Christopher McCrudden
- Published in print:
- 2013
- Published Online:
- January 2015
- ISBN:
- 9780197265642
- eISBN:
- 9780191760389
- Item type:
- chapter
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197265642.003.0001
- Subject:
- Law, Human Rights and Immigration
The discussion of human dignity raises such complex issues, and the issues that current scholarship now considers central to its understanding is so daunting that we are in danger of not being able ...
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The discussion of human dignity raises such complex issues, and the issues that current scholarship now considers central to its understanding is so daunting that we are in danger of not being able to see the forest for the trees. The Introduction introduces contributions from a multi-disciplinary group of historians, legal academics, judges, political scientists, theologians, and philosophers, arising from a Conference held in Rhodes House, Oxford in June 2012. It aims to provide a guide, a map, through the thicket of current dignity scholarship. It situates the subsequent chapters of the book within an overview of the terrain that currently constitutes debates about the use of dignity in these fields. It does not attempt to put forward the author’s own comprehensive account of dignity. Mostly based on the rich conversations that took place at the Conference, it seeks, rather, to probe the potential strengths and weaknesses of all of the principal positions identified, at least in some contexts taking on the role of a devil’s advocate.Less
The discussion of human dignity raises such complex issues, and the issues that current scholarship now considers central to its understanding is so daunting that we are in danger of not being able to see the forest for the trees. The Introduction introduces contributions from a multi-disciplinary group of historians, legal academics, judges, political scientists, theologians, and philosophers, arising from a Conference held in Rhodes House, Oxford in June 2012. It aims to provide a guide, a map, through the thicket of current dignity scholarship. It situates the subsequent chapters of the book within an overview of the terrain that currently constitutes debates about the use of dignity in these fields. It does not attempt to put forward the author’s own comprehensive account of dignity. Mostly based on the rich conversations that took place at the Conference, it seeks, rather, to probe the potential strengths and weaknesses of all of the principal positions identified, at least in some contexts taking on the role of a devil’s advocate.
Azadeh Chalabi
- Published in print:
- 2018
- Published Online:
- September 2018
- ISBN:
- 9780198822844
- eISBN:
- 9780191861291
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198822844.003.0003
- Subject:
- Law, Public International Law
Part I, ‘Theoretical Perspectives’, which is structured in two chapters (Chapters 1 and 2), develops a new general theory of human rights planning including four sub-theories. The first sub-theory, ...
More
Part I, ‘Theoretical Perspectives’, which is structured in two chapters (Chapters 1 and 2), develops a new general theory of human rights planning including four sub-theories. The first sub-theory, contextual theory, is presented in Chapter 1. Chapter 2 is dedicated to the other three sub-theories. The first two sections propose the substantive and procedural sub-theories of human rights planning. Whereas the substantive theory of human rights planning provides the knowledge base to inform the content of planning, procedural sub-theory offers procedural principles for the formation, implementation, and assessment of human rights planning. The last section of Chapter 2 builds up a new analytical sub-theory of human rights planning through positive critique of the three major theories of rights, namely the interest theory, the need-based approach, and the capability approach. This analytical theory performs an heuristic role for human rights planning.Less
Part I, ‘Theoretical Perspectives’, which is structured in two chapters (Chapters 1 and 2), develops a new general theory of human rights planning including four sub-theories. The first sub-theory, contextual theory, is presented in Chapter 1. Chapter 2 is dedicated to the other three sub-theories. The first two sections propose the substantive and procedural sub-theories of human rights planning. Whereas the substantive theory of human rights planning provides the knowledge base to inform the content of planning, procedural sub-theory offers procedural principles for the formation, implementation, and assessment of human rights planning. The last section of Chapter 2 builds up a new analytical sub-theory of human rights planning through positive critique of the three major theories of rights, namely the interest theory, the need-based approach, and the capability approach. This analytical theory performs an heuristic role for human rights planning.
Christopher McCrudden (ed.)
- Published in print:
- 2013
- Published Online:
- January 2015
- ISBN:
- 9780197265642
- eISBN:
- 9780191760389
- Item type:
- book
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197265642.001.0001
- Subject:
- Law, Human Rights and Immigration
The concept of human dignity has become central to political philosophy and legal discourse on human rights, but it remains enigmatic. Understanding Human Dignity is a book of original essays by a ...
