International Law Foundations of Human Rights
by
Alejandro Lorite Escorihuela
  • LAST MODIFIED: 30 June 2014
  • DOI: 10.1093/obo/9780199796953-0102

Introduction

Researching the foundations of human rights entails various possible types of endeavors and appeals to different methodological orientations. Both the architectural metaphor of founding and the term human rights are subject to varied interpretations. Human rights can refer not only to the body of fundamental rights in international conventions or state constitutions, but also to the idea of human rights itself, the very notion of individual or collective fundamental entitlements corresponding to the duties of governments. “Foundations,” in turn, can be considered in equally fragmented ways. Under one approach, the term foundations appeals to historical origins: the diplomatic history of the institutional progress of human rights in international relations, the birth of the body of human rights law in constitutionalism, as well as its prehistory, and the various steps taken in proposing, negotiating, and drafting human rights provisions. But the history of human rights can then also mean the history of the idea of human rights, or the genealogy of the law of human rights in global or regional cultural and intellectual history. Methodologically, one can also imagine variations corresponding to every historiographical orientation, from diplomatic history to social history to “long history” to genealogy, not to mention all ideological variations in any given approach. Under a second large methodological umbrella, foundations can refer then to philosophical or theoretical bases for the discourse or practice of human rights. The more static focus here is on the fundamental articulation and justification of human rights as a matter of legal or moral argument. The bibliographical references given below follow in this way a very simplified organization based on a didactic distinction between history and theory. A first part lists references that point to existing debates in historical inquiry about the life of human rights. The field is, as only briefly indicated below, of enormous proportions, both in terms of macro history (are human rights Greek, Roman, French?) and in terms of micro-legal history (what is the importance for human rights of the meaning of jus in Roman law and medieval political philosophy), and the references offer different points of entry into those discussions. A second part focuses on the question of the theoretical justifications for human rights, including critiques of human rights doctrines, human rights discourses, or human rights “ideology.” The choice of references offers a mixture of canonical texts and more recent or marginal contributions, which highlight, in that way, specific approaches to the question of foundations. Given the preliminary remarks above about the fragmentation of the topic of foundations, one has to tread ground that is covered beyond international law and includes such fields as the philosophy of law, sociology, anthropology, political theory, or even literary theory. But so as not to stray excessively into sister disciplines that claim those references as their own, I have therefore left such primary sources (e.g., Aristotle, Locke, or Arendt) out of the list, even though they are found as the object of discussions in the references below.

History and Genealogies of Human Rights

When discussing the foundations of human rights, one angle or emphasis, to which reference was made above, is the historical dimension of the notion. Scholarly concern about the bases for the contemporary discourse and practice of human rights law, whether in domestic national systems or in international law, translates quite simply into debates about where or when human rights began. Historical debates cannot be separated from philosophical debates with respect to the question of the foundations of human rights, but they should be seen as a particular type of emphasis or approach to the question. On the one hand, historical work, in legal history, intellectual history, or diplomatic history, refers to the unfolding and destiny of ideas over which different actors have engaged in debates or struggles. On the other hand, historical work itself, as becomes apparent from the literature, is engaged in, or aligned with, ideological contest over the origins and ownership of human rights discourse and ideals. It is a seemingly factual issue whether human rights arose from Roman law or from Franciscan medieval philosophers or from John Locke an issue to be sorted out by textual and contextual critical analysis. However, the inquiry engages in larger questions about the relationship of law to justice, the legitimacy of state institutions and the nature of their interaction, or the existence or desirability of universal values and all the types of justifications that come with those debates, whether they are attached to theological, philosophical, or political projects. References are listed below that provide an entrance into that debate under three headings: general historical or genealogical accounts of human rights; works in the political or diplomatic history of human rights, which focus, therefore, mainly on the second half of the 20th century; and works in legal history or the history of ideas.

General Histories and Genealogies of Human Rights

The texts below are taken from the long, and growing, list of general historical accounts of the political trajectory of human rights. A succinct indication of what the main point of the contribution is provided, but for the most part these are works of reference or else texts that highlight a specific point about the general history of human rights. Some of the entries propose a general historical narrative about the development of human rights, while others articulate the historical narrative around a theme that organizes, or explains, the particular story being told. Hunt 2007 and Moyn 2010 are standard references now, although they defend very specific ways of organizing the history of human rights, in that each one proposes one specific argument about why and how human rights began. Hunt 2000 places the critical date for the origins of human rights somewhere in the 18th century, whereas Moyn 2010 places it somewhere in the mid-20th century. Ishay 2008 similarly provides a general outlook on the history of human rights grounded in a particular interest in the support provided such rights by varied religious systems beyond the usual narrative of their European Judeo-Christian pedigree. These works are meant to serve as starting points, or standard works of reference, on which to draw in debating the origins and life of human rights in history. The same is true for Wright 2001, which proposes a genealogical account of human rights linked to colonization and decolonization and notes the marginalization of peripheral histories about human rights. One could add here a longer list of histories of human rights, but to touch on the historical debates about the foundations and grounding of human rights in world history, the reader is advised to refer to the specific references suggested below dealing with either diplomatic history or the history of ideas. Cmiel 2004 is helpful in that sense in providing an overview of available historiographical styles under the broad heading of the history of human rights.

  • Cmiel, Kenneth. “The Recent History of Human Rights.” American Historical Review 109.1 (2004): 117–135.

    DOI: 10.1086/530153Save Citation »Export Citation »E-mail Citation »

    A very useful and detailed survey of writing on the history of human rights at the turn of the 21st century, and the different genres explored by historians, from intellectual history of natural rights to the history of postwar activism and political brutality. The overview serves the author’s plea for the importance of detailed and nuanced historical work to offset abuse of ahistorical human rights discourse.

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  • Hunt, Lynn. “The Paradoxical Origins of Human Rights.” In Human Rights and Revolutions. Edited by Jeffrey N. Wasserstrom, Lynn Hunt, and Marilyn B. Young, 3–17. Lanham, MD: Rowman & Littlefield, 2000

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    Hunt here defends in concise fashion the notion that “human rights” as we know and use the concept today are unthinkable without the Enlightenment ideas, but, more importantly, they are impossible without the revolutions of the 18th century.

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  • Hunt, Lynn. Inventing Human Rights: A History. New York: W. W. Norton, 2007.

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    Provides an original argument on the origins of human rights in 18th-century enlightened public culture, and notes shifts in bourgeois collective psyche under the influence, among other things, of the incipient literary genre of the novel. Novelistic depictions offer a basis for the exercise of compassion toward the other, however distantly situated. The limits to compassion, such as forms of slavery, patriarchy, and other social pathologies, find, in turn, a refuge in biologism.

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  • Ishay, Micheline. The History of Human Rights: From Ancient Times to the Globalization Era. Berkeley: University of California Press, 2008.

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    The author traces the timeline of the development of human rights, including their possible prehistories in Europe and elsewhere, such as the Islamic world, and highlights key problems that historical inquiry is meant to address, such as the contingent predominance of the Enlightenment-inspired vision of human rights. The author’s general point is that the grounding of human rights is more broadly based than on exclusively Liberal principles, and human rights, in concept and purpose, find their animating principles in religious traditions worldwide.

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  • Moyn, Samuel. The Last Utopia: Human Rights in History. Cambridge, MA: Belknap, 2010.

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    Moyn presents a thesis that he himself considers as rather unusual, if not polemical, in the area of historical studies on human rights and the evolution of the human rights movement: Human rights were really born in the 1970s, and they have no real substantive roots farther back in time. The book’s thesis, methodology, and weaknesses have been the object of numerous critiques.

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  • Wright, Shelley. International Human Rights, Decolonisation and Globalisation: Becoming Human. London: Routledge, 2001.

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    The normative project here is the decolonization of the story of the international human rights movement as it is told from within international law. The author seeks to revisit the more-or-less implicit notions of humanness, with a special reference to the importance of women and indigenous peoples. A second set of chapters offers on that basis critical readings of contemporary issues in international human rights law.

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Political History

A list of readings is offered in this section that approach the development of human rights and their ultimate grounding from the perspective of diplomatic, or more generally political, history. The focus is on historical data, historical periods, historical events, or historical institutions, in order to highlight the attachment of the idea and practice of human rights as rights to particular contexts, whether social, economic, cultural, or diplomatic. In international law, it is customary to refer, for instance, to the prehistory of human rights institutions in the existence of the legal regime for the protection of minorities under the League of Nations. References below allude to other possible takes on the context in which human rights took root in becoming what they are today. Martinez 2008 locates the British antislavery courts as the proper ancestor of human rights and as constituting the institutional soil in which the general idea of fundamental rights against the state germinates. Paige 2009 proposes the central importance of the phenomenon of political transition, and transitional justice, to the contemporary shape of human rights discourse and argument. Conklin 1998 points, in turn, to the use made by the French Republic of human rights discourse alongside, and within, the development of its African colonial policy, to highlight the now commonly discussed issue of the coexistence of human rights with imperialism generally. That topic is also handled in a nuanced fashion in Pagden 2003, particularly in response to current debates about cultural relativism. Barsalou 2012, Glendon 2001, and Mazower 2004, among many others, root the discussion in the 1948 Universal Declaration of Human Rights, which is more commonly treated as the birthplace of human rights. But as can be seen from the list below, varied historical takes on the issue of the birth and grounding of human rights trace them to specific and differing institutional locations. Power 2005, a short presentation of an argument developed in detail later in book format, points to another line of historical scholarship, in more journalistic style, that stresses the importance of very recent events in the continuous evolution of human rights in international relations. The list here suggests mainly that, as can be seen from the substance of the arguments, the choice of historical trajectory serves the purpose of shaping a particular form of coherence for the whole corpus, or the very idea, of human rights. Wide differences are evident among the authors. See also Burke 2010.

  • Barsalou, Olivier. La diplomatie de l’universel: La guerre froide, Les États-Unis et la genèse de la Déclaration universelle des Droits de l’Homme, 1945–1948. Brussels: Bruylant, 2012.

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    The book examines the negotiations surrounding the Universal Declaration of Human Rights from the viewpoint of the US government as they transpire from a mass of diplomatic papers conveying the commanding concerns and imperatives created by the emerging Cold War and the importance of domestic issues (such as racial segregation). The depth of the archival research provides interpretations of US positions on many of the key points of contention, whereas Glendon 2001 does not.

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  • Burke, Roland. Decolonization and the Evolution of International Human Rights. Philadelphia: University of Pennsylvania Press, 2010.

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    This monograph provides a historical discussion of various intersections between human rights discourse and institutions, on the one hand, and the evolving role and politics of Third World states across a variety of issues, on the other hand. Of particular interest is the discussion not only of the relationship between the struggle for self-determination and the position of those states regarding human rights, but also the often disregarded pro-human rights militancy of Third World states, which was often thwarted by the superpowers.

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  • Conklin, Alice. “Colonialism and Human Rights, A Contradiction in Terms? The Case of France and West Africa, 1895–1914.” American Historical Review 103.2 (1998): 419–442.

    DOI: 10.2307/2649774Save Citation »Export Citation »E-mail Citation »

    A study of the coexistence of human rights aspirations and colonial endeavors in the French version of “Liberal imperialism” as articulated at the turn of the 20th century. The study serves as an introduction to a conversation about the general coexistence of the discourse of human rights with oppressive policies, which is a topic of considerable contemporary interest.

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  • Glendon, Mary Ann. A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights. New York: Random House, 2001.

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    An important and much debated account of the birth of the declaration from a diplomatic point of view, with emphasis placed on the role played by Eleanor Roosevelt. Regardless of the partiality of perspective imposed by the focus on one specific actor, the book provides a very accessible account of the diplomatic exercise. It can be put in perspective with parallel readings of Barsalou 2012, Mazower 2004, and others, to acquire a sense of the key questions posed by the Universal Declaration of Human Rights from the viewpoint of diplomatic history.

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  • Martinez, Jenny. “Antislavery Courts and the Dawn of International Human Rights Law.” Yale Law Journal 117.4 (2008): 550–640.

    DOI: 10.2307/20455804Save Citation »Export Citation »E-mail Citation »

    As the title suggests, the author provides a thorough examination of the work of “international anti-slavery courts”—mixed commissions provided for in a series of bilateral treaties concluded by the United Kingdom after the abolition of slavery— as the legitimate institutional ancestor, if not the originator, of the project and system of international human rights law.

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  • Mazower, Mark. “The Strange Triumph of Human Rights, 1933–1950.” Historical Journal 47.2 (2004): 379–398.

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    Mazower revisits the notion, often commonsensical among international lawyers, that the postwar human rights regime finds an immediate predecessor in the interwar minorities regime established under the umbrella of the League of Nations. He reinterprets that notion, in light of historical evidence, as meaning that the adoption of a human rights framework is secured simply because of its relative weakness and relative lack of ambition vis-à-vis its failed predecessor.

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  • Pagden, Anthony. “Human Rights, Natural Rights, and Europe’s Imperial Legacy.” Political Theory 31.2 (2003): 171–199.

    DOI: 10.1177/0090591702251008Save Citation »Export Citation »E-mail Citation »

    This is an attempt at articulating the coherence of the human rights discourse as part of “western European” history and civilization. The genealogy combines central moments of European imperialism and natural law’s encounter with the “other,” the key association of human rights with the nation-state in the French Revolution, and the roots of all Western political categories in ancient Greece—all in the spirit of a nondefensive response to the promoters of the “Asian values” debate.

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  • Paige, Arthur. “How ‘Transitions’ Reshaped Human Rights: A Conceptual History of Transitional Justice.” Human Rights Quarterly 31 (2009): 321–367.

