke: Second Treatise of Government (1690): every individual person in the
state of nature possesses certain natural rights prior to the existence of any organized
government. People are born in a state of perfect equality and enjoy all rights equally.
Societies and governments are formed to preserve these rights, not to surrender them.
• Jean-Jacque Rousseau: Man is born free with intrinsic worth. • Olympe de Gouge
(nom de plume of Marie Gouze): Declaration of the Rights of Woman and Citizen
(France 1791): "woman is born free and remains equal to man in her rights". In 1793,
de Gouge was beheaded. • Thomas Paine introduced the expression "human rights" in
his best seller The Rights of Man (1791). He ascribed inspiration to the religious
traditions that all observed the unity of humankind and the equality of all individuals.
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Human Rights are the basic rights and freedoms that belong to every person in the
world, from birth until death. These rights are inherent to all human beings, regardless
of race, sex, nationality, ethnicity, language, religion, or any other status. Such rights
include the right to life and liberty, freedom from slavery and torture, freedom of
opinion and expression, the right to work and education, and many more. Everyone is
entitled to these rights, without discrimination. The belief that everyone, by virtue of
his or her humanity, is entitled to certain human rights is fairly new. Its roots,
however, lie in earlier tradition and documents of many cultures.
According to the History of Human Rights, there are various documents asserting
individual rights, such the Magna Carta (1215), the English Bill of Rights (1689), the
French Declaration on the Rights of Man and Citizen (1789), and the US Constitution
and Bill of Rights (1791) are the written precursors to many of today’s human rights
documents. However, many of these documents, when translated into policy,
excluded women, people of color, and members of certain social, religious, economic,
and political groups. Nevertheless, oppressed people throughout the world have drawn
on the principles these documents express to support revolutions that assert the right
to self-determination.
Contemporary international human rights law and the establishment of the United
Nations (UN) have important historical antecedents. Efforts in the 19th century to
prohibit the slave trade and to limit the horrors of war are prime examples. In 1919,
countries established the International Labor Organization (ILO) to
oversee treaties protecting workers with respect to their rights, including their health
and safety. Concern over the protection of certain minority groups was raised by the
League of Nations at the end of the First World War. However, this organization for
international peace and cooperation, created by the victorious European allies, never
achieved its goals. The League floundered because the United States refused to join
and because the League failed to prevent Japan’s invasion of China and Manchuria
(1931) and Italy’s attack on Ethiopia (1935). It finally died with the onset of the
Second World War (1939).
My take on the topic is that the change on how humans acknowledge human rights
had been gradual rather than drastic. It took a long and slow process of identifying,
understanding, assessing and addressing such rights and the effects thereof.
Human Rights indeed is still more a dream than reality. Violations still exist in every
part of the world. Not only that, but women and children in particular are
marginalized in numerous ways, and the press is not free in many countries. While
some gains have been made over the course of the last decades, human rights
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violations still plague the world today. Nevertheless, no matter how long and slow
the process is, I still see the world leading into a better future because little changes
are little improvements every day which have profound impacts on the recognition of
human rights.
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I. INTRODUCTION
II. BODY
IV. CONCLUSION