Michael Freeman

The idea of the legalization of human rights makes three assumptions: (1) human rights are ‘prior’ to law; (2) they have been ‘legalized’; and (3) the legalization of human rights is problematic. These assumptions are correct, but they require clarification if the problems raised by the legalization of human rights are to become clear.

It is commonplace to distinguish human rights from legal rights. Human rights are the rights that human beings have simply because they are human beings; legal rights are the rights that human beings or other legal persons have because the law says so. Human rights may be ‘legalized’ in two main ways: (1) by being recognized in international law; and (2) by being specified in national law.

There are at least three reasons to legalize human rights. The first is that human rights are thereby entrusted to persons (usually judges) who have been specially trained to understand them. The second is that human-rights principles are often vague, and courts of law can make their meaning more precise. The third is to confer on them a kind of objectivity that moral and political discourses are thought to lack. This enables campaigners to appeal to established law rather than to contentious moral and political principles, but we shall see that this apparent objectivity is also problematic.

Philosophers may hold that this begs some difficult questions. Why should we believe that there are human rights? If there are human rights, which rights are there? How are these rights related to each other and to other values? Are any human rights absolute or may they be overridden in certain circumstances? There may be legal answers to these questions, but such answers only give rise to the further question as to whether or not the law is what it ought to be.

Another set of questions concerns the relations between human rights and democracy. Western political philosophy has traditionally been concerned with the problem of the rightful distribution of power. The legalization of human rights is not neutral among different solutions to this problem, since it allocates power to lawyers, especially judges, over an important range of issues. It takes human rights out of politics, including democratic politics. This makes human rights problematic for democrats (Dahl 1989; Waldron 1993). To the argument that human rights are too important to be left to democratic politics, they respond that they are too important to be left to democratically unaccountable lawyers.

If the legalization of human rights is problematic, what precisely has been so legalized? The Universal Declaration of Human Rights is usually regarded as the most authoritative statement of human rights, but it lists human rights and does not define them. The Declaration offers us no clear criteria for distinguishing human rights from other sorts of rights and from other values.

Some lawyers seek to solve the problem of defining human rights by appeal to the philosophy of legal positivism. Human rights, on this view, are what human-rights law says they are. This solution is implausible, however, because the concept of human rights stands in the tradition of natural-law philosophy that holds human rights to be prior to positive law. Natural-law philosophy may be problematic, but legal positivism is not a strong rival, for law is better seen as a means to protect human rights than as their source. Legal positivism is refuted by the meaningfulness of asking whether the law is what it ought to be.

It is difficult to know what pre-legal human rights are, because the concept seeks to identify a set of important values, and this is bound to be a controversial task. The definition of human rights cannot be independent of a justificatory theory. Several such theories are now available (Finnis 1980; Gewirth 1982; Perry 1998). Since each is controversial, the very meaning of ‘the legalization of human rights’ must be controversial. However, although avoiding controversy is not possible, replacing confused and unsystematic thinking with clear and systematic thought is possible. We can begin this task by revisiting the political theory of John Locke, since it offers a classic theory of human rights and law.

Locke held that men were naturally free, subject to the law of nature, which obliged everyone not to harm another in his life, health, liberty or possessions. The ground of this obligation was that all men were the ‘workmanship’ of God, and consequently ‘made to last’ during his pleasure. The obligation not to harm others,

To ensure that the law of nature was observed, Locke continued, and to restrain men from invading the rights of others, everyone had the right to punish violators of the law. This condition, however, had the disadvantage that each might be the judge in their own case, and thus partial to themselves. Each therefore surrendered their natural right to judge and to punish to a political community that would protect the natural rights of all by means of laws made and executed by those authorized to do so (Locke [1689] 1970: II, §§7, 11, 87, 127, 131). Locke held, therefore, that the protection of natural rights required the rule of law, but he was largely silent about the role of the judiciary. His theory calls for the legalization of natural rights, but not necessarily their judicialization (Waldron 1999:85–7; 2002:132–4). Locke provided a theory of the ground and content of natural rights, and of the role of law in protecting them. Each of these elements is contentious, but Locke systematically raised the problems that a convincing theory of human rights and law would have to solve.

Locke’s theory proposed natural rights and the rule of law as solutions to the problem of tyrannical government. The United Nations proposed similar solutions to similar problems after the Second World War. The Universal Declaration of Human Rights was originally intended not to be legally binding, and was therefore not technically an example of the ‘legalization’ of human rights (Morsink 1999:331). It declares, however, that, in order to avoid rebellion against tyranny, human rights should be protected by the rule of law.

Whatever its legal status, the Universal Declaration is undoubtedly ‘legalistic’. It was based on a comparative study of national constitutions by a Canadian law professor, John Humphrey. Having been derived from national laws, it became the source of numerous international legal instruments. As an authoritative international declaration of human rights, it influenced several national constitutions and court decisions, and has been a standard used in the campaigns of human-rights NGOs (Morsink 1999: x, xi–xii, 20).

