From Human Rights to Fundamental Rights Consequences of a conceptual distinction (original) (raw)

Primus Inter Pares? In Search of ‘Fundamental’ Human Rights

East European Yearbook on Human Rights, 2019

International human rights law is one of the most developed and codified regimes (branches) of public international law. Since 1948 and the adoption of the Universal Declaration of Human Rights, the number and scope of human rights standards evolved considerably. Prima facie this tendency reflects a generally positive phenomenon and is driven by the human rights approach in international law, but at the same time it may raise questions of the system’s efficiency, internal coherence, hierarchy of rights and mechanisms of protection and monitoring. Against the richness of human rights standards, designations such as ‘fundamental’, ‘essential’, ‘basic’, ‘crucial’ or ‘core’ are being used and ascribed to diverse concepts (inter alia, customary international human rights, erga omnes obligations, non-derogable rights, jus cogens or absolute rights). The article explores the provisions of general human rights instruments – the UDHR, the two Covenants and regional treaties, as well as relevant case-law of the ICJ, ECtHR and IACtHR in search of a definition and catalogue of fundamental human rights.

On the definition, Content, and Essence of the Term “human rights”

Krytyka Prawa, 2022

The ambiguity of understanding and use of the term "human rights" reduces the effectiveness of the law-making and law enforcement activities of state and international bodies, creates negative conditions for the formation of the unified worldview and legal position of future lawyers and representatives of other humanities. This article aims to define, formulate the content and describe the legal essence of the term "human rights," and to substantiate the thesis about the harmfulness of the legal science, law-making and law enforcement use of this term with different meanings. The leading method of research is the method of analysis, which allows one to study the subject, imaginatively dividing it into constituent elements, and to consider each of the selected elements separately within a single whole. This article presents the argumentation of the need for a single wording, understand

DIFFICULTIES OF INTERPRETING THE CONCEPT OF "HUMAN RIGHTS": A LOGICAL AND PHILOSOPHICAL ASPECT

DIFFICULTIES OF INTERPRETING THE CONCEPT OF "HUMAN RIGHTS": A LOGICAL AND PHILOSOPHICAL ASPECT, 2024

B a c k g r o u n d . The article examines the concept of human rights. This concept in modern philosophical discourse is both vague and imprecise. Although most authors recognize the lack of unanimity in the definition of the concept of human rights, few have tried to find out the reasons for this situation. The purpose of this study is to identify the sources of the problematic definition of the concept of human rights by means of a logical analysis of the concept and to propose ways to overcome the identified difficulties in the interpretation of this concept. M e t h o d s . A philosophical hermeneutic approach combined with a comparative and terminological analysis of the concept of human rights was used in the study. R e s u l t s . Human rights discourse is fundamentally open: it is normatively undetermined, and anyone can join it. It is therefore inevitably polyphonic and multilingual. As a result, this discourse contains very different understandings of the most important thing: what human rights really are. Efforts to find a universal definition of the concept of human rights seem to be an attempt to unite under one roof things that are poorly or not at all combined: different ontological understandings, different scopes of the concept, and different logical characteristics. C o n c l u s i o n s . The difficulty of logical analysis of the concept of human rights, i.e. its assignment to a specific type, and its unambiguous interpretation and definition, is related to: 1) the lack of definition of the limits of scope of the concept of human rights in philosophical discourse and the insufficient definition of the limits of this concept as a legal notion; 2) the need to assess the legitimacy of the retrospective extrapolation of the term ‘human rights' to the entire body of works created before the adoption of the Universal Declaration of Human Rights, in which it was not used (in the Ukrainian context, this aspect is not obvious due to historical and linguistic peculiarities); 3) different ontological understanding of human rights by different actors in the discourse that makes it impossible to combine their positions under the same umbrella (e.g. according to one position, human rights are seen as anthropological attributes of a person; according to another, they are norms regulating social relations). The above testifies to the complexity of an unambiguous logical characteristic of the analyzed concept. It seems that thе situation does not allow for a single definition of the concept of "human rights". It is assumed that it is not a single concept, but a plurality of concepts. In this case, the position of the discourse participant in relation to a certain system of criteria and its justification may be a way to overcome the difficulties we have identified.