    DOI: 10.1353/hrq.0.0069Save Citation »Export Citation »E-mail Citation »

    Among many references on the intersection of transitional justice as arguably a relatively recent phenomenon in international human rights practice and the traditional claims of human rights activism, this study suggests that transitional justice emerges very specifically from within human rights activism in the particular context of democratic transitions in Latin America.

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  • Power, Samantha. “Recent History Lessons: War and Human Rights in the Recent Past and the Near Future.” Brown Journal of World Affairs 12.1 (2005): 9–20.

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    A short version of Power’s argument about the political use or misuse of human rights in foreign policy, examined at length in her Pulitzer Prize–winning book A Problem from Hell (New York: Basic Books, 2002), which is dedicated more specifically to the 1994 genocide in Rwanda.

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Legal History and the History of Ideas

International legal history is supplemented by general legal history, in that the intellectual genealogy of human rights traces the development of the idea to known figures in the intellectual history of international law (such as Vitoria or Las Casas) and enters into the history of private law in the Middle Ages as well as into theological/legal debates that are mostly foreign to international law. Considerable legal debate centers on the proper interpretation of legal terminology across time and across languages, as is manifested by the still-debated meaning of the term jus and its relationship to the distinction between subjective rights and objective law. The central intellectual reference, as far as legal history is concerned, is without a doubt Michel Villey, who proposed a thesis, considered fairly radical at the time, according to which the history of human rights is relatively short and does not extend into Antiquity (e.g., Villey 1964) That idea is famously refuted by Brian Tierney (Tierney 1997). Others add to that debate a selection of possible intellectual genealogies for human rights, but the Villey-Tierney discussion remains the central reference that other scholars keep alive through ongoing debate; Donahue 2001, for instance, questions Villey’s Roman law sources, while Pagels 1979 seeks to broaden the perspective on “rights” to root it in a variety of sources in Antiquity beyond Roman private law. In that literary universe, many historical figures are credited with the actual invention of human rights, whether among the Spanish scholastics, the writers of the Italian Renaissance, or, of course, the thinkers of the French and Scottish Enlightenments. Lee 2009 shows one possible interpretation in his discussion of Marsilius of Padua’s own contribution to the genealogy; Mitsis 1999 and Gillespie 1999 are other representative works in proposing the notion that human rights are indeed, contra Villey, rooted somewhere in Antiquity among the Stoics. Helmholz 2005 offers an entry point to consideration of the relationship between the legal historical debate and comparative law in discussing natural law elements in the development of the common law. As indicated in the introduction, these sometimes very technical discussions on doctrinal genealogy support in more general terms political views on human rights, most visibly (as in the case of Villey) in the form of suggesting more-or-less expansive views of human rights and more-or-less Liberal contents for those rights. An important example is provided in Milbank 2012, which explicitly ties a genealogical discussion of “rights” to a particular theological view that contests certain appropriations of the language of human rights. See also McInerny 1991.

  • Donahue, Charles, Jr. “Ius in the Subjective Sense in Roman Law: Reflections on Villey and Tierney.” In A Ennio Cortese. Vol. 1. Edited by Domenico Maffei, Italo Birocchi, Mario Caravale, Emanuele Conte, and Ugo Petronio, 506–535. Rome: Il Cigno Edizioni, 2001.

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    The author argues against Michel Villey’s idea that the conflation or combination of right (ius) and power (dominium), which is the legal foundation for individual (natural) rights, did not occur before the late Middle Ages. Discussing property rights, personal rights, or procedural rights, Donahue seeks to show that individual rights are central to Roman law.

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  • Gillespie, Alexander. “Ideas of Human Rights in Antiquity.” Netherlands Quarterly of Human Rights 17.3 (1999): 233–258.

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    Gillespie moves further back than Mitsis to suggest that the ultimate foundations of contemporary debates on the nature of human rights date to ancient Greece, including basic notions of justice, reason, and anthropocentrism found in pre-Socratic philosophy.

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  • Helmholz, R. H. “Natural Law and Human Rights in English Law: From Bracton to Blackstone.” Ave Maria Law Review 3 (2005): 1–22.

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    The question is whether natural law has any role or influence in the development of human rights jurisprudence in the common law. The author seeks to rebut the position, which he associates with Oliver Wendell Holmes, Roscoe Pound, and others, that natural law is of no consequence to Anglo-American law by providing some indications (including a very long list of authors with a naturalist sensibility from the 16th and 17th centuries) that natural law has indeed made its way into the Common Law.

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  • Lee, Alexander. “Roman Law and Human Liberty: Marsilius of Padua on Property Rights.” Journal of the History of Ideas 70.1 (2009): 23–44.

    DOI: 10.1353/jhi.0.0022Save Citation »Export Citation »E-mail Citation »

    This article focuses on a particular aspect of the larger debate concerning the birth of subjective rights as the foundation of contemporary human rights, namely, the debates concerning (private) property between Franciscans and the papacy in the 14th century. The issue is whether, in addition to promoting the idea of individual rights, Marsilius proposes a legal argument on the possibility of property that is soundly grounded in Roman law and civil law.

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  • McInerny, Ralph. “Natural Law and Human Rights.” American Journal of Jurisprudence 36 (1991): 1–14.

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    A short and helpful discussion of attempts by certain authors, such as Jacques Maritain, to bridge the gap forcefully created by Michel Villey between the ancients and the moderns as far as the legal culture of “rights” is concerned.

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  • Milbank, John. “Against Human Rights: Liberty in the Western Tradition.” Oxford Journal of Law and Religion 1.1 (2012): 1–32.

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    An unorthodox view by the notorious founder of radical orthodoxy in theology: inalienable individual natural rights (associated with the genealogical line from Hobbes and Locke) are the foundation of political Liberalism’s slip toward totalitarianism and, in particular, totalitarian capitalism.

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  • Mitsis, Phillip. “The Stoic Origins of Natural Rights.” In Topics in Stoic Philosophy. Edited by Katerina Ierodiakonou, 153–177. Oxford: Clarendon, 1999.

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    Mitsis challenges the notion that the philosophical and legal history of human rights begins either in the Middle Ages or in the late modern period. The stoic cosmopolitan worldview offers an account of individual natural rights that, if different from some current and especially welfare-oriented conceptions, resonates nonetheless with notions of individual autonomy, choice, and responsibility. The article contains a useful discussion on the methodology of historical discussions around such notions as “rights” across millennia.

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  • Pagels, E. “Human Rights: Legitimizing a Recent Concept.” Annals of the American Academy of Political and Social Science 442.1 (1979): 57–62.

    DOI: 10.1177/000271627944200107Save Citation »Export Citation »E-mail Citation »

    A helpful little essay discussing what it means to be looking for the pedigree of human rights policy today. An argument can be made that the idea of human rights is a composite set of elements, some of which can be linked to the distant past of ancient Greece or Judaism, while others are more clearly a consequence of the Enlightenment.

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  • Tierney, Brian. The Idea of Natural Rights: Studies on Natural Rights, Natural Law and Church Law, 1150–1625. Atlanta: Scholars, 1997.

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    This erudite study has now become a classic. Tierney thoroughly rejects Michel Villey’s idea that human rights, considered as individual subjective natural rights, were foreign to medieval jurists, just as much as they were foreign to Roman law. For Tierney, a genealogy of natural rights in the Western canon can be traced back to at least the 1200s.

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  • Villey, Michel. “La genèse du droit subjectif chez Guillaume d’Ockham.” Archives de philosophie du droit 9 (1964): 97–127.

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    One possible encounter with Villey’s notorious argument, according to which, due to the conceptual lack of subjective rights, Roman law cannot serve as the source of human rights. It is supplemented with the positive flipside of the argument, according to which William of Ockham and medieval nominalism are the proper starting points for the modern idea of human rights, that is, the rise of the notion of subjective rights as entitlements.

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Legal and Institutional History of Human Rights Law

In contrast to, but also in connection with, the preceding sections, this set of references approach the history of human rights as a set of legal institutions. The more immediate focus on legal institutions, as opposed to legal ideas or concepts, takes a variety of shapes and different scales of intervention, from particular rights or particular mechanisms to historical texts to political uses of legal rights in context. Seen as a general perspective that puts the immediate emphasis on institutions, this sensibility is shared by many different types of projects across different disciplines, which approach questions of constitutional or international law and eventually make their way back to international human rights law. All of these extremely varied types of readings share an understanding of legal institutions as being related to particular social and political contexts, which ultimately sheds light on their birth, adoption, transformation, or transplantation. In some cases, overlaps are found with historical account of a more political and diplomatic nature, such as Barsalou 2012 and Mazower 2004 (both cited under Political History). In other cases, overlaps are evident with the history of ideas. As representing a distinct angle, these readings share a common focus on the legal institution not as an object of negotiation or a reflection of thought, but as a constitutive part of a particular context, and more often than not an agent (or, to borrow a term from current sociology, an actant) in the context in question. From a sociological perspective, we find Madsen 2011, a book that focuses on the construction of the European system of human rights protection in the postwar era and highlights the creation of legal institutions as a complex form of cultural production at the point of convergence of a variety of factors and agents (from lawyers to governments to legal cultures). Bates 2010 offers an account of the European Court, in turn, as an evolving institution with an internal life that is interconnected, in parallel and autonomous evolution, with a surrounding political and cultural context. Soriano 2003 and González 1998 take us back in history to the contexts disputed among the historians of ideas, but this time they propose a historical account of legal institutions, such as rights, as social phenomena being attached to successive cultural and political contexts that, in a sense, own them. In all cases, the focus is on legal institutions as social institutions rather than ideas, which is a type of scholarly focus known to a certain brand of legal history when dealing with national legal institutions, a set of social constructs seemingly easier to associate with a “culture” and “context” than international institutions. Okafor 2010 is offered here as an interesting analysis of regional/international human rights institutions that questions precisely the issue of the political and social anchoring of human rights. This opens the door also to a large volume of literature on international institutions coming from the discipline of international relations, which in general terms tends precisely to underplay the specificity of the legal nature of the institution in question or, for that matter, its human rights pedigree. See also Labardini 1989.

  • Bates, Ed. The Evolution of the European Convention on Human Rights: From Its Inception to the Creation of a Permanent Court of Human Rights. Oxford: Oxford University Press, 2010.

    DOI: 10.1093/acprof:oso/9780199207992.001.0001Save Citation »Export Citation »E-mail Citation »

    This reference can be read as a supplement to Madsen 2011 in that it offers a more classical and internal history of a central human rights institution. The notion here also is to approach a human rights institution in its evolution under the influence of contextual factors. The focus here is, however, more internal, and the premise is that there is a coherent narrative to be told about the evolution of the Strasbourg court and its law.

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  • González, Nazario. Los derechos humanos en la historia. Barcelona: Universitat Autònoma de Barcelona, 1998.

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    The author organizes the history of human rights into institutional steps marked since the 18th century by the adoption of specific texts, which together illustrate the building blocks of the human rights discourse as we know it today. The focus is on the texts (from the 1776 Virginia Declaration of Rights down to the 1993 Vienna World Conference) and their immediate context, but the study is prefaced by methodological considerations on the prehistory of human rights and the general idea of a “long history” of human rights.

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  • Labardini, Rodrigo. “Orígenes y antecedentes de derechos humanos hasta el siglo XV.” Júridica 19 (1989): 287–324.

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    Against the background of the above-mentioned Villey-Tierney controversy (see Legal History and the History of Ideas), Labardini’s perspective is specifically premised on the notion that human rights are, as legal rights, a modern invention. That, however, does not preclude a discussion of “precedents” in the sense of culturally situated institutions that can be usefully compared, precisely as socially distinct institutions, from what we now know as human rights—if only to have a clearer understanding of what it is that we understand by the term.

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  • Madsen, Mikael Rask. La genèse de l’Europe des droits de l’homme: Enjeux juridiques et stratégies d’état: France, Grande-Bretagne et pays scandinaves, 1945–1970. Strasbourg, France: Presses universitaires de Strasbourg, 2011.

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    Madsen approaches the creation of the system of human rights protection in Europe from a sociological angle that fills the gap between the idea of human rights and the appearance of textualized rules, such as the European Convention. Recourse to reflexive sociology leads the author to foreground the complexity of interactions among the variety of actors involved in the production of (international) law, in a specific context in which historical, social, and political factors lead to the possible convergence of otherwise conflicting interests.

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  • Okafor, Obiora. The African Human Rights System, Activist Forces and International Institutions. Cambridge, UK: Cambridge University Press, 2010.

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    In the style of examining human rights institutions as institutions, Okafor here proposes an examination of the African system that avoids disembodied doctrinal history, and examines the components of the African system around the African Commission on Human and Peoples’ Rights from a perspective informed by the discipline of international relations, and particularly constructivism. This leads to a critical perspective on international/regional human rights law practice that starts from the relationship between the international institutional context and the domestic social life of human rights.

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  • Soriano, Ramón. Historia temática de los derechos humanos. Seville, Spain: Editorial MAD, 2003.

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    This monograph is didactically organized around a historical lineup of key social and political contexts from the 16th to the 20th centuries, to which particular texts and institutions, as well as central authors, are associated. The method thus enshrines the textual expression of (retrospectively constructed) human rights ideals in a legal history filtered through both a history of ideas and a political history.

