What Are Human Rights?

Four Schools of Thought

Marie-Bndicte Dembour

Human Rights Quarterly, Volume 32, Number 1, February 2010,

pp. 1-20 (Article)

Published by The Johns Hopkins University Press

DOI: 10.1353/hrq.0.0130

For additional information about this article

http://muse.jhu.edu/journals/hrq/summary/v032/32.1.dembour.html

Access Provided by University of Warwick at 08/18/11 8:19PM GMT

HUMAN RIGHTS QUARTERLY

What Are Human Rights?

Four Schools of Thought

Marie-Bndicte Dembour*

Abstract
A close reading of academic literature reveals that we do not all conceive
of human rights in the same way. This contribution proposes that natural
scholars conceive of human rights as given; deliberative scholars as
agreed upon; protest scholars as fought for; and discourse scholars as
talked about. The position of each of these four schools on the foundation,
universality, possible realization, and legal embodiment of human rights is
reviewed, as well as is the schools faith, or lack thereof, in human rights.
Quotations from academic texts illustrate how the four school model cuts
across the academic disciplines with examples drawn from philosophy,
politics, law, and anthropology.

* Marie-Bndicte Dembour is Professor of Law and Anthropology at the University of Sus-

sex. Her early work was on the Belgian Congo and the memory of colonialism. She then
redirected her academic interests towards conceptual critiques of human rights and the
case law of the European Court of Human Rights. She has published widely in this field,
most prominently a monograph entitled Who Believes in Human Rights? Reflections on the
European Convention (2006). She is currently the holder of a Leverhulme Major Research
Fellowship to work on a project entitled Migrants have human rights too! Critical perspec-
tives on the Strasbourg case law. She is a co-editor of Culture and Rights: Anthropological
Perspectives (Jane K. Cowan, Marie-Bndicte Dembour & Richard A. Wilson eds., 2001)
and Paths to International Justice: Social and Legal Perspectives (Marie-Bndicte Dembour
& Tobias Kelly eds., 2007).
The contribution presented here formed the basis for the Torkel Opsahl Memorial Lecture
2009 given by Dembour at the University of Oslo. It is a streamlined and more systematic
version of Chapter 8, entitled The human rights creed in four schools, of her 2006 mono-
graph. Dembour has benefited from presenting and/or having discussed her four-school model
at the Danish Centre for Human Rights, the Glasgow Law School and the Norwegian Centre
for Human Rights in springs 2007, 2008, and 2009 respectively. She is grateful to Richard
Hustad for pointing out that human rights orthodoxy has been moving. She also expresses
her thanks to Yuri Borgmann-Prebil, Elizabeth Craig, Neil Stammers, Paul Stenner, and Louis
Wolcher for discussing with her particular choices of materials and phrases. Responsibility
for the text remains hers.

Human Rights Quarterly 32 (2010) 120 2010 by The Johns Hopkins University Press
2 HUMAN RIGHTS QUARTERLY Vol. 32

I. Introduction

Different people hold different concepts of human rights. This proposition

might initially appear somewhat at odds with the commonly heard assertion
that human rights are both universal and obvious (in the sense that they are
derived from reason), which may suggest that human rights are unambiguous
and uncontroversial. However, there is in practice a lack of agreement on
what human rights are. Based on an analysis of the human rights academic
literature, this contribution identifies four schools of thought on human
rights.1 It proposes that natural scholars conceive of human rights as given;
deliberative scholars as agreed upon; protest scholars as fought for; and
discourse scholars as talked about. It further proposes that these four schools
act as ideal-types, which, arranged around two axes, potentially cover the
whole conceptual field of human rights (see Figure 1). This mapping exercise
is useful in that it clarifies positions from which various arguments about hu-
man rights are made, helping to understand where, why, and to what extent
agreements are reached and disagreements persist in the human rights field.
It also highlights the pregnancy of a variety of positions, which are far less
idiosyncratic than the received orthodoxy would suggest.2

II. The Schools in a Nutshell

A. Introducing Each School

The natural school embraces the most common and well-known definition
of human rights: a definition that identifies human rights as those rights
one possesses simply by being a human being. This definition, where hu-
man rights are viewed as given, can be considered the credo of the natural
school. For most natural scholars, human rights are entitlements that, at their
core, are negative in character and thus, are absolute.3 These entitlements

1. Using the word schools is misleading both in that lay people (rather than just scholars)
participate and share in this conceptualization and in that scholars associated with one
particular school may dislike being bracketed together. The word nonetheless usefully
connotes explicit or implicit adherence to a number of precepts, which is why it is
adopted here.
2. At the end of a presentation that I gave to the Danish Centre for Human Rights, two
members of the perhaps twenty-strong audience came to me (independently from each
other) to say that my identification of four schools was a relief to them, lifting their sense
of being almost a fraud in the Centre due to their fear that their position on human
rights was just too unorthodox to be acceptable.
3. The natural school tends to conceive of human rights as entailing negative obligations
that can be expressed as an obligation (e.g. on the government) to refrain from doing
2010 What Are Human Rights? 3

