Human Rights. Michael Freeman

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Human Rights - Michael  Freeman


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UN stood in an ambiguous position. It was, on the one hand, the author and guardian of international human-rights standards while, on the other hand, it was an association of governments that were often serious human-rights violators. The UN has, therefore, been the central institution where international human-rights law and politics meet, and often clash, and where the gap between human-rights ideals and realities is especially apparent.

      The legal-positivist approach to human rights not only misrepresents their character, but also has dangerous implications. The point of human rights has historically been to criticize legal authorities and laws that violate human rights. Legal positivists sometimes say that the only rights are those that are legally enforceable. It may be desirable that human rights should be legally enforceable, but it is not necessary that they should be so. The concept of human rights implies that they are often not. If human rights were legally enforceable, one could, and normally would, appeal to one’s legal rights, and would not need to appeal to one’s human rights. Human rights are available when legal rights fail. Human rights may be, and often are embodied in positive law, but an important function of human rights is to enable the criticism of unjust legal systems.

      The idea of the ‘source’ of human rights contains an important and confusing ambiguity. It can refer either to the social origins or to the ethical justification of human rights. Social scientists have studied the social origins of rights in, for example, popular political protest, and, important though such studies may be for an historical understanding of the discourse of rights, we must be careful not to conflate social origins with ethical justifications, since there are social origins of evil as well as of good. The social-scientific approach to rights, by its preference for avoiding ethical questions, sometimes falls into this confusion. There are, therefore, two distinct questions about the ‘sources’ of human rights that we need to answer. Why do we have human rights? Why ought we to have human rights?

      Another set of philosophical questions concerns the relations between human rights and other values. Do human rights occupy the whole space of moral and political theory, or are there other important values? If there are other important values, how are human rights related to them? The UDHR claims that human rights are the foundation of freedom, justice and peace, but does not say how these values are related, conceptually or empirically. It is important to determine as clearly as possible the limits as well as the value of human rights. It is common to say that human rights establish minimum standards of good government. Claiming too much for human rights may make it harder to defend them against their critics, and thereby weaken their appeal and effects. We need to be clear, therefore, whether the concept of human rights supports a comprehensive or a minimum-standards political philosophy.

      Until recent years the study and, to a considerable extent, the practice of human rights was dominated by lawyers. The cause of human rights owes a great debt to them. There is a danger, however, that excessive attention to human-rights law distorts our understanding of human rights. This book seeks to put law in its place by adopting an interdisciplinary approach. The concept of human rights has a history marked by philosophical controversies. Knowing that history and understanding those controversies illuminate the state of human rights today. Since the end of the Second World War, the concept has been incorporated into a large body of international and national law, but it has also been at the heart of political conflicts. The law is important, but understanding human rights requires us to understand its politics. Law and politics do not exhaust the human-rights field. The other social sciences – such as sociology, anthropology, international relations and economics – are essential to our appreciation of human-rights problems and their possible solutions. Human rights is an interdisciplinary concept par excellence.

      Why history? Which history?

      Human rights are universal. History relates change. Human rights have a history. The contemporary concept of human rights is a product of that history, but how can a universal concept have a history of change?

      The history of human rights itself has a history, which is controversial. Recently, a new generation of historians of human rights has challenged what they call the ‘textbook’ history. This history, according to its critics, is a triumphalist story of progress from superstition and cruelty to rationality and humanity. It is located primarily in Europe and North America, and is consequently a tale of the inevitable triumph of Western liberalism. The story is rendered more plausible by marginalizing the historical connections


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