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Philosophical, Ideological, and Political Foundations of Human Rights

In this second, and more extensive part, the question of foundations is approached from the perspective of theoretical, ideological, political, and other forms of systematic elaboration and justification of human rights. The idea of foundation refers in that sense to the theoretical ground upon which the idea of human rights, the systems of human rights protection, or particular visions or segments of human rights are built. In contrast to the question of historical narratives or genealogies about human rights, here the question is: how do we make sense of the practice, language, and institutions of human rights? What is their political purpose or their place in the imagination of the political sphere? How do various religious, cultural, political, or economic sensibilities relate to human rights? Does one of them own human rights? How do we account for the idea of universalism in human rights? And many more questions in the same vein. The literature on the topic is vast, and here some illustrative references are given in several sections from which to launch an exploration into the theme of theoretical foundations. Works that can be considered “primary sources” about the theories of human rights are, for the most part, not listed because dispute exists concerning what those primary sources are, as indicated in the previous part. Preferred primary sources can be found in the course of skimming through secondary literature, and one will encounter there exegetic discussions of Ockham, Hobbes, Locke, Marx, Maritain, or Lacan, with the necessary critical references. The sections proposed below are quite arbitrary, but serve to highlight themes or theoretical/ideological currents around which discussions of the roots of human rights converge. In that sense, it is important to include a section on Feminism(s) and human rights, while also including a more general section on contemporary critical approaches to human rights (which partly overlaps, at least arguably, with Feminism). A section on general accounts of human rights is offered as a first step, which refers to authors who have tried in different ways to give a systematic picture of all of human rights and their justification. A particular section is also devoted to the relationship between human rights and Liberalism because of the special ideological connection that has been regularly asserted, by both Liberal philosophers and their detractors, between the idea or ideology of human rights, on the one hand, and the Liberal tradition, on the other. After for a short overview of possible systematic accounts, nine sections treat Liberalism, contemporary criticism, Feminism, human rights and religion, human rights and (post)colonialism, human rights and exclusion, human rights and sociology/anthropology, and alternative reconstructions of human rights.

General Accounts of Human Rights

This first section of references contains some fairly arbitrarily selected and organized texts, which together provide systematic accounts of human rights as they are found in international law today. These texts can be distinguished from those in the following section, in which the references concern the special relationship of human rights to Liberalism.

Philosophical and Jurisprudential Accounts of Human Rights Law

These selections include not only surveys of possible theoretical accounts (e.g., Dembour 2004 or Shestack 1998), but also global accounts of the nature, grounding, objectives, and direction of the idea of human rights. Exemplary writings by philosophers (Nickel 2008, Griffin 2008, Habermas 1998) and legal theorists (Douzinas 2000, Raz 2010, Antaki 2003) are included. These texts consider the coherence of human rights and the relationship of that coherence to their being anchored in particular worldviews. See also Michelmann 2000, Simmons 2011, and Lewis 2009.

  • Antaki, Mark. “The World(lessness) of Human Rights.” McGill Law Journal 49 (2003): 203–222.

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    This is a critical review essay on Douzinas 2000, focusing on the theme of the relationship between human rights and metaphysical grounding. The author questions Douzinas’s success in saving the transcendence of human rights, beyond historicism but away from metaphysics, and proposes further conversations of human rights with philosophical sources while questioning the interpretation of Heidegger as a negative reference point for post-metaphysical thinking.

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  • Dembour, Marie-Bénédicte. “What Are Human Rights? Four Schools of Thought?” Human Rights Quarterly 32.1 (2004): 1–20.

    DOI: 10.1353/hrq.0.0130Save Citation »Export Citation »E-mail Citation »

    The article does exactly what the title says it does, and in a very formally structured way, comparing the suggested main four schools of thought based on five fundamental questions (such as the origins of human rights or the relationship of human rights to law). It is obviously a reductionist account, but that is what the author sets out to do, namely, to map major structural lines in the field of human rights scholarship, at least in the particular way the author circumscribes that field.

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  • Douzinas, Costas. The End of Human Rights: Critical Thought at the End of the Century. Oxford: Hart, 2000.

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    A central argument of this overview of two millennia of thought, and of central theoretical questions of human rights and their place in politics, is the paradoxical connection between humanism, the glorification of human dignity, and the unleashing of inhumanity. The erudite essay takes the methodological angle of exploring human rights from a perspective rooted in continental philosophy (and its supposed antihumanism), and pursues the topic from ancient Greece down to psychoanalysis, existentialism, phenomenology, and beyond in treating the metaphysical grounding of human rights and their variously claimed relationship to power and morality.

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  • Griffin, James. On Human Rights. Oxford: Oxford University Press, 2008.

    DOI: 10.1093/acprof:oso/9780199238781.001.0001Save Citation »Export Citation »E-mail Citation »

    This is an expanded articulation of a famous 2001 essay by Griffin. See James Griffin, “Discrepancies between the Best Philosophical Account of Human Rights and the International Law of Human Rights,” Proceedings of the Aristotelian Society 101.1 (2001): 1–28. A first part of the book tackles the foundations of human rights (in interests, agency, and personhood) and other foundational issues in the category of rights, such as the right-duty relationship, the nature of rights holders, and the moral content of human rights. A second part details the structural categories or the highest level of rights (autonomy, liberty, and welfare), from where a third part of the argument deals with practical applications of human rights analysis (what of the right to privacy? Are there group rights? Is there an intimate connection between human rights and democracy?).

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  • Habermas, Jürgen. “Remarks on Legitimation through Human Rights.” Philosophy & Social Criticism 24.2–3 (1998): 157–171.

    DOI: 10.1177/019145379802400211Save Citation »Export Citation »E-mail Citation »

    Habermas offers the theory of communicative action as a way of addressing one specific and cardinal question in human rights as part of the political theory of Liberalism: what is the relationship between democratic (or republican) legitimacy and Liberal (or rights-based) legitimacy in contemporary Liberal democracies?

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  • Lewis, V. Bradley. “Theory and Practice of Human Rights: Ancient and Modern.” Journal of Law, Philosophy and Culture 3 (2009): 277–296.

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    The argument presented here connects the debate of legal historians on the origins of human rights in “subjective” rights (Villey, Tierney, and others) with the philosophical debate about the grounding of human rights in contemporary practice. Lewis wrestles with both legal historians and antifoundationalist skeptics to advance the grounding of human rights in natural right thinking originating in Aristotle and Plato (and, admittedly, absorbed into Christian theology).

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  • Michelmann, Frank. “Human Rights and the Limits of Constitutional Theory.” Ratio Juris 13.1 (2000): 63–76.

    DOI: 10.1111/1467-9337.00140Save Citation »Export Citation »E-mail Citation »

    This essay, which situates itself in the tradition of US constitutional debate over the legitimate grounds for judicial review, tackles in another form the Liberal-democratic dilemma of having fundamental rights stand in the way of democratic will. Michelman argues against the completeness of the proceduralist version of coexistence that Habermas has proposed, which avoids the irremediable core of violence at the heart of Liberalism, manifest in the mutual independence of democratic consensus and fundamental rights from one another.

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  • Nickel, James W. “Rethinking Indivisibility: Towards a Theory of Supporting Relations between Human Rights.” Human Rights Quarterly 30.4 (2008): 984–1001.

    DOI: 10.1353/hrq.0.0046Save Citation »Export Citation »E-mail Citation »

    Among the many essays by James Nickel on specific theoretical aspects of human rights, this one is especially useful in dealing in detail with a core feature of human rights discourse, i.e., the relations between rights contained in the catalogue. With analytic clarity, the author examines the elements of interdependence, indivisibility, or mere mutual support that exist between categories of rights and, specifically, between the implementation of diverse rights.

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  • Raz, Joseph. “Human Rights without Foundations.” In The Philosophy of International Law. Edited by Samantha Besson and John Tasioulas, 321–338. Oxford: Oxford University Press, 2010.

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    A very succinct critique of “traditional” theories of human rights and their foundations by a major 20th century legal philosopher. Raz argues that theories such as the one proposed in Griffin 2008 are disconnected from reality and are flawed in their logical articulation as moral or ethical theories. Raz advocates for theories of human rights as political theories and sketches the direction of such a theory on the basis of a critical examination of Rawls’s philosophy.

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  • Shestack, Jerome. “The Philosophic Foundations of Human Rights.” Human Rights Quarterly 20 (1998): 201–234.

    DOI: 10.1353/hrq.1998.0020Save Citation »Export Citation »E-mail Citation »

    Shestack provides a cursory but helpful overview of classical, and more modern, theoretical accounts of human rights and their foundations, ranging from some versions of natural law to legal positivism and Marxism and also utilitarianism, New Haven–style policy approach to human dignity, and Liberalism à la Dworkin. Based on that survey, Shestack, a former US diplomat engaged with issues of human rights, dedicates a long last section to the issue of cultural relativism and universalism.

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  • Simmons, William Paul. Human Rights and the Marginalized Other. Cambridge, UK: Cambridge University Press, 2011.

    DOI: 10.1017/CBO9780511844539Save Citation »Export Citation »E-mail Citation »

    This original contribution to the discussions of human rights foundations infuses the philosophical debate illustrated in Griffin 2008, Nickel 2008, Dworkin 1984 (cited under Liberalism), and others, with continental philosophy and a particular brand of phenomenology. The basic claim is that such an approach can avoid, or mediate, the difficulties of current human rights practice, caught between a practice without connection to a philosophy that organizes or explains it and human rights theory, which is still lost in the quest for first principles.

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Political Accounts of Human Rights

The orientation or these works is also different from that of the texts mentioned in the last section, in which examples of alternative reconstructions of human rights are sought more explicitly against the mainstream accounts, and particularly mainstream legal accounts, of human rights. These references have in common reference to the contemporary international corpus of international human rights law, against which they assess the general direction, coherence, or role of human rights in contemporary political culture or international relations. Dembour 2004 and Shestack 1998 (both sited under Philosophical and Jurisprudential Accounts of Human Rights Law) offer overviews of human rights from different perspectives of jurisprudence that seek to make global sense of them, while Michelmann 2000 (cited under Philosophical and Jurisprudential Accounts of Human Rights Law) is proposed as a reference that connects philosophical debates about foundations with comparative constitutional law. Donnelly 1998 and Ignatieff 2001 are offered as influential contemporary perspectives on international human rights law that infuse the body of rules and institutions with a more or less militant universalist message derived from the Western traditions discussed in the previous section. From another perspective, in line with Douzinas 2000, Antaki 2003, and Simmons 2011 (all cited under Philosophical and Jurisprudential Accounts of Human Rights Law), Mendus 1995 opens up the discussion to the issue of the possible grounding of human rights practice and ideals in contemporary, and in particular, continental philosophy. This section also includes works by key political thinkers (Beitz 2003, Beitz 2009, Chandler 2002) and literary scholars (Slaughter 2007).

  • Beitz, Charles. “What Human Rights Mean.” Daedalus 132.1 (2003): 36–46.

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    A short statement by a leading political theorist on the specific issue of the foundations of human rights. Beitz takes issue with the trend of linking human rights to the natural law tradition, which he affirms results in a restrictive vision of what human rights are intended to protect. Beitz advocates seeing human rights as a political program and a political practice in the contemporary world, which thus transcends any such connection with natural rights and natural law theory.

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  • Beitz, Charles R. The Idea of Human Rights. Oxford: Oxford University Press, 2009.

    DOI: 10.1093/acprof:oso/9780199572458.001.0001Save Citation »Export Citation »E-mail Citation »

    This is a full-blown elaboration on the sketch presented in Beitz 2003. The author rejects the notion that human rights are a coherent ideological doctrine across time. He seeks to frame, from the perspective of political theory, the actual practice of human rights considered as standards of justice relating to urgent individual interests affected by state institutions, including in the debated context of foreign intervention.

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  • Chandler, David, ed. Rethinking Human Rights: Critical Approaches to International Politics. New York: Palgrave Macmillan, 2002.

    DOI: 10.1057/9781403914262Save Citation »Export Citation »E-mail Citation »

    This is a collection of essays that deliberately avoids consideration of the theoretical or historical foundations of human rights. The essays present case studies on contemporary aspects of human rights, from a predominantly social science perspective, which assess the upside and the downside of the institutional grounding of human rights in international politics. Essays by David Chandler on the new cosmopolitanism and Vanessa Pupavac on the children’s rights regime offer helpful critiques on the effects of human rights on global political culture.

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  • Donnelly, Jack. “Human Rights: A New Standard of Civilization?” International Affairs 74.1 (1998): 1–23.

    DOI: 10.1111/1468-2346.00001Save Citation »Export Citation »E-mail Citation »

    A significant essay in debates about human rights, their foundations, and their role in international politics. Donnelly tackles the issue of universalism by theorizing human rights law as a “standard of civilization,” as based on a “genealogical” approach to that otherwise very controversial idea. He seeks thereby to redeem the missionary zeal of human rights as a true heir to European imperialism, especially after the breakdown of Europe’s sense of moral superiority in the course of World War II.

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  • Ignatieff, Michael. Human Rights as Politics and Idolatry. Princeton, NJ: Princeton University Press, 2001.

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    A book-length version of Ignatieff’s Tanner Lecture on Human Values in which he lays out a version of human rights realism in reaction to the perceived idealistic and expansionist drift of human rights activism. Two issues make up his programmatic vision: a minimalistic conception of human rights and human rights activism, based on an interpretation of the European roots of human rights in 20th-century wars, and a concern for the use of human rights in policy debates about international intervention.

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  • Mendus, Susan. “Human Rights in Political Theory.” Political Studies 43, Suppl. 1, (1995): 10–24.

    DOI: 10.1111/j.1467-9248.1995.tb01733.xSave Citation »Export Citation »E-mail Citation »

    The starting point of the essay is the difficult position of human rights in political theory, which seems to have produced devastating attacks on the idea of human rights, whether they are advanced on foundationalist, constructivist, or other grounds. The author explores ways to position human rights and their particular function in the realm of contemporary political philosophy given the weight of philosophical skeptics or antagonists.

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  • Slaughter, Joseph R. Human Rights, Inc.: The World Novel, Narrative Form, and International Law. New York: Fordham University Press, 2007.

