Dr Darren O’Byrne
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Within each discipline, we study human rights
using the theories and perspectives that
define that discipline
For example, in politics, we turn to theories
of international relations, i.e. theories
designed to answer the question: “What
should the state’s relationship be to other
states?”
Existing theories (of the role of the state in
the international arena) include realism,
liberalism, Marxism etc
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Similarly, in sociology, we are concerned with
the meaning of human rights within a
particular social context, and so we are drawn
to theories that address the question: “What
is society, and how is it constituted?”
Existing such theories (i.e. theories of society)
include functionalism, conflict theory,
Marxism, structuralism etc
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Also, in law, there is a core theoretical question:
“What is the source of legal authority?”
Here, we turn to legal theories (i.e. theories of
legal authority), which may include positivism,
naturalism, realism etc
BUT none of the above are theories of human
rights – they are not designed for that purpose!
So, if we are studying human rights across these
disciplines, seeking a common narrative, we need
to identify theories that address a different
question: “What do we mean by human rights?”
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The problem here is that the term ‘human rights’
comes to mean something different in each
discipline, depending on its disciplinary focus –
making the study of human rights across the
disciplines impossible
Theories of human rights would invert this
emphasis: rather than treating human rights as
secondary to other factors, they would consider
those factors in relation to a common
understanding of human rights
The question: What are human rights, and what is
their purpose?
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In any discipline, ‘theories’ are distinguished by
their competing responses to core questions, so,
in respect of human rights:
What are rights, i.e. are they properties of
individuals, or social structures? (liberalcommunitarian-radical debate)
To whom do they apply? (universalist-relativist
debate) {Ontology}
Where do they come from, i.e. what is the source
of their legitimacy? (essentialist-constructivist
debate) {Epistemology}
What is their purpose? {Ideology}
ONTOLOGY
Anti-foundationalism
Foundationalism
EPISTEMOLOGY
Cultural relativism
Universalism
Communitarian pragmatism
Cosmpolitan pragmatism
Traditional communitarianism
Liberal natural rights
Dunne, R. and Wheeler, N. (1999) 'Introduction' in Human Rights in
Global Politics Cambridge: CUP, following Vincent, R. J. (1986) Human
Rights and International Relations Cambridge: CUP, p. 152
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What are they? They are legal commands and
protections (liberal)
To whom do they apply? To all people who
are subjects of the law (relativist)
Where does their authority derive from? From
positive law (i.e. acts, conventions etc)
(constructivist)
What is their purpose? To protect citizens
from injustice and uphold the authority of the
law
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Bentham, Jeremy (2010; original 1864) Book
of Fallacies Charleston: BiblioBazaar
Hart, H. L. A. (1955) ‘Are There any Natural
Rights?’ in Philosophical Review 64
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What are they? They are inherent properties
of the individual, e.g. freedom of speech,
movement, belief (liberal)
To whom do they apply? To all people
(universalist)
Where does their authority derive from? From
pre-social human nature (essentialist)
What is their purpose? To protect individual
freedoms from tyranny
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Finnis, John (1980) Natural Rights and Natural
Law Oxford: Clarendon Press
Locke, John (1988; original 1690) Two
Treatises of Government Cambridge:
Cambridge University Press
Mill, John Stuart (1985; original 1859) On
Liberty Harmondsworth: Penguin
Paine, Thomas (1984; original 1791) Rights of
Man Harmondsworth: Penguin
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What are they? Various articulations of norms
and values (communitarian)
To whom do they apply? In each case, to
members of particular communities
(relativist)
Where does their authority derive from? From
specific cultural contexts, from custom and
tradition (essentialist)
What is their purpose? To promote
community cohesion
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Dumont, Louis (1966) Homo Hierarchicus London: Paladin
Etzioni, Amitai (1993) The Spirit of Community: Rights,
Responsibilities and the Communitarian Agenda New York:
Crown Publishers
MacIntyre, Alisdair (1981) After Virtue Notre Dame: Notre
Dame University Press
Sandel, Michael (1982) Liberalism and the Limits of Justice
Cambridge: Cambridge University Press
Taylor, Charles (1992) The Ethics of Authenticity
Cambridge, Mass: Harvard University Press
Taylor, Charles (1996) ‘A World Consensus on Human
Rights?’ in Dissent Summer, 15-21
Walzer, Michael (1983) Spheres of Justice New York: Basic
Books
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What are they? They are ethical commands,
demands about how individuals ought to live
(liberal)
To whom do they apply? To all people
(universalist)
Where does their authority derive from? From
human sociality, from living in a world of
others (constructivist)
What is their purpose? To promote universally
applicable standards of justice
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Arendt, Hannah (1951) The Origins of Totalitarianism New York: Harcourt Brace
Bobbio, Norberto (1996) The Age of Rights Cambridge: Polity Press
Cassese, Antonio (1990) Human Rights in a Changing World Cambridge: Polity
Donnelly, Jack (1998) International Human Rights Boulder, Co.: Westview
Donnelly, Jack (1999) ‘The Social Construction of International Human Rights’ in Tim Dunne and Nicholas J.