are based on nature, a short-cut which can stand for God, the Universe,
reason, or another transcendental source. The universality of human rights
is derived from their natural character. Natural scholars believe that human
rights exist independently of social recognition, even though recognition is
preferable. They welcome the inscription of human rights in positive law.
The natural school has traditionally represented the heart of the human
rights orthodoxy.
The orthodoxy is increasingly moving, however, towards the delibera-
tive school of thought, which conceives of human rights as political values
that liberal societies choose to adopt. Deliberative scholars tend to reject
the natural element on which the traditional orthodoxy bases human rights.
For them, human rights come into existence through societal agreement.
Deliberative scholars would like to see human rights become universal, but
they also recognize that this will require time. In addition, they understand
that this will happen only when and if everybody around the globe becomes
convinced that human rights are the best possible legal and political stan-
dards that can rule society and therefore, should be adopted. This school
invariably stresses the limits of human rights, which are regarded as fit to
govern exclusively the polity and not being relevant to the whole of moral
and social human life. Deliberative scholars often hold constitutional law
as one of the prime ways to express the human rights values that have been
agreed upon.
The protest school is concerned first and foremost with redressing injus-
tice. For protest scholars, human rights articulate rightful claims made by or
on behalf of the poor, the unprivileged, and the oppressed. Protest scholars
look at human rights as claims and aspirations that allow the status quo to
be contested in favor of the oppressed. As such, they are not particularly
interested in the premise that human rights are entitlements (though they
do not reject it). Protest scholars advocate relentlessly fighting for human
rights, as one victory never signals the end of all injustice. They accept that
the ultimate source of human rights lies on a transcendental plane, but
most of them are more concerned with the concrete source of human rights
in social struggles, which are as necessary as they are perennial. Even if
they sometimes regard the elaboration of human rights law as a goal, they
nonetheless tend to view human rights law with suspicion as participating
in a routinization process that tends to favor the elite and thus may be far
from embodying the true human rights idea.

something (e.g. torturing). Only negative obligations can be absolute, for positive obli-
gations (e.g. to provide education) are never as clear-cut as a simple prohibition to do
something. On the way human rights orthodoxys logic has been able to accommodate
positive obligations, see Marie- Bndicte Dembour, Who Believes in Human Rights? Reflections
on the European Convention 7885 (2006).
4 HUMAN RIGHTS QUARTERLY Vol. 32

The discourse school is characterized by its lack of reverence towards

human rights. In its perspective, human rights exist only because people talk
about them. Discourse scholars are convinced neither that human rights are
given nor that they constitute the right answer to the ills of the world, but
they do recognize that the language surrounding human rights has become a
powerful language with which to express political claims. Discourse scholars
fear the imperialism of human rights imposition and stress the limitations of
an ethic based on individualistic human rights. Nonetheless, some accept
that the human rights discourse, as the prominent political ethical discourse
of our time, occasionally yields positive results. But they do not believe in
human rights and often wish superior projects of emancipation could be
imagined and put into practice.

B. Mapping the Field

The four schools identified above should be approached as Weberian

ideal-types rather than fixed categories that neatly and perfectly describe
single track thought processes. The model does not assume or claim that
social reality (here, academic writings on human rights) always exactly con-
forms to its propositions. Moreover, for two people to belong to the same
school does not mean that they conceive of human rights in precisely the
same wayin many respects, they may fiercely disagree with each other.
Nonetheless, the model is able to identify the connections among broad
orientations, as the next section demonstrates by exploring the way each of
the four schools approaches various issues, including human rights law, the
foundation of human rights, their concrete realization, what it means to say
they are universal, and whether one can/should believe in them.
The four-school model leads to a mapping of the entire human rights
conceptual field, as Figure 1 suggests. In this figure, the top half of the field
corresponds to an orientation that tends to ground human rights transcenden-
tally and the bottom half to an orientation that tends to see human rights as
a society/language-based reality; the left hand-side of the field corresponds
to a liberal and individualistic orientation and the right hand-side to a more
collective orientation of social justice.4
The model was constructed abductively: while trying to make sense of
academic writings, the author identified two, three, and then four schools of

4. The scholars who identify with the liberal and individualistic orientation correspond-
ing to the left side need not be in favor of the status quo. For natural scholars who are
denouncing a situation and callingand indeed actingfor its immediate change,
see, for example Guglielmo Verdirame & Barbara Harrell-Bond, Rights In Exile: Janus-Faced
Humanitarianism (2005).
2010 What Are Human Rights? 5

Figure 1. The Human Rights Field

thought. It is only when relationships among schools were examined that it

suddenly appeared that the four schools could cover the whole conceptual
human rights field. Empirically, so far, the model has been able to accom-
modate existing views on human rights. However, its heuristic value over
time will need to be confirmed through persistence in its ability to associate
any human rights thinker with a particular school(s).

