Confronting Myths and Misunderstandings
Chapter 2: Human rights and law's domain
2. Human rights and law’s domain INTRODUCTION This chapter is principally concerned to address the question of what, if anything, authorises human rights principles. The question is addressed by means of a critical analysis of a long-established and widely held myth concerning the predominance of law within the theory and practice of human rights. Specifically, the myth holds that human rights can ultimately be understood only as distinctly legal phenomena because human rights can really be said to exist only as legal entities. On this view, human rights principles are authorised by law through achieving legal recognition and codification. This view is most closely associated with legal positivism. It would be foolish to deny that law figures prominently in our understanding and practising human rights. It would also be foolish to deny that legal positivism has exerted a lasting and significant influence upon the development of liberal jurisprudence which, in turn, has significantly influenced human rights. This influence has been most pronounced within the practice of human rights. However, the myth of law’s sufficiency in authorising human rights principles needs to be challenged on several fronts and for several different reasons. This chapter aims to achieve this by demonstrating some of the limitations of a legal-positivist approach to the theory and practice of human rights, before proceeding to analyse the distinctly moral basis and character of human rights as a distinct doctrine. This will involve a consideration of the historical development of the concept of moral rights which pre-exist, or...
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