Monday, May 09, 2011

Human Rights as Moral Rights

Ori Herstein on the unreflective human rights community:

As we were all taught, human rights law aspires to capture basic moral rights. Yet, somehow the aspirational component of human rights law is lost on many of the more zealous and unreflective members of the human rights community, for many of which the positivistic lawyerly labor of stringing together the variety of hard, soft, and ephemeral sources of international law functions as a form of moral as well as legal reasoning. For the unreflective human rights lawyer your position is morally wrong because it is legally wrong. Figuring out what the law is is not the beginning of the conversation – as is usually the case for legal academics – but rather the end of the conversation.

And this is where things turn from frustrating to worrying. In the minds of some, human rights law does not merely aspire to reflect morality but actually does – by definition –reflect morality, thereby making human rights law insular and immune to external moral critique. Some human rights lawyers appear to have appropriated not only certain legislative powers over international law, but by extension also view themselves as legislators of morality itself. And, anyone who dares argue against or question the supposed presumed state of human rights law is categorically an enemy of moral rights. Because after all, human rights are moral rights. Aren’t they?

I think this is amplified by my feeling that "international law" in this field is particularly amorphous and malleable, and is this particularly vulnerable to being bent to fit the moral priors of the opinion leaders who determine what international human rights law is. Substantive moral commitments can and are easily snuck into black letter doctrine as the way things always were, and then their presence as legal rules in turn buttresses their status as clear moral obligations.

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