    DOI: 10.5422/fordham/9780823228171.001.0001Save Citation »Export Citation »E-mail Citation »

    An award-winning critical look at the mythical discourse of human rights from the perspective of comparative literature. The argument posits a parallel between the political narrative of emancipation propagated by international human rights law and the narrative form of German idealism’s Bildungsroman on the other. The text offers, in particular, a critical take of the particular historical (and ideological) co-optation of the tale of human emancipation and the nation-state as universal political destiny.

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Liberalism

As far as contemporary legal and political institutions are concerned, human rights have a particular connection to political Liberalism through the development of Liberal constitutionalism and the social contract tradition. The relationship of rights, and particularly natural rights, to the development of various strands of contractualism is itself a very deep question. For the purpose of discussing the foundations of human rights as we find them in international law and international relations today, it is worth giving some thought to the ways in which different Liberalisms have articulated and justified the idea of human rights and their function, both in constitutional and in international settings. In contemporary terms, the interest of Liberal legal and political theorists in international law, and the role played by international human rights in the international legal system, is a sign of the long-standing claim by Liberal theorists to have owned human rights since the Enlightenment. This opens up a door, which in this present context will remain closed, to the explicit role played by human rights in the reconceptualization of international law by so-called liberal schools of international law, most notoriously in the area of collective security. Whether human rights are Liberal or not is of ideological importance since the institutional grafting of these rights onto international law would then trigger the question of whether international law, as such, is a Liberal system. This last notion, defended by many, most famously by Hans Morgenthau, an international lawyer and the founder of contemporary political realism, is problematic to those who would seek to accommodate a deeper or more robust notion of cultural or ideological pluralism in the international legal system, generally, and the international human rights system, more specifically. In any event, the references provided below illustrate Liberal legal and political thinking about human rights, which perforce then proceeded to impact international law. Most notorious in this case is John Rawls, whose “Law of Peoples” (Rawls 1993) is referred to here in its initial presentation in a short article. The most influential contemporary elaborator of the social contract tradition, Rawls has extended to international law his theory of justice, within which human rights play an important role. References by major thinkers within the Liberal camp are included also to illustrate the varieties of thinking about rights, most notably on the issue of the place of natural law within a positive account of rights. Short treatments of the topic, including Hart 1955, Dworkin 1984, Nussbaum 1997, and Waldron 1987 provide some parameters on the internal debates, precisely concerning the foundational link between rights and Liberal ideology. Other references, such as Langlois 2003, Mahoney 2008, and Oestreich 1999, tackle aspects of the Liberalism in human rights regimes, such as the relationship of Liberalism to a strong moral content in human rights, the link between human rights and democracy, or Liberalism’s tolerance for “group rights.” A third set of references take Liberalism’s relationship to human rights law as a starting point to develop an internal examination of that relationship in assessing the constraints of Liberalism on human rights and the possibility of imagining them outside of it (Gourevitch 2009). Admittedly, these references omit a large segment of the contemporary debate around contemporary visions of natural law and natural rights; rather, they focus on the contemporary relationship of human rights to the resurgence of militant Liberalism. Parekh 2007 is offered as an entry point to discussions about the weight of Hannah Arendt’s argument concerning contemporary conservative skepticism about human rights Liberalism.

  • Dworkin, Ronald. “Rights as Trumps.” In Theories of Rights. Edited by Jeremy Waldron, 152–164. Oxford: Oxford University Press, 1984.

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    This is an elaboration by Dworkin on the formula from his books Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978), which has since been borrowed and used in a variety of contexts to explain, first, the fundamental nature of (constitutional or human) rights and, second, their relationship to the exercise of delegated power, most notably through legislation and regulation in the Liberal state.

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  • Gourevitch, Alex. “Are Human Rights Liberal?” Journal of Human Rights 8.4 (2009): 301–322.

    DOI: 10.1080/14754830903324720Save Citation »Export Citation »E-mail Citation »

    Gourevitch goes beyond the notion of the Liberal grounding of human rights to offer a critique of the ways in which contemporary human rights discourse and practice have corrupted core Liberal commitments situated at the heart of the classical human rights ideal. The critique of the subject of human rights is reappropriated here for the salvation of the Liberal legacy represented by human rights themselves and as against the degraded image of humans as victims in need of paternalistic rescue.

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  • Hart, H. L. A. “Are There Any Natural Rights?” Philosophical Review 64.2 (1955): 175–191.

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    This contribution by Hart, a prologue to the 1958 Hart-Fuller debate on the relationship of morality and law, discusses the nature of moral rights. Hart clarifies here his concession to natural law that there may be moral rights somewhere at the basis of the legal system. Specifically, Hart suggests that political Liberalism may need to acknowledge only one such right, considered a right that cannot be conceptualized as conferred by the state, namely, the equal right of all individuals to be free.

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  • Langlois, Anthony J. “Human Rights and Modern Liberalism: A Critique.” Political Studies 51.3 (2003): 509–523.

    DOI: 10.1111/1467-9248.00438Save Citation »Export Citation »E-mail Citation »

    This is a critique of Liberalism’s quest for a justification of human rights regimes through a detailed examination of Michael Freeman’s discussion of the Liberal canon. The ultimate argument is that the idea of universalist coherence conveyed by human rights is doomed to theoretical failure in light of post-modernity and global pluralism. As the author says, Liberalism offers no more than the notion that we should ultimately flip a coin to decide whether we should believe that human rights are good or bad.

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  • Mahoney, Jon. “Liberalism and the Moral Basis for Human Rights.” Law and Philosophy 27.2 (2008): 151–191.

    DOI: 10.1007/s10982-007-9013-7Save Citation »Export Citation »E-mail Citation »

    This is an argument for a particular conception of the connection between law and human rights in a Liberal framework. The position advanced by the author, as against alternatives (in the line of Dworkin, Rawls, Hart), is in favor of a foundationalist moral idea of human rights, which is deemed to be not only fully compatible with Liberalism, but also its best expression.

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  • Nussbaum, Martha C. “Capabilities and Human Rights.” Fordham Law Review 66.2 (1997): 273–300.

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    In this piece, Nussbaum explains the relationship between the rights-based approach to human dignity and the “capabilities approach” advocated by Amartya Sen and herself. The capabilities approach is presented more broadly as an alternative to other foundationalist Liberal theories of justice, such as contemporary social contract theory à la Rawls or utilitarianism, under a common umbrella of liberal assumptions.

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  • Oestreich, Joel E. “Liberal Theory and Minority Group Rights.” Human Rights Quarterly 21.1 (1999): 108–132.

    DOI: 10.1353/hrq.1999.0011Save Citation »Export Citation »E-mail Citation »

    Among different takes on the subject of “collective rights,” including Waldron 1987, this article offers the advantage of situating the question squarely in contemporary debates within Liberal political and legal theory concerning the nature of rights and their holders. Against common Liberal biases, the author defends the legitimate place of a certain understanding of collective rights in a Liberal vision.

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  • Parekh, Serena. “Resisting ‘Dull and Torpid’ Assent: Returning to the Debate over the Foundations of Human Rights.” Human Rights Quarterly 29.3 (2007): 754–778.

    DOI: 10.1353/hrq.2007.0031Save Citation »Export Citation »E-mail Citation »

    Within the framework of discussions on the origins and nature of human rights, this is an interesting introduction to Hannah Arendt as a missing voice in mainstream positions, whether they are foundationalist or not.

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  • Rawls, John. “The Law of Peoples.” Critical Inquiry 20.1 (1993): 36–68.

    DOI: 10.1086/448700Save Citation »Export Citation »E-mail Citation »

    This essay, later developed into a small book, expands on Rawls’s suggestion in the Theory of Justice that his conception of institutional arrangements corresponding to fair societies could be expanded to produce a conception of a “law of peoples,” or the substantive, political version of what we know as international law. Human rights play a prominent role in articulating the relationship between Liberal societies and societies that, while not Liberal, are acceptable partners of Liberal societies on the basis of Liberalism’s foundational attachment to toleration.

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  • Waldron, Jeremy. “Theoretical Foundations of Liberalism.” Philosophical Quarterly 37.147 (1987): 127–150.

    DOI: 10.2307/2220334Save Citation »Export Citation »E-mail Citation »

    A short, important essay on the core commitments that form arguably the baseline for all the members of the Liberal legal and political family (although Waldron acknowledges that some Liberals will reject his particular view). In his characteristically clear and enlightening style, Waldron elaborates on what the primacy of “liberty” means, the connection between freedom and legitimacy of social arrangements, and the importance of the Enlightenment in structuring Liberal thought.

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Contemporary Legal and Political Critiques of Rights

Critical writing concerning human rights can be divided into two broad types of interventions, which highlight two families of questions concerning the foundational side of human rights. Under the first type, we can group scholarly interventions that address human rights as part of Liberalism from the perspective of a general critique of the latter. In the second type, we can situate a line of inquiry that addresses human rights as they are understood within, or instrumentalized by, political Liberalism(s), while proposing alternative takes on human rights, often to salvage a potential that is deemed to be repressed or stifled by the hegemony of Liberalism over human rights. Thus, suggested references are grouped below under two broad and thematically overlapping headings, separated here again by a methodological focus: (a) human rights as part of a political critique of rights discourse, and (b) the more specific, jurisprudential, critique of Liberal legalism as part of critical readings of law. To start with, from within international law, one should mention the very specific criticism of human rights law as a disruptive element of the system, due precisely to the foundational specificity, whether in natural law or elsewhere, that its staunchest promoters attach to it. The debate is native to international law, and it is usually presented under the heading of the broader theme of the “fragmentation” of the international legal system. For international law and human rights it is relevant here because it is a reflection of the particular force that human rights advocacy and promotion draw from an assertion of strong foundations beyond law, which makes human rights, in particular contexts, a critical tool against international law. The main reference in the literature is the now famous expression “humanrightism,” coined by Alain Pellet, a member of the United Nations International Law Commission (see Pellet 2000, cited under Critiques of Human Rights Legalism and Moralism).

Human Rights and the Political Critique of Rights

The first reference in this section is not a contemporary one at all; rather, it is a compilation of writings by the three main historical human-rights skeptics: Bentham, Burke, and Marx (Waldron 1987). Although a host of references can be found about the opinion of various historical figures regarding human rights or the “rights of man,” the writings of these three are without a doubt the most important in that they lay out, from within three quite distinct political sensibilities, the bases for much of what human rights skepticism will be later on and continuing to the present. The other references here are also selected from within a large corpus, but they are so chosen so as to leave out, for inclusion in independent sections, Feminist and postcolonial readings of human rights, because the latter provide a more specific angle (and particular internal debates) on the issue of proper foundationalism in human rights. References to some key critical takes on the language of human rights by philosophers (see Rancière 2004) or political philosophers/theorists (see Brown 2004 and Chandler 2007) are included. From within and outside of law some references are given to writings in the key of Marxist sensibility, on the topic of the discourse of human rights and its relationship to power relations in the world. Such writings deserve a special mention because of the current revival of interest in Marxism and, more generally, in various shades of materialism in the social sciences and humanities. Examples chosen include Marks 2009, Marks 2011, and Bowring 2008 (all cited under Critiques of Human Rights Legalism and Moralism) as well as Boyd 2009 and, the earliest written, Davis 1980. Additional references are given to specific critical accounts of human rights because of their level of sophistication and originality as well as their use of specific extradisciplinary resources (e.g., Evans 2005, Sutch 2012). Buchanan 2008 is of particular interest as a critique of the human rights legal perspective from a political-science focus on institutional power and constraints, while Perrin 2004 offers an entry point into discussions about the role of human rights in attempting to boost the legal legitimacy of Liberal violence.

  • Boyd, Christopher M. J. “Can a Marxist Believe in Human Rights?” Critique 37.4 (2009): 579–600.

    DOI: 10.1080/03017600903205732Save Citation »Export Citation »E-mail Citation »

    The question here concerns the reasons why Marxists should not endorse some version of human rights discourse, especially if one accepts that human rights can be detached from their current Liberal ideological home, so as not to be “tricked into working for the enemy,” as the author puts it. Boyd, like Kennedy 2002a (cited under Critiques of Human Rights Legalism and Moralism), engages in a cataloguing of critiques against human rights, beginning from the initial question of Marxism’s relation to human rights.

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  • Brown, Wendy. “‘The Most We Can Hope For. . .’: Human Rights and the Politics of Fatalism.” South Atlantic Quarterly 103.2–3 (2004): 451–463.

    DOI: 10.1215/00382876-103-2-3-451Save Citation »Export Citation »E-mail Citation »

    The article title refers to Ignatieff’s idea of a minimalist, modest, and controlled role for human rights (see Ignatieff 2001, cited under Political Accounts of Human Rights). Brown disputes the articulation of those limitations and shows Ignatieff’s claim to be naïve, ill-conceived, or else disingenuous. Human rights are political in terms of the social and historical context in which they are deployed; as such, they exceed any limitations that are set on them, and they are both in competition with alternative political discourses on social justice and open to appropriation and redirection by political and social institutions.

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  • Buchanan, Allen. “Human Rights and the Legitimacy of the International Order.” Legal Theory 14 (2008): 39–70.

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    Buchanan suggests that the question of grounding human rights is no longer avoidable due to the importance of human rights in international politics. The type of justification needed, however, in light of political challenges to human rights is not only philosophical, but also institutional. The philosophical debate misses the dynamic dimension of human rights as a process in which what needs to be legitimated is not the abstract norm but its evolving implementation.

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  • Chandler, David. “Universal Ethics and Elite Politics: The Limits of Normative Human Rights Theory.” International Journal of Human Rights 5.4 (2007): 72–89.

    DOI: 10.1080/714003735Save Citation »Export Citation »E-mail Citation »

    The argument is that human rights discourse in the realm of international relations constitutes a political assault on the public sphere of politics itself, emphasizing, among other things, the weakness of the subject of human rights as a victim in need of third party enforcers/protectors of those rights. Contrary to Gourevitch 2009 (cited under Liberalism), the purpose is, however, not to salvage the legacy of Liberalism but to contribute to the author’s larger project of mapping out the political dimensions of human rights discourse in the discipline of international relations.