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The concept of human dignity has become central to political philosophy and legal discourse on human rights, but it remains enigmatic. Understanding Human Dignity is a book of original essays by a multi-disciplinary group of historians, legal academics, judges, political scientists, theologians, and philosophers, which aims to debate a broad range of current approaches to how to understand the concept. Some of the main issues considered include fundamental theoretical questions: Is there a minimum core to the meaning of human dignity? Is a person’s human dignity to be assessed subjectively from his or her point of view, or ‘objectively’? Can human dignity be understood in purely secular terms? Can there be a shared meaning of human dignity where there is religious and ideological pluralism? What ontological claims are implied by appeals to human dignity? Other questions are more directed at the implications of dignity for relations between individuals, and between individuals and the state: What are the implications of human dignity for the ways in which we should behave towards each other? What are its implications for the ways in which the state should treat those who fall under its authority? An important set of questions posed considers specifically the relationship between human dignity, human rights, and other values: Is human dignity more appropriately seen as attaching to some human rights rather than others? What is the relationship between human dignity and other values and principles connected with rights, such as autonomy, freedom, equality, social solidarity, and identity? What is the weight and status of human dignity? Does human dignity have a status superior to that of other values? Is it absolute, or can it be balanced against other values? Does human dignity essentially serve community or individual goals? Can it also serve moralistic and paternalistic goals? Is human dignity necessarily an emancipatory idea? Is it rights-supporting or rights-constraining? Also considered is how, if at all, the concept of human dignity helps us to deal with claims made in relation to several issues that are among the most divisive current political and social questions. Does dignity apply only to sentient humans, or can it apply to animals, dead humans, and human foetuses? What is the relation between the idea of dignity and what appears to be voluntary self-degradation (for example, in some instances of prostitution and pornography)? How far, if at all, can a person waive his or her human dignity? Does human dignity determine the boundaries of religious pluralism? A further set of questions considered are more institutional, or related to the relationship between disciplines: How appropriate is the use of the concept of human dignity for judicial decision-making? What is the role of courts and legal authorities in developing and elaborating the concept of human dignity? What role, if any, should human dignity play in adjudicating conflicts of human rights, philosophical and legal?Less
The concept of human dignity has become central to political philosophy and legal discourse on human rights, but it remains enigmatic. Understanding Human Dignity is a book of original essays by a multi-disciplinary group of historians, legal academics, judges, political scientists, theologians, and philosophers, which aims to debate a broad range of current approaches to how to understand the concept. Some of the main issues considered include fundamental theoretical questions: Is there a minimum core to the meaning of human dignity? Is a person’s human dignity to be assessed subjectively from his or her point of view, or ‘objectively’? Can human dignity be understood in purely secular terms? Can there be a shared meaning of human dignity where there is religious and ideological pluralism? What ontological claims are implied by appeals to human dignity? Other questions are more directed at the implications of dignity for relations between individuals, and between individuals and the state: What are the implications of human dignity for the ways in which we should behave towards each other? What are its implications for the ways in which the state should treat those who fall under its authority? An important set of questions posed considers specifically the relationship between human dignity, human rights, and other values: Is human dignity more appropriately seen as attaching to some human rights rather than others? What is the relationship between human dignity and other values and principles connected with rights, such as autonomy, freedom, equality, social solidarity, and identity? What is the weight and status of human dignity? Does human dignity have a status superior to that of other values? Is it absolute, or can it be balanced against other values? Does human dignity essentially serve community or individual goals? Can it also serve moralistic and paternalistic goals? Is human dignity necessarily an emancipatory idea? Is it rights-supporting or rights-constraining? Also considered is how, if at all, the concept of human dignity helps us to deal with claims made in relation to several issues that are among the most divisive current political and social questions. Does dignity apply only to sentient humans, or can it apply to animals, dead humans, and human foetuses? What is the relation between the idea of dignity and what appears to be voluntary self-degradation (for example, in some instances of prostitution and pornography)? How far, if at all, can a person waive his or her human dignity? Does human dignity determine the boundaries of religious pluralism? A further set of questions considered are more institutional, or related to the relationship between disciplines: How appropriate is the use of the concept of human dignity for judicial decision-making? What is the role of courts and legal authorities in developing and elaborating the concept of human dignity? What role, if any, should human dignity play in adjudicating conflicts of human rights, philosophical and legal?
