The Elusive Pursuit of a Transnational Legal Order
Chapter 7: The Arid Promises of International Human Rights
What better language can there be for stirring the moral political imagination than discussion of human rights? Since time immemorial, the language of fundamental rights and civil liberties has been invoked by those resisting oppression, fighting for social change and participating in revolutionary politics. Political philosophers, themselves participants in dramatic social change, have also evoked the language of fundamental rights in support of their cause. Cicero, Jesus, Locke, Rousseau, Paine and Nozick1 have all articulated theories of human rights in support of a social vision. Yet the incorporation of such concepts into international law is a far more recent phenomenon. In one sense, virtually every legal system is concerned with rights: wherever a legal obligation is imposed upon a person, one or more other persons have a right to ensure that obligation is performed, a right which only has meaning if it can be enforced in court. In time, a number of legal systems started to see certain sorts of legal right as more fundamental than others. In the west, in 1188 the Decree of Alfonso IX of the Kingdom of León (in what is now northwest Spain) and the Magna Carta in 1215 in England were early examples of legal documents conferring rights upon citizens. More comprehensive enumerations of individual rights followed in France’s Declaration of the Rights of Man (1789) and the United States’ Bill of Rights (1791). However, the notion that all people have supra-national rights, which sit above the domestic legal system of any state,...
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