The Concept of Human Rights: Theory and Contestation

AuthorMark Freeman, Gibran Van Ert
This chapter reviews the principal characteristics of the concept of
human rights as it is expressed in contemporary international law. The
aim is to provide the reader with a basic conceptual framework to
undergird the more detailed treatments of individual treaties and
norms in subsequent chapters.
There is a general consensus that human rights are useful and
important, but criticisms of the theory and practice of human rights
persist. There remains disagreement about, for example, the relative
priority of different human rights, how they are best protected, whether
there is an underlying historical or cultural bias in their formulation,
and whether they are the best way of conceptualizing the relationship
between the individual and the state. This chapter will survey some of
these criticisms or challenges, and offer some tentative responses.
A. Defining Characteristics of the
Concept of Human Rights
1) Founded on Human Dignity
As Chapter One demonstrates, the law of human rights was preceded
and influenced by a mixture of natural law theory and domestic consti-
tutional law. While most early rights theorists asserted that the source
of rights was divine or natural, by the twentieth century the concept of
chapter 2
The Concept of Human Rights: Theory and Contestation 25
“natural rights,” in the divine sense, had been largely discredited.1Con-
temporary justifications for human rights are based instead on notions
of human dignity and the inherent worth of human beings. For exam-
ple, the preamble of the Universal Declaration of Human Rights 1948
(UDHR)2declares “recognition of the inherent dignity . . . of all mem-
bers of the human family” to be “the foundation of freedom, justice and
peace in the world . . . .” Similarly, the preamble to the International
Covenant on Civil and Political Rights 1966 (ICCPR)3and the Interna-
tional Covenant on Economic, Social and Cultural Rights 1966 (ICE-
SCR)4proclaim that human rights “derive from the inherent dignity of
the human person.” None of these instruments posits a foundational
theory, natural or divine, as to why humans possess human rights; each
simply declares that they do.
While competing foundational theories for human rights abound,5
none has achieved significant consensus. Although this may leave the
theory of human rights, like many moral and legal theories, somewhat
unmoored, it may be enough to show that human rights are necessary
or useful or advantageous to individuals and to human society as a
2) Prescribed by International Law
International human rights law and its regional equivalents form a
branch of public international law. Human rights are principally estab-
lished by way of treaties created at the international level by the inter-
national community. International human rights law is like most law in
that its central purpose is to regulate behaviour, but in this case the pri-
mary focus of regulation is state behaviour and not individual behav-
iour. Human rights law is also like other forms of law in that it expresses
not only substantive norms, but also procedural norms and remedies.
1 L. Henkin et al., Human Rights (New York: Foundation Press, 1999) at 79.
2 GA res. 217(III) (1948).
3 [1976] CanTS no. 47.
4 [1976] CanTS no. 46.
5 For a summary of most of the leading theories, see J. Donnelly, Universal Human
Rights in Theory and Practice, 2d ed. (Ithaca: Cornell University Press, 2003)
[Donnelly, Universal] at 13–21.
6 Michael Ignatieff properly queries whether human rights would be worth having
if we could prove a natural law basis for having them, but not establish their
utility. M. Ignatieff, “Human Rights as Politics and Idolatry,” in A. Gutman, ed.,
Human Rights as Politics and Idolatry (Princeton: Princeton University Press,
2001) at 55 [Ignatieff, “Human Rights”].

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT