Theories of Human Rights

Dr Darren O’Byrne

Within each discipline, we study human rights using the theories and perspectives that define that discipline

For example, in politics, we turn to theories of international relations, i.e. theories designed to answer the question: “What should the state’s relationship be to other states?”

Existing theories (of the role of the state in the international arena) include realism, liberalism, Marxism etc

Human Rights and the Disciplines

Similarly, in sociology, we are concerned with the meaning of human rights within a particular social context, and so we are drawn to theories that address the question: “What is society, and how is it constituted?”

Existing such theories (i.e. theories of society) include functionalism, conflict theory, Marxism, structuralism etc

Human Rights and the Disciplines

Also, in law, there is a core theoretical question: “What is the source of legal authority?”

Here, we turn to legal theories (i.e. theories of legal authority), which may include positivism, naturalism, realism etc

BUT none of the above are theories of human rights – they are not designed for that purpose! So, if we are studying human rights across these disciplines, seeking a common narrative, we need to identify theories that address a different question: “What do we mean by human rights?”

Human Rights and the Disciplines

The problem here is that the term ‘human rights’ comes to mean something different in each discipline, depending on its disciplinary focus – making the study of human rights across the disciplines impossible

Theories of human rights would invert this emphasis: rather than treating human rights as secondary to other factors, they would consider those factors in relation to a common understanding of human rights

The question: What are human rights, and what is their purpose?

Theories of Human Rights

In any discipline, ‘theories’ are distinguished by their competing responses to core questions, so, in respect of human rights:

What are rights, i.e. are they properties of individuals, or social structures? (liberal-communitarian-radical debate)

To whom do they apply? (universalist-relativist debate) {Ontology}

Where do they come from, i.e. what is the source of their legitimacy? (essentialist-constructivist debate) {Epistemology}

What is their purpose? {Ideology}

Theories of Human Rights

Dunne and Wheeler’s Four Perspectives …

Liberal natural rights

Dunne, R. and Wheeler, N. (1999) 'Introduction' in Human Rights in Global Politics Cambridge: CUP, following Vincent, R. J. (1986) Human Rights and International Relations Cambridge: CUP, p. 152

ONTOLOGY

E

PIS

TE

MO

LO

GY

Cultural relativism UniversalismA

nti

-fo

un

dati

on

ali

sm

Fo

un

dati

on

ali

sm

Communitarian pragmatism Cosmpolitan pragmatism

Traditional communitarianism

What are they? They are legal commands and protections (liberal)

To whom do they apply? To all people who are subjects of the law (relativist)

Where does their authority derive from? From positive law (i.e. acts, conventions etc) (constructivist)

What is their purpose? To protect citizens from injustice and uphold the authority of the law

1. Legal Positivism

Bentham, Jeremy (2010; original 1864) Book of Fallacies Charleston: BiblioBazaar

Hart, H. L. A. (1955) ‘Are There any Natural Rights?’ in Philosophical Review 64

Legal Positivism – selected reading

What are they? They are inherent properties of the individual, e.g. freedom of speech, movement, belief (liberal)

To whom do they apply? To all people (universalist)

Where does their authority derive from? From pre-social human nature (essentialist)

What is their purpose? To protect individual freedoms from tyranny

2. Liberal Natural Rights

Finnis, John (1980) Natural Rights and Natural Law Oxford: Clarendon Press

Locke, John (1988; original 1690) Two Treatises of Government Cambridge: Cambridge University Press

Mill, John Stuart (1985; original 1859) On Liberty Harmondsworth: Penguin

Paine, Thomas (1984; original 1791) Rights of Man Harmondsworth: Penguin

Liberal Natural Rights – selected reading

What are they? Various articulations of norms and values (communitarian)

To whom do they apply? In each case, to members of particular communities (relativist)

Where does their authority derive from? From specific cultural contexts, from custom and tradition (essentialist)

What is their purpose? To promote community cohesion

3. Traditional Communitarianism

Dumont, Louis (1966) Homo Hierarchicus London: Paladin Etzioni, Amitai (1993) The Spirit of Community: Rights,

Responsibilities and the Communitarian Agenda New York: Crown Publishers

MacIntyre, Alisdair (1981) After Virtue Notre Dame: Notre Dame University Press

Sandel, Michael (1982) Liberalism and the Limits of Justice Cambridge: Cambridge University Press

Taylor, Charles (1992) The Ethics of Authenticity Cambridge, Mass: Harvard University Press

