In This Article Foundations of Human Rights

  • Introduction

International Law Foundations of Human Rights
by
Alejandro Lorite Escorihuela
  • LAST REVIEWED: 02 November 2017
  • 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.

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