The Turn to Justification: On the Structure and Domain of Human Rights Practice
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Description
There are three puzzling structural features of global human rights adjudication that have fostered scepticism about its philosophical respectability. First, the scope of legally recognized human rights is not narrowly focused on things fundamental or basic to human existence, but extremely broad (call this the problem of rights inflation). Second, most rights may be limited by measures that meet the proportionality requirement, thereby appearing to undermine prominently made claims that rights are trumps or firewalls that have priority over competing policy concerns (call this the problem of casual override). And third, notwithstanding the claim that human rights are universal, the kind of things that can be found on lists in international, regional, or national human rights documents vary considerably between jurisdictions and instruments. And even when provisions are worded similarly, they are often interpreted differently in different states (call this the problem of variance). Yet, there is nothing pathological about a human rights practice that has such a structure. On the contrary, each of these structural features, I will argue, is connected to a distinctive moral point. Gaining a clearer understanding of each of these moral points and elucidating how they relate to one another is an important step towards the development of a more comprehensive theory of human rights. These three structural features work together to establish a practice, I will argue, that reflects a particular conception of law and politics: Politics is the practice of rights-based justice seeking among free and equals under conditions of reasonable disagreement. Law is the authoritative resolution of questions of justice by norms, which in terms of the procedures used to generate them and the outcomes produced are demonstrably justifiable to those addressed in terms that free and equals might reasonably accept. The structure of human rights adjudication is geared towards establishing whether or not a particular legal norm burdening an individual can be demonstrably justified to that individual under this standard. In this way human rights operationalize what Rainer Forst has called the right to justification, and is at the heart of a non-domination-oriented liberal conception of law and justice. If an account along these lines provides the best justification for the practice we have, we have not only gained a deeper moral appreciation of human rights practice such as it happens to be. We are also in a better position to interpret, and progressively develop that practice in a way to help it better realize its moral point. In many ways the following is something between the articulation of a research agenda and a fully developed argument. The descriptive part as it stands is too Eurocentric and even as such would require further substantiation. At important junctures an argument is merely gestured towards, rather than carefully elaborated, and alternative interpretations and critical arguments are given short thrift. If such a contribution is nonetheless of value, it is because it opens up a perspective on con- temporary human rights practice that is philosophically distinctive, potentially transformative, and deserving of further exploration.
Source Publication
Human Rights: Moral or Political?
Source Editors/Authors
Adam Etinson
Publication Date
2018
Recommended Citation
Kumm, Mattias, "The Turn to Justification: On the Structure and Domain of Human Rights Practice" (2018). Faculty Chapters. 1055.
https://gretchen.law.nyu.edu/fac-chapt/1055