Taylor, Charles (1996) ‘A World Consensus on Human Rights?’ in Dissent Summer, 15-21

Walzer, Michael (1983) Spheres of Justice New York: Basic Books

Traditional Communitarianism – selected reading

What are they? They are ethical commands, demands about how individuals ought to live (liberal)

To whom do they apply? To all people (universalist)

Where does their authority derive from? From human sociality, from living in a world of others (constructivist)

What is their purpose? To promote universally applicable standards of justice

4. Pragmatic Cosmopolitanism

Arendt, Hannah (1951) The Origins of Totalitarianism New York: Harcourt Brace Bobbio, Norberto (1996) The Age of Rights Cambridge: Polity Press Cassese, Antonio (1990) Human Rights in a Changing World Cambridge: Polity Donnelly, Jack (1998) International Human Rights Boulder, Co.: Westview Donnelly, Jack (1999) ‘The Social Construction of International Human Rights’ in Tim Dunne and

Nicholas J. Wheeler (eds) Human Rights in Global Politics Cambridge: Cambridge University Press Falk, Richard (1981) Human Rights and State Sovereignty New York: Holmes & Meier Falk, Richard (2000) Human Rights Horizons London: Routledge Habermas, Jurgen (2001) The Postnational Constellation: Political Essays Cambridge: Polity Press Held, David (1995) Democracy and the Global Order Cambridge: Polity Press Kant, Immanuel (1964) Groundwork of the Metaphysics of Morals New York: Harper & Row Kelsen, Hans (1944) Peace Through Law Chapel Hill: University of North Carolina Press Kelsen, Hans (1950) The Law of the United Nations New York: Frederick A. Praeger Kymlicka, Will (1996) ‘The Good, the Bad, and the Intolerable: Minority Group Rights’ in Dissent

Summer, 22-30 Parekh, Bhikhu (1999) ‘Non-Ethnocentric Universalism’ in Tim Dunne and Nicholas J. Wheeler (eds)

Human Rights in Global Politics Cambridge: Cambridge University Press Rawls, John (1972) A Theory of Justice Oxford: Oxford University Press Rawls, John (1993) ‘The Law of Peoples’ in Stephen Shute and Susan Hurley (eds) On Human

Rights New York: Basic Books Teson, Fernando (1985) ‘International Human Rights and Cultural Relativism’ in Virginia Journal of

International Law 25, 4, 869-98

Pragmatic Cosmopolitanism – selected reading

What are they? They are articulations of basic human needs in society, e.g. food, shelter, work (or they should be – as Marx pointed out in On the Jewish Question, the language of human rights has been hijacked to mean something else) (radical)

To whom do they apply? In theory, to all people (universalist), but in practice, they are enjoyed only by the powerful

Where does their authority derive from? From reality, from material conditions of existence (constructivist) and from ‘species being’ (essentialist)

What is their purpose? To improve conditions of life and protect people from exploitation

5. Marxism

Barta, Tony (1987) ‘Relations of Genocide: Land and Lives in the Colonization of Australia’ in I. Wallimann and M. Dobkowski (eds) Genocide and the Modern Age New York: Greenwood

Brass, Tom (1999) The Political Economy of Unfree Labour Cambridge: Cambridge University Press

Cohen, G. A. (1995) Self-Ownership, Freedom and Equality Cambridge: Cambridge University Press

Cromwell Cox, Oliver (1948) Caste, Class and Race New York: Doubleday Genovese, Eugene (1965) The Political Economy of Slavery New York:

Vintage Marx, Karl (1978; original 1844) ‘On the Jewish Question’ in Robert Tucker

(ed.) The Marx-Engels Reader New York: Norton & Co. Ste Croix, Geoffrey (1981) The Class Struggle in the Ancient Greek World

London: Duckworth Sartre, Jean-Paul (1968) On Genocide Boston: Beacon Press Sklair, Leslie (2002) Globalization: Capitalism and Its Alternatives Oxford:

Oxford University Press

Marxism – selected reading

What are they? They are individual freedoms from the state, e.g. freedom to speak, believe, own, consume (liberal)

To whom do they apply? To all people in theory, but they have to be achieved (universalist)

Where does their authority derive from? From principles of just entitlement (constructivist)

What is their purpose? To protect rational self-interest against state intervention

6. Libertarian Conservatism

Cranston, Maurice (1954) Freedom: A New Analysis London: Longman

Cranston, Maurice (1962) Human Rights Today London: Ampersand

Cranston, Maurice (1967) ‘Human Rights, Real and Supposed’ in D. D. Raphael (ed.) Political Theory and the Rights of Man Bloomington: Indiana University Press