A. John Simmons
- Published in print:
- 2015
- Published Online:
- June 2015
- ISBN:
- 9780199688623
- eISBN:
- 9780191768101
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199688623.003.0007
- Subject:
- Law, Human Rights and Immigration, Philosophy of Law
This chapter explores various foundational accounts of human rights theory. It considers centrally the accounts of Jeremy Waldron and Charles Beitz. It suggests that a natural rights account can ...
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This chapter explores various foundational accounts of human rights theory. It considers centrally the accounts of Jeremy Waldron and Charles Beitz. It suggests that a natural rights account can capture the modern and institutional characters displayed by some human rights claims, while still conceiving of the rights at issue as suitably timeless and pre-institutional. Against Waldron, the chapter argues that his preferred account of the relationship between human dignity and human rights appears to be in fact consistent with “naturalistic” theories of human rights. Against Beitz, it argues that his principal arguments against naturalistic theories can be answered by a view that takes human rights to be a subset of the natural rights of persons.Less
This chapter explores various foundational accounts of human rights theory. It considers centrally the accounts of Jeremy Waldron and Charles Beitz. It suggests that a natural rights account can capture the modern and institutional characters displayed by some human rights claims, while still conceiving of the rights at issue as suitably timeless and pre-institutional. Against Waldron, the chapter argues that his preferred account of the relationship between human dignity and human rights appears to be in fact consistent with “naturalistic” theories of human rights. Against Beitz, it argues that his principal arguments against naturalistic theories can be answered by a view that takes human rights to be a subset of the natural rights of persons.
Olivier Roy and Pasquale Annicchino
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780199642120
- eISBN:
- 9780191770401
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199642120.003.0002
- Subject:
- Law, Human Rights and Immigration
Human Rights are traditionally understood as a set of universal, inalienable, and individual rights. Nevertheless different histories, political interests, and cultural contexts have contributed to ...
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Human Rights are traditionally understood as a set of universal, inalienable, and individual rights. Nevertheless different histories, political interests, and cultural contexts have contributed to the development of the human rights culture. Among the different factors religion occupies a central place. This chapter discusses the compatibility of the theory of human rights with religions or with cultures. In the first case, the clash is with a norm that sets an absolute truth and/or the will of God as the source of norms. In the second case, cultures translate into an all-encompassing set of basic norms that define a holistic society, assigning their place to individual human rights. The focus of this compatibility will be assessed especially through the perspective of human rights understood as individual rights.Less
Human Rights are traditionally understood as a set of universal, inalienable, and individual rights. Nevertheless different histories, political interests, and cultural contexts have contributed to the development of the human rights culture. Among the different factors religion occupies a central place. This chapter discusses the compatibility of the theory of human rights with religions or with cultures. In the first case, the clash is with a norm that sets an absolute truth and/or the will of God as the source of norms. In the second case, cultures translate into an all-encompassing set of basic norms that define a holistic society, assigning their place to individual human rights. The focus of this compatibility will be assessed especially through the perspective of human rights understood as individual rights.
Upendra Baxi
- Published in print:
- 2009
- Published Online:
- October 2012
- ISBN:
- 9780198061762
- eISBN:
- 9780199080212
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198061762.001.0001
- Subject:
- Law, Human Rights and Immigration
This book discusses and combines the different reflections on the human rights theory in the contemporary human condition, which was delineated by the discourses on development, terror, and the ...
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This book discusses and combines the different reflections on the human rights theory in the contemporary human condition, which was delineated by the discourses on development, terror, and the emergent posthuman. The six chapters cover a variety of topics, from theory-aversion, to the terror wars, and the posthuman. This book suggests that any general social theory of human rights needs to increase its domain in order to take the discourses on terror and the posthuman seriously.Less
This book discusses and combines the different reflections on the human rights theory in the contemporary human condition, which was delineated by the discourses on development, terror, and the emergent posthuman. The six chapters cover a variety of topics, from theory-aversion, to the terror wars, and the posthuman. This book suggests that any general social theory of human rights needs to increase its domain in order to take the discourses on terror and the posthuman seriously.
