Is the Structure of Human Rights Practice Defensible? Three Puzzles and Their Resolution
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Description
The dominant form of global human and constitutional rights adjudication is characterized by three striking yet puzzling features. 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 fire walls 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). In the following I will show how each of these structural features of human rights practice 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 that reflects not only a particular conception of human rights, but more generally 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,1 and is at the heart of a non-domination-oriented 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 better help it realize its moral point.
Source Publication
Proportionality: New Frontiers, New Challenges
Source Editors/Authors
Vicki C. Jackson, Mark Tushnet
Publication Date
2017
Recommended Citation
Kumm, Mattias, "Is the Structure of Human Rights Practice Defensible? Three Puzzles and Their Resolution" (2017). Faculty Chapters. 1058.
https://gretchen.law.nyu.edu/fac-chapt/1058
