Human rights is about so much more than law



by Prof Frans Viljoen*

Human rights has for long been dominated by lawyers. The Universal Declaration of Human Rights, which was adopted under UN auspices in 1948, was the springboard for the adoption of legally binding treaties at the global and regional levels; and of enforceable bills of rights in national constitutions. Over the next few decades, these processes of ‘legalisation’ and elaboration of predominantly legal frameworks were supported by an institutional network of human rights expert bodies, at the international level, and of constitutional courts at the national level. Numerous academic courses and programmes on human rights were developed, mostly focused on law students and the legal dimensions of human rights. To paint a fair picture, the hegemony of human rights law was not complete. Proof that human rights law did not hold hegemonic sway is found in the establishment of the multi-disciplinary journal Human Rights Quarterly, launched in 1979 by Morgan Institute for Human Rights, University of Cincinnati College of Law. Another early example of an inter-disciplinary approach is the journal Health and Human Rights, which appeared first in 1994. These developments have been further popularised by numerous and increasingly popular human rights film festivals and human rights photo competitions and exhibitions.




Let’s admit the obvious: A legal approach to human rights has distinct advantages. Human rights law is the entitlements in law, based mainly on codifications such as treaties and constitutions. In its concretised form, justiciable human rights law outlines the definite contours of expectation and accountability. Human rights law makes human rights dignity practically effective, and channels sentiment and conviction into institutionalised forms and procedures, allowing for remedial redress and the apportionment of responsibility. ‘Legalisation’ or ‘judicialisation’ may not be a sufficient condition to realise human rights, but it is (mostly) a necessary step in securing accountability and redress.  States are bound to observe ‘legally binding’ provisions, and consequences follow if they do not. Human rights law therefore allows for access to justice, the apportionment of responsibility, accountability, and aims at eradicating impunity; its framework provides a clear basis for advocacy and answerability; and it serve as a yardstick and barometer for government conduct.

But, and this is the al-important but: Juridical human rights are not without their – equally obvious – disadvantages. Focusing on the law, as it is, opens the door for positivist attitudes and may inhibit and disempowered the attempt by activists and change agents because the ‘rights’ they may want to invoke are not formally provide for. The existence of human rights law, by itself, guarantees very little, because these laws still need to be implemented and respected.  As much as human rights law enables us to identify and seek redress for human rights violations, the law is at a loss to explain why these violations have occurred. While the law may provide some relief to an individual, we need to enlist other disciplines to answer questions affecting the collective. For example, one needs to find answers in sources other than law to understand the causes of patterns of conduct and to devise strategies to eliminate the structural causes of violations.

The initial dominance of the legal scholarship and approaches to human rights is not only the result of the approach taken by lawyers working in this field, but also is also due the lack of engagement by non-lawyers, in particular scholars in the social sciences and humanities. Although this dominance is increasingly being broken, it is also somewhat surprising that it ensued in the first place. Multi- and inter-disciplinarity are by no means new phenomena, and their insights and methodologies have to varying degrees been accepted in a multiplicity of academic disciplines. It is a reflection of the deeply ‘legal’ origin and nature of human rights law that this evolution was so slow in this particular academic domain.

Today, the richness of research and publication in the social sciences that integrate human rights perspectives is overwhelming. Political science excels not only at asking questions about the political context in which human rights are embedded but also to pose and provide empirically-based answers to complicated questions about the ‘actual effect’ or ‘impact’ of international human right norms at the domestic level. Anthropologists ask similar questions focusing on the shaping of identity and personhood by human rights.  Sociology provides an ideal vantage point from which to chart and critique the social practices that are affected by and affect human rights, and to ask what the societal effects are of formally accepting international human rights standards. By tracing the forces at play in the evolution of human rights, historians add to our insights about the present forms human rights law takes. The social sciences also bring their own methodologies, including quantitative techniques and the use of statistics. In the field of education, a relatively recent survey showed that an increase in the extent to which human rights aspects and elements were included in curricula.

It is not only the social sciences that have and should engage with human rights. If a distinction is maintained between social sciences and humanities, the latter is potentially just as implicated, ranging from philosophy, which allows us to examine and critique the foundations of the protective shield that has been woven, to literature, the performing arts, theatre or drama studies, and religion (or ‘theology’). Beyond the social sciences and humanities, the relevance to human rights of many other disciplines is increasingly emerging, ranging from public health to the ‘pure’ sciences.

Human rights is too important and varied, and has too many facets, to be left to the lawyers! 

Frans Viljoen is Director of the Centre for Human Rights, University of Pretoria, and editor of Beyond the law:Multi-disciplinary perspectives on human rights (see www.pulp.up.ac.za). This contribution draws from the introduction to this edited volume. 

Readers are encouraged to quote, reproduce and share this content for educational, non-profit purposes, provided the source is acknowledged. The views expressed in this post are those of the author and do not necessarily reflect the views of the HR&D team.
 

1 comments:

  1. Great idea to create a plece, where people all over the world can share with their thoughts on global issues such as human rights. Studing Human Rights I always ask myself, why inspite of the protection human rights by numerous international conventions, treaties, violations of these rights do not decrease. Maybe because the legal protection is not enough. I'm sure that it is important to research also political, social, historical and even psycological situations in every country to try to change the situation with human rights. For example my native country, Russia, ratified mostly all human rigts conventions, but these provisions do not work. Today Russia is the country, where the violation of human rights is normal and if u mention something about human rights principles, u will receive only smile or...maybe detention. So, the discussion of human rights issuesamong ordinary people are important, cause can increase the human rights value

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