Azadeh Chalabi
- Published in print:
- 2018
- Published Online:
- September 2018
- ISBN:
- 9780198822844
- eISBN:
- 9780191861291
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198822844.003.0002
- Subject:
- Law, Public International Law
Part I, ‘Theoretical Perspectives’, which is structured in two chapters (Chapters 1 and 2), develops a new general theory of human rights planning. This theory contains four sub-theories:
1. ...
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Part I, ‘Theoretical Perspectives’, which is structured in two chapters (Chapters 1 and 2), develops a new general theory of human rights planning. This theory contains four sub-theories:
1. Contextual sub-theory 2. Substantive sub-theory 3. Procedural sub-theory 4. Analytical sub-theory. Chapter 1 is dedicated to the first sub-theory. The central thrust of this chapter is to proceed with proposing a new contextual sub-theory of human rights planning through which the key characteristics of the four sub-systems of society—polity, economy, culture, and community—and their impacts on the effectiveness of human rights planning are explored.Less
Part I, ‘Theoretical Perspectives’, which is structured in two chapters (Chapters 1 and 2), develops a new general theory of human rights planning. This theory contains four sub-theories:
1. Contextual sub-theory 2. Substantive sub-theory 3. Procedural sub-theory 4. Analytical sub-theory. Chapter 1 is dedicated to the first sub-theory. The central thrust of this chapter is to proceed with proposing a new contextual sub-theory of human rights planning through which the key characteristics of the four sub-systems of society—polity, economy, culture, and community—and their impacts on the effectiveness of human rights planning are explored.
Christopher McCrudden
- Published in print:
- 2018
- Published Online:
- July 2018
- ISBN:
- 9780198786627
- eISBN:
- 9780191828911
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198786627.003.0019
- Subject:
- Law, Public International Law, Constitutional and Administrative Law
An account of what we know about the use by domestic courts of international human rights law is identified, based on the findings in this volume and earlier work on the use of the Convention on the ...
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An account of what we know about the use by domestic courts of international human rights law is identified, based on the findings in this volume and earlier work on the use of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). From that, three aspects of the domestic functions of international human rights treaties are tentatively identified as particularly significant: international human rights law is only partly internationally-directed; domestic courts very seldom appear to be acting as ‘agents’ of international human rights law; and ‘human dignity’ (sometimes by itself, sometimes alongside ‘autonomy’ and ‘equality’) acts as an important meta-principle in the domestic use of international human rights law. The implications these functions have for normative theorising about human rights, in particular practice-dependent theories of human rights, is considered, and a theory of human rights law consistent with this practice is identified.Less
An account of what we know about the use by domestic courts of international human rights law is identified, based on the findings in this volume and earlier work on the use of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). From that, three aspects of the domestic functions of international human rights treaties are tentatively identified as particularly significant: international human rights law is only partly internationally-directed; domestic courts very seldom appear to be acting as ‘agents’ of international human rights law; and ‘human dignity’ (sometimes by itself, sometimes alongside ‘autonomy’ and ‘equality’) acts as an important meta-principle in the domestic use of international human rights law. The implications these functions have for normative theorising about human rights, in particular practice-dependent theories of human rights, is considered, and a theory of human rights law consistent with this practice is identified.
James W. Nickel
- Published in print:
- 2018
- Published Online:
- April 2018
- ISBN:
- 9780198713258
- eISBN:
- 9780191781704
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198713258.003.0009
- Subject:
- Philosophy, Moral Philosophy, Political Philosophy
Theorists who assign functions to human rights often simply announce them as if they were obvious. Assigning a defining or typical function to a concept, artefact, or practice is not a ...