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  • Davis, Dennis. “Human Rights: A Reexamination.” South African Law Journal 97 (1980): 94–102.

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    An early piece by Dennis Davis, written in the context of apartheid South Africa by a judge now at the Competition Appeals Court of South Africa. Adopting a very explicit Marxist approach and rhetoric, the argument is reminiscent of Marx’s On the Jewish Question in opposing, on grounds of real emancipation, the framing of the political and social situation in South Africa as a human rights question, which would not bring real liberation to the oppressed black majority.

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  • Evans, Tony. “International Human Rights Law as Power/Knowledge.” Human Rights Quarterly 27.3 (2005): 1046–1068.

    DOI: 10.1353/hrq.2005.0035Save Citation »Export Citation »E-mail Citation »

    Evans’s article offers a Foucauldian reading of the international human rights regime, starting with the predominantly legal(istic) conception of human rights in international relations. Human rights as a discourse (or in this case, three overlapping discourses) concerning power situates it vis-à-vis other forms of power in international law. As such, the fate of the legalistic discourse of human rights needs to be reconceived in its relationships (supportive or antagonistic) with disciplinary power, represented by market discipline implemented by international actors.

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  • Perrin, Colin. “Breath from Nowhere: The Silent ‘Foundation’ of Human Rights.” Social and Legal Studies 13 (2004): 133–151.

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    Perrin addresses the issue of a foundation to human rights from a Derridean perspective. The essence of human rights activism is deeply rooted in language and consists in communicating what is mostly unrepresentable, such as the experience of oppression or the intimate nature of political violence, in the interests of motivating action. Human rights activism has thus a profound connection to silence, as exemplified by the practice of Amnesty International as the quintessential human rights communicator.

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  • Rancière, Jacques. “Who Is the Subject of the Rights of Man?” South Atlantic Quarterly 103.2–3 (2004): 297–310.

    DOI: 10.1215/00382876-103-2-3-297Save Citation »Export Citation »E-mail Citation »

    The suggestion here—picking up from Arendt’s concerns about the rights of man, which are expanded later on by Agamben via Foucault into a general concern about “bare life”—is that the Liberal split between human and citizen opens up the subject of human rights to constructive political contestation, or dissensus. Against Agamben’s fatalism, the subject becomes thus a tool for the repoliticization of legal and social boundaries against, for instance, the dangerous association of human rights with the voiceless, who become then the objects of humanitarian intervention.

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  • Sutch, Peter. “Human Rights and the Use of Force: Assertive Liberalism and Just War.” European Journal of Political Theory 11.2 (2012): 172–190.

    DOI: 10.1177/1474885111425121Save Citation »Export Citation »E-mail Citation »

    The main question that is posed here concerns the soundness of an interventionist military attitude from a Liberal perspective that is also made to support the traditionally pro-sovereignty framework of international law in which human rights are hosted. This article focuses on the heavy weights of Liberal foreign policy in the United States, but it can be usefully juxtaposed with David Chandler’s own skeptical writings (see Chandler 2007) about the role of human rights in framing security policy also in Europe.

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  • Waldron, Jeremy. “Nonsense upon Stilts”: Bentham, Burke, and Marx on the Rights of Man. London: Methuen, 1987.

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    A compilation of the canonical texts of human rights skepticism, with erudite annotations by Jeremy Waldron; includes Bentham’s discussion of natural rights as “nonsense built on stilts,” Burke’s discussion of the idea of, and the dangers surrounding, the abstract notion of the rights of man as opposed to the historically rooted rights of Englishmen, and Marx’s critique of political emancipation through rights as opposed to real human emancipation.

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Critiques of Human Rights Legalism and Moralism

Included here are not only references to critical writing in international law (Koskenniemi 1999, Koskenniemi 2001, Kennedy 2002a, Kennedy 1985, and Klabbers 2002), but also references from legal theory more generally (Kennedy 2002b) and other fields of law (Weiler 2001). See also Pellet 2000, Marks 2009, Marks 2011, and Bowring 2008.

  • Bowring, Bill. The Degradation of the International Legal Order. London: Routledge-Cavendish, 2008.

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    Through a variety of punctual interventions, both in specific issues (such as the treatment of the armed conflict in Chechnya by the European Court of Human Rights or the relationship between group rights and individual human rights) and with an array of interlocutors (from China Miéville to Žižek and from Susan Marks to Alain Badiou), Bowring argues for opening up political engagement from the Marxist-leaning standpoint of a material anchoring of human rights in historical struggles.

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  • Kennedy, David W. “Spring Break.” Texas Law Review 63 (1985): 1377–1423.

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    This is formally an autobiographical narrative about a human rights mission. In substance, it can be seen—as is corroborated more philosophically in its annexed list of supporting references—as a performative critique of the participation of human rights in processes of alienation (through abstraction, professionalization, public/private segregation, formalization, distancing, and so on) in the very process of promoting emancipation, concern, and empathy.

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  • Kennedy, David W. “The International Human Rights Movement: Part of the Problem?” Harvard Human Rights Journal 15 (2002a): 101–126.

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    This essay has become a classic among the critiques of human rights. Kennedy presents an extensive catalogue of the difficulties encountered with human rights practice and the human-rights framing of political and social causes. Human rights talk seeks to advance forms of emancipation and justice for individuals and groups, but to succeed in this Kennedy suggests a pragmatic approach that navigates between the twin realities of relativist cynicism and absolutist moralism.

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  • Kennedy, Duncan. “The Critique of Rights in Critical Legal Studies.” In Left Legalism/Left Critique. Edited by Wendy Brown and Janet E. Halley, 178–228. Durham, NC: Duke University Press, 2002b.

    DOI: 10.1215/9780822383871Save Citation »Export Citation »E-mail Citation »

    A contemporary elaboration of the position toward rights historically defended by members of the US-based Critical Legal Studies (CLS) collective. This form of rule-skepticism constitutes a radicalization of the original position defended by various legal actors associated with various strands of legal realism in the first half of the 20th century (most notably American, but also Scandinavian). Kennedy here presents it in the context of the CLS movement, its history, goals, and internal debates.

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  • Klabbers, Jan. “Glorified. Esperanto? Rethinking Human Rights.” Finnish Yearbook of International Law 13 (2002): 63–77.

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    In this short text, Klabbers provides an informal meditation on the relationship between human rights and the political process, and especially the notion that while human rights are tied to the political process historically, their contemporary conception and practice represses that connection. Klabbers uses Hannah Arendt to allude to some features of that political rooting and uprooting of human rights in evoking some of the classical questions relating to the special nature of those rights.

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  • Koskenniemi, Martti. “The Effect of Rights on Political Culture.” In The European Union and Human Rights. Edited by Philip Alston, 99–116. Oxford: Oxford University Press, 1999.

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    Koskenniemi’s argument focuses on the intermediary status of human rights between foundational principles and concrete policy guidelines in suggesting that they remain, contrary to the prevailing rhetoric, prey to instrumentalization for a hegemonic struggle among political interests. However, the difficulty is not in politicization, but rather in the denial of, or blindness to, its effects, which include entrenching a political culture of bad faith in which human rights seem fatally to degenerate into “human rights talk” as they lose their assumed transformative power.

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  • Koskenniemi, Martti. “Human Rights, Politics and Love.” Mennesker & Rettigheter 4 (2001): 33–45.

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    Following the argument made in Koskenniemi 1999, the author addresses the relationship between human rights and sovereignty from the perspective of the historical decoupling of human rights thought from its natural law background. He discusses the contemporary legal practice of human rights, even by human rights courts, as belying the notion that rights transcend politics and actually deploying those rights as effects of politics.

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  • Marks, Susan. “Human Rights and the Bottom Billion.” European Human Rights Law Review 1 (2009): 37–49.

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    Marks engages with strands of writing touching on the relationship of human rights and poverty, starting with a critique of Paul Collier’s argument about the “bottom billion,” who are the victims of poverty, and ending with that of Thomas Pogge, a human rights and poverty expert, with a passing engagement with Amartya Sen. If poverty can be seen as relative in the sense of being tied to the distribution of privilege, then as Marks contends, the targeting of poverty by human rights advocates entails (re)distributive strategies, otherwise suppressed by the idea of poverty as absolute deprivation.

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  • Marks, Susan. “Human Rights and Root Causes.” Modern Law Review 74.1 (2011): 57–78.

    DOI: 10.1111/j.1468-2230.2010.00836.xSave Citation »Export Citation »E-mail Citation »

    Marks discusses the grounding of human rights violations as social phenomena and provides an analysis of that grounding by the human rights movement. Although welcome in the way it highlights the systemic nature of human rights violations, this line of human rights engagement is lacking in different ways. Marks asserts that this lack may be remedied by a shift to the notion of “planned misery,” as she calls it, which would draw attention to the social organization of human rights violations not as events but as social relations.

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  • Pellet, Alain. “Humanrightism and International Law.” Italian Yearbook of International Law 10 (2000): 3–16.

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    In the realm of international law, this is now a classic text in which Pellet describes humanrightism (droit-de-l’hommisme in the original expression) as some form of doctrinal pathology of human rights lawyers and activists, who mistakenly think that human rights law can function outside of international law and its structural attachment to sovereignty.

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  • Weiler, Joseph H. H. “Human Rights, Constitutionalism and Integration: Iconography and Fetishism.” International Law Forum 3 (2001): 227–238.

    DOI: 10.1163/15718040120962987Save Citation »Export Citation »E-mail Citation »

    This is an essay conveying different strands of skepticism with relation to the adoption of the Charter of Fundamental Rights by the European Union, which center around three main institutional features: human rights are associated with constitutionalism, human rights are associated with the judicial protection of rights, and human rights are associated with political integration and common identity.

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Feminism

Feminist critique of human rights deserves separate consideration, due to its depth, variety, and particular importance to the foundational dimensions of human rights practice, activism, and discourse. The issue of the universalism of human rights has gained prominence, even from within the Liberal frame in which it is still solidly anchored, from the primordial consideration of whether, as MacKinnon 2007 puts it, women are human. Since 1789, a long-standing reservation about human rights has been that the rights of man were, indeed, the rights of the bourgeois male. Within international law specifically, pioneers have brought the tradition of Feminist contestation to bear on various aspects of human rights discourse, among other elements of international law. Charlesworth 2005, Charlesworth and Chinkin 1993, Engle 1992, and Orford 1998 provide examples of works by leading Feminist scholars from various theoretical orientations that address international legal institutions and human rights through a Feminist lens. Other articles are cited as examples of diverse critiques of human rights law based on the construction/deconstruction of gender and sex. Naffine 2004 discusses the sexing of legal personhood in national legal systems, while Stemple 2008 furthers the discussion by approaching gendering through the issue of the invisibility of male rape. Lewis 2003, Reilly 2007, and Brems 1997 present ways of connecting the Feminist agenda to larger ideological projects in law (critical race theory, cosmopolitanism, cultural relativism, or human security).

  • Brems, Eva. “Enemies or Allies? Feminism and Cultural Relativism as Dissident Voices in Human Rights Discourse.” Human Rights Quarterly 19.1 (1997): 136–164.

    DOI: 10.1353/hrq.1997.0003Save Citation »Export Citation »E-mail Citation »

    This reference offers a particular vision of Feminist and “cultural relativist” positions on a spectrum of commensurable critical standpoints, which can be compared and contrasted for pragmatic purposes, based on what concrete results seem to be pursued by their promoters. Thus, the author addresses in her own peculiar way the overlooked complexity of legal Feminism’s relation to the dominant Liberal conception of human rights law and politics.

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  • Charlesworth, Hilary, and Christine Chinkin. “The Gender of Jus Cogens.” Human Rights Quarterly 15 (1993): 63–76.

    DOI: 10.2307/762651Save Citation »Export Citation »E-mail Citation »

    This article is an indispensable entry in the canon of Feminist interventions in international law. As the title indicates, the argument of the author is that jus cogens, as a concept implanted in the law of treaties and then exported beyond that limited field, is gendered, and a reflection, in both form and suggested substance, of the patriarchal domination of male experiences and viewpoints in international law, whether in the academy or in diplomacy.

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  • Charlesworth, Hilary. “Not Waving but Drowning: Gender Mainstreaming and Human Rights in the United Nations.” Harvard Human Rights Journal 18 (2005): 1–18.

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    Written by a leading figure in the Feminist debate in international law, this short article is an example of what the Feminist critique of international institutions can look like, as an alternative to the critique of legal doctrines such as jus cogens. The importance of that analysis for the discussion of foundations to the language and practice of human rights is that here Charlesworth critiques the assimilation by the international legal system of a discourse that is itself critical, i.e., (Liberal) Feminism. By failing to achieve its purpose, the assimilated gender sensibility highlights the depth of patriarchy as a frame that constrains or informs the practice and language of human rights.

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  • Engle, Karen. “International Human Rights and Feminism: When Discourses Meet.” Michigan Journal of International Law 13 (1992): 517–610.

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    How does one consider human rights from the perspective of a women’s rights agenda? Engle maps out the literature on the topic and outlines three possible relationships of Feminist activists to the human rights system: doctrinalist, institutionalist, and external/critical. The foundation for such an exercise is the idea that there may well be a measure of contradiction between Feminism(s) and human rights, a notion embraced to a varying extent by strands of cultural and radical Feminism in the critique of the complicity or association of human rights with patriarchy.

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  • Lewis, Hope. “Embracing Complexity: Human Rights in Critical Race Feminist Perspective.” Columbia Journal of Gender and Law 12 (2003): 510–521.

