The Virtues of Legalization

The virtues of legalization

Jack Donnelly

By ‘legalization of human rights’ I mean the practice of formulating human rights claims as legal claims and pursuing human rights objectives through legal mechanisms. Although human rights also have moral, political, and other dimensions, in practice ‘legalization’ has predominated over ‘moralization’ or ‘politicization’—to such a degree that the editors have defined ‘legalization’ as an ‘almost exclusive emphasis’ on legal mechanisms. This is obviously undesirable, an unwarranted intrusion of law into other domains. Understood, however, as a strategic choice that does not exclude other perspectives, approaches, and mechanisms, heavy reliance on law to define and implement human rights has many attractions. These will be my focus here.

This part of the volume is entitled ‘Law and its virtues’. I will argue that law not only has been but from the perspective of human rights advocates and victims of violations ought to be central to the struggle for human rights. Some chapters in this volume argue that we could do better by relying more on non-legal mechanisms or less on legalized strategies. This chapter suggests that even if this is true there are powerful reasons for keeping law at the center of national and international struggles for human rights.

Law and the definition of human rights

Over the past half century, law has been central to most national and international efforts to define and to implement human rights. This section examines the role of law, especially international law, in defining human rights. Implementation and enforcement are addressed in the following section.

The virtues of legalized definitions

Human rights are, literally, the rights that one has because one is a human being. How, though, does ‘being human’ give rise to rights? There is a small theoretical literature that addresses such questions. Most discussions, however, simply assume that human rights exist and that in an unexplained but somehow unproblematic way they ‘derive from the inherent dignity of the human person’. And it is no coincidence that this quote comes from international legal instruments, the International Human Rights Covenants. 1 International law—or bald assertion-typically replaces moral or political theory in discussions of human rights.

There is thus considerable truth to Chris Brown’s complaint that ‘virtually everything encompassed by the notion of “human rights” is the subject of controversy. …the idea that individuals have, or should have, “rights” is itself contentious, and the idea that rights could be attached to individuals by virtue solely of their common humanity is particularly subject to penetrating criticism’ (1999:130). Typically, though, these philosophical problems are set aside in favor of an international legal consensus that treats human rights as fundamentally unproblematic. The theoretical shortcomings of such a strategy are evident. But by ‘disposing of foundational theoretical controversies a legal approach to definition has made an important practical contribution to the struggle for human rights.

For all the talk (and reality) of clashes of cultures, religions, philosophies, and worldviews, there is a remarkable international legal consensus on human rights. As of October 2004, the six leading international human rights treaties—the International Covenant on Economic, Social and Cultural Rights (ICESCR), International Covenant on Civil and Political Rights (ICCPR), International Convention on the Elimination of All Forms of Racial Discrimination (CERD), Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), and Convention on the Rights of the Child (CRC)—had an average of 163 parties. 2 This is a very respectable 85 per cent of the total UN membership. Thin as this consensus may be—a mile wide, but in some places not much more than an inch deep—it often is of considerable practical value. 3

Human rights advocates, whether public or private, national, international, or transnational, can appeal to authoritative international standards that target states have publicly endorsed, repeatedly, usually by ratifying international treaties. This short-circuits many evasive arguments over definitions and protects human rights advocates from aspersions against their loyalty, cultural integrity, or authenticity. It also shifts the burden of proof to rights-abusive governments. The fact that human rights have been internationally legalized as a complete package rather than a menu from which governments may pick and choose—‘All human rights are universal, indivisible and interdependent and interrelated’ (Vienna Declaration, paragraph 5)—further strengthens the position of human rights advocates.

A list of human rights represents a substantive standard of political legitimacy; a government is legitimate to the extent that it implements and protects the human rights of its citizens. Other principles of legitimacy, such as sovereignty and the national interest, compete with and frequently triumph over the international human rights standard. Nonetheless, the international legal definition of human rights has ‘reframed’ relations between citizens and their government, to the substantial advantage of citizens.

Standard practices and justifications of socialist, developmentalist, and nationalist regimes in the 1970s cannot even pass the laugh test today, either at home or abroad. Many governments today ‘cannot’ do many things that they could do just two or three decades ago. Even where governments can still ‘get away with’ systematically rights-abusive practices, the price they must pay, nationally and internationally, has increased. Gross and systematic violations of internationally recognized human rights are widely seen, both nationally and internationally, as tarnishing—in extreme cases, even calling into question—the legitimacy of a regime. Consider, for example, the changing national and international fortunes of the Mugabe regime in Zimbabwe.

Law interacts with but is also distinct from both morality and politics. Law is neither watered-down morality nor dressed-up self-interest but a domain of social values and practices with a distinctive character and normative force. ‘That’s illegal’ has a different normative force from and ordinarily takes priority over claims like ‘I don’t like that’ or ‘That is socially undesirable’. Legal norms ordinarily trump not only mere preferences but appeals to social utility. This is particularly true when the norms establish claim rights that, by their very nature, ordinarily trump appeals to social utility (Dworkin 1977: xi, 90; Donnelly 2003:7–8). It is thus of immense practical importance that virtually all states have accepted human rights as a matter of positive international legal right.

Law is a matter of authority, of right, not simply an expression of self-interest or power. 4 Might, of course, often triumphs over right. But right too has a certain power. And human rights advocates are in a stronger position when they can appeal not merely to moral or religious precepts or their own political views but to authoritative legal norms. They might be in an even stronger position if they could also appeal to mutually agreed-upon moral or religious norms. In practice, though, there is no such international consensus in the offing.