III. The Position of the Schools

A. On Human Rights Law

Natural scholars tend to celebrate human rights law. For the great majority
of them, human rights law embodies the human rights concept: the law
exists in direct continuation with the transcendental existence of human
rights. Admittedly, a small minority is not convinced that human rights law,
as it has been developed, corresponds to human rights. Nonetheless, most
natural scholars regard the development of international human rights law
in the last half-century as undeniable progress. For natural scholars, societ-
ies where human rights, by and large, are respected either already exist or
can be created.
Deliberative scholars also have great faith in the potential of human
rights law. All of their efforts are geared toward identifying, agreeing, and
6 HUMAN RIGHTS QUARTERLY Vol. 32

entrenching principles that allow for democratic decision and fair adjudica-
tion. For them, there are no human rights beyond human rights law: the law,
especially as it is embodied in constitutional principles of deliberation, is
all there is to human rights. This law is more procedural than substantive in
nature: it acts as a guide on how to do things in the political sphere.
By contrast, it would be hard to persuade protest scholars that conditions
of effective human rights protection have been realized. In their perspective,
there is always further injustice (human rights abuses) in need of redress. They
tend to distrust human rights law: they fear that it may be hijacked by the
elite and are wary of bureaucratization. They generally do not believe that
institutions, including so-called human rights institutions, can be trusted to
realize the human rights ideal. For them, human rights law is unlikely to be
true to the human rights ideal. They regard human rights law as a mitigated
progress at best and a sham at worst.
The position of the discourse scholars, the nihilists on the concept of
human rights, believe that human rights law is as good or as bad as any
other law. It must be judged in each different situation on its merits.

B. On the Foundation of Human Rights

Natural scholars believe human rights are founded in nature. However, they
are aware that founding human rights on something akin to nature is unlikely
to be universally compelling. Faced with this difficulty, many fall back on the
legal consensus. As stated above, natural scholars tend to see human rights
law to be in direct continuation with the human rights concept. From there,
conflating transcendental human rights with human rights law is a step that
some natural scholars are ready to take. This explains why a good number
of them are happy to rely on the concrete manifestation of human rights in
international law in order to dismiss the need to find a metaphysical basis
for human rights. However, logically, in the natural schools perspective, a
legal consensus can only ever be the proof of the existence of human rights,
not a foundation of human rights. Presumably, natural scholars would still
believe in human rights even in the absence of the so-called consensus that
has developed since World Word II. Indeed, occasionally, a natural scholar
rejects the present form of human rights law as wrong. Not surprisingly,
there are natural scholars who specifically refuse to rely on consensus to
found human rights. The search for an ontological basis for human rights
occupies some key natural scholars.
The protest scholars encounter the same problem as the natural scholars
when it comes to identifying the ground on which they base their belief in
human rights. Naturally suspicious of human rights law, they cannot adopt
the route followed by some natural scholars of relying on the legal consensus.
2010 What Are Human Rights? 7

Instead, they rely on the less specific idea of the historical development of
a tradition. Belgian philosopher and protest scholar Guy Haarscher speaks
of dressage, a French word that connotes the training of animals and thus,
may provocatively suggest an internalization by the individual of a logic that
is not entirely instinctive.5 The typical emphasis of this school on a learned
tradition explains why protest scholars are generally very interested in human
rights education. While a long established tradition may perhaps seem to offer
more permanence than the mere legal consensus of a particular historical
moment, those who deny the existence of human rights still criticize it. It is
ultimately as dissatisfying for protest scholars as it is for natural scholars to
shun completely a metaphysical foundation on which to base human rights.
Not surprisingly, some protest scholars seek to ground human rights on a
more metaphysical basis than a social discourse.6
The foundation of human rights concerns the natural and protest schools
only. It simply does not interest the discourse school that believes that hu-
man rights exist only because they are talked about. Discourse scholars
look at discussions of the foundation of human rights with disdain and as
fundamentally flawed. As for deliberative scholars, who see human rights as
emerging from agreement, the foundation of human rights is not an inter-
esting issue. This does not detract them from being highly concerned with
the issue of how to find, found, or reach agreement (where the emphasis
shifts, expectedly given their general orientation, to process). They are more
interested in justification than foundation.7

C. On the Realization of Human Rights

Natural scholars conceive of human rights as entitlements: entitlements to

specific objects that every individual should have respected. For them, human
beings have human rights, and human rights are typically realized through
individual enjoyment. A possession paradox arises, as noted by the natural
scholar Jack Donnelly: Where human rights are effectively protected, [the
individual] continue[s] to have human rights, but there is no need or occa-
sion to use them.8 Mr. Donnelly rephrases this idea: [H]aving a right is
of most value precisely when one does not have (the object of) the right

5. Guy Haarscher, Philosophie des Droits de lhomme 124,130 (4th ed. 1993). On the identifica-
tion of Haarscher as a protest scholar, see Dembour, supra note 3, at 23638, 24348.
6. Costas Douzinas is a prime example. See Costas Douzinas, The End of Human Rights:
Critical Legal Thought at the Turn of the Century (2000).
7. See, e.g., James W. Nickel, Making Sense of Human Rights (2d ed. 2007).
8. Jack Donnelly, Universal Human Rights in Theory and Practice 14 (1st ed. 1989). See main
text below for excerpts from Donnellys work illustrating why he can be classified as a
natural scholar.
8 HUMAN RIGHTS QUARTERLY Vol. 32