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    This short essay by Hope Lewis proposes a general framework for continuing critical interventions in international human rights law that associate multiculturalism—in the sense of integrating voices particularly from the margins—with a Feminist angle that upsets not only patriarchy but Eurocentrism or ethnocentrism in re-centering women’s identity in struggles for emancipation.

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  • MacKinnon, Catharine A. Are Women Human? and Other International Dialogues. Cambridge, MA: Belknap, 2007.

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    This is a collection of essays written at the turn of the millennium and grouped together for their international, transnational, or comparative angle (and thus serving as a sister volume to Catherine A. MacKinnon, Women’s Lives, Men’s Laws (Cambridge, MA: Belknap Press of Harvard University Press, 2005), which is more US-oriented. They extend MacKinnon’s interventions, as well as her theoretical frame, to such questions as the international criminalization of rape and sexual slavery, the comparative regulation of pornography, and the adoption of the Optional Protocol on individual petitions appended to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

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  • Naffine, Ngaire. “Our Legal Lives as Men, Women, and Persons.” Legal Studies 24.4 (2004): 621–642.

    DOI: 10.1111/j.1748-121X.2004.tb00265.xSave Citation »Export Citation »E-mail Citation »

    Naffine addresses the relationship between sexual identity and abstract individualism from a Feminist perspective, and specifically the seeming contradiction between a ubiquitous assignation of sexual categorization, on the one hand, and the promotion and defense of sexless/genderless legal personhood as a fundamental value of Liberal legalism, on the other hand.

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  • Orford, Ann. “Contesting Globalization: A Feminist Perspective on the Future of Human Rights.” Transnational Law & Contemporary Problems 8 (1998): 172–198.

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    Orford gives a Feminist reading of international law and human rights issues that decenters gender to connect the known critiques of patriarchy and the public/private distinction to general challenges posed to the system of human rights protection. Feminist concerns and analysis are thus shown as dealing not with women as victims of human rights abuses but with victims of the human rights system that are made visible by the Feminist critique of the foundational parameters of human rights.

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  • Reilly, Niamh. “Cosmopolitan Feminism and Human Rights.” Hypatia 22.4 (2007): 180–198.

    DOI: 10.1111/j.1527-2001.2007.tb01327.xSave Citation »Export Citation »E-mail Citation »

    Within Feminist takes on human rights foundationalism, Reilly advocates a relationship to international human rights law informed by a defense of cosmopolitanism and the strengthening of a global Feminist consciousness. In that sense, Feminist cosmopolitanism extends a basic Kantian idea about dignity, equality, and universality to the struggle against global structures of domination imposed not only by patriarchy, but also by racism and capitalism.

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  • Stemple, Lara. “Male Rape and Human Rights.” Hastings Law Journal 60.3 (2008): 605–646.

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    This article by a human rights advocate and academic addresses the issue of male rape in a way that highlights problematic aspects of the framing of sexual violence in international human rights law in the last decades of the 20th century. The author’s particular Feminist legal angle serves to demonstrate a particular conflation of identity, sex, gender, and victimhood that helps normalize traditional images of womanhood and manhood through a gendered allocation of harm.

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Religion

The relationship of law and religion is genealogical and is discussed to a great extent in the literature that traces the historical trajectory of the concept of human rights. In a synchronic way, the issue of the relationship between human rights and religions, or human rights and theologies, takes a more plainly ideological direction as it tends to focus on the religious pedigree of human rights. A vast literature has developed on the relationship between various religious traditions and the idea or corpus of human rights. In historical terms, the purpose of the inquiry is to trace the connections between particular understandings of human rights and theological thought about human dignity or the relationship to political authority. In theoretical terms, the debate is informed mainly by two overarching questions that come from the practice of human rights. The first is whether human rights as such have a religious foundation, that is, for instance, whether the notion of human dignity is of (Judeo-)Christian origin and whether there is more generally a privileged relationship between Christianity and human rights (an issue dealt with in the various essays collected in Shepherd 2009). The second is whether human rights ideas, or practices, or institutions can function in different religious contexts. The two are related and are made to overlap. But, analytically speaking, the first one is more specifically about the question of human rights and secularism, while the second one is about human rights and universalism. The references in this section deal with both issues, with such texts as Calo 2011, Coleman 1984, and Molano 2008 tackling the place of human rights in Christian, and specifically Catholic, theology and social thought. Clark 2012 and Woodcock 2006 deal with the specific intellectual figure of Jacques Maritain as a Christian thinker of human rights, while the texts by and surrounding Freeman 2004 deal with the author’s thesis that human rights, and particularly human rights universalism, is grounded in religiously inspired morality. Many references are available on the relationship between human rights and Buddhism and human rights and Judaism. The literature on human rights and Islam is possibly that which has grown the most rapidly. One text is cited as central, as far as international law is concerned, on the issue of the relationship between human rights and Islam, An Na’im 1990. The author has written extensively, and the selection included here serves as an early introduction on his thesis concerning cultural legitimacy. The list of references could also be, especially in the early 21st century, lengthened by adding texts on the issue of the relationship of religion to humanitarian law, but that issue is here left aside in favor of the traditionalist legal account, according to which human rights and the laws of war are separate fields with separate histories.

  • An Na’im, Abdullahi A. “Human Rights in the Muslim World: Socio-political Conditions and Scriptural Imperatives.” Harvard Human Rights Law Journal 3 (1990): 13–52.

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    An Na’im suggests that Shari’a and human rights law should be regarded as partially in conflict. While human rights are essentially a Western construct, as products of the history of ideas and the history of imperialism, Islam does offer a hospitable philosophical ground to values promoted by human rights. An Na’im here as elsewhere approaches the issue from the perspective of his general thesis on the local, cultural legitimacy of international law, which implies, for instance, the appropriation of human rights by local activists through interpretation of scripture.

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  • Calo, Zachary R. “Religion, Human Rights, and Post-Secular Legal Theory.” St. John’s Law Review 85 (2011): 495–520.

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    The author advocates, against the sterile opposition between secular human rights and desperate attempts to prove the religious basis of human rights, a third way of engaging in constructive dialogue from the perspective of (Christian) theology so as to reconstruct human rights from a religiously grounded perspective. The context for such an endeavor is the current stress felt by Liberal legal orders as religion is again entering into the public sphere, something that is, according to the author, not only inevitable, but also desirable for the sake of strengthening, if not saving, human rights.

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  • Clark, Meghan. “Reasoned Agreement versus Practical Reasonableness: Grounding Human Rights in Maritain and Rawls.” Heythrop Journal 53 (2012): 637–648.

    DOI: 10.1111/j.1468-2265.2009.00557.xSave Citation »Export Citation »E-mail Citation »

    The premise of the article is the lack of official doctrinal justification for the universalist program of the Universal Declaration of Human Rights. Theoretical conversations on the philosophical baseline of human rights can be seen as a contest for the best elaboration as to how and why human rights are (or should be) exactly what they are asserted to be in the Universal Declaration. From that angle, we can compare theorists with reference to that explanatory goal, and the author argues here that Maritain’s natural law position is stronger than the contractualist position presented by Rawls.

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  • Coleman, John A. “Catholic Human Rights Theory: Four Challenges to an Intellectual Tradition.” Journal of Law and Religion 2.2 (1984): 343–366.

    DOI: 10.2307/1051095Save Citation »Export Citation »E-mail Citation »

    The premise is here that Catholic theorizing of human rights is wanting while Catholic transnational practice in human rights advocacy and promotion is unparalleled in its reach and importance. Four main issues in Catholic human rights theorizing are addressed: the grounding of human rights in human dignity, the existence of a core of basic rights, the relationship between rights and their institutional implementation, and the contemporary relationship of Catholic doctrine to the Church’s wholesale rejection of human rights in the 19th century.

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  • Freeman, Michael. “The Problem of Secularism in Human Rights Theory.” Human Rights Quarterly 26.2 (2004): 375–400.

    DOI: 10.1353/hrq.2004.0020Save Citation »Export Citation »E-mail Citation »

    Freeman provides yet another approach to the conflict between religious and secular grounding for human rights. After a survey of moderate authors on both sides, who all acknowledge the difficulty of philosophical universalism, Freeman’s conclusion is that all available positions are, from an internal viewpoint, unsatisfactory in terms of achieving a grounding for human rights that would respect both universalism and theological diversity. Human rights theory must in any event shift emphasis from a discovery of ultimate truths to a pragmatic and future-oriented elaboration of rights and duties necessary for international governance of relations among individuals in a diverse world.

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  • Molano, Eduardo. “Ley natural y derechos humanos.” Ius Canonicum 48.96 (2008): 611–630.

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    This short text is helpful in providing an example of grounding human rights in theology from the perspective of canon law and the Catholic social teaching derived from the 1891 encyclical De Rerum Novarum. The immediate object of the text is an analysis of a statement by Pope Benedict XVI given at the United Nations General Assembly on 18 April 2008, as part of the celebrations surrounding the sixtieth anniversary of the Universal Declaration of Human Rights.

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  • Shepherd, Frederick M., ed. Christianity and Human Rights: Christians and the Struggle for Global Justice. Lanham, MD: Lexington, 2009.

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    A useful collection of articles that together provide a survey of three aspects of the relationship between human rights and Christianity from a contemporary perspective: the relationship between Christian institutions and human rights campaigns, the question of religious foundations and theological formulations of human rights, and the question of religious freedom within Liberal democracy. In general terms, the various essays converge in assessing, nuancing, and possibly revising the notion of a deep association between human rights and the ideas generated by the secular Enlightenment.

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  • Woodcock, Andrew. “Jacques Maritain, Natural Law and the Universal Declaration of Human Rights.” Journal of the History of International Law 8.2 (2006): 245–266.

    DOI: 10.1163/157180506779884455Save Citation »Export Citation »E-mail Citation »

    Many high-profile individuals played a role in the development of the Universal Declaration of Human Rights. Jacques Maritain, along René Cassin and Eleanor Roosevelt, is among the most famous, especially given his influence as a Catholic public intellectual. This essay presents the theoretical and historical background to the declaration in a way that supports the notion that Jacques Maritain had a decisive influence in shaping the declaration as “very much a Natural Law document.”

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(Post)Colonialism

A segment of the literature that tackles foundational aspects of human rights foregrounds the development of human rights against the history of colonialism and imperialism, either in contemporary or in more remote history. Both critical and reconstructive interventions draw from the association of Liberalism in general, or human rights in particular, with Eurocentrism and the European conquest. The purpose is to either disqualify human rights as the neutral language that it sometimes presents itself to be or else to propose alternative and culturally more encompassing conceptions of rights that would mend the gap between Eurocentric discourses and local social realities and perceptions. de Sousa Santos 2002 is an exemplary and influential proposal in that line of argument. The central theme in this context is that of universalism and cultural relativism, although the question is framed and approached differently depending on the author. Panikkar 1982 provides a classic discussion of cultural relativism and human rights in which the author lays out a vision of the problems posed to human rights by their European pedigree. Cobbah 1987 and Ibhawoh 2000 discuss the problem of cultural uprooting of human rights in the former colonies, while Mutua’s very classic interventions attack what he calls the “ideology of human rights” from the perspective of the relationship between human rights projects and the sociopolitical reality in Africa (Mutua 1995, Mutua 2001). A parallel critical (re)reading is offered by Cheah with regard to the canonical “Asian values” debate in human rights literature (Cheah 1997). Metz 2010 and Madlingozi 2007 propose analyses of the use and role of human rights in African societies in specific cases, such as the implementation of the South African Bill of Rights and the question of the death penalty. Otto 1997 is offered for its very powerful use of postcolonial theory, and especially work by Gayatri Spivak on the notion of subalternity, which Otto imports into the critique of international law.

  • Cheah, Pheng. “Posit(ion)ing Human Rights in the Current Global Conjuncture.” Public Culture 9 (1997): 233–266.

    DOI: 10.1215/08992363-9-2-233Save Citation »Export Citation »E-mail Citation »

    In this essay, Cheah reconsiders the normativity of human rights claims from the perspective of the “Asian values” debate. That triangular exchange—between the “West,” governmental proponents of the “Asian values” position, and local human rights nongovernmental organizations (NGOs)—is founded on three competing versions of normativity (legal, moral, and political-ethical). Cheah points to the framing of the three viewpoints by the common logic of global capital, labeled with a sociohistorical term as an “original contamination.”

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  • Cobbah, Josiah M. “African Values and the Human Rights Debate: An African Perspective.” Human Rights Quarterly 9.3 (1987): 301–331.

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    The suggestion here is that, in line with de Sousa Santos 2002, Mutua 1995, and An Na’im 1990 (cited under Religion), human rights as we understand them are rooted in the West, and specifically in the Liberal tradition. The author contests the accepted anticulturalist line of human rights. “African communalism” offers for him an alternative in presenting a richer perspective on human dignity. As such, the intervention is close to An Na’im’s reconciliation purposes, but with the distinct perspective of changing universalism and enriching Liberal human rights.

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  • de Sousa Santos, Boaventura. “Towards a Multicultural Conception of Human Rights.” In Moral Imperialism: A Critical Anthology. Edited by Berta Esperanza Hernández-Truyol, 39–60. New York: New York University Press, 2002.

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    The idea here is to acknowledge fully that human rights in their traditional conception are Eurocentric in their origins and structure and are plainly part of a global politics that have served Western capitalism since the post–World War II period. Based on an articulation of four possible directions of “globalization” at the turn of the millennium, the author suggests that the reappropriation of “human rights” by progressive forces around the world against Western colonial or neocolonial hegemonic projects offers the potential for an emancipatory politics of human rights. Human rights could serve as a “script” for a globalization “from below,” that is, what he calls a “cosmopolitan” practice of human rights linking marginalized communities across borders against hegemonic globalization “from above,” or what he calls “globalism.”