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Theorists who assign functions to human rights often simply announce them as if they were obvious. Assigning a defining or typical function to a concept, artefact, or practice is not a straightforward empirical matter. It requires observation of uses and products, but also requires judgements of centrality and importance and uses selection criteria that can conflict. The first section of this chapter analyses the assignment of functions to artefacts, concepts, and practices and identifies some key methodological issues. The two following sections explore those methodological issues in the works of three philosophers who assign functions to human rights—James Griffin, John Rawls, and Charles Beitz. The conclusion suggests some ways in which the debate between proponents of “orthodox” and “political” conceptions of human rights can be improved.Less
Theorists who assign functions to human rights often simply announce them as if they were obvious. Assigning a defining or typical function to a concept, artefact, or practice is not a straightforward empirical matter. It requires observation of uses and products, but also requires judgements of centrality and importance and uses selection criteria that can conflict. The first section of this chapter analyses the assignment of functions to artefacts, concepts, and practices and identifies some key methodological issues. The two following sections explore those methodological issues in the works of three philosophers who assign functions to human rights—James Griffin, John Rawls, and Charles Beitz. The conclusion suggests some ways in which the debate between proponents of “orthodox” and “political” conceptions of human rights can be improved.
George Letsas
- Published in print:
- 2015
- Published Online:
- June 2015
- ISBN:
- 9780199688623
- eISBN:
- 9780191768101
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199688623.003.0018
- Subject:
- Law, Human Rights and Immigration, Philosophy of Law
This chapter addresses the normative foundations of the principle of proportionality, as used in human rights adjudication. The first part of the chapter mounts a critique against the orthodox ...
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This chapter addresses the normative foundations of the principle of proportionality, as used in human rights adjudication. The first part of the chapter mounts a critique against the orthodox conception of the doctrine, according to which the point of proportionality is to balance rights against other considerations (such as public interest, or the rights of others) with view to optimise the realisation of all the relevant values. The second part of the chapter offers an alternative account of the principle of proportionality. Proportionality has a moral dimension, which is to demarcate separate moral practices and the values that govern them. In the case of human rights, proportionality demarcates state action and picks out a dimension of the fundamental value of equal respect and concern. The chapter argues that this egalitarian conception of proportionality better fits and justifies central aspects of human rights law.Less
This chapter addresses the normative foundations of the principle of proportionality, as used in human rights adjudication. The first part of the chapter mounts a critique against the orthodox conception of the doctrine, according to which the point of proportionality is to balance rights against other considerations (such as public interest, or the rights of others) with view to optimise the realisation of all the relevant values. The second part of the chapter offers an alternative account of the principle of proportionality. Proportionality has a moral dimension, which is to demarcate separate moral practices and the values that govern them. In the case of human rights, proportionality demarcates state action and picks out a dimension of the fundamental value of equal respect and concern. The chapter argues that this egalitarian conception of proportionality better fits and justifies central aspects of human rights law.
Azadeh Chalabi
- Published in print:
- 2018
- Published Online:
- September 2018
- ISBN:
- 9780198822844
- eISBN:
- 9780191861291
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198822844.003.0001
- Subject:
- Law, Public International Law
This book deals with human rights action planning from theoretical, doctrinal, empirical, and practical perspectives. It is structured into four parts and seven chapters. The first part is composed ...
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This book deals with human rights action planning from theoretical, doctrinal, empirical, and practical perspectives. It is structured into four parts and seven chapters. The first part is composed of two chapters that advance a novel general theory of human rights planning including four sub-theories. The second part, which contains two chapters, presents the results of a content analysis of all the nine core human rights conventions revealing the scope and nature of the obligation of the states to adopt a plan of action for implementing human rights. The third part, including one chapter, provides the empirical findings of a cross-case analysis of national human rights action plans of fifty-three countries exploring the major problems of these plans in different phases of planning and uncovering the underlying causes of these problems. The last part, which consists of two chapters, examines both national and supra-national human rights governance, setting out how these plans should be best developed, implemented, monitored, and how to maximize their effectiveness both at the national and international level.Less
This book deals with human rights action planning from theoretical, doctrinal, empirical, and practical perspectives. It is structured into four parts and seven chapters. The first part is composed of two chapters that advance a novel general theory of human rights planning including four sub-theories. The second part, which contains two chapters, presents the results of a content analysis of all the nine core human rights conventions revealing the scope and nature of the obligation of the states to adopt a plan of action for implementing human rights. The third part, including one chapter, provides the empirical findings of a cross-case analysis of national human rights action plans of fifty-three countries exploring the major problems of these plans in different phases of planning and uncovering the underlying causes of these problems. The last part, which consists of two chapters, examines both national and supra-national human rights governance, setting out how these plans should be best developed, implemented, monitored, and how to maximize their effectiveness both at the national and international level.