. . . . [, leading to a situation of] having (possessing) and not having (not

enjoying) a right at the same time.9 For the purpose of classification, the
important point is that most natural scholars stress that the individual has
human rights by virtue of being a human being.
Protest scholars would also accept that human beings have human rights.
Though, instead of thinking of human rights as entitlements to particular
objects that each individual, as it were, is selfishly at liberty to claim for
herself, they think of the concept of human rights as a call to ensure that the
rights of others be respected. In other words, when my rights are secured,
I must ensure that the rights of my neighbor are secured as well as the
rights of the neighbor of my neighbor and so on. In their perspective, the
problem that arises out of the possession or enjoyment of human rights is
that once individuals enjoy human rights, they often only use them for their
own benefit. The loss of the sense of obligation to fight for the human rights
of others is a betrayal of the human rights concept. For the protest school,
human rights are realized through a perpetual fight for their realization.
They conceive of human rights not so much as tangible but as a utopia or
a project always in the making (and reversible).
Having human rights does not enter the logic of the deliberative school.
For deliberative scholars, human rights serve to guide action. As such, hu-
man rights are not and cannot be a matter of possession. They lay down
the parameters of deliberation, the outcome of which is not presumed in
advance. In the perspective of this school, human rights do not directly
dictate how things should be substantively, therefore granting little sense to
the idea that human rights can be possessed. What marks the realization
of human rights is liberal, democratic, and fair processes that enable good
political governance. Human rights are realized not through possession but
through a particular mode of political action.
It makes no sense for discourse scholars to think about the realization of
human rights, as they do not believe in human rights to begin with. Discourse
scholars instead repeatedly point to the shortcomings of the human rights
discourse that does not deliver what it promises, namely, equality between
human beings. Discourse scholars are not surprised by the repeated failures
of the human rights discourse to achieve its declared goals. Many of them
intimate that a more solid project of emancipation is needed. Some simply
refrain from making grand pronouncements on ethical issues and seek, from
a resolutely empirical approach, to observe and describe the contradictory
features of human rights discourse.

9. Jack Donnelly, Universal Human Rights in Theory and Practice 9 (2d ed. 2003).
2010 What Are Human Rights? 9

D. On the Universality of Human Rights

For natural scholars, human rights derive from nature; their universality is
therefore a given. Faced with the fact that human rights have taken different
forms over time, they concede that human rights can, in practice, receive
particular articulations. These are legitimate as long as they remain true to
the principle of human rights, which, by contrast, is unique. The notion of
overlapping consensus encapsulates this idea.
For protest scholars, the ubiquity of injustice points to the universal rel-
evance of human rights. Less inclined than natural scholars to look at human
rights as entitlements to specific objects, the different articulations of human
rights over time is not a logical problem for their school of thought. Indeed,
as the world evolves, so do the forms of suffering, potentially requiring new
formulations of human rights.
For deliberative scholars, the universality of human rights is at best a
project: it is certainly not a given. In their perspective, human rights will
only become universal through the global adoption of the liberal values
they express. Whether this will happen or not remains to be seen. While
deliberative scholars would welcome the universalization of human rights
principles, not all concern themselves deeply with what is happening in
societies that they regard as geographically, politically, and culturally very
different from their own.
Discourse scholars are extremely irritated by the claims of scholars in
the other three schools about the universality of human rights. They find the
natural schools perspective intellectually untenable in view of the diversity
of moral forms in human society over time and space. They denounce its
imperialism. Discourse scholars are also wary of the deliberative school and
feel that the schools repeated invocation of consensus dangerously obscures
power relations. They tend to be more sympathetic to the position of the
protest school, which shares their commitment to denouncing injustice.

E. On Their Overall Faith/Position Toward Human Rights

Natural scholars believe in human rights. Historically, they also are the
ones who set up the parameters within which human rights came to be
both conceived and debated, at least intellectually. They have traditionally
represented the human rights orthodoxy.
Protest scholars also believe in the concept of human rights, though
they deplore the fact that human rights have been institutionally highjacked.
Thus, they call for a return to true human rights. Furthermore, they stress
that human rights constitute an extremely demanding ethic (one can never
do enough in the perpetual fight for the realization of human rights). They
10 HUMAN RIGHTS QUARTERLY Vol. 32

could be said to be to human rights what Liberation theologians are to Ca-

tholicism, and in that sense, they are dissidents from the orthodoxy.
In keeping with the religion analogy, deliberative scholars would rep-
resent secularity in human rights thought. This label does not make any
presumption about their lack or possession of religious faith. Rather, in this
context, a secular label with respect to human rights (and human rights
only) points to the fact that deliberative scholars do not believe in human
rights, even though they are entirely committed to the idea of trying to en-
act and perhaps to spread the values they associate with human rights. In a
somewhat ironic twist of language, they increasingly represent the current
human rights orthodoxy.
Finally, discourse scholars are human rights nihilists. Philosophically,
nihilism does not entail the rejection of all moral principles. Instead, follow-
ing Nietzsche, it can signal the call for new values to be created through the
re-interpretation of old values that have lost their original sense. Having to
live with the supremacy of the language of human rights in contemporary
political discourse, to the extent that discourse scholars accept this language,
they call for its re-evaluation.

