Thursday, March 10, 2016

Human Rights & International Law

I think the philosophical enterprise of developing a “moral theory” of human rights is important, one fine example of which (and there are others) is James Griffin’s On Human Rights (Oxford University Press, 2008). Michael J. Perry argues, in turn, for a religious ground of the morality of human rights (owing to the fundamental nature of the notion of inherent human dignity), which I do not believe is necessary to a liberal democratic polity’s constitutional commitment to a sound and persuasive conception of human dignity, as well as the corresponding moral theory of human rights. However, I do think it is important, in the spirit if not letter of Rawls’s notion of an “overlapping consensus,” that members of religious traditions be capable of endorsing this constitutionally entrenched notion of human dignity and the theory of human rights with (more or less) arguments generated from within their respective (theistic and non-theistic) worldviews, so Perry’s book is centrally important to that endeavor (if they cannot, that speaks more to the problematic nature of their religious beliefs than it does to the indispensable value of dignity and human rights). Which brings us back to the question of the relative role of a moral theory of human rights: in which case it may be equally true and perhaps more urgent and significant in consequence that, with Allen Buchanan, we “take into account a crucial fact:”

“International human rights law is central to human rights practice. Therefore, any assessment of the moral status of human rights practice must acknowledge the importance of international human rights law in the practice.” 

Of course to do this one must first appreciate the skeptical if not “eliminativist” nonsense incarnate in arguments like that of Jack Goldsmith and Richard Posner in which international human rights law is not law but merely moral exhortation or aspiration, or simply a kind of politics. Posner’s recent book is apropos: The Twilight of Human Rights Law (Oxford University Press, 2014). * 

And thus our book of the day: Allen Buchanan, The Heart of Human Rights (Oxford University Press, 2013). 

* See, for example, Robert Hockett’s critique of such arguments in “Promise against Peril: Of Power, Principle, and Purpose in International Law” as well as his review essay, “The Limits of Their World.” 

My bibliography for international law is here. And the compilation for human rights, here.

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