Azadeh Chalabi
- Published in print:
- 2018
- Published Online:
- September 2018
- ISBN:
- 9780198822844
- eISBN:
- 9780191861291
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198822844.001.0001
- Subject:
- Law, Public International Law
This book deals with human rights action planning, as a largely under-researched area, from theoretical, doctrinal, empirical, and practical perspectives in order to put forward a new account of such ...
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This book deals with human rights action planning, as a largely under-researched area, from theoretical, doctrinal, empirical, and practical perspectives in order to put forward a new account of such planning. As such, the present work provides one of the most comprehensive studies of human rights planning to date. At the theoretical level, by advancing a novel general theory of human rights planning, it offers an alternative to the traditional state-centric model of planning. This new theory contains four sub-theories: contextual, substantive, procedural, and analytical ones.
At the doctrinal level, a textual analysis of core human rights conventions is conducted in order to reveal the scope and nature of the obligation to adopt a national human rights action plan and to consider how to ensure that states are in compliance with this obligation. At the empirical level, a cross-case analysis of national human rights action plans of fifty-three countries is conducted exploring the major problems of these plans in different phases and uncovering the underlying causes. At the practical level, both national and supra-national human rights governance systems are examined. At the supra-national level, a networked model of global human rights governance is suggested as a practical response strategy against the extant global governance system which hardly works as an integrated system. At the national level, after suggesting the establishment of a nation-wide network for implementing human rights, the essential parts of human rights action planning are probed in four phases putting forward some methodological techniques for each phase.Less
This book deals with human rights action planning, as a largely under-researched area, from theoretical, doctrinal, empirical, and practical perspectives in order to put forward a new account of such planning. As such, the present work provides one of the most comprehensive studies of human rights planning to date. At the theoretical level, by advancing a novel general theory of human rights planning, it offers an alternative to the traditional state-centric model of planning. This new theory contains four sub-theories: contextual, substantive, procedural, and analytical ones.
At the doctrinal level, a textual analysis of core human rights conventions is conducted in order to reveal the scope and nature of the obligation to adopt a national human rights action plan and to consider how to ensure that states are in compliance with this obligation. At the empirical level, a cross-case analysis of national human rights action plans of fifty-three countries is conducted exploring the major problems of these plans in different phases and uncovering the underlying causes. At the practical level, both national and supra-national human rights governance systems are examined. At the supra-national level, a networked model of global human rights governance is suggested as a practical response strategy against the extant global governance system which hardly works as an integrated system. At the national level, after suggesting the establishment of a nation-wide network for implementing human rights, the essential parts of human rights action planning are probed in four phases putting forward some methodological techniques for each phase.
Lea Brilmayer and Tian Huang
- Published in print:
- 2015
- Published Online:
- October 2015
- ISBN:
- 9780190270513
- eISBN:
- 9780190271909
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780190270513.003.0002
- Subject:
- Law, Public International Law
The most important debate in contemporary human rights theory is between the universalist position that all people have identical rights and the cultural relativist claim that rights exist only in ...
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The most important debate in contemporary human rights theory is between the universalist position that all people have identical rights and the cultural relativist claim that rights exist only in the context of particular communities. Cultural relativism attempts to deflect human rights–based criticisms by arguing that every community is entitled to respect for its community norms. Implicit in relativism is the assumption that human rights violations result simply from good faith cultural differences. But relativism, illogically, excuses even offenses that the state’s own norms do not permit. The true causes of most violations are corruption and lust for power, not cultural differences. The more heinous the violation, indeed, the more specious the relativist excuse. Cultural relativism cannot provide a basis for the rejection of human rights claims generally, when it excuses, at most, that minority of violations that are due to good faith difference of opinion.Less
The most important debate in contemporary human rights theory is between the universalist position that all people have identical rights and the cultural relativist claim that rights exist only in the context of particular communities. Cultural relativism attempts to deflect human rights–based criticisms by arguing that every community is entitled to respect for its community norms. Implicit in relativism is the assumption that human rights violations result simply from good faith cultural differences. But relativism, illogically, excuses even offenses that the state’s own norms do not permit. The true causes of most violations are corruption and lust for power, not cultural differences. The more heinous the violation, indeed, the more specious the relativist excuse. Cultural relativism cannot provide a basis for the rejection of human rights claims generally, when it excuses, at most, that minority of violations that are due to good faith difference of opinion.