IV. The Schools in the Practice of Academic Writings

A. Identifying Clues

Table 1 lays out the propositions presented above in a systematic form. It

can serve as a reference when attempting to place arguments made about
human rights in one of the four sections of the human rights conceptual field.
For example, the conflation of human rights with human rights law, whether
expressed or implicit, can generally be considered a powerful clue for an
affiliation with the natural school. However, this clue is not devoid of pos-
sible ambiguities: deliberative scholars tend to equate (rather than conflate)
human rights law with human rights, making it potentially difficult to inter-
pret a positive reference to human rights law. To complicate matters further,
some identifying clues can be missing or expressed in a very different way
than what is generally the case in that school. For example, Mark Goodale,
a recognizable natural scholar, specifically rejects current human rights law
as being unfaithful to the true human rights.10 Moreover, the appearance of

10. See Mark Goodale, Surrendering to Utopia: An Anthropology of Human Rights 37 (2009).
[The ethnography of human rights] calls into question many of the basic assumptions
of postwar human rights theory and practice. Moreover, to the extent that the inter-
national human rights system is a reflection of these assumptions, then it too must be
reconsidered. id. See infra section IV(B) for excerpts from Goodales work illustrating
why he can be classified as a natural scholar.
 Table 1.
Systematic Comparison of the Schools
2010

Schools of thought
Natural school Deliberative Protest school Discourse
(HR old orthodoxy) school (HR dissidence) school
Human (HR nihilism)
rights (HR) (HR secularism/
new orthodoxy)
Are conceived, in short, as A given Agreed upon Fought for Talked about
Consist in Entitlements
(probably negative at their core) Principles Claims/Aspirations Whatever you put
into them
Are for Every single human being Running the First and foremost Should be, but are
polity fairly those who suffer not, for those who
suffer

Can be embodied in law? Definitelythis is the aim Yeslaw is their Should be, but law HR law exists but does
typical if not only too often betrays the not embody
mode of existence HR idea anything grand
See HR law since 1948 as Yes* Yes No No
definite progress
Are based on Nature/God/ A consensus as to A tradition of social Language
Universe/Reason how the polity should struggles
What Are Human Rights?

[with legal consensus acting be run [with reason [but with a yearning
as a fallback for many] in the background] for the transcendental]
Are realizable? Yes, through individual Yes, through No, they require a No, unsurprisingly,
enjoyment (and good political perpetual struggle they are a failure
substantive laws) organization (and implementing
(and good laws risk being an
procedural laws) abject deformation of
their ideal)
Are universal? Yes, definitely, they are Potentially, if the At source, yes, if No, their supposed
part of the structure of the consensus broadens only because universality is a
universe (even if they get suffering is universal pretence
translated in practice in
slightly different forms)
11

* Though exceptionally a natural scholar will reject the present form of human rights law as not embodying human rights.
12 HUMAN RIGHTS QUARTERLY Vol. 32

a key word can be misleading. For example, the fact that Jrgen Habermas
is famous for his discourse theory on law and democracy does not make
him a discourse scholar. As we shall see in subsection B, Habermas is best
classified as a deliberative scholar. Affiliation with a particular school, to be
securely assessed, must always be confirmed on a number of issues. Even
then, it is possible for an argument to straddle different schools.

B. Naming Some Scholars

This section places a variety of human rights scholars in each school. In each
individual case, short passages from one single text are quoted without a
further explanation as to why they can be attached to the school to which
they are attached (as the above text and table should enable the reader to
work this through alone). The selected passages reflect the personal views
of their authorthey do not represent general statements and their direct
purpose is not to rehearse or engage with the ideas of others. While the
quotations are often truncating the original text, they hopefully do not distort
the views of their authors. It should nonetheless be borne in mind that their
aim is not to capture the main point of the publication from which they
are extracted. Inevitably, the exercise also fails to do justice to the authors
arguments, which are invariably more sophisticated than the sample of words
presented here indicates.

1. In the Natural School

Alan Gewirth, philosopher, in The Community of Rights:
[A] right is an individuals interest that ought to be respected and protected; and
this ought involves, on the one side, that the interest in question is something
that is due or owed to the subject or right-holder as her personal property, as
what she is personally entitled to have and control for her own sake; and, on
the other side, that other persons, as respondents, have a mandatory duty at
least not to infringe this property.11
Are there any human rights? Or, more generally, since human rights are a spe-
cies of moral rights, are there any moral rights at all? Or, to put it still more
generally, do humans have any rights? . . . [W]here does one look to ascertain
the existence of moral rights or human rights?12
[What I call the Principle of Generic Consistency (PGC)] is the principle of hu-
man rights. . . . The argument for the PGC has . . . dialectically established that
the human rights have as their objects the necessary conditions of action and
successful action in general and that all humans equally have these rights.13

11. Alan Gewirth, The Community of Rights 9 (1996).

12. Id. at 10.
13. Id. at 19.
2010 What Are Human Rights? 13

Jack Donnelly, political scientist, in Universal Human Rights in Theory and

Practice:
If human rights are the rights one has simply because one is a human being,
as they usually are thought to be, then they are held universally, by all hu-
man beings.14
[H]uman rights claims rest on a prior moral (and international legal) entitle-
ment.15
The source of human rights is mans moral nature.16
Human rights are at once a utopian ideal and a realistic practice for implement-
ing that ideal.17

Michael Perry, lawyer, in The Idea of Human Rights: Four Inquiries:

The idea of human rightsthe idea that has emerged in international law in
the period since the Second World Waris complex.18
The idea of human rights that informs . . . international human rights docu-
ments . . . is . . . the idea that there is something about each and every human
being, simply as a human being, such that certain choices should be made
and certain other choices rejected; in particular, certain things ought not to be
done to any human being and certain other things ought to be done for every
human being.19
[T]he force of a claim about what ought not to be done to or about what
ought to be done for human beings does not depend on whether the claim is
expressed in the language of rights. Even though the language of moral rights
is . . . useful, it is not essential.20

Mark Goodale, anthropologist, in Surrendering to Utopia: An Anthropology

of Human Rights:
[A]t mid-twentieth century anthropology had established itself as the preeminent
source of scientific expertise on many empirical facets of culture and society,
. . . [but] it was at precisely this moment . . . [that anthropology] was blocked
from contributing in any meaningful way to the development of understanding
about what wasand still isthe most important putative cross-cultural fact:
that human beings are essentially the same and that this essential sameness
entails a specific normative framework.21

14. Donnelly, Universal Human Rights in Theory and Practice (2d ed.), supra note 9, at 1.
15. Id. at 12.
16. Id. at 14.
17. Id. at 15.
18. Michael J. Perry, The Idea of Human Rights: Four Inquiries 11 (1998).
19. Id. at 13.
20. Id. at 5556.
21. Goodale, supra note 10, at 18.
14 HUMAN RIGHTS QUARTERLY Vol. 32

[M]ost people intuit . . . that this essential sameness suggests an entire moral
and perhaps legal framework, one that is expressed in what is for many people
around the world an unintelligible normative language (rights), yet one that either
does, or ought to, supersede all of those political, religious, or other structures
that work to oppress, restrict, or diminish.22

2. In the Deliberative School

Jrgen Habermas, philosopher, in Between Facts and Norms: Contributions
to a Discourse Theory of Law and Democracy:
The philosopher tells citizens which rights they should acknowledge mutually if
they are legitimately to regulate their living together by means of positive law.
. . . [A] change of perspective [is] necessary if citizens are to be capable of apply-
ing the discourse principle for themselves. . . . After this change in perspective,
we can no longer ground equal communicative and participatory rights from
our vantage point. The citizens themselves become those who deliberate and,
acting as a constitutional assembly, decide how they must fashion the rights
that give the discourse principle legal shape as a principle of democracy. . . .
[Political rights] are meant to guarantee that all formally and procedurally correct
outcomes enjoy a presumption of legitimacy. . . . The scope of citizens public
autonomy is not restricted by natural or moral rights just waiting to be put into
effect. . . . Nothing is given prior to the citizens practice of self-determination
other than the discourse principle, which is built into the conditions of com-
municative association in general, and the legal medium as such.23

Michael Ignatieff, political commentator, in Human Rights as Politics and

Idolatry:
[T]here is nothing sacred about human beings, nothing entitled to worship or
ultimate respect. All that can be said about human rights is that they are neces-
sary to protect individuals from violence and abuse, and if it is asked why, the
only possible answer is historical.24
We need to stop thinking of human rights as trumps and begin thinking of them
as a language that creates the basis for deliberation. . . . [R]ights are not the
universal credo of a global society, not a secular religion, but something much
more limited and yet just as valuable: the shared vocabulary from which our
arguments can begin, and the bare human minimum from which differing ideas
of human flourishing can take root.25
The fundamental moral commitment entailed by rights is not to respect, and
certainly not to worship. It is to deliberation.26

22. Id. at 57.

23. Jrgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and
Democracy 12628 (1996).
24. Michael Ignatieff, Human Rights as Politics and Idolatry 83 (2001).
25. Id. at 95.
26. Id. at 84.
2010 What Are Human Rights? 15

Tom Campbell, lawyer, in Rights: A Critical Introduction:

My view is that what rights people have is a matter of social fact, . . . [though
I] accept that moral judgment is involved in answering the next question: what
rights ought to exist?27
[R]ights as we know them are contingent historical phenomena with inherited
meanings and contents, rather than cultural and historical universals, although
this is what we may strive to make them for the future.28
[R]ights do not exist until they are routinely secured. . . . [The question to be
answered is] how we can best turn manifesto rights which express demands or
proposals as to what rights ought to exist into rights that actually do exist.29

Sally Merry, anthropologist, in Human Rights and Gender Violence: Translat-

ing International Law into Local Justice:
Human rights are part of a distinctive modernist vision of the good and just
society that emphasizes autonomy, choice, equality, secularism, and protection
of the body.30
Over time, a gradual expansion of norms creates institutional structures, leading
ultimately to a norms cascade as the ideas of human rights become widespread
and internalized.31
Instead of viewing human rights as a form of global law that imposes rules, it
is better imagined as a cultural practice, as a means of producing new cultural
understandings and actions. The human rights legal system produces culture
by developing general principles that define problems and articulate normative
visions of a just society in a variety of documents ranging from lawlike ratified
treaties to nonbinding declarations of the General Assembly.32
[Human rights law] is a fragmentary and largely persuasive mechanism very
much in the making.33