Features Of Fundamental Rights In The Context Of The Philosophy Of Law

WISDOM, 2020

The article explores the notion and peculiarities of fundamental rights of the individual in the modern, legal state. In the given research the author implements versatile, holistic, systematical (methodical) analysis of content and distinguishing features of the structural element of the concept “legal status of the individual”. Therefore, the theoretical and practical research of problems of development of fundamental human rights, gives an opportunity to find new solutions in protections of relations concerning the individual's legal status. This study is also focusing on various approaches of well-known jurists on the essence, content and legislative consolidation of the fundamental rights of the individual. Summering up the results of explored issues, we concluded, that in recent decades, the philosophy of law (with the theory of state and law) took under its active protection and guardianship man with his rights, freedoms and legitimate interests, and which have ceased to ...

Towards a Philosophy of Human Rights

Current Legal Problems, 2012

Two important trends are discernible in the contemporary philosophy of human rights. According to foundationalism, human rights have importantly distinctive normative grounds as compared with other moral norms. An extreme version of foundationalism claims that human interests do not figure among the grounds of human rights; a more moderate version restricts the human interests that can ground human rights to a subset of that general class, eg basic needs or our interest in freedom. According to functionalism, it belongs to the essence of human rights that they play a certain political role or combination of such roles, eg operating as benchmarks for the legitimacy of states or triggers for intervention against states that violate them. This article presents a view of human rights that opposes both the foundationalist and the functionalist trends. Against foundationalism, it is argued that a plurality of normative values ground human rights; these values include not only the equal moral status of all human beings but also potentially all universal human interests. Against functionalism, it is argued that human rights are moral standards-moral rights possessed by all human beings simply in virtue of their humanity-that may perform a plurality of political functions, but that none of these functions is definitive of their nature as human rights. The ensuing, doubly pluralistic, account of human rights is one that, it is claimed, both makes best sense of the contemporary human rights culture and reveals the strong continuities between that culture and the natural rights tradition.

Interpretation of the value of human rights in the context of modern forms of legal understanding

2021

A long-term discussion about legal understanding has identified some main approaches to defining its concept, in particular among them: natural law and positive law. In this context, the question of the value of human rights in the context of these types of legal understanding is fundamental to legal science. Considering the above, inter alia, it is also important to find out whether human rights are natural or whether they require formal recognition and consolidation, being positive. The aim of the study is to consider the main features of the interpretation of the value of human rights in the context of natural and positive types of legal understanding, as well as to compare them. Consideration of the subject of research was carried out within the framework of an integrated approach, which involves a combination of such special methods as structural-functional, comparative-legal and formal-legal analysis methods. The article examines the two most popular types of legal understandi...

Human Rights: How to Understand Them?

In the most general sense human rights are understood as rights which belong to any individual as a consequence of being human, independently of acts of law. Awareness of the existence of this type of rights finds its expression in the output (especially in literature) of various cultures of various times. However the real career of the category of human rights which led to its common use in disputes of practical type, not only in the area of law but also in politics, morality or religion, dates only from the Second World War. The modem concept of human rights is rooted in the experiences of 'legal lawlessness' when crimes were committed with the authorization of law, and some human beings possessing certain characteristics were refused the status of being human. The emergence of international law of human rights was an answer to these experiences. The conception of human rights adopted in the acts which laid foundations for this law determines nowadays the paradigm for the understanding of human rights not only in international law, but also in other areas of culture. International community's appreciation of the unique worth of every human being led to the concern not only to eliminate elements destructive for an individual but also to create the conditions for his or her development and flourishing. In spite of cultural changes which took place during the last half of this century, in spite of the critics, the basic original ideas of human rights have seemed to remain the same. This paper aims at identifying these ideas and at sketching a coherent perspective for consideration of human rights in their full richness. The legal or semi-legal acts of the protection of human rights are considered here not from legalistic point of view but rather as an expression of an experience of the condition of a human being in the modem world.

The Concept of Rights in Contemporary Human Rights Discourse

Ratio Juris, 2010

In a variety of disciplines, there exists a consensus that human rights are individual claim rights that all human beings possess simply as a consequence of being human. That consensus seems to me to obscure the real character of the concept and hinder the progress of discussion. I contend that rather than thinking of human rights in the first instance as "claim rights" possessed by individuals, we should regard human rights as higher order norms that articulate standards of legitimacy for sociopolitical and legal institutions. Not the least of our difficulties when we think about rights is that, despite their ubiquity in our discourse, it is unclear just what a right is. (Weinreb 1992, 281) * I would like to thank Ana Vrdoljak, Gianluigi Palombella, and Nicholas White for helpful criticisms and comments. 1 As has become clear to me from our conversations, Palombella 2000 argues for an account of fundamental rights that is very similar to my account of human rights.