Wheeler (eds) Human Rights in Global Politics Cambridge: Cambridge University Press
Falk, Richard (1981) Human Rights and State Sovereignty New York: Holmes & Meier
Falk, Richard (2000) Human Rights Horizons London: Routledge
Habermas, Jurgen (2001) The Postnational Constellation: Political Essays Cambridge: Polity Press
Held, David (1995) Democracy and the Global Order Cambridge: Polity Press
Kant, Immanuel (1964) Groundwork of the Metaphysics of Morals New York: Harper & Row
Kelsen, Hans (1944) Peace Through Law Chapel Hill: University of North Carolina Press
Kelsen, Hans (1950) The Law of the United Nations New York: Frederick A. Praeger
Kymlicka, Will (1996) ‘The Good, the Bad, and the Intolerable: Minority Group Rights’ in Dissent Summer, 22-30
Parekh, Bhikhu (1999) ‘Non-Ethnocentric Universalism’ in Tim Dunne and Nicholas J. Wheeler (eds) Human
Rights in Global Politics Cambridge: Cambridge University Press
Rawls, John (1972) A Theory of Justice Oxford: Oxford University Press
Rawls, John (1993) ‘The Law of Peoples’ in Stephen Shute and Susan Hurley (eds) On Human Rights New York:
Basic Books
Teson, Fernando (1985) ‘International Human Rights and Cultural Relativism’ in Virginia Journal of International
Law 25, 4, 869-98
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What are they? They are articulations of basic human
needs in society, e.g. food, shelter, work (or they
should be – as Marx pointed out in On the Jewish
Question, the language of human rights has been
hijacked to mean something else) (radical)
To whom do they apply? In theory, to all people
(universalist), but in practice, they are enjoyed only
by the powerful
Where does their authority derive from? From reality,
from material conditions of existence (constructivist)
and from ‘species being’ (essentialist)
What is their purpose? To improve conditions of life
and protect people from exploitation
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Barta, Tony (1987) ‘Relations of Genocide: Land and Lives in the
Colonization of Australia’ in I. Wallimann and M. Dobkowski (eds)
Genocide and the Modern Age New York: Greenwood
Brass, Tom (1999) The Political Economy of Unfree Labour Cambridge:
Cambridge University Press
Cohen, G. A. (1995) Self-Ownership, Freedom and Equality Cambridge:
Cambridge University Press
Cromwell Cox, Oliver (1948) Caste, Class and Race New York: Doubleday
Genovese, Eugene (1965) The Political Economy of Slavery New York:
Vintage
Marx, Karl (1978; original 1844) ‘On the Jewish Question’ in Robert
Tucker (ed.) The Marx-Engels Reader New York: Norton & Co.
Ste Croix, Geoffrey (1981) The Class Struggle in the Ancient Greek World
London: Duckworth
Sartre, Jean-Paul (1968) On Genocide Boston: Beacon Press
Sklair, Leslie (2002) Globalization: Capitalism and Its Alternatives
Oxford: Oxford University Press
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What are they? They are individual freedoms
from the state, e.g. freedom to speak,
believe, own, consume (liberal)
To whom do they apply? To all people in
theory, but they have to be achieved
(universalist)
Where does their authority derive from? From
principles of just entitlement (constructivist)
What is their purpose? To protect rational
self-interest against state intervention
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Cranston, Maurice (1954) Freedom: A New Analysis
London: Longman
Cranston, Maurice (1962) Human Rights Today
London: Ampersand
Cranston, Maurice (1967) ‘Human Rights, Real and
Supposed’ in D. D. Raphael (ed.) Political Theory and
the Rights of Man Bloomington: Indiana University
Press
Cranston, Maurice (1973) What are Human Rights?
London: Bodley Head
Nozick, Robert (1974) Anarchy, State and Utopia
Oxford: Basil Blackwell
Steiner, Hillel (1994) An Essay on Rights Oxford:
Blackwell
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What are they? They are political constructs
(radical)
To whom do they apply? In theory, all people,
but in practice, to men (universalist)
Where does their authority derive from? In
practice, from the gendered discourse of the
public sphere (constructivist)
What is their purpose? In theory, to challenge
the exclusion of women from the political
category of ‘human’
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Ashworth, Georgina (1999) ‘The Silencing of Women’ in Tim Dunne and Nicholas J.
Wheeler (eds) Human Rights in Global Politics Cambridge: Cambridge University
Press
Binion, Gayle (1995) ‘Human Rights: A Feminist Perspective’ in Human Rights
Quarterly 17, 509-526
Canning, Victoria (2010) ‘Who’s Human? Developing Sociological Understandings
of the Rights of Women Raped in Conflict’ in International Journal of Human Rights
14, 6, 849-864
MacKinnon, Catherine (1993) ‘Crimes of War, Crimes of Peace’ in Stephen Shute
and Susan Hurley (eds) On Human Rights New York: Basic Books
Merry, Sally E. (2005) Human Rights and Gender Violence Chicago: University of
Chicago Press
Peterson, V. Spike and Parisi, Laura (1998) ‘Are Women Human? It’s Not an
Academic Question’ in Tony Evans (ed.) Human Rights Fifty Years On: A
Reappraisal Manchester: Manchester University Press
Rao, Arati (1993) ‘Right in the Home: Feminist Theoretical Perspectives on
International Human Rights’ in National Law School Journal 1, 62-81
Thomas, Dorothy and Beasley, Michele (1993) ‘Domestic Violence as a Human
Rights Issue’ in Human Rights Quarterly 15, 36-43
Wollstonecraft, Mary (2004; original 1792) A Vindication of the Rights of Woman
Harmondsworth: Penguin
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What are they? They are safeguards against
threats to human existence (radical)
To whom do they apply? To all people
(universalist)
Where does their authority derive from? From
the universal frailty of the human condition
(essentialist)
What is their purpose? To provide security in
increasingly risky conditions
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Mooney, Annabelle (2014) Human Rights and the
Body: Hidden in Plain Sight Aldershot: Ashgate
Turner, Bryan S. (1993) ‘Outline of a Theory of Human
Rights’ in Sociology 27
Turner, Bryan S. (1995) ‘Rights and Communities:
Prolegomenon to a Sociology of Rights’ in Australian
and New Zealand Journal of Sociology 31, 2
Turner, Bryan S. (1997) ‘A Neo-Hobbesian Theory of
Human Rights: A Reply to Malcolm Waters’ in
Sociology 31, 3
Turner, Bryan S. (2006) Vulnerability and Human
Rights University Park, Penn: Pennsylvania State
University Press
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What are they? They are a ‘language’ that
helps us articulate our desires (radical)
To whom do they apply? To all people
(universalist), although the language takes
different forms depending on context
Where does their authority derive from? From
specific historical struggles (constructivist)
What is their purpose? To provide a language
to oppose oppression and discrimination
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Bauman, Zygmunt (1989) Modernity and the Holocaust Cambridge: Polity Press
Bryce-Laporte, R. S. (1971) ‘Slaves as Inmates, Slaves as Men: A Sociological Discussion of Elkins’ Thesis’ in A. J. Lane (ed.) The Debate
Over Slavery Chicago: University of Illinois Press
Cohen, Stan (2001) States of Denial Cambridge: Polity Press
Douzinas, Costas (2000) The End of Human Rights Oxford: Hart
Douzinas, Costas (2007) Human Rights and Empire: The Political Philosophy of Cosmopolitanism New York: Routledge-Cavendish
Fredrickson, G. and Lasch, Christopher (1971) ‘Resistance to Slavery’ in A. J. Lane (ed.) The Debate Over Slavery Chicago: University of
Illinois Press
Gaete, Roland (1991) ‘Postmodernism and Human Rights: Some Insidious Questions’ in Law and Critique, 2, 2, 149-170
Lyotard, Jean-Francois (1993) ‘The Other’s Rights’ in Stephen Shute and Susan Hurley (eds) On Human Rights New York: Basic Books
Melvin, Jennifer (2010) ‘Reconstructing Rwanda: Balancing Human Rights and the Promotion of National Reconciliation’ in International
Journal of Human Rights 14, 6, 932-951
Miller, Hannah (2010) ‘From “Rights-Based” to “Rights-Framed” Approaches: A Social Constructionist View of Human Rights Practice’ in
International Journal of Human Rights 14, 6, 915-931
O’Byrne, Darren J. (2012) ‘On the Sociology of Human Rights: Theorizing the Language-structure of Rights’ in Sociology 46, 5, 829-43
Short, Damien (2007) ‘The Social Construction of “Native Title” Land Rights in Australia’ in Current Sociology 55
Stammers, Neil (1999) ‘Social Movements and the Social Construction of Human Rights’ in Human Rights Quarterly 21
Waters, Malcolm (1995) ‘Globalization and the Social Construction of Human Rights’ in Australian and New Zealand Journal of Sociology
31, 2
Waters, Malcolm (1996) ‘Human Rights and the Universalisation of Interests: Towards a Social Constructionist Approach’ in Sociology 30,
3
Wendt, Alexander (1999) Social Theory of International Politics New York: Cambridge University Press
Wilson, Richard Ashby (2006) ‘Anthropology and Human Rights in a New Key: The Social Life of Human Rights’ in American
Anthropologist 108
Woodiwiss, Anthony (2005) Human Rights London: Routledge
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What are they? They are convenient fictions,
articulations of a specific sense of what is
‘right’ (communitarian)
To whom do they apply? To whoever they
need to apply to (relativist)
Where does their authority derive from? From
the practical need to find solutions to certain
problems (constructivist)
What is their purpose? To provide moral
legitimacy for such solutions
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Brown, Chris (1999) ‘Universal Human Rights: A
Critique’ in Tim Dunne and Nicholas J. Wheeler
(eds) Human Rights in Global Politics Cambridge:
Cambridge University Press
Bufacchi, Vittorio (2008) ‘The Truth About Rights’
in Journal of Human Rights 7, 4, 311-326
Ignatieff, Michael (2001) Human Rights as Politics
and Idolatry Princeton: Princeton University Press
Rorty, Richard (1993) ‘Human Rights, Rationality
and Sentimentality’ in Stephen Shute and Susan
Hurley (eds) On Human Rights New York: Basic
Books
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What are they? They are neither legal nor social
constructs but commands from God necessary
for building the ‘good society’ (e.g. security,
food, clothing, housing, education), and thus
clearly distinct from the rights of the state or the
rights of the individual (e.g. liberty which is a
social construct) (communitarian)
To whom do they apply? To all people
(universalist)
Where does their authority derive from? From
God, via the core concept of human dignity which
is at the heart of Islamic teachings (essentialist)
What is their purpose? To lay the foundations for
the good society
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An-Naim, Abdullah Ahmed (1990) Toward an Islamic Reformation: Civil Liberties,
Human Rights and International Law Syracuse: Syracuse University Press
Berween, M. (2002) ‘The Fundamental Human Rights: An Islamic Perspective’ in
International Journal of Human Rights 6, 1, 61-79
Kabir, Humayun (1949) ‘Human Rights: The Islamic Tradition and the Problems of
the World Today’ in UNESCO (ed.) Human Rights: Comments and Interpretations
New York: Columbia University Press
Kadivar, Mohsen (2009) ‘Human Rights and Intellectual Islam’ in Kari Vogt, Lena
Larsen and Christian Moe (eds) New Directions in Islamic Thought: Exploring
Reform and Muslim Tradition London: I. B. Tauris
Kamali, Muhammad Hashim (2002) The Dignity of Man: An Islamic Perspective
Cambridge: Islamic Texts Society
Mohammed, Khaleel (2004) ‘A Muslim Perspective on Human Rights’ in Society 41,
2, 29-35
Nyazee, Imran Ahjan (1994) Theories of Islamic Law: The Methodology of Ijtihad
Islamabad: International Institute of Islamic Thought
Nyazee, Imran Ahjan (2003) ‘Islamic Law and Human Rights’ in Islamabad Law
Review 1, 1 & 2
Nyazee, Imran Ahjan (2011) Shari’ah Bill of Rights Islamabad: Federal Law House