George Letsas
- Published in print:
- 2018
- Published Online:
- April 2018
- ISBN:
- 9780198713258
- eISBN:
- 9780191781704
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198713258.003.0018
- Subject:
- Philosophy, Moral Philosophy, Political Philosophy
The idea that states have discretion in complying with their human rights obligations, and the idea that human rights obligations should be compatible with a degree of diversity between states, are ...
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The idea that states have discretion in complying with their human rights obligations, and the idea that human rights obligations should be compatible with a degree of diversity between states, are either trivial or misleading. In order to assess properly the doctrine of the Margin of Appreciation, one has to reconstruct it as a normative thesis about the conditions under which an international human rights court should place substantial weight on a decision by a domestic authority. Thus understood, however, the doctrine is problematic as it offends the values underlying human rights and the rule of international law. The chapter evaluates Andreas Follesdal’s particular defence of the Margin of Appreciation and argues that neither sovereignty nor democracy provides normative support for unqualified judicial deference. It argues further that the exceptions Follesdal wishes to place on deference to democratic institutions end up covering the whole of the scope of human rights obligations, making the idea of deference redundant.Less
The idea that states have discretion in complying with their human rights obligations, and the idea that human rights obligations should be compatible with a degree of diversity between states, are either trivial or misleading. In order to assess properly the doctrine of the Margin of Appreciation, one has to reconstruct it as a normative thesis about the conditions under which an international human rights court should place substantial weight on a decision by a domestic authority. Thus understood, however, the doctrine is problematic as it offends the values underlying human rights and the rule of international law. The chapter evaluates Andreas Follesdal’s particular defence of the Margin of Appreciation and argues that neither sovereignty nor democracy provides normative support for unqualified judicial deference. It argues further that the exceptions Follesdal wishes to place on deference to democratic institutions end up covering the whole of the scope of human rights obligations, making the idea of deference redundant.
Christopher McCrudden
- Published in print:
- 2018
- Published Online:
- March 2018
- ISBN:
- 9780198759041
- eISBN:
- 9780191818813
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198759041.001.0001
- Subject:
- Law, Constitutional and Administrative Law, Human Rights and Immigration
Religions are a problem for human rights, and human rights are a problem for religions. And both are problems for courts. This essay presents an interpretation of how religion and human rights ...
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Religions are a problem for human rights, and human rights are a problem for religions. And both are problems for courts. This essay presents an interpretation of how religion and human rights interrelate in the legal context, and how this relationship might be reconceived to make this relationship somewhat less fraught. It examines how the resurgent role of religion in public life gives rise to tensions with key aspects of human rights doctrine, including freedom of religion and anti-discrimination law, and how these tensions cannot be considered as simply transitional. The context for the discussion is the increasingly troubled area of human rights litigation involving religious arguments, such as wearing religious dress at work, conscientious objections by marriage registrars, admission of children to religious schools, prohibitions on same-sex marriage, and access to abortion. This essay examines doctrinal developments in these areas, where standoffs between organized religions and human rights advocates in the courts have been common. The essay argues that, if we wish to establish a better dialogue between the contending views, we must first identify a set of recurring problems identifiable in such litigation. But to address these recurring problems requires more than simply identifying these problems and requires changes both in human rights theory and in religious understandings of human rights. The essay argues that, by paying close attention to developments in human rights litigation, we can make theoretical progress.Less
Religions are a problem for human rights, and human rights are a problem for religions. And both are problems for courts. This essay presents an interpretation of how religion and human rights interrelate in the legal context, and how this relationship might be reconceived to make this relationship somewhat less fraught. It examines how the resurgent role of religion in public life gives rise to tensions with key aspects of human rights doctrine, including freedom of religion and anti-discrimination law, and how these tensions cannot be considered as simply transitional. The context for the discussion is the increasingly troubled area of human rights litigation involving religious arguments, such as wearing religious dress at work, conscientious objections by marriage registrars, admission of children to religious schools, prohibitions on same-sex marriage, and access to abortion. This essay examines doctrinal developments in these areas, where standoffs between organized religions and human rights advocates in the courts have been common. The essay argues that, if we wish to establish a better dialogue between the contending views, we must first identify a set of recurring problems identifiable in such litigation. But to address these recurring problems requires more than simply identifying these problems and requires changes both in human rights theory and in religious understandings of human rights. The essay argues that, by paying close attention to developments in human rights litigation, we can make theoretical progress.