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  • Ibhawoh, Bonny. “Between Culture and Constitution: Evaluating the Cultural Legitimacy of Human Rights in the African State.” Human Rights Quarterly 22.3 (2000): 838–860.

    DOI: 10.1353/hrq.2000.0034Save Citation »Export Citation »E-mail Citation »

    This intervention in the universalism/particularisms debate concerning human rights and culture sidesteps the issue of philosophical or historical foundations to address the practical dimensions of cultural legitimacy, with a focus on African countries. The approach highlights the concrete expression of cultural conflict in such issues as the tension between collective rights and individual rights, which in African contexts derives from specific colonial experiences of various countries on the continent whose constitutions are in many ways reactive to the colonial past.

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  • Madlingozi, Tshepo. “Post-Apartheid Social Movements and the Quest for the Elusive ‘New’ South Africa.” Journal of Law and Society 34.1 (2007): 77–98.

    DOI: 10.1111/j.1467-6478.2007.00383.xSave Citation »Export Citation »E-mail Citation »

    Madlingozi’s take is significant in postcolonial debates about human rights in anchoring human rights triumphalism—exemplified by the near universal glorification of the 1997 South African Constitution’s Bill of Rights—in socioeconomic dynamics that frame the implementation of emancipatory policies. Political Liberalization in South Africa has meant also its economic neo-Liberalization, leading to the expansion of the pool of elites, who are the beneficiaries of economic policies that brought South Africa back into the fold of the global economy after years of ostracism.

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  • Metz, Thaddeus. “Human Dignity, Capital Punishment, and an African Moral Theory: Toward a New Philosophy of Human Rights.” Journal of Human Rights 9.1 (2010): 81–99.

    DOI: 10.1080/14754830903530300Save Citation »Export Citation »E-mail Citation »

    The point, situated in the literature about the “Africanization” of human rights, is not to lay out a mythical “African” vision of human dignity but rather to practically explain what it would mean to be an “African abolitionist,” based on common social and moral notions generally familiar to sub-Saharan communities. From an elaboration of ideas centering on the indispensable notion of ubuntu, the author then critiques the rationales offered in 1995 by the South African Constitutional Court in declaring the death penalty unconstitutional.

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  • Mutua, Makau. “The Ideology of Human Rights.” Virginia Journal of International Law 36 (1995): 589–657.

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    This classic piece maps out what the author sees as the four dominant schools in the human rights law scholarly corpus, with relation to fundamental theoretical aspects of human rights law, its history, and its justification. The general proposition that Mutua defends is that human rights, much like what the critical scholarship had tried to say about all rights doctrines, presents itself as transcending political ideology, but it is in reality deeply political. At bottom, Mutua suggests, “human rights and Western Liberal democracy are virtually tautological.”

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  • Mutua, Makau. “Savages, Victims, and Saviors: The Metaphor of Human Rights.” Harvard International Law Journal 42.1 (2001): 201–245.

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    In this famous article, Mutua provides a virulent critique of the contemporary human rights corpus and movement as essentially a continuation of Western political and cultural imperialism. Through the use of the triadic metaphor that organizes the logic of human rights discourse and activism, Mutua lists a series of structural flaws that highlight both the theoretical narrowness of the human rights approach (for instance, in its implied theory of the state or of culture) and its political bias that derives from its blinders (for instance, in its ignorance of race or power).

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  • Otto, Dianne. “Rethinking the ‘Universality’ of Human Rights Law.” Columbia Human Rights Law Review 23.1 (1997): 1–46.

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    Otto intervenes in the cultural relativism debate from a perspective informed by critical race and Feminist legal theory, which makes her suspicious of Liberal secular universalism and cultural defenses. She reconfigures the “Asian values” debate as a nondebate, within the common frame of transnational capitalist elites. Against this barely concealed consensus that the staged debate manifests, Otto considers the potential held by transformative perspectives in human rights, which would actually challenge existing structural limitations to human emancipation.

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  • Panikkar, Raimundo. “La notion des droits de l’homme est-elle un concept occidental?” Diogène 120 (1982): 97–115.

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    This classic exposition of what is generically referred to as “cultural relativism” develops in detail the philosophical argument that, on both theoretical and historical grounds, human rights universalism is a culturally specific notion and project. On the basis of a strong relativist position, the author cautions against the idea that frames relating to universal truth and justice may be made without violence. All that remains is cooperation based on (North-South) “dialogical” dialogue, which has not been successful in past experiences of sharing other universalisms.

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Exclusionary Logic

A segment of the literature, and of research done, concerning the foundational dimensions of human rights has to do with the relationship between the subject/object of human rights law and the issue of identity. “Exclusionary logic,” a felicitous expression borrowed from Noll 2003, refers to the process of categorization that is inherent in the implementation of rights and the subsequent supplementation of rights regimes with additional special rights regimes, which, in turn, multiplies the exclusionary process of human rights thinking. The phenomenon takes on a material manifestation in the sequence of international human rights treaties adopted with a view to perfecting the implementation of the Universal Declaration of Human Rights: The International Convention on Civil and Political Rights (ICCPR) and the International Convention on Economic, Social and Cultural Rights (ICESCR) were followed by treaties dealing with the rights of women, children, migrant workers, and persons with disabilities. The idea that the implementation of fundamental rights generates exclusion as a matter of ideological necessity was highlighted most famously by Hannah Arendt in The Origins of Totalitarianism, with the figure of the refugee as the ultimately excluded pariah of human rights law. In that line, a useful reference is also Henderson 2000, which draws attention to more foundational exclusions found at the heart of Liberalism, in the person of the “Indian” of the “state of nature” of Locke and Hobbes. The idea of human rights and exclusion is now pursued, as a matter of critique, reform, or reconstruction, with a focus on social groups, identities (or nonidentities), and perspectives that may be excluded (or else forcefully constructed and imposed) by the mainstream Liberal understanding of rights. Nash 2009 picks up from Arendt in suggesting that, in pragmatic terms, bare life and citizenship are two poles of a spectrum of political statuses corresponding to degrees of exclusion. Beyond that, this perspective includes the promotion of specific protection relating to sexual orientation (Zeidan 2006) or the critique of existing human rights approaches to disability. It also includes the reading of human rights from perspectives offered by “younger” branches of critical legal theory, such as Critical Race Theory (Lewis 2000), LatCrit theory (Iglesias 1996), or Queer Theory (Gross 2007), as it has been imported into law. Heinze 2006 is offered as a counterpoint reference that critiques identity-based and post-identity forms of critical jurisprudences for their (internal and external) failures in dealing with the challenges of international human rights law. Ribet 2011 is offered also for the still nascent scholarship at the intersection of disability studies and human rights. The author provides a very useful critique of human rights on the issue of disability from within debates pertaining to the issue of disability as identity.

  • Gross, Aeyal. “Queer Theory and International Human Rights Law: Does Each Person Have a Sexual Orientation?” Proceedings of the American Society of International Law 101 (2007): 129–132.

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    This short piece is a good introduction to queer theory’s contribution to international law in terms of the dynamics of exclusion as affected by the logic of human rights. Gross addresses the issue of what the questioning of identity itself, as against the idea of a gay/lesbian/transgender viewpoint brings to international human rights law. Gross takes as an example Human Rights Watch’s 2004 In a Time of Torture report, concerning the 2002 Queen Boat incident in Cairo, Egypt, in which the authorities arrested and prosecuted a number of men on the basis of their homosexual conduct.

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  • Heinze, Eric. “Truth and Myth in Critical Race Theory and Latcrit: Human Rights and the Ethnocentrism of Anti-ethnocentrism.” National Black Law Journal 20 (2006): 107–162.

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    Heinze attacks US-based critical movements characterized by “outsider jurisprudence,” by turning against them the legal realist foundations of their own attitude to legal formalism. According to the author, whatever their merits in the national context, they have failed in international law, whether they have actually engaged with human rights law or they have overlooked those norms in their “outsider” argument. Significantly, Heinze highlights the paradoxical turn to formalism visible in “critical” international law, leading to an imperialist contribution (by legitimation) to the power structures that support the edifice of human rights.

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  • Henderson, John Sakej. “The Context of the State of Nature.” In Reclaiming Indigenous Voice and Vision. Edited by Marie Battiste, 11–38. Vancouver: UBC Press, 2000.

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    Henderson makes the important argument that Liberalism entails historically a more fundamental or foundational exclusion than Arendt’s refugee. The “state of nature” is the ultimate legitimation of civil government out of which and against which it is created. Government is then deployed against those constructed, as Locke and Hobbes so propounded, to be left in the state of nature, i.e., the “Indians” of the New World. Liberalism is thus usefully shown to repeat a legal construction of both legitimacy and otherness similar to that of its natural-law colonial predecessors in the 16th and 17th centuries.

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  • Iglesias, Elizabeth M. “Foreword: International Law, Human Rights, and Latcrit Theory.” University of Miami Inter-American Law Review 28 (1996): 177–213.

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    As in the case of Critical Race Theory, the agenda of turning to human rights for promoters of LatCrit theory is justified in terms of transformative dialogue: LatCrit theory proposes to reconsider the conceptualization of subordination and the focus of legal scholarship that is attached to that understanding. On the other side, international human rights law offers the possibility for LatCrit concerns to connect to other experiences of subordination through such issues as free trade and human rights or the rights of migrants.

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  • Lewis, Hope. “Reflections on Blackcrit Theory: Human Rights.” Villanova Law Review 45 (2000): 1075–1090.

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    Hope Lewis proposes an approach to transnational critical theory that unites theoretical and political interests of African peoples and peoples of the African diaspora with regard to the operation of international human rights. Racism is advanced as a core issue that serves to constitute the common perspective in that racism is approached as a global phenomenon that evolves with globalization, including the migration of people from the global South to the global North.

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  • Nash, Kate. “Between Citizenship and Human Rights.” Sociology 43.6 (2009): 1067–1083.

    DOI: 10.1177/0038038509345702Save Citation »Export Citation »E-mail Citation »

    Nash addresses the legal-cosmopolitan enthusiast’s drift into excessive abstraction. Against the background of Arendt’s foundational concerns over rightless refugees, she points to cosmopolitan norms of human rights being deployed not in a social void but in socially organized and stratified spaces, resulting thus in a layering of citizenship from full citizenship to quasi citizenship or un-citizenship (undocumented migrants, suspects in the War on Terror, etc.).

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  • Noll, Gregor. “The Exclusionary Construction of Human Rights in International Law and Political Theory.” Institute for International Integration Studies Discussion Paper Series, No. 10 (2003). Dublin, Ireland: Institute for International Integration Studies.

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    This is an account of the relationship between human rights and politics from the viewpoint of the exclusion of so-called bare life from the ambit of consideration by the law of human rights. Noll deals with critiques of human rights mentioned above (see Koskenniemi 1999, Koskenniemi 2001, Kennedy 2002a, cited under Critiques of Human Rights Legalism and Moralism, and Douzinas 2000, cited under Philosophical and Jurisprudential Accounts of Human Rights Law) as manifestations of the instability produced by human rights law avoiding the question of its core foundation. At the core, Noll locates the process of excluding bare life as a primordial constitutive gesture.

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  • Ribet, Elizabeth. “Emergent Disability and the Limits of Equality: A Critical Reading of the UN Convention on the Rights of Persons with Disabilities.” Yale Human Rights & Development Law Journal 14 (2011): 155–203.

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    This reference launches a discussion at the intersection of human rights and disability studies, where the question of the modalities of exclusion and emancipation provided by human rights have become important objects of contention. The author reframes the shift from the medical to the social model of disability to highlight the biased appropriation of the latter by human rights in a way that paradoxically renaturalizes “disability” as identity.

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  • Zeidan, Sami. “The Limits of Queer Theory in LGBT Litigation and the International Human Rights Discourse.” Willamette Journal of Law and Dispute Resolution 14.1 (2006): 73–96.

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    This article follows the line of international ramifications of US scholarly movements that have generally contested the Liberal grounding of rights talk. Just as Critical Race Theory or LatCrit have turned to human rights, Queer Theory has also expanded its activities beyond US law to international legal concerns, thus extending also its contentious relationships to legal Feminism in the international arena. Zeidan critiques queer theory’s internationalist reach, especially from the perspective of human rights concerns relating to the social situation of LGBT individuals worldwide.

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Anthropology and Sociology

Among social sciences, anthropology has presented itself as a very significant disciplinary perspective on the social uses and presence of human rights practices and institutions. Anthropology poses, by definition, an existential question to human rights and their enshrinement in the international legal system for the purpose of universal protection and promotion. The issue centers on the precise understanding of human dignity, human essence, or humanity as a universal standard of reference. Famously, the American Anthropological Association (AAA) issued a critical assessment of the efforts then underway at the United Nations to produce a universalist Declaration of Human Rights. This much-commented statement (see Engle 2001, Merry 2003) was followed by an almost natural interest by anthropologists, and especially legal anthropologists, in a variety of aspects of international human rights law. The attention is explained by the role played in human rights promotion and protection by categories and social processes that are of general interest to anthropological questioning of social practices and their contextual variations and meanings. Of particular importance and influence is the work of Sally Engle Merry (Merry 2006), both on the general topic of culture and human rights and on the specific issue of gender violence, especially from the perspective of the dialogue between the universalist projection of human rights and the local, and paradigmatically intimate, occurrence of violence against women. Given the centrality of Merry’s work in the area of anthropology and human rights, two references are cited. International lawyers have themselves resorted to expert use of anthropology, among which Karen Engle, who offers a canonical text on the AAA statement on human rights (Engle 2001). Examples of anthropological dealings with the issue of rights include Hastrup 2003, which deals with the disconnection between human rights language and the expression of suffering and loss by indigenous communities. Beyond anthropology, sociology must also be mentioned as a disciplinary framework within which discussions about human rights have given rise to a real subfield of study. Sociology, like anthropology, poses crucial questions on the topic of the grounding of human rights, given the discipline’s focus on the functioning of social institutions and individuals within them (Smith 2002, O’Byrne 2012). The dialogue between legal perspectives and sociological perspectives reveals, in more general terms, fundamental aspects of the ideology conveyed by both human rights and professional disciplines, which proves crucial to a discussion of human rights foundationalism (see Nash 2012). The relatively recent interest of sociologists in human rights as institutions and practices opens up, in turn, a broad field of investigation for a whole array of sociological sensibilities that are themselves drawn to a reconsideration of foundations, such as Luhmann’s systems theory (Verschraegen 2002).

