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Monday, May 09, 2011

Backwards and Forward between Human Rights and Morality: Why Deliberating with (unreflective) Human Rights Lawyers Can Be Troubling

I have the greatest admiration for both academic and practicing human rights lawyers.  Yet, I have often found deliberating moral issues with some – unreflective – human rights lawyers frustrating.  The conversation usually begins with you suggesting possible moral reasons in favor of or for the permissibility of a certain practice.  For example, some people (such as the president and his spokespersons) have suggested that sending soldiers to kill Osama Bin Laden was permissible on both retributive, consequential, and self-defense grounds.  At this point the human rights lawyer will attempt to rebut your position by reciting a chain of acronyms, which you will of course find highly difficult to follow, concluding that your position is wrong.  If you dare inquire, you will most likely learn that the acronyms stand for things such as a U.N. resolution, a treaty, a non-ratified treaty, some clause in some E.U. convention, a decision by a provisional international tribunal, a report by some commission, opinions of scholars in the field, and maybe even a “custom” or two.  In other words, some combination of sources of international law that supposedly suggests your position is not only illegal but has long ago been rejected as barbarous by the enlightened and civilized world.  Hoping to avoid the quasi-legalistic issues, for example should Obama be dragged before the ICTA or the ICTP (International Criminal Courts for Afghanistan and Pakistan), you will at this point suggest the obvious fallacy in your interlocutor’s reasoning: one cannot rebut a moral claim with a legal one.    

And this is where things become frustrating.  As we were all taught, human rights law aspires to capture basic moral rights.  Yet, somehow the aspirational component of human rights law is lost on many of the more zealous and unreflective members of the human rights community, for many of which the positivistic lawyerly labor of stringing together the variety of hard, soft, and ephemeral sources of international law functions as a form of moral as well as legal reasoning.  For the unreflective human rights lawyer your position is morally wrong because it is legally wrong.  Figuring out what the law is is not the beginning of the conversation – as is usually the case for legal academics – but rather the end of the conversation.       

And this is where things turn from frustrating to worrying.  In the minds of some, human rights law does not merely aspire to reflect morality but actually does – by definition –reflect morality, thereby making human rights law insular and immune to external moral critique.  Some human rights lawyers appear to have appropriated not only certain legislative powers over international law, but by extension also view themselves as legislators of morality itself.  And, anyone who dares argue against or question the supposed presumed state of human rights law is categorically an enemy of moral rights.  Because after all, human rights are moral rights.  Aren’t they?        

Posted by Ori Herstein on May 9, 2011 at 10:44 AM | Permalink


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