Cranston, Maurice (1973) What are Human Rights? London: Bodley Head

Nozick, Robert (1974) Anarchy, State and Utopia Oxford: Basil Blackwell

Steiner, Hillel (1994) An Essay on Rights Oxford: Blackwell

Libertarian Conservatism – selected reading

What are they? They are political constructs (radical)

To whom do they apply? In theory, all people, but in practice, to men (universalist)

Where does their authority derive from? In practice, from the gendered discourse of the public sphere (constructivist)

What is their purpose? In theory, to challenge the exclusion of women from the political category of ‘human’

7. Feminism

Ashworth, Georgina (1999) ‘The Silencing of Women’ in Tim Dunne and Nicholas J. Wheeler (eds) Human Rights in Global Politics Cambridge: Cambridge University Press

Binion, Gayle (1995) ‘Human Rights: A Feminist Perspective’ in Human Rights Quarterly 17, 509-526

Canning, Victoria (2010) ‘Who’s Human? Developing Sociological Understandings of the Rights of Women Raped in Conflict’ in International Journal of Human Rights 14, 6, 849-864

MacKinnon, Catherine (1993) ‘Crimes of War, Crimes of Peace’ in Stephen Shute and Susan Hurley (eds) On Human Rights New York: Basic Books

Merry, Sally E. (2005) Human Rights and Gender Violence Chicago: University of Chicago Press

Peterson, V. Spike and Parisi, Laura (1998) ‘Are Women Human? It’s Not an Academic Question’ in Tony Evans (ed.) Human Rights Fifty Years On: A Reappraisal Manchester: Manchester University Press

Rao, Arati (1993) ‘Right in the Home: Feminist Theoretical Perspectives on International Human Rights’ in National Law School Journal 1, 62-81

Thomas, Dorothy and Beasley, Michele (1993) ‘Domestic Violence as a Human Rights Issue’ in Human Rights Quarterly 15, 36-43

Wollstonecraft, Mary (2004; original 1792) A Vindication of the Rights of Woman Harmondsworth: Penguin

Feminism – selected reading

What are they? They are safeguards against threats to human existence (radical)

To whom do they apply? To all people (universalist)

Where does their authority derive from? From the universal frailty of the human condition (essentialist)

What is their purpose? To provide security in increasingly risky conditions

8. Neo-Foundationalism

Mooney, Annabelle (2014) Human Rights and the Body: Hidden in Plain Sight Aldershot: Ashgate

Turner, Bryan S. (1993) ‘Outline of a Theory of Human Rights’ in Sociology 27

Turner, Bryan S. (1995) ‘Rights and Communities: Prolegomenon to a Sociology of Rights’ in Australian and New Zealand Journal of Sociology 31, 2

Turner, Bryan S. (1997) ‘A Neo-Hobbesian Theory of Human Rights: A Reply to Malcolm Waters’ in Sociology 31, 3

Turner, Bryan S. (2006) Vulnerability and Human Rights University Park, Penn: Pennsylvania State University Press

Neo-Foundationalism – selected reading

What are they? They are a ‘language’ that helps us articulate our desires (radical)

To whom do they apply? To all people (universalist), although the language takes different forms depending on context

Where does their authority derive from? From specific historical struggles (constructivist)

What is their purpose? To provide a language to oppose oppression and discrimination

9. Social Constructionism

Bauman, Zygmunt (1989) Modernity and the Holocaust Cambridge: Polity Press Bryce-Laporte, R. S. (1971) ‘Slaves as Inmates, Slaves as Men: A Sociological Discussion of Elkins’ Thesis’ in A. J. Lane

(ed.) The Debate Over Slavery Chicago: University of Illinois Press Cohen, Stan (2001) States of Denial Cambridge: Polity Press Douzinas, Costas (2000) The End of Human Rights Oxford: Hart Douzinas, Costas (2007) Human Rights and Empire: The Political Philosophy of Cosmopolitanism New York: Routledge-

Cavendish Fredrickson, G. and Lasch, Christopher (1971) ‘Resistance to Slavery’ in A. J. Lane (ed.) The Debate Over Slavery Chicago:

University of Illinois Press Gaete, Roland (1991) ‘Postmodernism and Human Rights: Some Insidious Questions’ in Law and Critique, 2, 2, 149-170 Lyotard, Jean-Francois (1993) ‘The Other’s Rights’ in Stephen Shute and Susan Hurley (eds) On Human Rights New York:

Basic Books Melvin, Jennifer (2010) ‘Reconstructing Rwanda: Balancing Human Rights and the Promotion of National Reconciliation’ in

International Journal of Human Rights 14, 6, 932-951 Miller, Hannah (2010) ‘From “Rights-Based” to “Rights-Framed” Approaches: A Social Constructionist View of Human

Rights Practice’ in International Journal of Human Rights 14, 6, 915-931 O’Byrne, Darren J. (2012) ‘On the Sociology of Human Rights: Theorizing the Language-structure of Rights’ in Sociology

46, 5, 829-43 Short, Damien (2007) ‘The Social Construction of “Native Title” Land Rights in Australia’ in Current Sociology 55 Stammers, Neil (1999) ‘Social Movements and the Social Construction of Human Rights’ in Human Rights Quarterly 21 Waters, Malcolm (1995) ‘Globalization and the Social Construction of Human Rights’ in Australian and New Zealand Journal

of Sociology 31, 2 Waters, Malcolm (1996) ‘Human Rights and the Universalisation of Interests: Towards a Social Constructionist Approach’ in

Sociology 30, 3 Wendt, Alexander (1999) Social Theory of International Politics New York: Cambridge University Press Wilson, Richard Ashby (2006) ‘Anthropology and Human Rights in a New Key: The Social Life of Human Rights’ in American

Anthropologist 108 Woodiwiss, Anthony (2005) Human Rights London: Routledge

Social Constructionism – selected reading

What are they? They are convenient fictions, articulations of a specific sense of what is ‘right’ (communitarian)

To whom do they apply? To whoever they need to apply to (relativist)

Where does their authority derive from? From the practical need to find solutions to certain problems (constructivist)

What is their purpose? To provide moral legitimacy for such solutions

10. Communitarian Pragmatism

Brown, Chris (1999) ‘Universal Human Rights: A Critique’ in Tim Dunne and Nicholas J. Wheeler (eds) Human Rights in Global Politics Cambridge: Cambridge University Press

Bufacchi, Vittorio (2008) ‘The Truth About Rights’ in Journal of Human Rights 7, 4, 311-326

Ignatieff, Michael (2001) Human Rights as Politics and Idolatry Princeton: Princeton University Press

Rorty, Richard (1993) ‘Human Rights, Rationality and Sentimentality’ in Stephen Shute and Susan Hurley (eds) On Human Rights New York: Basic Books

Communitarian Pragmatism – selected reading

What are they? They are neither legal nor social constructs but commands from God necessary for building the ‘good society’ (e.g. security, food, clothing, housing, education), and thus clearly distinct from the rights of the state or the rights of the individual (e.g. liberty which is a social construct) (communitarian)

To whom do they apply? To all people (universalist) Where does their authority derive from? From God, via

the core concept of human dignity which is at the heart of Islamic teachings (essentialist)

What is their purpose? To lay the foundations for the good society

11. Islamism

An-Naim, Abdullah Ahmed (1990) Toward an Islamic Reformation: Civil Liberties, Human Rights and International Law Syracuse: Syracuse University Press

Berween, M. (2002) ‘The Fundamental Human Rights: An Islamic Perspective’ in International Journal of Human Rights 6, 1, 61-79

Kabir, Humayun (1949) ‘Human Rights: The Islamic Tradition and the Problems of the World Today’ in UNESCO (ed.) Human Rights: Comments and Interpretations New York: Columbia University Press

Kadivar, Mohsen (2009) ‘Human Rights and Intellectual Islam’ in Kari Vogt, Lena Larsen and Christian Moe (eds) New Directions in Islamic Thought: Exploring Reform and Muslim Tradition London: I. B. Tauris

Kamali, Muhammad Hashim (2002) The Dignity of Man: An Islamic Perspective Cambridge: Islamic Texts Society

Mohammed, Khaleel (2004) ‘A Muslim Perspective on Human Rights’ in Society 41, 2, 29-35

Nyazee, Imran Ahjan (1994) Theories of Islamic Law: The Methodology of Ijtihad Islamabad: International Institute of Islamic Thought

Nyazee, Imran Ahjan (2003) ‘Islamic Law and Human Rights’ in Islamabad Law Review 1, 1 & 2

Nyazee, Imran Ahjan (2011) Shari’ah Bill of Rights Islamabad: Federal Law House

Islamism – selected reading