3. In the Protest School

Jacques Derrida, philosopher, in On Cosmopolitanism and Forgiveness:
Where have we received the image of cosmopolitanism from? And what is hap-
pening to it? . . . [H]ow can we . . . dream of a novel status . . . for the cities
of refuge, through a renewal of international law?34

27. Tom Campbell, Rights: A Critical Introduction, at xii (2006).

28. Id. at xvii.
29. Id. at 206.
30. Sally Engle Merry, Human Rights and Gender Violence: Translating International Law into Local
Justice 220 (2006).
31. Id. at 221.
32. Id. at 22829.
33. Id. at 227.
34. Jacques Derrida, On Cosmopolitanism and Forgiveness 3 (Mark Dooley trans., 2001).
16 HUMAN RIGHTS QUARTERLY Vol. 32

There is still a considerable gap separating the great and generous principles
of the right to asylum inherited from the Enlightenment thinkers and from the
French Revolution and, on the other hand, the historical reality . . . of these
principles.35
It is a question of knowing how to transform and improve the law, and of know-
ing if this improvement is possible within an historical space which takes place
between the Law of an unconditional hospitality, offered a priori to every other,
to all newcomers, whoever they may be, and the conditional laws of a right
to hospitality without which The unconditional Law of hospitality would be in
danger of remaining a pious and irresponsible desire, without form and without
potency, and [in danger] of . . . being perverted at any moment.36

Neil Stammers, political/social theorist, in Human Rights and Social Move-

ments:
This book explores the analytical significance of the historical link between
human rights and social movements, arguing that ordinary peopleworking
together in social movementshave always been a key originating source of
human rights.37
[T]he historical emergence and development of human rights needs to be
understood and analysed in the context of social movement struggles against
extant relations and structures of power.38
[O]nce institutionalised[,] human rights come to stand in a much more ambiguous
relation to power. While they can still be used to challenge power, their origins
and meanings as struggle concepts can get lost or be switched in ways that
result in human rights becoming a tool of power, not a challenge to it.39

Upendra Baxi, lawyer, in The Future of Human Rights:

I take it as axiomatic that the historic mission of contemporary human rights
is to give voice to human suffering, to make it visible, and to ameliorate it.40
Whether or not a world bursting forth with human rights norms and standards
is a better world than one bereft of human rights languages still remains an
open question.41
[T]he originary authors of human rights are people in struggle and communities
of resistance.42

35. Id. at 11.

36. Id. at 2223.
37. Neil Stammers, Human Rights and Social Movements 1 (2009).
38. Id. at 2.
39. Id. at 3.
40. Upendra Baxi, The Future of Human Rights 6 (2d ed. 2006).
41. Id. at 2.
42. Id. at xiv.
2010 What Are Human Rights? 17

What makes contemporary human rights movements precious is the fact that they
. . . deny all cosmological, as well as terrestrial, justifications for the imposition
of unjustified human suffering.43

June C. Nash, anthropologist, in Mayan Visions: The Quest for Autonomy

in an Age of Globalization:
When grassroots movements converge, . . . the particular merges with the
universal as the claims of poor market vendors to keep their posts in the old
market merge with the plea to end the war raised by other speakers at [the
protest I described above]. Frequently these lesser voices are lost as a move-
ment gains power, but their claims are the elemental challenges for justice that
ignite social movements.44
A hidden benefit of global integration is the opening up of local protests against
growing inequalities to a worldwide audience. This depends on a conscientious
press whose reports are made available to a wide audience. It also depends upon
data collection agencies inspired by human rights concerns. The conjuncture
of these two conditions made the Chiapas uprising available to a wide reading
public throughout the world. The press and human rights NGOs provided both
a mirror for the indigenous people to perceive how the world was responding
to their protest and a catalyst to world opinion.45

4. In the discourse School

Alasdair MacIntyre, philosopher, in After Virtue: A Study in Moral Theory:
[Rights is one of three concepts which occupy a] key place . . . in the distinctively
modern moral scheme . . . . By rights I do not mean those rights conferred
by positive law or custom on specified classes of person; I mean those rights
which are alleged to belong to human beings as such and which are cited as a
reason for holding that people ought not to be interfered with in their pursuit
of life, liberty and happiness. . . . [T]he truth is plain: there are no such rights,
and belief in them is one with belief in witches and in unicorns.46
The best reason for asserting so bluntly that there are no such rights is indeed
of precisely the same type as the best reason which we possess for asserting
that there are no witches and the best reason which we possess for asserting
that there are no unicorns: every attempt to give good reasons for believing that
there are such rights has failed.47

Wendy Brown, political theorist, in an article entitled The Most We Can

Hope For . . .: Human Rights and the Politics of Fatalism:

43. Id. at xxiii.

44. June C. Nash, Mayan Visions: The Quest for Autonomy in an Age of Globalization 213
(2001).
45. Id. at 253.
46. Alasdair MacIntyre, After Virtue: A Study in Moral Theory 6869 (3d ed. 2007).
47. Id. at 69.
18 HUMAN RIGHTS QUARTERLY Vol. 32

