Of the many concepts employed in law and politics, the concept
of human rights is the most obvious expression of a moral ideal.
As such, it is also a view about, at least, the minimal social
conditions necessary for the existence of a healthy political
order. Yet, the specification, implementation and interpretation
of that ideal has, since the Universal Declaration of Human Rights,
been dominated by international law.
This fact should be striking for three reasons, all of them implied
in the above description of the ideal. The first is that a moral
ideal would seem to imply that the specification, definition and
interpretation of these rights is not a necessarily legal process—
the ideal is not a legal ideal, that is, unless one believes legal
codification is the only, or principal, way to express these moral
aims, and that legal interpretation is merely the working out of
these aims on a case-by-case basis.
Secondly, the ideal of human rights describes a social order in which
persons have social guarantees against certain abusive forms of behaviour,
or types of usage of state power. Law would normally be thought of as
just one element of such an order, and in fact the efficient operation of
law itself presupposes many other social practices and guarantees, for
example, a certain degree of social stability and confidence in the
legal system.
Thirdly, there is no obvious reason why all human rights, or all aspects
of human rights, are most appropriately advanced through legal means,
unless that is one thinks that human rights ideals have an efficient
and functioning human rights law as their primary aim.
An additional complication for this simple image of a transference of
human rights aims or ideals into human rights legal aims and practice,
is the kind of laws that are involved. The legal codification of universal
human rights has taken place in international law which, by its nature,
has distinctive features we should be wary of when looking at what it
codifies and how. The way international law codifies human rights is
likely to be sensitive to a number of non-neutral influences, such
as inter-state negotiations, compromise, and the accommodation of
other goals and values than human rights themselves.
Furthermore, it is a significant feature of international human rights
law that, once ratification of international treaties has been achieved,
the process of implementation is state-driven.
Human rights legalized—defining, interpreting, and implementing an ideal
- Başak Çali and Saladin Meckled-García
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