In order to achieve universal credibility in a philosophically diverse world, the Universal Declaration said little about its own philosophical foundations beyond gesturing towards its natural-rights heritage and its vaguely Kantian reference to human dignity. The cost of this attempt to universalize the concept of human rights was to alienate it from Western philosophy and social science. Natural law was generally in decline by this time. The concept of human rights was consequently controversial in philosophy, and was largely ignored by the social sciences under the influence of scientific positivism. This left the discourse of human rights mainly to lawyers. International law is not generally familiar, however, with those disciplines of theory, method and epistemology that are foundational for social science. As a result, the study of human rights was vulnerable to a combination of natural-law idealism and text-based legalism. Human rights became ‘legalized’, therefore, not only by being written into laws, but also by becoming the near-monopoly of legal science.

Before the 1970s nearly all academic work on human rights was done by international lawyers. In a bibliography on international human rights published by the University of Notre Dame Law School in 1976 virtually all the entries had been written by legal scholars. A study conducted by UNESCO identified ten academic periodicals devoted exclusively to international human rights; nine were predominantly legal in approach. UNESCO also carried out a search of other journals that dealt with human rights at least occasionally during the period 1972–86. The search found that the disciplines, other than law, that contributed to the academic study of human rights were pedagogy, psychology, psychiatry, and philosophy. The report concluded that there was a striking lack of contribution from other social sciences.

Several surveys of the teaching of human rights in universities have shown that the legal perspective has been overwhelmingly dominant. A survey conducted in the USA in 1980 found that, while 39 per cent of the responding law schools offered courses primarily concerned with human rights, only 4.9 per cent of political science departments did so. In 1986 Jack Donnelly noted that the bulk of the scholarly literature was legal, and the vast bulk of that legal literature was either descriptive or involved technical formal analysis of legal instruments, rules, and procedures. Respondents to a survey distributed mainly to members of the Human Rights Research Committee of the International Political Science Association in 1988 by Kathleen Pritchard reported that the subject of human rights was taught primarily in law schools. They expressed dissatisfaction with this situation. Law was too narrow in its approach to the topic, they believed, and such courses inadequately addressed issues of social justice, economic welfare and cultural difference. Political scientists had done most work on human rights and foreign policy, but political scientists knew about more than foreign policy; they knew about development, stability, participation, bureaucracy, interest groups, power relationships, judicial behaviour, popular movements, militarism, public opinion, and ideology. Political scientists were trained in techniques of comparative and policy analysis. Their concerns, interests, methods and knowledge extended well beyond those of legal scholars (Donnelly 1986:639; Pritchard 1989).

The increased influence of human-rights discourse since the end of the Cold War has attracted the attention of scholars from disciplines other than law (Freeman 2002b). This impulse, though stronger than before, is still weak. Human-rights talk is ubiquitous, but human-rights study is still predominantly legalistic. The human sciences should have more to contribute to our understanding of the condition of those human beings whose rights pervade the world’s political discourse.

It would be easy to say simply that there are valid legal and political approaches to human rights, if it was not common for legal analysis to conceal the political problems. For example, Morsink illustrates what he calls the ‘extraordinary success’ of the Universal Declaration by the fact that it is cited in the Preamble to the Haitian Constitution of 1987 (Morsink 1999: xi–xii). Political scientists might think that this conceals the dire state of human rights in Haiti, which require a political and economic analysis.

The concept of human rights is ideological in the sense that it can be used as a political instrument for diverse ends. It was used for and against the US-led invasion of Iraq in 2003. Historically, political struggles have been fought in the name of rights, but the aim of these struggles has been, in part, the Lockean aim of establishing rights in law. In this perspective, law is not the origin of rights, but, rather, politics is the origin of law, and consequently of rights. In contemporary international politics, the concept of human rights is used, not only as a source of law, but also to legitimate and delegitimate governments politically.

In a pioneering work of political science, Richard Claude argued that human rights could not be understood by the analysis only of law and legal processes. Social scientists should investigate the social forces underlying the development of legal human-rights regimes by historical and comparative methods. The ‘classical’ model of human-rights development, derived from the histories of England, the USA and France, suggested an economic basis for the institutionalization of human-rights law in the emergence of capitalism, although the Protestant religion played a role in creating the concept of the private individual. The threats to property rights and religious freedom from a predatory and intolerant state generated demands for the rule of law. The industrial revolution of the nineteenth century generated claims for economic and social rights, as well as equality of citizenship. The implementation of these rights required, not only certain laws, but also a supportive economy and a competent state. The liberal-democratic, legal-bureaucratic, welfare state became the delivery system for human rights. This development took place gradually over a long period; increased expectations for relatively rapid economic development in the contemporary world might lead to more authoritarian solutions that could be very problematic for human rights. Claude argued that the estrangement of law from the social sciences created an impediment to a policy-oriented, comparative approach that might identify constraints on the implementation of human rights (Claude 1976a, 1976b, 1976c).

More recently, Foweraker and Landman have studied the role of social movements in the production and implementation of legal rights. Social movements, they argue, transform practical demands into rights. Such movements may win concessions from states in the form of legal rights, or they may provoke rights-violating reactions. Social movements also play a significant role in converting legal rights into practice. Foweraker and Landman show, by comparative, empirical analysis, that social movements partly explain the rule of the law of rights (Foweraker and Landman 1997).