What are the implications of human rights assuming center stage as an interna-
tional justice project, or as the progressive international justice project?48
[W]e must take account of that which rights discourse does not avow about
itself. It [the rights discourse] is a politics and it organizes political space, often
with the aim of monopolizing it. It also stands as a critique of dissonant political
projects, converges neatly with the requisites of liberal imperialism and global
free trade, and legitimates both as well. If the global problem today is defined as
terrible human suffering consequent to limited individual rights against abusive
state powers, then human rights may be the best tactic against this problem. But
if it is diagnosed as the relatively unchecked globalization of capital, postcolonial
political deformations, and superpower imperialism combining to disenfranchise
peoples in many parts of the first, second, and third worlds . . ., other kinds of
political projects . . . may offer a more appropriate and far-reaching remedy
for injustice defined as suffering and as systematic disenfranchisement from
collaborative self-governance.49

Makau Mutua, lawyer, in Human Rights: A Political and Cultural Critique:

I wrote this book . . . [because] I wanted to explain why I believe that the hu-
man rights corpus should be treated as an experimental paradigm, a work in
progress, and not a final inflexible truth. It is important that the human rights
movement be fully exposed so that its underbelly can be critically examined. I
know that many in the human rights movement mistakenly claim to have seen
a glimpse of eternity, and think of the human rights corpus as a summit of hu-
man civilization, a sort of an end to human history. This view is so self-righteous
and lacking in humility that it of necessity must invite probing critiques from
scholars of all stripes.50

Shannon Speed, anthropologist, in Rights in Rebellion: Indigenous Struggle

and Human Rights in Chiapas:
The widespread utilization of human rights as a discourse of resistance reflects
the hegemonic position of both Western legal institutions and the liberal ideology
of the global market that sustains them. . . . Theoretically, we can learn more
by looking at the various reappropriations of the discourse of human rights,
and the ways that they emerge in particular interactions: the way the tool is
held by particular social actors in particular contexts. Politically, we can even
embrace the discourse to support the people we work with when it is neces-
sary, based on our own historically and politically contingent interpretations
and understandings.51

48. Wendy Brown, The Most We Can Hope For. . .: Human Rights and the Politics of
Fatalism, 103 S. Atl. Q. 451, 453 (2004).
49. Id. at 46162.
50. Makau Mutua, Human Rights: A Political and Cultural Critique, at ixx (2002).
51. Shannon Speed, Rights in Rebellion: Indigenous Struggle and Human Rights in Chiapas 181
(2008).
2010 What Are Human Rights? 19

V. Final Observations

A. Avoiding Boxing Academic Disciplines in Particular Corners

The model presented in this contribution does not assume that one discipline
is tied to a particular conception of human rights. As the above examples
demonstrate, two scholars who are trained in the same discipline do not
have to share the same conception of human rights.52 In light of the over-
simplified external renditions of disciplines current in human rights scholar-
ship (of the type: anthropologists asserting that lawyers believe that . . . or
vice-versa), the fact that the model allows every academic discipline to be
found anywhere in the human rights conceptual field should be welcomed.
While the exercise of naming particular representatives of each school has
only been done here with respect to philosophy, political theory, law, and
anthropology, the process could no doubt be repeated with respect to fur-
ther disciplines such as sociology, international relations, cultural studies,
psychology, history, as well as theoretical perspectives, such as feminism.

B. The Respective Prevalence of the Schools

An empirical investigation of the actual prevalence of the schools remains

to be conducted. Nonetheless, this article will venture to offer some pre-
liminary suggestions as to the respective influence of each school. As hinted
above, the natural school has long represented, in the Western world at
least, the prevalent common sense or human rights orthodoxy that defines
human rights as the rights that everybody has by virtue of being a human
being. However, in academic circles, a new orthodoxy, represented by the
deliberative school, seems to be replacing this old orthodoxy. The protest
school seems to host the most human rights activists (and thus perhaps also
activist-scholars). The discourse school of thought, with its lack of faith in
human rights, is probably the least prevalent school, especially among hu-
man rights academics who most likely choose their field of research partly
out of a commitment to furthering the concept of human rights: discourse
scholars do not even share the non-transcendental commitment to human
rights that characterizes the deliberative school of thought.

52. For some additional linking of particular scholars to each of the four schools, see Dembour
supra note 3, at 23271.
20 HUMAN RIGHTS QUARTERLY Vol. 32

Interestingly, some empirical qualitative work, which is admittedly lim-

ited, suggests that a variety of positions are found among non-scholars in a
way that echoes the model presented in this article.53

C. The Attractions of Each and Every School

For the sake of conceptual clarity, the model has been presented here in
a clear-cut manner. However, it should be stressed that both multiple and
ambiguous affiliations are possible.54 Each school of thought presents per-
suasive argumentsall have something of interest to offer. Not surprisingly
then, many scholars, including the author and some of the scholars quoted
above, waver in their orientations.

53. Paul Stenner, Identifying Patterns Amongst Lay Constructions of Human Rights: A Psycho-
social Approach, Paper given at the workshop Towards a Sociology of Human Rights:
Theoretical and Empirical Contributions at the International Institute for the Sociology
of Law, Oati, Spain (2425 May 2007) (on file with author). Stenner notes that the lay
positions on human rights he identifies by recourse through Q methodology overlap to
a large extent with the four schools identified in this contribution. Id.
54. For some concrete examples, see Dembour, supra note 3, at 25861.