In any case, legal norms and moral norms operate in different domains and have different normative force. Legal right is separate from and only partially overlaps with moral right. In many contexts, claims of legal rights can accomplish things that cannot be done through claims of even substantively identical moral rights. Even if a legal definition of human rights is but a pale approximation of an adequate moral definition, human rights advocates and victims of violations often will prefer the agreed-upon legal definition.

International legalization of the definition of human rights has been and remains an irreplaceable resource for national and international human rights advocates. The progressive changes we have seen in much of the world in the past two decades would have been neither as wide nor as deep, and the future would be substantially bleaker, had human rights not been internationally legalized. Were human rights advocates to lose a consensual international legal definition of human rights, returning their claims entirely to the domains of morality and politics, their position would be seriously weakened.

Problems with legalized definitions

My account so far has been intentionally one-sided. This subsection seeks to add some nuance by critically examining four problems associated with legalized definitions of human rights.

First, the existing international legal consensus is not only often shallow but also frequently less broad than it first appears. Most obviously, states have made numerous reservations to international human rights treaties. Reservations, however, typically involve relatively isolated objections to particular provisions or, even more narrowly, particular interpretations of a provision. Wide-reaching systematic reservations usually concern implementing rather than defining rights.

More importantly, controversy persists over interpreting phrases such as ‘cruel, inhuman or degrading treatment or punishment’ or ‘a standard of living adequate for the health and well-being of himself and of his family’. I would contend, though, that such formulations are appropriately, rather than overly, general. International definitions need to leave space for differences in the details of implementation that reflect historical, cultural, economic, and political differences among states. Generality can also be a strategy for bracketing disagreements over particular details rather than allowing them to derail broader and more fundamental agreements.

A fairly high level of abstraction actually helps to assure that human rights remain a progressive force. Detailed definitions in terms of particular measures of achievement risk making human rights relevant only in ‘bad’ or ‘poorly performing’ regimes. Concepts such as ‘degrading’ and ‘well-being’, by contrast, are expansive notions that continue to make demands even on regimes that have ceased to impose certain indignities on lawbreakers and that guarantee to the average citizen material, social, and cultural opportunities that at the time of the adoption of the Universal Declaration would have seemed fantastic to most of the world’s population. Considerable generality also allows norms to be applied to violations that were not recognized or not prioritized at the time the norms were drafted.

There is also immediate practical value to even highly abstract formulations. ‘Freedom of peaceful assembly and association’, for all its vagueness, substantially limits the range of reasonable controversy. Even where disputes over interpretations persist, simply getting governments to shift debate to the meanings and implications of internationally recognized human rights can be of immense importance and frequently marks a qualitative change in the character of national struggles for human rights (compare Risse et al. 1999).

Second, where I have emphasized the authority of law, others may no less reasonably emphasize the role of power in shaping its substance. Law, both domestic and international, does tend to reflect the interests of the powerful. But this is not a particularly serious problem in the case of international human rights law, particularly when considering, as we are in this section, questions of definition rather than implementation.

The familiar complaint that the Universal Declaration, the cornerstone of the system of international human rights law, disproportionately represents the views of powerful Western states simply is false. 5 The newly independent states of Africa and Asia not only often incorporated the Universal Declaration into their constitutions but took the lead in reviving the International Human Rights Covenants and pushing them through the United Nations. And international human rights law has in practice been reasonably open to the organized pressure of Third World states on the definition of human rights, most notably on self-determination and the right to development.

The real problem, it seems to me, is not the corruption of international human rights law by power but the continuing refusal of many of those in power to comply with their international human rights obligations. Human rights are daily abused by raw national power operating in defiance of international human rights law. The principal critics of international human rights today remain powerful elites that rule ‘their own’ people with an iron hand. Few people, however, suffer because of practices required by international human rights law.

This, though, points to a third, and I think more serious, problem with international legal definitions of human rights: they neither protect against all major forms of suffering nor guarantee the full range of valuable goods, services, and opportunities. Law, necessarily, falls short of justice. 6 And multilateral treaties, which typically reflect a fairly low common denominator consensus, tend to fall especially short.

The most commonly identified shortcomings of the definitions of rights in international human rights law, however, concern not what is included but what is missing. A few particular provisions of the Universal Declaration remain deeply contested, perhaps most notably the right to apostasy recognized in Article 18 and the conception of marriage as a contract between individuals in Article 16. But I know of no state, and very few individuals, that will publicly argue for eliminating even as many as two full articles of the Universal Declaration on the ground that they violate basic moral precepts.

International human rights law sets minimum standards. No one is precluded, or even discouraged, from pursuing more robust conceptions of justice. Quite the contrary, most states already do that. It may be true that international human rights law has forgone opportunities to demand even more of states, to reduce the gap between law and justice. But few critics identify more than a modest number of relatively isolated gaps. 7 And even such gaps do not undermine the value to advocates and victims of the substantial range of rights that are recognized in international human rights law.

Incompleteness would be a serious problem were we to treat law as sacrosanct and static. But international human rights law is a developing corpus. The Covenants added the right to self-determination to the Universal Declaration. Conventions on women’s rights and the rights of the child have dramatically expanded the scope of international human rights obligations. Work continues today on a variety of new human rights instruments, perhaps most notably, on the rights of indigenous peoples.

Only gold members can continue reading. Log In or Register to continue