  • Engle, Karen. “From Skepticism to Embrace: Human Rights and the American Anthropological Association from 1947–1999.” Human Rights Quarterly 23.3 (2001): 536–559.

    DOI: 10.1353/hrq.2001.0034Save Citation »Export Citation »E-mail Citation »

    Engle questions a dominant interpretation of the AAA’s relationship to the program of universal human rights. It is usually presented as something akin to a move from total relativism, expressed famously in a 1948 statement at the time that the Universal Declaration was being drafted, to full support for the aims of universal human rights, as stated in a 1999 declaration. Engle suggests that adherence to the rhetoric of human rights masks, in fact, a more complicated and, in many ways, unchanged ambivalence about the relationship between human rights and culture.

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  • Hastrup, Kirsten. “Violence, Suffering, and Human Rights: Anthropological Reflections.” Anthropological Theory 3.3 (2003): 309–323.

    DOI: 10.1177/14634996030033004Save Citation »Export Citation »E-mail Citation »

    Following a similar anthropological sensibility to that motivating Sally Merry’s project, this is another valuable angle on the cultural rooting and uprooting of human rights beyond the universalist/relativist debate. The author’s case study of indigenous rights in the inter-American system of human rights serves to highlight the shortcomings of law, and particularly rights-based claims, as far as expressing, and thereby also vindicating, the suffering of victims such as indigenous populations, who are, however, precisely framed as victims by the language of human rights.

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  • Merry, Sally Engle. “Human Rights and the Demonization of Culture (and Anthropology along the Way).” Political and Legal Anthropology Review 26 (2003): 55–76.

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    Merry questions prevalent understandings of culture in the world of human rights, which she describes as predominantly legalistic in sensibility. This approach to culture, which she sees exemplified by Karen Engle (see Engle 2001), is rigid, static, and monolithic, and is thus at odds with what anthropology as a discipline takes as its object of study. Merry suggests also that lawyers have read the 1947 AAA statement in a reductionist way that is similarly at odds with anthropological concerns.

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  • Merry, Sally Engle. Human Rights and Gender Violence: Translating International Law into Local Justice. Chicago: University of Chicago Press, 2006.

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    A landmark piece of work in approaching ethnographically the local, cultural grounding of international human rights instruments as they attempt to address and open up for inquiry local, intimate, private issues. Gender violence is a thematic thread for a series of studies that illustrate the general theme of contesting the still dominant monolithic and unchanging view of culture in the human rights context. Those case studies approach from different angles the interaction of transnational processes in human rights with the local realities that the rights address.

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  • Nash, Kate. “Human Rights, Movements and Law: On Not Researching Legitimacy.” Sociology 46.5 (2012): 796–812.

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    Nash’s intervention in the sociology of human rights seeks to counter a developing bias in the literature of human rights in sociology, itself a response to the dominance of legalistic discourse on the topic. The argument, quite unorthodox within sociology but paradoxically appealing to hardened legal positivists, is that the “middle term” of the nation-state, situated between bottom-up “popular” globalization and top-down “institutional” globalization, has to be moved back into the center of attention as a proper site for examining the articulation of human rights claims on a global scale.

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  • O’Byrne, Darren. “On the Sociology of Human Rights: Theorising the Language-Structure of Rights.” Sociology 46.5 (2012): 829–843.

    DOI: 10.1177/0038038512450808Save Citation »Export Citation »E-mail Citation »

    This is a short essay that both highlights the need for an inquiry into human rights inside of the discipline of sociology and provides a road map for doing so. The author approaches human rights as a language structure within which social action is given meaning. The purpose is to delineate human rights practice as an object of sociological inquiry, as opposed to the previous pieces that theorize human rights, as such, as a sociological object.

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  • Smith, Carole. “The Sequestration of Experience: Rights Talk and Moral Thinking in ‘Late Modernity.’” Sociology 36.1 (2002): 43–66.

    DOI: 10.1177/0038038502036001003Save Citation »Export Citation »E-mail Citation »

    This text is suggested as a starting point in approaching the discussion of human rights, and particularly the social role of human rights “talk,” from the perspective of sociologists, such as Anthony Giddens and Zygmunt Bauman, with reference to the relationship between social norms and the rhetoric of human rights. The question posed is the possibility of transcending the monopoly of human rights over the right, the just, and the fair, especially in their individualistic framing.

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  • Verschraegen, Gert. “Human Rights and Modern Society: A Sociological Analysis from the Perspective of Systems Theory.” Journal of Law and Society 29.2 (2002): 258–281.

    DOI: 10.1111/1467-6478.00218Save Citation »Export Citation »E-mail Citation »

    In this contribution, the major outside reference brought to bear on discussions about the nature, role, and coherence of human rights is Niklas Luhmann and his influential version of Systems Theory. The author proposes a succinct presentation of the theoretical corpus and how human rights feature in it. The specificity of the approach, coming from sociology, is that it strives not to be normative, but rather explicatory of why human rights are institutionally and rhetorically present in the way that they are in modern Western societies.

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Alternative Theoretical Reconstructions of International Human Rights

Against the backdrop of a contested terrain for the ultimate foundations or justification for human rights and especially their rhetorical and political omnipresence, an abundance of reconstructive attempts have been made to provide just such foundational logic. A multitude of strategies are followed, some of which are evident in the above references, as a counterpart to the most destructive dimensions of critical assaults on human rights. Making sense of human rights and their uses in political discourse today, is a very significant part of the literature, since a variety of projects try to lay out blueprints for the future of human rights law beyond a vast spectrum of critiques attacking, for the most part, its foundational, if not foundationalist, roots in Liberalism, natural law, or colonialism. These reconstructive projects, like the critiques that precede them, hail from both within and outside of international law, and, in this context, one can point also to theoretical accounts of human rights within international law that are heterodox or peripheral to the discipline. Reference is made to the New Haven School of international law (see McDougal 1974), which, despite its dormant character since the 1990s, is still an important contributor to the field, especially if one seeks to address foundationalist aspects of human rights in the international system. Given their prominence in academic circles in the United States, reference must also be made to the conservative movement led by Eric Posner, Jack Goldsmith, and others, whose unfavorable treatment of traditional accounts of international human rights is ultimately founded on a system of theoretical and philosophical assumptions about states, individuals, law, and power (Posner 2008). Beyond that, consideration is given to influential treatments of human rights beyond law, as in International Relations (IR) theory (Weisburd 1999) or in development policy (Sen 2004). Other suggested readings, which provide only a sampling of the various directions taken by scholars, suggest reframing the solid grounding of the law of human rights in judgment theory, a critical evaluation of the potential of Habermas versus Rawls for founding human rights (Ingram 2003, Benhabib 2008), an elaboration of African humanism with universalist reach (Woods 2003), a theory of indifference that embraces the foundation of human rights as ultimately being a paradox (Tester 2002), a phenomenological account of human rights’ aliens (Conklin 2006) or, of course, Marxism (Roth 2004). A reference is included that speaks to the pragmatic impact of the theoretical grounding of human rights—as otherwise shown by the ideological association of public-choice rationalist devaluation of human rights and the use of torture by Liberal democracy—in the form of connecting human rights foundations and the foundations of professional ethics of lawyers and health-care agents.

  • Benhabib, Seyla. “The Legitimacy of Human Rights.” Daedalus 137.3 (2008): 94–104.

    DOI: 10.1162/daed.2008.137.3.94Save Citation »Export Citation »E-mail Citation »

    Prominent political theorist Seyla Benhabib proposes, in helpfully didactic and mostly jargon-free language, her own version of deliberative democracy-oriented visions of legitimacy, which is inspired by Habermas. The focus is on the horizontal process of legitimation that she calls “democratic iterations,” i.e., overlapping consensus repeated and revisited over time in which legitimacy is in this sense formed over time by deliberation rather than transcendentally by foundations.

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  • Conklin, William. “A Phenomenological Theory of the Human Rights of the Alien.” Ethical Perspectives 13.3 (2006): 245–301.

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    In another inspiring intervention in theoretical debates about human rights, again as in other articles inspired by phenomenology, Conklin foregrounds the paradoxically central marginality of the alien in human rights discourse and instruments. He recasts the problem of universality along the line of the ubiquitous distinction between alien and citizen in mainstream Liberal human rights discourse, and in response he proposes to recapture the phenomenology of the alien, the experience of time and space by the alien as alien.

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  • Ingram, David. “Between Political Liberalism and Postnational Cosmopolitanism: Toward an Alternative Theory of Human Rights.” Political Theory 31.3 (2003): 359–391.

    DOI: 10.1177/0090591703031003002Save Citation »Export Citation »E-mail Citation »

    The author posits four criteria for a consistent theory of human rights (universality, prescriptive determinacy, priority, and completeness) to discuss such issues as the relationship between different types of rights or the legal nature of human rights in general. He highlights how the respective framing of rights found in Rawl’s contractualism or Habermas’s deliberative democracy gives a skewed account of rights, leaving out subsistence as a priority and ignoring cardinal issues relating to group rights and social status–related rights such as women’s rights.

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  • McDougal, Myres M. “Human Rights and World Public Order: Principles of Content and Procedure for Clarifying Community Policies.” Virginia Journal of International Law 14 (1974): 387–421.

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    McDougal outlines in a very exemplary fashion a perspective on human rights centered on decision making and the decision maker, or treaty interpreter. In a rather succinct format, McDougal uses the New Haven methodology for the purpose of making sense of the corpus of human rights and dealing with the pervasive vagueness and ambiguity that characterizes human rights provisions.

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  • Posner, Eric A. “Human Welfare, Not Human Rights.” Columbia Law Review 108 (2008): 1758–1802.

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    Posner is a member of the collective of lawyers ideologically associated with the 2001–2008 George W. Bush administration who mounted a massive (anti)intellectual assault on mainstream US international legal scholarship beginning at the end of the 1990s. He provides here the usual skeptical and supposedly non-normative account that he (with his accomplices) laid out in other areas of international law, namely, as a dumbed-down mixture of public choice theory, political realism, and radical philosophical positivism, all distilled from mainstream literature on the economic analysis of law.

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  • Roth, Brad. “Retrieving Marx for the Human Rights Project.” Leiden Journal of International Law 17 (2004): 31–66.

    DOI: 10.1017/S0922156504001608Save Citation »Export Citation »E-mail Citation »

    Here the issue is to locate the overlap that can exist between the human rights project, as a Liberal project, and Marx’s own project(s), and particularly his own perspective (and that of others under his intellectual influence) on human emancipation. Roth provides an erudite discussion (in a debate with other interpreters of Marx’s relation to rights and individual emancipation) of where and how a Marxian grounding for human rights practice could be found.

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  • Sen, Amartya. “Elements of a Theory of Human Rights.” Philosophy & Public Affairs 32.4 (2004): 315–356.

    DOI: 10.1111/j.1088-4963.2004.00017.xSave Citation »Export Citation »E-mail Citation »

    Sen’s vision, developed as a larger theory of justice in Development as Freedom (Oxford: Oxford University Press, 2011) and the Idea of Justice (Cambridge MA: Belknap Press of Harvard University Press, 2009), is important for lawyers because it seeks to wrestle human rights away from law and into ethics (on their way toward economic policy) and associate human rights with the notion of human capabilities, conceptualized jointly with Martha Nussbaum as indicators of both constitutional justice and development policy.

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  • Tester, Keith. “A Theory of Indifference.” Journal of Human Rights 1.2 (2002): 173–186.

    DOI: 10.1080/14754830210125665Save Citation »Export Citation »E-mail Citation »

    Indifference is what human rights law seeks to overcome, but it is also the main factor in weakening the power or role of human rights. Constant attention to the issue of foundations, meaning the striving to keep to foundationalist approaches to human rights, may be a chief cause for the weakening of human rights in that foundations are both considered to be indispensable and, at the same time, are performatively undermined by the assertion of fragmentation.

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  • Weisburd, A. M. “Implications of International Relations Theory for the International Law of Human Rights.” Columbia Journal of Transnational Law 38 (1999): 45–112.

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    Weisburd provides an interdisciplinary take on human rights law as part of the international system, from the perspective of US-style international relations (IR) theory. On the basis of concrete case studies of human rights violations and ensuing regime changes, IR theory provides two conclusions: first, independently of which shade of IR theory one prefers, human rights legal norms contribute very little to the resolution of human rights crises; and second, IR theories will show that not law, but ideas, will change political conditions of oppression so that a human rights policy should favor the dissemination of ideas rather than traditional human rights tools such as litigation.

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  • Woods, Jeanne M. “Rights as Slogans: A Theory of Human Rights Based on African Humanism.” National Black Law Journal 17.1 (2003): 52–66.

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    Drawing on political, philosophical, anthropological, and literary sources, the author identifies an “African humanism” characterized by a focus on horizontal relations that serves to highlight the partial, normative, and slanted nature of the Liberal discourse of human rights. She depicts the latter as attached to a political theology of vertical, paternalistic relations of individuals to authority. The alternative vision can serve as a possible frame for revitalizing the liberating, if not transformative, power of human rights in drawing human rights away from attachment to Liberal social, economic, and political prejudice.

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