What are human rights? Four schools of thought

Human Rights Quarterly

Volumn 32, Issue 1, 2010, Pages 1-20

  Dembour, Marie Bénédicte ^a  

^a UNIVERSITY OF SUSSEX   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EDUCATION; HUMAN RIGHTS;

EID: 77949966311     PISSN: 02750392     EISSN: None     Source Type: Journal    
DOI: 10.1353/hrq.0.0130     Document Type: Article

References (55)

1. Using the word "schools" is misleading both in that lay people (rather than just scholars) participate and share in this conceptualization and in that scholars associated with one particular school may dislike being bracketed together. The word nonetheless usefully connotes explicit or implicit adherence to a number of precepts, which is why it is adopted here.
2. At the end of a presentation that I gave to the Danish Centre for Human Rights, two members of the perhaps twenty-strong audience came to me (independently from each other) to say that my identification of four schools was a relief to them, lifting their sense of being almost a fraud in the Centre due to their fear that their position on human rights was just too unorthodox to be acceptable.
3. The natural school tends to conceive of human rights as entailing negative obligations that can be expressed as an obligation (e.g. on the government) to refrain from doing something (e.g. torturing). Only negative obligations can be absolute, for positive obligations (e.g. to provide education) are never as clear-cut as a simple prohibition to do something. On the way human rights orthodoxy's logic has been able to accommodate positive obligations, see Marie-Bénédicte Dembour, Who Believes in Human Rights? Reflections on the European Convention 78-85 (2006).
4. The scholars who identify with the liberal and individualistic orientation corresponding to the left side need not be in favor of the status quo. For natural scholars who are denouncing a situation and calling-and indeed acting-for its immediate change, see, for example Guglielmo Verdirame & Barbara Harrell-Bond, Rights In Exile: Janus-Faced Humanitarianism (2005).
5. Guy Haarscher, Philosophie des Droits de l'homme 124,130 (4th ed. 1993).
6. On the identification of Haarscher as a protest scholar, see Dembour, supra note 3, at 236-38, 243-48
7. Costas Douzinas is a prime example. See Costas Douzinas, The End of Human Rights: Critical Legal Thought at the Turn of the Century (2000).
8. See, e.g., James W. Nickel, Making Sense of Human Rights (2d ed. 2007).
9. Jack Donnelly, Universal Human Rights in Theory and Practice 14 (1st ed. 1989). See main text below for excerpts from Donnelly's work illustrating why he can be classified as a natural scholar.
10. Jack Donnelly, Universal Human Rights in Theory and Practice 9 (2d ed. 2003).
11. See Mark Goodale, Surrendering to Utopia: An Anthropology of Human Rights 37 (2009). "[The ethnography of human rights] calls into question many of the basic assumptions of postwar human rights theory and practice. Moreover, to the extent that the international human rights system is a reflection of these assumptions, then it too must be reconsidered." id. See infra section IV(B) for excerpts from Goodale's work illustrating why he can be classified as a natural scholar.
12. Alan Gewirth, The Community of Rights 9 (1996).
13. Id. at 10.
14. Id. at 19.
15. Donnelly, Universal Human Rights in Theory and Practice (2d ed.), supra note 9, at 1.
16. Id. at 12.
17. Id. at 14.
18. Id. at 15.
19. Michael J. Perry, The Idea of Human Rights: Four Inquiries 11 (1998).
20. Id. at 13.
21. Id. at 55-56.
22. Goodale, supra note 10, at 18.
23. Id. at 57.
24. Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy 126-128 (1996).
25. Michael Ignatieff, Human Rights as Politics and Idolatry 83 (2001).
26. Id. at 95.
27. Id. at 84.
28. Tom Campbell, Rights: A Critical Introduction, at xii (2006).
29. Id. at xvii.
30. Id. at 206.
31. Sally Engle Merry, Human Rights and Gender Violence: Translating International Law into Local Justice 220 (2006).
32. Id. at 221.
33. Id. at 228-229
34. Id. at 227.
35. Jacques Derrida, On Cosmopolitanism and Forgiveness 3 (Mark Dooley trans., 2001).
36. Id. at 11.
37. Id. at 22-23.
38. Neil Stammers, Human Rights and Social Movements 1 (2009).
39. Id. at 2.
40. Id. at 3.
41. Upendra Baxi, The Future of Human Rights 6 (2d ed. 2006).
42. Id. at 2.
43. Id. at xiv.
44. Id. at xxiii.
45. June C. Nash, Mayan Visions: The Quest for Autonomy in an Age of Globalization 213 (2001).
46. Id. at 253.
47. Alasdair MacIntyre, After Virtue: A Study in Moral Theory 68-69 (3d ed. 2007).
48. Id. at 69.
49. Wendy Brown, "The Most We Can Hope For ⋯ ": Human Rights and the Politics of Fatalism, 103 S. Atl. Q. 451, 453 (2004).
50. Id. at 461-462
51. Makau Mutua, Human Rights: A Political and Cultural Critique, at ix-x (2002).
52. Shannon Speed, Rights in Rebellion: Indigenous Struggle and Human Rights in Chiapas 181 (2008).
53. For some additional linking of particular scholars to each of the four schools, see Dembour supra note 3, at 232-271
54. Paul Stenner, Identifying Patterns Amongst Lay Constructions of Human Rights: A Psychosocial Approach, Paper given at the workshop "Towards a Sociology of Human Rights: Theoretical and Empirical Contributions" at the International Institute for the Sociology of Law, Oñati, Spain (24-25 May 2007) (on file with author). Stenner notes that the lay positions on human rights he identifies by recourse through Q methodology overlap to a large extent with the four schools identified in this contribution. Id.
55. For some concrete examples, see Dembour, supra note 3, at 258-261