Léticia Villeneuve (ed.)
- Published in print:
- 2016
- Published Online:
- January 2017
- ISBN:
- 9780198791409
- eISBN:
- 9780191833878
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198791409.003.0011
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter points out that although the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) is an important milestone, its adoption was also opposed by four important countries: Australia, ...
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This chapter points out that although the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) is an important milestone, its adoption was also opposed by four important countries: Australia, Canada, New Zealand, and the United States. Looking through these countries’ positions and motives for opposing the UNDRIP, the author argues that commitment to a soft law instrument may involve a more complex decision-making process than conventional human rights theory suggests, at least for the states parties involved. The chapter shows that the four opposing states’ declarations directly map onto the potential developments foreseen for a soft law instrument, as each state voiced clear objections to all potential avenues through which the UNDRIP could follow the lead of the previous ‘hardening’ of provisions in soft law instruments. Such ‘hardening’ may undermine the perceived benefits of soft law instruments in terms of their flexibility and adaptability.Less
This chapter points out that although the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) is an important milestone, its adoption was also opposed by four important countries: Australia, Canada, New Zealand, and the United States. Looking through these countries’ positions and motives for opposing the UNDRIP, the author argues that commitment to a soft law instrument may involve a more complex decision-making process than conventional human rights theory suggests, at least for the states parties involved. The chapter shows that the four opposing states’ declarations directly map onto the potential developments foreseen for a soft law instrument, as each state voiced clear objections to all potential avenues through which the UNDRIP could follow the lead of the previous ‘hardening’ of provisions in soft law instruments. Such ‘hardening’ may undermine the perceived benefits of soft law instruments in terms of their flexibility and adaptability.
Rhonda Powell
- Published in print:
- 2019
- Published Online:
- April 2019
- ISBN:
- 9780199589111
- eISBN:
- 9780191792557
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780199589111.001.0001
- Subject:
- Law, Human Rights and Immigration
The right to security of person is widely recognized but little understood. Courts, legislatures, scholars, and others disagree about how the right to security of person should be defined. This book ...
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The right to security of person is widely recognized but little understood. Courts, legislatures, scholars, and others disagree about how the right to security of person should be defined. This book investigates the meaning of the right to security of person through an analysis of its constituent parts: security and the person. Applying an original conceptual analysis of ‘security’, it is argued that the right to security of person imposes both positive and negative duties. Also, to identify the interests to be protected by the right, we need a theory of personhood or well-being such as Amartya Sen and Martha Nussbaum’s ‘capabilities approach’. It is accepted that any existing legal rights to security of person must be artificially delineated in order not to overstep the boundaries of other rights. In recognition of the naturally broad meaning of the right to security of person, it is proposed that human rights law as a whole should be seen as a mechanism to further security of person: rights as security.Less
The right to security of person is widely recognized but little understood. Courts, legislatures, scholars, and others disagree about how the right to security of person should be defined. This book investigates the meaning of the right to security of person through an analysis of its constituent parts: security and the person. Applying an original conceptual analysis of ‘security’, it is argued that the right to security of person imposes both positive and negative duties. Also, to identify the interests to be protected by the right, we need a theory of personhood or well-being such as Amartya Sen and Martha Nussbaum’s ‘capabilities approach’. It is accepted that any existing legal rights to security of person must be artificially delineated in order not to overstep the boundaries of other rights. In recognition of the naturally broad meaning of the right to security of person, it is proposed that human rights law as a whole should be seen as a mechanism to further security of person: rights as security.
