Human Rights Legalized—Defining, Interpreting, and Implementing an Ideal

Human rights legalized—defining, interpreting, and
implementing an ideal

Başak Çali and Saladin Meckled-García

Of the many concepts employed in law and politics, the concept of human rights is the most obvious expression of a moral ideal. As such, it is also a view about, at least, the minimal social conditions necessary for the existence of a healthy political order. Yet, the specification, implementation and interpretation of that ideal has, since the Universal Declaration of Human Rights, been dominated by international law.

This fact should be striking for three reasons, all of them implied in the above description of the ideal. The first is that a moral ideal would seem to imply that the specification, definition and interpretation of these rights is not a necessarily legal process—the ideal is not a legal ideal, that is, unless one believes legal codification is the only, or principal, way to express these moral aims, and that legal interpretation is merely the working out of these aims on a case-by-case basis. Secondly, the ideal of human rights describes a social order in which persons have social guarantees against certain abusive forms of behaviour, or types of usage of state power. Law would normally be thought of as just one element of such an order, and in fact the efficient operation of law itself presupposes many other social practices and guarantees, for example, a certain degree of social stability and confidence in the legal system (McEvoy 2000; Woodiwiss in this volume). Thirdly, there is no obvious reason why all human rights, or all aspects of human rights, are most appropriately advanced through legal means, unless that is one thinks that human rights ideals have an efficient and functioning human rights law as their primary aim (Sen 2004:3).

An additional complication for this simple image of a transference of human rights aims or ideals into human rights legal aims and practice, is the kind of laws that are involved. The legal codification of universal human rights has taken place in international law which, by its nature, has distinctive features we should be wary of when looking at what it codifies and how. The way international law codifies human rights is likely to be sensitive to a number of non-neutral influences, such as inter-state negotiations, compromise, and the accommodation of other goals and values than human rights themselves. Furthermore, it is a significant feature of international human rights law (IHRL from now on) that, once ratification of international treaties has been achieved, the process of implementation is state-driven (albeit with independent recommendations). 1

While these questions should alert us to problems with giving law a governing role in the development of human rights aims, the question mark we are placing over the role of law should not be misunderstood. We are by no means rejecting what can be called the ‘ingredient view’. That is, that a number of features and facets of social life must be configured to contribute to the achievement of protections, guarantees and modes of behaviour associated with human rights aims. What this volume aims to highlight is that there is a question as to the appropriate degree and extent of law’s contribution in the key areas of definition, interpretation and implementation of these aims. The motivation for collecting the essays here presented was to initiate debate on this question.

There might be a theoretical route to justifying this role for law. However, this seems to have been dominant approach to the practice of human rights without it being explicitly defended in theoretical terms; in fact with explicit assertion that it is not the view behind human rights practice. IHRL is neither presented as the overt source of human rights ideals, nor as the last word on what these are. 2 Yet, at the same time the approach to non-legal discussion suffers from what can be described as the ‘footnote’ phenomenon: the idea that so long as the putative non-legal foundations for rights are cursorily stated, one can quickly move on to the important discussions of specification and implementation, which are primarily legal.

The implications of this approach can be seen by a cursory inspection of the effects of legal emphasis. For example, the predominant starting point for studies by political and social scientists seems to be to accept the legal definitions of these rights, without significant steps being taken to justify such a definitional move (e.g. Risse et al. 1999; Otto-Sano and Lindholt 2000; Green 2001; NORAD 2001; Landman 2004). One might justify this move citing the interest of the research as simply the effect of specific legal provisions on given political and social relations, which by itself does not seem to make less narrow discussions about human rights necessary. However, even the understanding of the legal notion of human rights is one which requires reference to its point and purpose, something which cannot be defined without an interpretive standpoint. That is, human rights, legal or otherwise, are understood, specified and applied in one way rather than another because they are understood to express one aim rather than another. So one can respond to those making the definitional move, that whilst they are measuring, explaining or testing for ‘something’, there is nothing in this very move to justify calling that something ‘human rights’. And furthermore, it matters fundamentally for the purposes of these exercises what exactly it is that they are identifying, otherwise why identify them in the first place? It is not as if human rights are passed on (fully intact) to our legal practices for definition and specification, and the interpretive work ends there.

Two further examples of the law’s dominion over the understanding of human rights are the distinctions that have made between civil and political vs. socio-economic rights, and the categories of first, second, third, and so forth, ‘generations of rights’. The existence of two covenants is a political split (Woodiwiss 2002), and the chronology of legal documents is not even a prima facie justification for accepting fundamental distinctions in our understanding of human rights. 3 Yet these distinctions are often presented as categorical problems of independent importance for human rights scholarship (e.g. Ife 2001: Ch. 2; Tomuschat 2003: esp. Ch. 3).

At the level of duties of implementation, institutional development and protection and monitoring, the principal measures have focused on law. These include the obvious such as ratification of IHRL treaties and their incorporation into domestic law, calls for constitutional and legal reform, improvement of domestic legal institutions, better administration of the criminal and civil justice systems of states. 4 Consider also the resources and encouragement given to the training of judges and lawyers on the legal concepts, and more general educational campaigns which focus on legal entitlements, states’ legal duties, and mechanisms of redress. 5 There is nothing problematic in these measures, taken by themselves. But if one reflects that there are few (if any) measures encouraged which do not have such an explicitly legal focus, it becomes clear that the legal permeation of human rights aims extends beyond mere definitional questions.


The above discussion should give an indication of the extent to which the subject matter of human rights, in theory and practice, seems to be permeated with legal conceptions. When scholars and practitioners talk about ‘human rights’ they almost always mean ‘human rights law’ without qualification. Given that this takes place without a stringent theoretical defence, it is therefore a phenomenon, and it is this phenomenon that we call ‘legalization’.